First Amendment Likely Protects Even Unlicensed Engineers' Right to Provide Expert Opinion in Government Proceedings

(Note that the court dealt with a professional licensing board's threat of punishment for such engineers; it doesn't deal with the separate question whether a government body may refuse to accept testimony from an unlicensed expert.)

From the Conclusion to last week's decision by Judge Richard Myers (E.D.N.C.) in Nutt v. Ritter:

At its core, this case concerns the extent to which a law-abiding citizen may use his technical expertise to offer a dissenting perspective against the government. Stating that dissent required the speaker to use his expertise in several ways. He had to do some math. He had to apply recognized methodologies. He even had to write a report memorializing his work.

Some of that work may plausibly be considered conduct. But it ends up providing him the basis to speak his mind. Thus, although the government may properly exercise its interests in policing the use of technical knowledge for nonexpressive purposes, those interests must give way to the nation's profound national commitment to free speech in this case. At the very least, the government had to show that it seriously considered less restrictive alternatives before targeting pure speech. The government failed to meet its obligations under the First Amendment.

And here's more from the opinion:

Nutt worked as a chemical engineer from 1967 to 2013. He never obtained a professional engineering license because he qualified to practice engineering under the industrial exception of the licensing requirement in North Carolina. A portion of his responsibilities involved overseeing the design, construction, and repair of building trench systems to manage both stormwater and potential chemical spills at his work facility. As a result, he developed expertise in hydraulics, fluid flow, and piping systems.

Since his retirement, he has continued using his expertise to support the efforts of various local interest groups. He has testified to the Wilmington City Council regarding the flaws he identified in a development proposal's traffic impact study. He has also testified about an error he discovered in a development plan's calculation of the capacity of a stormwater detention pond. His opinion and recommendations led to meaningful changes in the design of those projects.

In 2020, he agreed to offer expert testimony in a state action (the "state lawsuit" or "Autry litigation") on behalf of a group of homeowners alleging that a stormwater management system that had flooded during Hurricane Florence was negligently designed. Nutt planned to offer in­ court testimony about the consequences of an observed blockage on the fluid-flow capacity of a diverter pipe within the contested stormwater management system. To this end, he prepared a report that showed the fluid-flow capacity of the diverter under different scenarios. His report required him to perform fluid-flow calculations, reference engineering literature and methodologies, and prepare visual representations, charts, and tables to offer an opinion within a reasonable degree of engineering certainty….

In his report, he concluded that the county-designed obstructions would reduce the diverter's capacity and result in spouting from the diverter and overflowing of the system. The Autry litigation plaintiffs' other designated expert was a licensed professional stormwater engineer, and he found Nutt's report to be helpful for his own analysis. He also found it useful to support his own prospective testimony, which concerned the design and performance of the stormwater management system as a whole. In contrast, Nutt would have offered testimony regarding the specific characteristics of the diverter, as a specific component within the system….

The North Carolina Board of Examiners for Engineers and Surveyors took the view that Nutt wasn't allowed to do what he did, because he wasn't licensed as an engineer, but the court concluded that the licensing requirements "are unconstitutional" (1) "when applied to unlicensed expert testimony requiring engineering knowledge" and (2) when applied to "expert engineering reports" more broadly:

[I]nvestigating, preparing, and writing expert engineering reports … is plainly protected activity. The reports communicated the "complete statement of all opinions [Nutt] will express [as an expert witness] and the basis and reasons for them." Although writing his expert reports required him to engage in some conduct, such as calculating the fluid-flow capacity of the diverter pipe, courts have never "drawn a distinction between the process of creating a form of pure speech (such as writing or painting) and the product of these processes (the essay or the artwork) in terms of the First Amendment protection afforded."

Moreover, as Nutt argues, producing his expert reports was integral to developing and supporting expert testimony…. Moreover, the parties in the state lawsuit relied on Nutt to furnish an expert report before deposing him. True, state law does not require expert witnesses to furnish written reports before providing deposition or trial testimony. But the discovery timeline for the state lawsuit indicates the court or the parties elected to require designated experts to produce their report summarizing their opinion before participating in depositions or at trial.  In sum, Nutt's expert reports were both integral and necessary to his testimony as an expert witness. To the extent that investigating, preparing, and writing those reports enabled him to testify as a designated expert in the state lawsuit, that activity constitutes the "'creation' of information' and thus "demands as much protection as its 'dissemination"' as verbal testimony….

[T]he Board's ban against unlicensed expert engineering reports discriminates based on the content of those reports…. [If a] "law applies to particular speech because of the topic discussed or the idea or message expressed," it is content based. Even if a law "may be described as directed at conduct" rather than speech, the law still "regulates speech on the basis of its content" when as applied to the speaker "the  conduct triggering coverage under the statute consists of communicating a message." Holder v. Humanitarian Law Project (2010).

For example, in Holder, the Supreme Court assessed whether a statute prohibiting providing material support in the form of speech to designated terrorist organizations violated the First Amendment. Because the statute applied when the plaintiffs' speech imparted a specific skill or communicated specially derived advice (but did not apply when the plaintiffs' speech imparted general or unspecialized knowledge), the Court held that the statute "regulate[d] speech on the basis of its content."

Cohen v. California (1971) is also a case that "involved a generally applicable regulation of conduct," namely "barring breaches of the peace." In Cohen, if the speaker had not donned a jacket bearing an offensive epithet ("Fuck the Draft"), the regulation barring breaches of peace would not have applied to him. Thus, the Supreme Court applied strict scrutiny to analyze the constitutionality of the breach-of-peace statute's application to the speaker….

In this case, the court cannot rely on the Board's focus on the text of the challenged statutory provisions and their operation in the abstract. Rather, to give full force to the First Amendment, the court must scrutinize the provisions in context, based on the true nature of the government's interpretation and enforcement. The Board's "long standing position" is that the Act prohibits "rendering opinions on engineering matters." The Board has long extended this position to apply to expert reports. With respect to Nutt himself, the Board expressly confirmed that producing a "chemical engineering report" and "providing opinions to a 'reasonable degree of engineering certainty"' without licensure violated the Act. As interpreted and enforced by the Board, the Act makes "distinctions" by "defining regulated speech by particular subject matter," namely speech communicating an engineering opinion. Strict scrutiny should apply….

Despite the content-based nature of the Act's challenged application to unlicensed expert engineering reports, the Board maintains intermediate scrutiny should apply based on the "exception for professional regulations that incidentally affect speech," as articulated in National Institute of Family and Life Advocates v. Becerra (2018) …. The Board places dispositive value on the fact that the Act "generally functions" as a regulation on professional conduct….

[But] when the Supreme Court rejected the idea of a professional speech doctrine, it also rejected the idea that the government could regulate any speech "uttered by professionals" simply because "it involves personalized services and requires a professional license from the State." The Court explained that that would allow the government to get a free pass to abridge speech by "simply imposing a licensing requirement." Thus, in accordance with NIFLA, this court may not except the challenged ban from strict scrutiny just because the Act "generally regulates" professional conduct. Rather, this court must decide the appropriate scrutiny level based on whether the Act as applied to expert reports targets "speech as speech," rather than professional conduct that just so happens to sweep up speech. The court decides in favor of applying strict scrutiny: The communication of engineering opinions in Nutt's expert reports triggered the bureaucratic limit Nutt seeks to abolish. Therefore, the ban against expert reports directly, rather than incidentally, regulates speech….

The court concluded that the law failed strict scrutiny, and would even have failed the less demanding intermediate scrutiny:

The Board has failed to demonstrate the link between the ban and its interest in promoting the public welfare and safeguarding property…. [T]he court has no doubt that the Act generally allows the state to effectively maintain and enforce educational and experiential standards for professional activities that often have the capacity to transform cityscapes and deflect torrential rain and turbulent winds. The issue, however, is whether the Act actually promotes the public welfare when applied to unlicensed expert engineering reports. On this issue, the evidence is scant….

[T]he Board [does] present[] some viable evidence demonstrating the ban's connection to establishing and maintaining a level of professional competence for expert engineering reports. The evidence presented shows that, although Nutt practiced chemical engineering before his retirement, he rendered opinions on stormwater engineering in his reports. And since chemical engineering and stormwater engineering are different practice areas, Nutt's prior experience as a chemical engineer does not make him competent to opine on stormwater engineering matters.

In contrast, Nutt maintains that he has the necessary experience to allow him to competently render the opinions presented in his reports. Specifically, prior to the state lawsuit, Nutt gained extensive experience designing and evaluating trench systems that managed water flow around buildings (functionally the same as stormwater drainage systems). Those systems were far simpler than the one implicated in the state lawsuit….

[But in any event], the Board must present evidence of serious governmental efforts to use less restrictive means to advance its asserted interest in establishing and maintaining a competence standard, and to the extent it remains relevant, its interest in protecting the public welfare and safeguarding property.

Nutt argues that one such means the Board could have used was its existing regulations prohibiting the unlicensed use of an official stamp to certify engineering reports. The unlicensed stamping restriction is a less restrictive alternative. It provides for "more speech, not enforced silence," to remedy "the evil[s]" of incompetent engineering practice. In this case, the Board's expert testified that members of the public would likely rely on the certification to know that an engineer had a certain level of competence and was accountable to the Board for incompetence or other professional misconduct. Thus, the unlicensed stamping restriction appears to be a less restrictive and effective alternative….

[T]he Board states that no disclaimer would prevent persons like Nutt from writing reports and testifying on matters outside their area of competence. The Board also states that no disclaimer would prevent the public or Nutt's clients from relying on his incompetent work to determine liability and remediation. However, the Board merely presents "myriad post­hoc justifications" regarding why the stamping restriction "could not be used to effectively regulate" the interests threatened by Nutt's reports. These justifications are insufficient to satisfy the Board's burden….

Plaintiff is represented by Joseph R. Gay and Robert McNamara of the Institute for Justice, and William Cory Reiss of Reiss & Nutt, PLLC.