Denials of Professional Licenses Based on Past Social Media Postsh
Denials of Professional Licenses Based on Past Speech
Joshua Gray was denied a Maine private investigator license on the ground that his past posts erred in criticizing a Maine State Police lieutenant; we’ve filed an amicus brief supporting the petition asking the Supreme Court to review the matter.
My UCLA First Amendment Amicus Brief Clinic students Max Hyams, Eimile Nolan, and Simon Ruhland and I have just filed an amicus brief on behalf of the Foundation for Individual Rights in Education in support of the cert. petition in Gray v. Maine Department of Public Safety. Here’s the summary of the case from the opinion below:
Joshua A. Gray appeals from a judgment of the Superior Court affirming the Department of Public Safety’s denial of Gray’s application for a professional investigator license based on posts and comments that Gray made on social media, using an account bearing the name of his out-of-state private investigation business, concerning a Maine State Police lieutenant.
Gray argues that the court erred in concluding that the Department had not, in denying his application, violated his free speech rights …. Although Gray challenges the determination that he acted with “actual malice” in posting and commenting on social media, we conclude that actual malice need not be shown and that we must apply intermediate scrutiny to review the licensing standards as applied to Gray here. Applying that standard, we affirm the judgment.
And here’s our brief:
Summary of Argument
Nearly a quarter of American workers are in occupations subject to licensure requirements. Paul J. Larkin, Jr., Public Choice Theory and Occupational Licensing, 39 Harv. J.L. & Pub. Pol’y 209, 210 (2016). Still more Americans are students at universities or in other programs who are seeking to become licensed professionals.
If they could lose their licenses, or be denied licenses, or be expelled from licensing programs because of their public speech on controversial issues, they would be powerfully chilled from engaging in such speech. Many professionals and would-be professionals would thus feel pressured to “‘steer … wider of the unlawful zone'” and remain silent on issues of public concern, such as police misconduct. New York Times Co. v. Sullivan, 376 U.S. 254, 279 (1964) (quoting Speiser v. Randall, 357 U.S. 513, 526 (1958)). As a result, the government could indirectly silence criticism and prescribe ideological orthodoxy.
Participants in “public debate,” in particular, routinely make honest mistakes, and thus utter “erroneous statement[s].” Id. at 279, 271. That is also true in public speech about public officials such as police lieutenants. See id. (holding that a police commissioner is a public official); Coughlin v. Westinghouse Broad. & Cable Inc., 780 F.2d 340, 342 (3d Cir. 1986) (holding that even a rookie patrol officer is a public official). Were licensing boards free to deny licenses to applicants for mere errors—without having to prove “actual malice”—there would be a vast pool of errors to select from. To the chilling effect described above would then be added a broad opportunity for viewpoint-discriminatory judgment about just which errors warrant the denial of a license.
This road to censorship, paved by the decision below, is inconsistent with this Court’s precedents. Those precedents have declined to recognize a general exception for “professional speech.” They have rejected a balancing-of-social-values approach to recognizing new First Amendment exceptions. And they have instructed that content-based speech restrictions falling outside of the recognized exceptions are subject to strict scrutiny.
This case provides a good vehicle for diminishing the risk of such censorship, by resolving the split among state and federal courts on the standard of review applicable to professional speech restrictions and speech-based licensing decisions. The petition for certiorari should thus be granted.
[I.] Lower courts are split and uncertain on the proper standard for evaluating restrictions on professional speech.
Lower courts are divided on how to evaluate professional speech restrictions, whether those restrictions threaten denial of a license, withdrawal of a license, or other disciplinary action. (Just as decisions not to hire employees based on political affiliation are subject to the same First Amendment standards as decisions to fire employees based on political affiliation, Rutan v. Republican Party of Illinois, 497 U.S. 62, 65 (1990), decisions not to license professionals based on their speech should be subject to the same First Amendment standard as decisions to withdraw a license based on speech.)
“Speech is not unprotected merely because it is uttered by professionals.” Nat’l Inst. of Fam. & Life Advocs. (NIFLA) v. Becerra, 138 S. Ct. 2361, 2371-72 (2018). Though government power “to regulate the professions is not lost whenever the practice of a profession entails speech,” “the principle that the government may restrict entry into professions and vocations through licensing schemes has never been extended to encompass the licensing of speech per se or of the press.” Lowe v. SEC, 472 U.S. 181, 228, 229-30 (1985) (White, J., concurring in judgment). Yet lower courts are unclear on just which test applies to cont
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