Jay Fink has a simple business. If you’re a Californian getting too much spam, he’ll look through your junk folder and pull out the emails that might violate California’s anti-spam law. Then you can decide whether to get a lawyer and try to sue the spammer. That’s all he does: read emails, make a list of the relevant ones, and send PDF copies. Yet California says he’s committing a crime.
That’s because California sees Jay as an unlicensed “private investigator.” To most people, those words mean Humphrey Bogart in a trench coat. To California regulators, though, it includes anyone paid to “make … any investigation for the purpose of obtaining information” on wide-ranging topics, and one of those topics is “evidence to be used before any court.” Jay’s clients let him index their email to help them prepare for lawsuits. He doesn’t have a license. So under California’s sweeping definition, Jay could go to prison for a year. He’s already received a cease-and-desist order.
What would Jay need to do to get licensed? Fill out a form? Pay a small fee? Nope. The state says he needs six thousandhours of training. Not about spam or email, but in a subject that has nothing to do with Jay’s business: things like insurance adjusting, investigative journalism, or even arson investigation.
Jay’s work, however, is protected by the First Amendment. He’s not on stakeouts with a gun. He’s not providing security. He just reads emails and shares his thoughts. On this front, the Supreme Court has been clear: “[T]he creation and dissemination of information are speech within the meaning of the First Amendment.” That means the government can’t restrict Jay’s speech without a compelling reason. It certainly can’t demand three years of irrelevant training to look through someone’s junk folder.That’s why Jay has teamed up with the Institute for Justice. To save his business, he’s filing a federal lawsuit challenging this overbroad application of California’s private investigator license. A win here will reinforce a bedrock concept from the Bill of Rights: in an occupation as much as anywhere else, the government cannot abridge the freedom of speech.
Jay Fink’s story begins about a decade ago. He was receiving hundreds of spam emails every day, and he decided to do something about it. That’s when he learned about California’s anti-spam law, which allows Californians to sue spammers about deceptive emails. It’s not about normal marketing or even annoying marketing. The law is about only unsolicited commercial emails, and only when they’re deceptive in certain, specific ways, either by using a third-party domain name without permission, falsifying header information, or using objectively misleading subject lines. 1
Based on that law, and with experience as a tech entrepreneur, Jay founded a business working to clean up the internet. All he does is review emails and pull out the ones that might violate the anti-spam law. Those might advertise high-interest payday loans, redundant credit monitoring, or seedier products from the far reaches of the internet. The one thing they all have in common is deception—for example, made-up subject lines like “You have 77 new viruses.” Clients take these deceptive emails to lawyers, who then decide which, if any, to use in court. Then eventually Jay gets paid on contingency. With tens of thousands of emails to review per account, there’s enough work to support Jay and his team of three. Over the last decade, they’ve helped hundreds of people get some recourse for gummed up inboxes.
The Private Investigator License
Even so, in the summer of 2023, Jay’s business came to a crashing halt. An analyst from the state Bureau of Security and Investigative Services had questions about Jay’s work, which Jay—unaware of a law he’d never heard of—happily answered. The analyst’s response was clear and categorical:
“You review the client’s email account information to determine if they have received Spam emails,
You make PDF’s of client’s alleged Spam emails,
To perform this work in the State of California you must be issued a Private Investigator license from the Bureau.”
Never mind that the law is clearly aimed at armed investigators. Never mind that people surely look at other people’s email thousands of times every day. The law says any investigation about broad topics, including the location of lost property, the cause of an injury, even the “acts … of any person” all must be performed by a licensee. 2 Investigations into “evidence to be used in court” must be performed by a licensee too. That’s what the law says, so Jay needs a license.
Jay, however, can’t get a license. That would require three years in fields that Jay has no experience in and that have nothing at all to do with Jay’s work: law enforcement, military policing, insurance adjustment, (actual) licensed private investigation, skip tracing of debtors, arson investigation, investigation for public criminal defense, or investigative reporting. 3 All just to “review the client’s email account information.”
That’s why Jay has partnered with the Institute for Justice to challenge California’s PI law in federal court.
Jay is bringing two categories of legal claims. The first is a free-speech claim under the First Amendment. Jay is simply receiving information from his clients, reviewing that information, and creating new, useful information in response. That’s constitutionally protected speech, which the government can’t ban without a compelling justification. Somehow needing 6,000 hours of experience to sift through emails is nowhere close.
Indeed, that restriction is so nonsensical that it would be unconstitutional even if the First Amendment didn’t apply. That’s Jay’s other kind of claim. Under the Due Process and Equal Protection clauses of the Fourteenth Amendment, all restrictions on the right to practice an occupation must have some rational connection to the occupation. And making Jay spend three years as, say, an arson investigator simply has nothing to do with identifying spam.
The Broader Context—Occupational Speech
This case is part of IJ’s broader initiative to protect occupational speech. IJ has successfully challenged licensing requirements for tour guides in Charleston and Washington, D.C., as violations of the First Amendment. IJ is also litigating cases:
- In Texas, representing a veterinarian who was fined for answering questions about animals that he hadn’t physically examined;
- In New York, representing a nonprofit that wants to help people fill out basic legal forms; and
- In Indiana, representing a woman who cannot give end-of-life guidance unless she is licensed as a funeral director.
All these cases advance the principle that the First Amendment fully applies to people who talk, write, or analyze things to earn a living. No serious person questions that the First Amendment protects the occupational speech of journalists, actors, authors, artists, and professors. But some courts have theorized that speech by so-called “professionals” somehow falls outside the First Amendment. IJ’s occupational speech cases push back against that theory: Speech is speech, and the First Amendment protects your right to speak regardless of your chosen career. Or, as the Supreme Court recently explained, “[s]peech is not unprotected merely because it is uttered by ‘professionals.’” 4
Victory here will ensure that Jay can speak with other Californians about actionable spam. It will also set a precedent in favor of speech nationwide, ensuring that unnecessary and arbitrary government regulation does not hinder people seeking access to informational services.
The defendants are Lynne Jensen, Chief of California’s Bureau of Security and Investigative Services, and Kimberly Kirchmeyer, Director of California’s Department of Consumer Affairs (which oversees the Bureau). They are sued in their official capacities because they enforce private investigator licensing in California.
The Litigation Team
The case is being litigated by IJ Attorney Andrew Ward and IJ Law & Liberty Fellow Dylan Moore. Brendan Cullen, of Sullivan & Cromwell, LLP, is local counsel.
About the Institute for JusticeFounded in 1991, the Institute for Justice litigates in the courts of law and in the court of public opinion to defend property rights, economic liberty, educational choice, and, as here, free speech. In Oregon, IJ defended a man accused of unlicensed engineering when he questioned the math used to time local traffic lights. In Kentucky, IJ defended Americans’ longest-running newspaper advice columnist after his writing was deemed “the unlicensed practice of psychology.”