Joshua Gray is a private investigator in Massachusetts who wishes to expand his business into his home state of Maine. He also writes about what he sees as abusive police practices. But when Gray used Facebook to criticize the conduct employees of the Maine Department of Public Safety in a fatal shooting, that very same Department denied his application for a professional investigator’s license. The reason? According to the Department, because of a handful of alleged factual errors in his Facebook posts, Gray lacks the “good moral character” required for licensure. In other words, the Department denied Gray a license because it did not like what he had to say about the conduct of its officers in a deadly police shooting.
Petition for Certiorari
A Controversial Police Shooting
Gray’s problems started when he began raising questions about the 2017 deaths of 18-year-old Ambrosia Fagre and 25-year-old Kadhar Bailey at the hands of Maine police. In Gray’s view, Fagre’s death in particular was a tragedy that could have been averted had police exercised more care. And Gray wasn’t shy about making his opinion heard, particularly on his Facebook page, where he wrote multiple posts criticizing the police and raising questions about the facts surrounding the shooting.
Needless to say, Gray’s criticisms didn’t sit well with Maine State police, who had previously objected to his criticisms of their officers. But there was little the police could do to Gray until he submitted an application for a professional investigator’s license. That’s when the Department of Public Safety started scouring Gray’s Facebook page looking for reasons to deny his application.
Eventually, the Department identified what it considered factual errors in Gray’s Facebook posts. Some of these were legitimate errors that Gray had already acknowledged. For example, in one post, Gray identified a specific officer as having shot and killed Ambrosia Fagre. When a state Attorney General’s investigation found that this officer had not shot Fagre—he had instead shot and killed Kadhar Bailey—Gray put an update on his post.
Other alleged “factual errors” weren’t errors at all, but rather were opinions with which the Department disagreed. For example, Gray characterized the shooting of Fagre as “murder,” which the Department considered a factual error. And still other alleged errors were questions or speculation, such as when Gray expressed his concern that one of the off-duty officers involved in the incident could have been drinking before the shooting.
Based on these alleged “errors,” the Department concluded that Gray could not distinguish fact from opinion, and therefore lacked the “good moral character” required for licensure.
Judicial Abdication at the Maine Supreme Judicial Court
Gray challenged his license denial and, after two trips through Maine’s intermediate appellate court, he took his appeal to the Maine Supreme Judicial Court. Remarkably, the court agreed with the Department and upheld the license denial. The court’s opinion is dangerous not just for the conclusion it reaches, but for the reasoning it uses to get there.
Had any of the police officers Gray criticized sued him for defamation, Gray would have been entitled to a host of First Amendment protections. Under the Supreme Court’s seminal decision in New York Times Co. v. Sullivan, Gray could have been found liable only after a court independently reviewed the record to ensure (1) that his statements were actually defamatory, and not mere opinion or hyperbole, and (2) that he made his statements with “actual malice.” Under the “actual malice” standard, a public figure—such as a police officer involved in a controversial shooting—may only bring a defamation claim if he can prove that the person who made false statements either knew those statements to be false or acted in reckless disregard of their truth or falsity.
Gray received none of these protections. Instead, the Maine Supreme Judicial Court expressly deferred to the Department’s conclusions about what was a fact, which facts were wrong, and whether those errors were so serious that Gray should be denied the right to work in his chosen occupation. With so little judicial protection, Gray’s appeal never stood a chance.
Occupational licensing boards are the new censors in America
But it’s not just Gray who was shortchanged by the Maine court’s ruling. That decision sets a dangerous precedent that undermines the First Amendment rights of tens of millions of Americans. That’s because, today, around 20% of American workers need a license from the government to work in their chosen occupation. On top of that, most of these licensing requirements impose “good moral character” requirements on applicants. Under the ruling in Gray’s case, all a board needs to do to deny an occupational license is find a handful of arguable errors in an applicant’s public statements, which social media makes trivially easy.
Based on the way licensing boards already conduct themselves, it’s not hard to imagine how this power will be abused. Across the country, licensing authorities are wielding their power to silence speakers they do not approve of or punish people for speech they do not like. In Oregon, the state engineering board fined Mats Järlström $500 for the crime of publicly complaining about yellow-light timing without a license. In California, a state board has tried to forbid a horseshoeing school from teaching horseshoeing to people who have not graduated from high school. And in North Carolina itself, this same state board has cracked down on drone enthusiasts who take pictures of land on the theory that these pictures constitute “surveying.”
But there is no occupational licensing exception to the First Amendment. On the contrary, the Supreme Court in National Institute of Family & Life Advocates v. Becerra (NIFLA) recently held that so-called “professional speech” is entitled to the full protection of the First Amendment.
That is why Gray, represented by the Institute for Justice, is fighting back. On September 3, 2021, Gray filed a petition for certiorari with the U.S. Supreme Court, asking it to take up Gray’s case and reverse the decision of the Maine court.
Concerns that “good moral character” requirements will be abused to shut out unpopular groups from occupational licenses are nothing new, but they are increasingly unavoidable given the rise of social media and the spread of occupational licensing. The Supreme Court’s first forays into the area involved the collision between these requirements and the First Amendment during the Red Scare. The Supreme Court enforced the First Amendment in those early cases, and yet, nevertheless, these “good moral character” requirements have continued to spread. There are now hundreds of licensed occupations that require applicants to prove they have good moral character before they will be permitted to work in their chose occupation.
The Department’s denial of Gray’s application based on misstatements on a single issue of public concern stretches the good moral character requirement so far that it would be essentially limitless. After all, there is no occupation in which honesty and truthfulness are not important. And everybody makes misstatements of fact from time to time. But today, unlike in the past, many of those misstatements will be preserved on social media. That means the government has a potentially huge trove of material that it can sift through, looking for excuses to exclude disfavored applicants from licensure.
Gray’s petition for certiorari argues that the Maine court’s primary error was its failure to apply the heightened scrutiny demanded under the First Amendment. Gray was denied a license because of the content of his speech. Under binding precedent, that sort of content-based restriction on speech is subject to the most searching judicial scrutiny, a standard of review called “strict scrutiny.” Under strict scrutiny, a law will be upheld only if it is narrowly tailored to serve a compelling government interest. Few restrictions survive this stringent review.
The Maine court did not apply strict scrutiny, and instead purported to apply a lower form of scrutiny called “intermediate scrutiny.” The court reasoned that Gray was not denied a license because of what he said, but rather because he had engaged in “unprofessional conduct”—namely, the conduct of saying things the Department alleges were wrong.
But the U.S. Supreme Court has rejected that reasoning for decades. For more than 50 years, the Court has held that even when a law is generally aimed at conduct, when a particular application of that law is triggered by speech of a particular content, that application must satisfy strict scrutiny. Thus, in the seminal case Cohen v. California, 403 U.S. 15 (1971), a content-neutral prohibition on disturbing the peace was subject to strict scrutiny when it was applied because of an offensive message written on a jacket. And the same is true here: There are many types of conduct a licensing board might consider unprofessional, but when that “conduct” is criticizing the police on Facebook, the First Amendment provides its fullest protection.
The Maine court also erred by deferring to the Department’s factual findings. Under well-established Supreme Court precedent, the Maine court was required to conduct an independent review of the record to ensure that the government’s actions did not burden protected speech. Instead, the court refused to do so, outsourcing that decision to the very agency Gray criticized, with all-too-predictable results.
This case is being litigated by IJ Senior Attorneys Paul Sherman, Robert McNamara, and Robert Johnson, and IJ Attorney John Wrench.
About the Institute for Justice
The Institute for Justice is a non-profit, public interest law firm. IJ’s pioneering defense of occupational speech and the First Amendment right to speak for a living has resulted in victories for tour guides, technology entrepreneurs, makeup artists, diet bloggers, engineers, psychologists, and others across the country.
Economic Liberty | First Amendment | Occupational Licensing | Occupational Speech
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