North Carolina Engineering Speech

Wayne Nutt is an engineer—and that may be a crime

Wayne Nutt spent over 37 years as a practicing engineer, mostly working for the DuPont corporation in North Carolina. In that time, he worked with a variety of different technologies and designed and built a variety of things, including pipes for transportation of fluid, while developing deep expertise in chemical engineering and technology.

Although Wayne is formally trained as an engineer (University of Iowa ‘67) and worked as an engineer, he’s never been a licensed engineer—none of the projects he worked on at DuPont required a stamp from a professional engineer, and, by working directly for DuPont, he avoided the licensing requirement in the various states where he worked (which included Texas, Tennessee, and briefly Virginia, in addition to his primary base in North Carolina).

Wayne is also a man with opinions, and he has regularly expressed them in public, more so since his retirement in 2013. He has written letters to county and state government officials about proposed projects; he has objected to an error he discovered in the drainage study a licensed engineer conducted for a proposed development in his hometown of Ogden; he has testified before a county commission about what he calls a “simple addition” error made in a traffic engineer’s report to the county. Simply put, like many lifelong engineers, Wayne notices when things are wrong, and it bugs him.

This has gotten him into trouble most recently when he agreed to help his son, Kyle, a North Carolina attorney, with a case about a piping system that had flooded a few local homes. Both sides in the case had retained experts, but none of the experts discussed the pipe’s capacity or what the effect of a blockage might be on the flow of fluid through the pipes. So, Wayne offered to tell them about it. From Wayne’s perspective, it was a simple calculation that just required him to pick up the book Cameron Hydraulic Data off his bookshelf and do a little simple math—or, at least, math that was pretty simple for someone who had been doing this his whole life.

That simple math, though, turned into a problem when Wayne was deposed in the underlying case. After Wayne testified truthfully that he was not (and never had been) a licensed engineer, the lawyers for the defendant threatened to report him to the North Carolina Board of Examiners for Engineers and Surveyors. Wayne didn’t take the threat seriously; he wasn’t designing anything or building anything, he was just offering his opinion about something that might have happened in the past.

The Board, though, did take it seriously. The Board’s position, as summed up in an email from its attorney, is “that any testimony that requires engineering knowledge to adequately provide and to protect the public falls with the definition of the practice of engineering and requires [an engineer] license.” Even if a judge rules that someone’s testimony is admissible in court, the Board makes a separate determination of whether the testimony was too steeped in “engineering knowledge” and therefore the unlicensed practice of engineering—and, therefore, a crime. Not only was Wayne’s testimony in the deposition probably a crime, but many of his other public statements about engineering seem (at least in the Board’s view) to have been crimes as well.

In other words, the Board’s position is that Wayne did not need a license to actually engineer things in North Carolina. He only needs a license to talk about how to engineer things in North Carolina. In the Board’s view, Wayne should either become a licensed North Carolina engineer or simply shut up.

Wayne does not want to become a licensed North Carolina engineer because he is 77 years old and not looking for a new job. He also does not want to shut up because he is Wayne Nutt, and when he finds a math error in someone else’s work or sees a question that he knows how to answer, he intends to speak up. But the Board is moving against him anyway—in May, they sent a certified letter to his house informing him that they were investigating charges that had been brought against him for the unlicensed practice of engineering in the form of answering questions at his deposition.

Engineering regulation in North Carolina

North Carolina, like every state in the country, licenses engineers.[i] And licensed professional engineers play an important role under North Carolina law. A professional engineer, like a licensed architect, gets a personalized stamp that can be used to approve plans or designs.[ii] And that stamp matters. Certain kinds of building permits require a stamp from an engineer or architect.[iii] Certain public buildings cannot be constructed without a stamp from an engineer or architect.[iv] Cities cannot use red-light cameras unless an engineer has stamped the traffic plan that sets the timing for their yellow lights.[v]

Becoming a licensed engineer is correspondingly onerous: Would-be engineers must pass two examinations, pay fees, meet minimum education and experience requirements, and get a certain number of continuing-education hours each year.[vi]

But North Carolina, also like every state in the country, has an “industrial exemption” to its licensing requirement.[vii] That exemption means that unlicensed people are free to work as engineers—to design, build, or engineer things like pipelines or machinery—so long as they work for a business that is making a product. If someone is hired to design a system of drainage pipes for a town, that person likely needs to be a licensed engineer. If someone, like Wayne Nutt, is hired to design a system of drainage pipes for DuPont, that person can generally work without a license.

And that is exactly what most engineers do. According to one scholar, about 80 percent of Americans who earn a living as an engineer do not hold a license to do so. They actually engineer things, but because they work for a manufacturer and have no desire to officially stamp plans, they do not need a license.

The problem is that North Carolina (again like other states) has a sweeping definition of what it means to “practice” engineering that goes far beyond stamping plans. Under state law, “any service or creative work, the adequate performance of which requires engineering education, training, and experience, in the application of special knowledge of the mathematical, physical, and engineering sciences to such services or creative work as consultation, investigation, evaluation, planning, and design of engineering works and systems” is the “practice of engineering.”[viii] In other words, creative work requiring you to do math about the physical world is engineering. And, unless you work for a big company, it’s probably illegal.

This puts Wayne Nutt, like many other American engineers in an awkward position. He did not need a license to be an engineer, but the state says he needs a license if he wants to talk about engineering.

Occupational licensing boards are the new censors in America

Wayne Nutt is not alone. 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.”

And these growing crackdowns on speech come alongside a national explosion of occupational-licensing requirements. Today, about a fifth of American workers need a license from the government to do their job. With the boards in charge of those licenses increasingly acting as if the First Amendment does not apply to them, the speech rights of literally millions of Americans hang in the balance.

Legal claims

The legal claims are straightforward. Talking about engineering—including talking about engineering on a witness stand—is speech, and the government cannot make it illegal to speak on certain topics without a license. There is no exception to the First Amendment for occupational licensing, and there is no point at which speech becomes so complex that it loses its First Amendment protection. Quite the contrary: The First Amendment protects our right to hear useful speech on complex topics, and the fact that Wayne wants to share his opinions about important and complicated engineering questions make it more, not less, important that his speech receive legal protections.

Litigation Team

This case is being litigated by IJ Senior Attorney Robert McNamara and IJ Attorney Joseph Gay, along with local counsel Cory Reiss of the Wilmington law firm of Reiss & Nutt, PLLC.

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.

[i] N.C. Gen. Stat. §§ 89C-1 to 89C-28.

[ii] N.C. Gen. Stat. § 89C-16.

[iii] N.C. Gen. Stat. § 160D-1110(b).

[iv] N.C. Gen. Stat. § 133-1.1.

[v] N.C. Gen. Stat. § 160A-300.1.

[vi] N.C. Gen. Stat. § 89C-13.

[vii] N.C. Gen. Stat. § 89C-25.

[viii] N.C. Gen. Stat. § 89C-3.