Judicial Engagement in Practice: Free Speech

Adam Shelton · August 4, 2020

The Institute for Justice fights every day to ensure that all Americans enjoy the freedoms guaranteed to them by the Constitution. As part of this work, the Institute has long advocated for judicial engagement. That is, the idea that judges should analyze and evaluate the facts in every constitutional case that comes before them and not prejudge a case in favor of the government.

But what does that actually mean? What does that look like in the context of actual cases? This is the second in a series that seeks to answer just those questions. The first post explored what judicial engagement means in the context of economic liberty cases. This second post will explore judicial engagement in the context of the First Amendment and the right to free speech.

Judges generally do a much better job protecting free speech rights than economic liberty rights. There are multiple (bad) reasons behind the dichotomy in treatment. But the heightened scrutiny that judges apply in evaluating restrictions on free speech has led the government to become more creative in hiding the true purpose of the challenged restrictions.

Licensing Tour Guides

One major area in which IJ litigates concerns regulations of occupational speech. That is, regulation of speech that occurs in the course of a profession. Some regulations of speech within occupations can makes sense—especially when there is a large power and knowledge differential between the professional and client and when this differential can cause significant harm. For example, in some cases between lawyers and clients or doctors and patients.

But that is not to say that all regulations of speech between lawyers and clients or doctors and patients are constitutional. There are many instances when regulators, under the guise of protecting patients and clients, enact restrictions that go far beyond that. And the courts have rightly struck down many of these provisions, including some in which IJ filed amicus briefs (Wollschlaeger v. Governor of Florida and NIFLA v. Becerra).

But much more often, legislators and bureaucrats enact regulations restricting what people can say in the course of careers that do not present the same type of potential harms as do lawyers and doctors. For example, some localities license tour guides. The main job of a tour guide is to speak. Thus, the licensing of tour guides is actually the licensing of speech.

IJ has challenged tour guide licensing schemes in Philadelphia, Washington D.C., New Orleans, Savannah, and Charleston as a violation of the First Amendment. Three of the courts agreed and struck down these licensing schemes. One dismissed the case. But one upheld the scheme as a valid exercise of government power.

In June 2014, the Fifth Circuit heard a challenge to New Orleans’ tour guide licensing scheme. This scheme included a written examination and a drug test, and the applicant could not have been convicted of a felony within the preceding five years.

The court held that “New Orleans, by requiring the licensees to know the city and not be felons or drug addicts, has effectively promoted the government interests, and without those protections for the city and its visitors, the government interest would be unserved.” But how ensuring former felons cannot give tours about the city protects the city was not something that the government explained.

In evaluating the regulation, the Fifth Circuit employed “intermediate scrutiny.” This is framed as a higher level of scrutiny than the rational basis test discussed in the original post. Under intermediate scrutiny, the government bears the burden of showing that the challenged law furthers an important government interest and that it is substantially related to achieving that interest. Whereas, under the rational basis test the plaintiff bears the burden of proving that the law is not rationally related to a legitimate government purpose. While these two tests require different levels of evidence and place the burden on presenting that evidence on different parties, they are unfortunately often indistinguishable in their application. That was true in this case. The court used the language of intermediate scrutiny, but in practice accepted government assertions at face value without requiring the government to proffer any evidence about the restriction.

The court simply accepted the government’s argument that there was a real problem with unlicensed tour guides. Further, there was no examination of whether the law was tailored in a way to address the asserted problem. Nor did the court even analyze whether there was a less burdensome alternative to this licensing scheme. That is not “intermediate scrutiny,” which is supposed to put the burden on the government to justify its actions with real evidence.

Contrarily, in IJ’s case in Charleston, the Fourth Circuit in June 2020 did just that, both during oral arguments and in their written opinion. The court zeroed in on the fact that the city presented no evidence that it even considered whether less intrusive means would have fixed the asserted problem. The court pointed to the methods other cities had tried and explained that the government at least had the duty to provide answers as to why those solutions would prove ineffective for Charleston.

One of the courts was engaged and the other abdicated its judicial duty. But it is not as simple as one court ruled against the government while the other ruled for it. Rather, the key here is the way the court went about evaluating these laws. The Fifth Circuit, while using the language of evaluation, accepted the government’s assertion at face value. Whereas the Fourth Circuit questioned whether the government had gone through the necessary paces in enacting the tour guide licensing scheme.

That is, the Fourth Circuit required Charleston to present evidence that the scheme was actually necessary to achieve the purported purpose. Yet the Fifth Circuit did not require any such evidence. A court could have required evidence and nevertheless upheld the law at issue (although with tour guide licensing that’s pretty unlikely). The difference between judicial engagement and judicial abdication is not the result, but the method.

Fighting Corruption or Limiting Speech?

Another example of judicial engagement where the court requires the government to present evidence of a problem and that the law at issue actually can fix the problem can be seen in a campaign finance case out of Minnesota.

Minnesota, like many states, capped the amount a person could give to a candidate for state office. Yet unlike other states, Minnesota capped the amount of “maximum contributions” an office holder could accept. That is, Minnesota allowed an individual to contribute $1,000 to a political campaign. But the candidate could only accept the first twelve $1,000 contributions. After that, the maximum contribution was $500. Minnesota said such a limit was necessary to thwart corruption—or at least the appearance of corruption.

The problem? The asserted purpose of the law, the problem Minnesota said the law would fix, was clearly a pretextual assertion made to avoid flouting binding Supreme Court precedent.

And fortunately, the court—seemingly begrudgingly—agreed. The court looked at the facts and the situation surrounding the implementation of the law and concluded that the asserted policy of preventing quid pro quo corruption was not the “real” reason the government enacted this limitation. Rather, Minnesota desired to limit the influence of money in state elections and “level the playing field.” But the Supreme Court has held that both purposes for restricting contributions are not valid government purposes.

The court determined that the government’s asserted desire to prevent corruption, or its appearance, was simply pretextual and an attempt to hide more nefarious motives. Such a conclusion is clear by simply looking at the asserted purpose and measuring the restrictions against that purpose.

Judicial Engagement in Practice

At its core, judicial engagement is the idea that judges should actually judge in each case that comes before them. It means that the court should require the government to show that it is pursuing a constitutionally permissible end using a constitutionally permissible means. In practice, this does not mean that a court should peruse legislative history for the statements of specific legislators about the “true purpose” of the law. More simply, it only requires that a judge measure the asserted purpose against the actual restriction. In doing this, it will become clear whether the government is restricting speech for a constitutional reason.

 Adam Shelton is a fellow with IJ’s Center for Judicial Engagement.