Mapping Out a Free Speech Victory at the Fifth Circuit

In February, IJ scored a major win for free speech when a federal appeals court ruled that occupational licensing is not a First Amendment-free zone. The Fifth U.S. Circuit Court of Appeals ruled that IJ and our client Vizaline LLC, a technology company, can go forward with our free speech challenge to a licensing law that a state regulatory board is attempting to use to put Vizaline out of business.

IJ stepped in to fight for Vizaline in 2018, when the Mississippi Board of Licensure for Professional Engineers and Surveyors sued the company for the unlicensed practice of surveying. The problem with the board’s attack on Vizaline? Vizaline has never done any surveying. Rather, the company combines publicly available legal descriptions of property with satellite photos to create images that help small community banks better understand their property portfolios. In simpler terms: Vizaline makes maps.

Under the board’s expansive interpretation of “surveying,” however, anyone who uses data to superimpose points and lines on satellite images would be in violation of its licensing laws—including companies like Google Maps, Uber, and Zillow. The Board’s lawsuit against Vizaline, if successful, would force the tech startup out of the state, likely bankrupt the company, and set a dangerous precedent for agency overreach.

Unwilling to let that happen, Vizaline’s founders teamed up with IJ to challenge the board’s unjust enforcement action as an unconstitutional restriction of their First Amendment right to free speech. We hit a setback in December 2018, when a lower court rejected Vizaline’s challenge on the ground that the licensing regulations—which prohibited Vizaline from using publicly available information to draw its maps—did not “trigger First Amendment scrutiny.”

IJ appealed that decision to the Fifth Circuit, and we won. The Fifth Circuit’s opinion unanimously rejected the lower court’s conclusion, stating that “Mississippi’s surveyor requirements are not wholly exempt from First Amendment scrutiny simply because they are part of an occupational-licensing regime.”

The decision hinges on a landmark 2018 ruling by the U.S. Supreme Court in NIFLA v. Becerra, which adopted a position IJ has long advocated: that “professional speech”—that is, speech subject to licensing requirements—is not exempt from First Amendment protection. The Fifth Circuit opinion in IJ’s case on behalf of Vizaline confirmed that NIFLA overruled prior decisions in which the Fifth Circuit had erroneously designated “professional speech” a realm of speech removed from full First Amendment scrutiny.

This is an important milestone for all lovers of free speech, but IJ is particularly eager to see its impact on another IJ case pending in the Fifth Circuit—Hines v. Quillivan. Familiar to longtime Liberty & Law readers, Dr. Hines is a retired veterinarian who was looking to give advice to pet owners online when he was targeted by the Texas State Board of Veterinary Medical Examiners. The recent Vizaline opinion expressly mentions Dr. Hines’ unsuccessful first legal challenge and notes that the Fifth Circuit’s decision at that time was based on a now-defunct distinction for “professional speech”—just as IJ is arguing in this renewed challenge.

IJ will continue to fight for Vizaline, Dr. Hines, and all those who simply wish to speak for a living as we build on this victory and advance freedom of speech around the country. 

Kirby West is an IJ attorney.

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