IJ’s Occupational Speech Litigation Climbs the Ivory Tower

IJ’s mission is to do more than just win cases; it is to change the legal culture in a way that makes it easier for others to win cases and to protect freedom nationwide. It is not enough to prevail in court. Instead, we need to start, and then win, debates about liberty and the U.S. Constitution at the highest levels.

In that spirit, we were delighted to see a recent essay in the Harvard Law Review Forum by Amanda Shanor and Robert Post, the Dean of Yale Law School, calling attention to a “remarkable” new court decision embracing a legal theory that they said threatened to bring about a “dystopia” unless it was stopped.

That “remarkable” decision was one that will be familiar to loyal Liberty & Law readers: IJ’s recent victory in Edwards v. District of Columbia striking down D.C.’s licensing requirement for tour guides. And this dystopian legal theory? The idea that the government cannot escape First Amendment scrutiny simply by labeling its restrictions “occupational licenses.”

This was striking. Not because a legal academic was apoplectic about an IJ victory—we are used to that—but because it perfectly illustrates what the world would look like without IJ. If there were no IJ, the legal debate would be dominated by people who think that a “dystopia” is a world where the government has anything less than unchecked power to impose occupational-licensing laws. If there were no IJ, the unchallenged high ground would belong to people who think it is simply obvious that the First Amendment does not apply to occupational licensing at all.

Fortunately, there is an IJ. And that means the Harvard Law Review Forum, in the same issue, featured an essay by IJ Senior Attorney Paul Sherman, who calmly and cogently laid out IJ’s position on occupational speech: that the First Amendment protects the right of everyone to speak for a living, whether they are professors or journalists or consultants or tour guides.

The fact that IJ’s occupational-speech work is now being debated by the highest levels of the legal academy is no accident. It is the product of IJ’s consistent, principled advocacy on behalf of our occupational-speech clients—not just in court, but in newspapers, in academic journals, and on radio and television stations nationwide.

The fight over occupational speech is not just an abstract legal debate. It is a fight that matters to the livelihoods of our clients and of millions of other Americans all across the nation. But it is a fight that requires more than just court victories. It requires fundamentally changing the legal culture’s approach to the intersection of free speech and economic liberty. IJ’s advocacy has kindled a fiery debate on this topic—and, as evidenced by our victory in the D.C. tour-guide case, we are not just engaging in this debate. We are winning it. And we plan to continue.

Robert McNamara is an IJ senior attorney.