One of the things that makes IJ so effective at defending the First Amendment is that we are entrepreneurial. Although there are many organizations that promote free speech generally, we are constantly on the lookout for important areas of free speech that have been abused by the government and neglected by courts and by other nonprofits. These include, among other things, the right to advertise one’s business, the right to use signs to communicate, and the right to speak and associate about politics free from burdensome campaign finance laws.
This issue of Liberty & Law is special because it features articles on two new cases—IJ’s challenges to North Carolina’s dietetics law and Nevada’s cosmetology law—that seek to protect another category of valuable, but historically under-protected speech: occupational speech.
Throughout most of history, people have earned their living by selling goods or performing services. But today, many people—from vocational teachers to interior designers to tour guides—earn their living by speaking. These people are paid for their advice or the information they can provide. And in our modern, information-driven economy, the number of people working in these sorts of jobs can only be expected to increase. Yet, surprisingly, the U.S. Supreme Court has said almost nothing about whether occupational speech is protected by the First Amendment.
The Supreme Court’s silence has had serious implications. As occupational licensing has expanded—today nearly one in three American workers needs a license from the government to work in their chosen occupation—an increasing number of these “speaking occupations” have been swept along with it.
Fifteen years ago, IJ set out to change that, and today we are still the only pro-First Amendment organization in the country defending occupational speech in a strategic, principled way.
The premise of IJ’s occupational-speech cases is simple: Speech is protected by the First Amendment, even if you get paid for it. Whether you are a journalist, a political consultant, an interior designer or someone giving dietary advice, the government can’t regulate or license your speech unless it can produce genuine evidence that the speech it wishes to regulate poses a danger to the public and can show that its regulation is no broader than necessary to prevent that danger.
IJ filed its first occupational speech case in 1997 on behalf of Frank Taucher. Taucher was an author who had written a guidebook on commodities trading, but the federal Commodity Futures Trading Commission claimed that authors like him needed a license from the government before they could publish their investing advice. We won that case, vindicating Frank Taucher’s rights and laying the groundwork for future First Amendment challenges.
In California and New Hampshire, IJ used the precedent from Taucher’s case to successfully challenge efforts by licensed real estate brokers to shut down for-sale-by-owner websites. Together, these cases helped establish the important principle that the government cannot require a speaker to get a government license merely to publish information or advice to the world at large.
Following up on these successes, IJ expanded its efforts and started challenging laws that burdened one-on-one, individualized speech. In New Orleans and Washington, D.C., we are engaged in ongoing challenges to licensing requirements for tour guides. In Virginia, we challenged burdensome regulations on yoga teacher trainers, prompting the state legislature to amend its laws and remove the regulations. And in Florida we challenged restrictions on who could give interior design advice, resulting in a court ruling that drastically narrowed the scope of Florida’s draconian interior design law.
These cases, along with our most recent challenges in Nevada and North Carolina, are an important part of IJ’s broader effort to promote judicial engagement. Even within the realm of free speech—which has historically received more robust protection than other rights, like economic liberty—judges routinely make arbitrary distinctions, protecting some categories of speech while leaving others with little or no protection. But the First Amendment declares that government “shall make no law . . . abridging the freedom of speech.” It doesn’t add, “unless you get paid for it” or “unless it’s individualized advice.”
Judicial engagement requires that judges take the First Amendment at its word, without playing favorites or relegating disfavored categories of speech to second-class status. Courts haven’t always lived up to that standard, but with the Institute for Justice’s principled, cutting-edge arguments in support of commercial speech and occupational speech, we’re aiming to change that.
Paul Sherman is an IJ attorney.