Legal entrepreneurship is at the core of IJ’s success. We identify aspects of the Constitution under siege and formulate strategic litigation to vindicate not only our clients’ rights, but the rights of all Americans.
Our occupational speech cases have been a textbook exercise in IJ legal entrepreneurship. Traditionally, our economic liberty practice has focused on clients who do things for a living, such as African braiders or casket-making monks. But there are occupations in which speaking, not doing, is the key component. The law, for example, is the quintessential speaking occupation.
As longtime IJ supporters know, government is too large and too often irrational because the U.S. Supreme Court pays little attention to constitutional protections for what we do for a living. Yet, at the same time, the free speech clause of the First Amendment—unlike our economic liberties—is an area of the Constitution that the Supreme Court has not neglected. And herein lies the puzzle: Does the government’s broad discretion to regulate what people do for a living apply to people who speak for a living? In other words, does occupational licensing trump free speech?
IJ pioneered occupational speech early on with cases against the Commodities Futures Trading Commission over its regulation of an investment newsletter, against New Orleans for prohibiting book vendors, and against New Hampshire for regulating for-sale-by-owner real estate websites. Victories in those cases made it clear that occupational licensing laws could not be used to silence speech to the general public. But what about occupational speech that is directed at specific people, not just the general public?
IJ Senior Attorney Bob McNamara set out to answer that unresolved question in 2008 with a challenge to a Philadelphia law that required tour guides to have a license to talk about American history. Unfortunately, the courts did not reach a final decision because Philadelphia confessed to being too broke to enforce its law. Undeterred, Bob brought a similar challenge in Washington, D.C., and Matt Miller, executive director of IJ Texas, is now heading up a tour guide case in New Orleans.
In 2009, IJ Senior Attorneys Clark Neily and Paul Sherman launched a First Amendment challenge to Florida’s interior design licensing laws. We did not prevail in that case because the Court of Appeals concluded that speech from a professional to a client, even if just interior design advice, was outside the scope of the First Amendment. That decision was disheartening, but it only solidified our resolve to ensure constitutional protection for occupational speech.
The Supreme Court issued two game changing opinions in 2010 and 2011. In the first, Holder v. Humanitarian Law Project, the Supreme Court ruled that legal advice to foreign terrorists was a form of speech protected by the First Amendment. In the second decision, U.S. v. Stevens, the Supreme Court reaffirmed that only certain historically disfavored categories of speech—such as criminal conspiracy or fraud—are to be treated as outside the First Amendment. Together, these decisions strongly implied that occupational speech is protected by the First Amendment, and that the decision in the Florida interior design case was wrong.
To capitalize on these Supreme Court decisions, Paul convened a strategy meeting in October 2011 to launch a multi-case initiative on occupational speech, and, in particular, speech involving advice from a professional to a client. That led to a concerted client search that resulted in our case representing a diabetic North Carolina blogger who was shut down by the state for giving free dietary advice over the Internet. The publicity from that case led to Dr. Ron Hines, the Texas veterinarian who was forbidden by the state from giving veterinary advice over the Internet. We brought his case earlier this year.
The North Carolina blogger case also led us to John Rosemond, the nationally syndicated advice columnist. As described by Paul in this issue’s cover story, we launched John’s case in July.
Our occupational speech cases have brought together our economic liberty and First Amendment work on a cutting-edge issue. We have catapulted occupational speech to the forefront of the national constitutional debate and we have multiple cases in multiple jurisdictions, any one of which could be destined for the Supreme Court. Now that is something to talk about.
Jeff Rowes is an IJ senior attorney.