Arlington, Va.—In a major win for free speech, the 5th U.S. Circuit Court of Appeals ruled today that occupational licensing is not a First Amendment-free zone. The court ruled that a Mississippi technology startup, Vizaline LLC, can go forward with its free speech challenge to a licensing law that a Mississippi regulatory board is attempting to use to put it out of business.
Vizaline is a digital geospatial visualization and technology startup. It uses publicly available legal descriptions of property to draw those descriptions on satellite photos. This “visualization” allows Vizaline’s customers—small community banks—to better understand their property portfolios.
Even though Vizaline does not do any surveying to create these images or create any legal descriptions itself, the Mississippi Board of Licensure for Professional Engineers and Surveyors sued the company for the unlicensed practice of surveying. The Board wanted to shut down Vizaline and force it to “disgorge,” or give up, every penny it had earned from its happy customers.
Vizaline teamed up with the Institute for Justice (IJ) to challenge this unconstitutional restriction on speech.
A lower court dismissed the case in December 2018 on the grounds that although the challenged licensing regulations prohibited Vizaline from using publicly available data to draw its maps, those “regulations do not trigger First Amendment scrutiny.”
Today’s 5th Circuit opinion on Vizaline’s appeal, however, unanimously rejects this conclusion, unequivocally declaring 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 turned on a major 2018 ruling by the U.S. Supreme Court in NIFLA v. Becerra, which ruled that “professional speech”—speech subject to licensing requirements—is not exempt from the protection of the First Amendment. The 5th Circuit confirmed that the NIFLA decision overruled prior 5th Circuit case law instituting a problematic “professional speech doctrine,” which exempted professional speech from First Amendment protection.
“State regulatory boards and some lower courts have just assumed the First Amendment does not apply to speech regulated by an occupational licensing law,” explained IJ Senior Attorney Paul Avelar, who is the lead attorney on the case. “The Supreme Court rejected that argument, but the boards and some courts weren’t following the ruling. The 5th Circuit’s ruling today should put an end to those assumptions and help protect the speech of people throughout the country.”
Brent Melton, a co-founder of Vizaline, was elated by the opinion, stating, “We are happy the court saw the merits of our case.” He added, “We hope this is a precedent to help minimize state regulatory boards’ interference in entrepreneurial businesses. And we look forward to continuing to help the financial institutions in Mississippi understand their portfolios.”
Though the decision is a major step forward, Vizaline’s fight is not over yet. The 5th Circuit remanded the case to the district court to determine whether Vizaline’s creation of images is speech and whether restrictions on that speech are justified by the government’s interest advanced by the challenged regulations.
“The 5th Circuit made a clear statement today that speech is no less important constitutionally when it happens to be the speech of professionals,” said IJ Attorney Kirby Thomas West. “We are optimistic that the district court will take this guidance to heart and strike down the unconstitutional restrictions of Vizaline’s speech.”