Arlington, Va.—Earlier this month, Joshua Gray, a private investigator from Massachusetts, filed a petition for certiorari with the U.S. Supreme Court asking the Court to reverse a decision by the Maine Department of Public Safety denying him a license as a professional investigator in Maine. The Department based its denial on the fact that it disapproved of Gray’s criticism of the Department’s own employees’ conduct in a police shooting that left two dead. The Institute for Justice (IJ) filed the petition on Gray’s behalf.
IJ Senior Attorney and lead counsel Paul Sherman said, “When the government retaliates against people because of their speech, it violates the First Amendment. That’s true whether the government is imposing a fine, withholding a parade permit, or denying an occupational license.”
Gray’s problems with the Department began after he criticized the conduct of Maine police in the fatal shooting of 25-year-old Kadhar Bailey and 18-year-old Amber Fagre in February of 2017. Believing that the shooting could have been avoided had it not been for police recklessness, Gray expressed his criticisms on his Facebook page. But when Gray later applied for a license as a professional investigator in Maine, the Department denied Gray’s application on the ground that his online criticism contained factual errors, and therefore he lacked the “good moral character” required for licensure.
Gray said, “Police shootings are one of the most widely debated political issues today. If I had praised the Maine police for the shooting of Kadhar Bailey and Amber Fagre, they would have had no excuse for denying me a professional investigator’s license. They singled me out because I criticized them. That’s censorship, and it violates my First Amendment rights.”
Some of Gray’s statements were mistaken; for example, he initially misidentified the officer who shot Amber Fagre. When an attorney general’s investigation revealed that this officer had in fact shot Bailey but not Fagre, Gray updated his Facebook page with a correction. Other supposed “factual” errors included Gray’s speculation about whether one of the off-duty officers involved had been drinking before the shooting, as well as his opinion that the shooting should be considered murder. Based on these alleged errors—and nothing else—the Maine Supreme Judicial Court in April of this year affirmed the Department’s denial of Gray’s application.
IJ Attorney John Wrench said, “If a police officer had sued Gray for defamation, he would have received greater First Amendment protection. If Gray had been fired from government employment because of his Facebook posts, he would have received greater First Amendment protection. But because Gray was instead denied the right to work in the occupation of his choice, the Maine Supreme Judicial Court deferred to the Department of Public Safety’s decision to withhold a license from one of its vocal critics. That’s unconstitutional.”
Gray’s petition comes just three years after the Supreme Court’s groundbreaking ruling in National Institute of Family & Life Advocates v. Becerra (NIFLA), in which the Court rejected the idea that “professional speech” was entitled to reduced protection. In that case, the Court held that government regulation of speech within occupations is subject to the same heightened First Amendment rules as other content-based burdens on speech.
IJ Senior Attorney Robert Johnson said, “Before NIFLA, lower courts for decades had treated occupational licensing boards as though the First Amendment simply didn’t apply to them. The Supreme Court rightly rejected that view. The decision of the Maine Supreme Judicial Court conflicts directly with that ruling. It is vital that the Supreme Court take up this case and reaffirm that there is no occupational licensing exception to the First Amendment.”
Gray’s case could have profound implications for other licensed occupations. There are today hundreds of licensed occupations that vary widely by state, most of which have “good moral character” requirements. At the same time, the growth of social media has made it easier than ever for licensing boards to deny licenses based on disagreement with an applicant’s political views.
Gray said, “I’m not just fighting for my rights; I’m fighting for the rights of all Americans who want to debate issues of national importance. If the Maine Department of Public Safety can deny me a license because of a handful of mistakes in Facebook posts discussing an issue of national importance, no social-media user’s right to an occupational license is safe.”
The Institute for Justice is the nation’s leading legal advocate defending occupational speech. IJ has successfully challenged restrictions on occupational speech throughout the country, protecting the speech of engineers, tour guides, health coaches, psychologists, teachers, and others.