ARLINGTON, Va.—Yesterday, prominent First Amendment scholars, a notable non-profit, and an expert in labor economics urged the U.S. Supreme Court to take up a case concerning whether “professional” speech is given the same protection as other speech, or whether government schemes like occupational licensing can keep people from earning a living with their speech. Heather Kokesch Del Castillo, a certified and experienced health coach who had moved to Florida with her airman husband, was fined hundreds of dollars for offering one-on-one advice about healthy diets. In 2017, Heather and the Institute for Justice (IJ) sued the state for violating her First Amendment rights.
“Each of these briefs illustrates the national importance of this case,” explained IJ Senior Attorney Paul Sherman. “Either the First Amendment protects everyone’s right to speak for a living, or it protects no one’s right to speak for a living. The rights of millions of Americans—from coaches to counselors to comedians—hang in the balance.”
Three different sets of advocates filed amicus briefs at the Court urging the Justices to hear Heather’s case. The 11th U.S. Circuit Court of Appeals held that Heather could be fined because the sort of advice she offered was outside the First Amendment’s protection so long as the state had passed a licensing law restricting it. But other courts in other IJ cases—including in the 4th, 5th, and 9th U.S. Circuit Courts of Appeals—have held that the First Amendment cannot be canceled by the mere adoption of a licensing requirement. Each of this week’s briefs urges the court to resolve this split of authority.
- Vermont Law School President Rodney Smolla, U.C. Berkeley School of Law Dean Erwin Chemerinsky and famed litigator Floyd Abrams are all prominent First Amendment scholars. Their brief surveys the Supreme Court’s cases and the scholarly literature to demonstrate that allowing the lower court’s ruling to stand would mean that fundamental free-speech protections would hinge entirely on whether a state chose to label speech as “occupational conduct” under a licensing law. That regime, the brief warns, would create a rule of law “under which the government virtually always wins” and individual speakers almost invariably lose.
- The San Francisco Society for the Prevention of Cruelty to Animals is the oldest humane society west of the Mississippi River. In their brief, the SF SPCA stresses the importance of telemedicine in the modern world: Without the ability of veterinarians to dispense advice online, the SPCA’s ability to continue its lifesaving work throughout California would be threatened. But, under the rule followed by the 11th Circuit in this case, a veterinarian using Zoom to offer opinions about an animal’s health would not be “speaking” at all—she would be engaged in conduct that could be readily prohibited by state officials invoking their state’s veterinary licensing law.
- Labor economist and University of Minnesota professor Morris Kleiner is a leading researcher of the effects of licensing on the American economy. His brief notes that nearly 1,100 occupations now require an occupational license in at least some jurisdictions, meaning that the split of authority over whether licensing laws can trump the First Amendment affects the rights of millions of Americans nationwide. “As it stands,” argues Professor Kleiner, “the burgeoning circuit split leaves millions of Americans with different legal rights to pursue their chosen occupations—and to engage in speech as part of those occupations—based solely on their zip codes.”