Occupational Speech and the First Amendment

In May 2013, newspaper columnist John Rosemond received a cease-and-desist letter from the Kentucky Board of Examiners of Psychology informing him that his syndicated column — in which he answers readers’ questions about parenting — constitutes the unlicensed and, hence, criminal practice of psychology. Although the Board concedes that Rosemond may publish general advice about parenting, it has taken the position that answering letters from parents about particular children is the exclusive province of state-licensed psychologists.

As outrageous as this situation sounds, it is not unique. Rosemond is just one of the millions of Americans — from tour guides to lawyers — who earn their living in occupations that consist primarily, if not entirely, of speech. And, as he discovered, these “speaking occupations” are increasingly subject to occupational-licensing requirements. But this trend seems to be in serious tension with the First Amendment rule that “[g]enerally, speakers need not obtain a license to speak.”

Surprisingly, despite the growing frequency with which occupational speech is licensed, the Supreme Court has said little about the intersection of occupational licensing and the First Amendment. This silence has had profound consequences, leading some lower courts to conclude, in conflict with virtually all established First Amendment principles, that occupational speech is entitled to no meaningful constitutional protection.

This Commentary advocates the opposite approach, and argues that occupational speech, including even expert advice, is entitled to far more protection than lower courts have given it, and is likely entitled to strict scrutiny. This conclusion flows directly from the straightforward application of the Supreme Court’s case law, most notably Holder v. Humanitarian Law Project and United States v. Stevens.