U.S. Supreme Court: “Professional Speech” Is Protected by the First Amendment

Today, the U.S. Supreme Court issued a major ruling, concluding that “professional speech” is not exempt from the protection of the First Amendment. The opinion handed down in NIFLA v. Becerra will have major implications for current and future Institute for Justice cases.

First, a quick summary. The case dealt with perhaps the most contentious political issue in modern American life: abortion. The state of California passed a law to force licensed “crisis pregnancy centers” to provide information about the availability of state-provided health services, including abortions. Unlicensed centers were further required to provide a state-written notice that they were not a medical facility. This notice had to be posted “conspicuously” at the entrance to the facility and included in any advertisements. This effectively barred these facilities from advertising since they were also required to include in the advertisement a translation of that notice into 13 different languages.

The U.S. Ninth Circuit Court of Appeals ruled that the state law was constitutional since it governed “professional speech” and speech by “professionals” should be accorded less First Amendment protection than other speech. Today the Supreme Court squarely rejected this idea. Speaking for the majority, Justice Clarence Thomas wrote: “[T]his Court has not recognized ‘professional speech’ as a separate category of speech. Speech is not unprotected merely because it is uttered by ‘professionals.’ This Court has ‘been reluctant to mark off new categories of speech for diminished constitutional protection.’”

The Institute for Justice recognized how important this case was for many of our clients and submitted an amicus brief that made arguments similar to those laid out in the majority opinion today. One of IJ’s clients is an engineer in Oregon who was fined by the state’s licensing board after he suggested changes to the timing of traffic lights. Though he has an engineering degree, he does not have a license from the state. Therefore, the board fined him for practicing “unlicensed” engineering.

Justice Thomas points out that, by the lower court’s standard, states could take away First Amendment rights “by simply imposing a licensing requirement.” But, as he notes, “States cannot choose the protection that speech receives under the First Amendment, as that would give them a powerful tool to impose ‘invidious discrimination of disfavored subjects.’”

Although it came in a case about abortion, today’s decision is fundamentally about whether the government has the right to restrict speech it doesn’t like and to force speakers to provide messages favored by the state. Today, IJ clients in cases in Florida, California and South Carolina all have a little more hope that their freedom of speech will be protected by the courts. In the future, IJ will have a stronger argument against government laws that seek to impose financial and regulatory burdens on individuals’ speech just because they are using their voice to earn an honest living.