Licensing and the First Amendment: On a Crash Course

Mississippi requires surveyors to be licensed and prohibits the unauthorized practice of surveying.  The definition of the “practice of surveying” is set out in Miss. Code Ann. § 73-13-71(4).  The Board of Licensure for Professional Engineers and Surveyors licenses surveyors.  Vizaline, LLC is a company that takes legal descriptions found in deeds, uses a computer program to overlay the property lines onto satellite images, and then sells these maps exclusively to community banks so these banks can avoid having to pay for costly surveys of less expensive properties that serve as collateral.  The company does not hold itself out as a substitute for a survey and states that it does not “locate, relocate, establish, reestablish, layout, or retrace any property boundary or easement.”  If the legal description in the deed does not close, then Vizaline recommends hiring licensed surveyors.  The Board of Licensure for surveyors sued, seeking an injunction to prevent Vizaline from operating in the future and a disgorgement of profits for its actions.

Vizaline responded that its actions – creating the maps based on established legal descriptions – is the dissemination of information that is protected by the First Amendment.  The Board responded, citing to Fifth Circuit precedent holding that states have “board power to establish standards for licensing practitioners and regulating the practice of professions.”  (Hines v. Alldrege, 783 F.3d 197, 201 (5th Cir. 2015)).  Judge Guirola granted the Board’s 12(b)(6) motion to dismiss, holding that the decision of “who is permitted to provide certain professional services and who is not . . . do not trigger First Amendment scrutiny.”  In other words, the restrictions regulated conduct and not speech; and to the extent that speech was implicated it was merely “incidentally infringed upon.” 

Vizaline appealed.  The Fifth Circuit panel consisted of Judges Owen, Barksdale and Duncan.  Judge Duncan wrote the opinion of the court reversing the district court and sending the case back for consideration of the First Amendment claim.  This case is significant because a number of circuit courts, including the Fifth Circuit, had adopted the “professional speech doctrine” – the idea that state regulation of a profession raises no First Amendment concerns “where it amounts to generally applicable licensing provisions affecting those who practice the profession.” (Moore-King v. Cty. Of Chesterfield, 708 F.3d 560, 569 (4th Cir. 2013)).  This doctrine gave states wide latitude to regulate professions without being concerned with the First Amendment. 

According to Judge Duncan’s opinion, the 2018 United States Supreme Court case National Institute of Family and Life Advocates v. Becerra rejected the professional speech doctrine and determined that professional speech regulations were subject to First Amendment scrutiny.  Therefore, the district court erred in dismissing the complaint based on professional speech doctrine.  The court remanded the case to the district court to determine whether, with regard to Vizaline, “Mississippi’s licensing requirements regulate only speech, restrict speech only incidentally to their regulation of non-expressive professional conduct, or regulate only non-expressive conduct.” 

There is another case currently pending before the Fifth Circuit out of Texas – Hines v. Quillivan – challenging certain licensing restrictions related to veterinarians and whether they violate the First Amendment.  The case was argued before Judges Southwick, Elrod, and Hayne.  The issues raised were the same as in the Vizaline case.  It was a lively oral argument on February 5, 2020 (See here). There is little doubt this issue will go en banc.

It will be interesting to see how these cases are resolved.  The elimination of the professional speech doctrine opens up the possibility of First Amendment challenges to the regulation of all professions – including lawyers.  We have already seen a challenge to Mississippi’s prohibition on trade names in law firms (LawHQ v. Kilgore) that was filed on January 23, 2020.  It will be interesting to see how this area of law develops over time.

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