It is not often that the Supreme Court takes two cases addressing an ever more critical question of free speech and no one really notices. But that seems to be the case with Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, and National Institute of Family and Life Advocates v. Becerra, both of which will be heard this term. To be sure, these cases have drawn a lot of attention, but most of that has focused on the hot-button culture-war issues these cases arose from—religious liberty and anti-discrimination laws and abortion, respectively. Beyond the culture war issues, however, the resolution of these cases likely will have critical ramifications for Americans in more workaday circumstances. This is because both cases touch on an issue of growing importance in our daily lives and about which there are various splits in authority. That issue is “occupational speech.”
In the information age, people increasingly earn a living in occupations that consist partially or primarily of communicating information to others, i.e., of speaking. Government officials are increasingly relying on occupational licensing and other laws to stifle the speech of those who speak for a living. These laws prohibit speech or mandate other speech either because the government disagrees with the speech or reserves such speech for a favored few. In these cases the government claims that it is not regulating speech but rather “conduct”—such as the “practice” of medicine, teaching, or tour guiding. And even where the infringement on speech has been recognized, it has often been discounted because the speech was for compensation.
Masterpiece Cakeshop and NIFLA are examples of how government (and some, but not all, courts) attempt to restrict speech under the guise of “regulating an occupation.”
At issue in NIFLA is a California law that compels licensed pro-life medical centers and unlicensed non-medical crisis pregnancy centers to communicate information to would-be customers about how to contact the State for information on how to obtain state-funded abortions, directly contradicting the centers’ pro-life message. California adopted the law expressly because of disagreement with the content of the centers’ pro-life messages. But California has defended the law by arguing the First Amendment tolerates “the regulation of the practice-related speech of licensed professionals.” And the Ninth Circuit, though admitting the law was content-based discrimination against certain speakers, refused to apply strict scrutiny because the law regulated professional speech, which was only subject to intermediate scrutiny.
In Masterpiece Cakeshop, argued this week, the occupational speech issue is a bit more in the background, but it is there. The question presented is whether Masterpiece Cakeshop’s cake decorating is “expressive” such that it falls within the protections of the First Amendment. The Colorado Court of Appeals—even while claiming it was not doing so—determined that paid-for cake decoration was not expressive and not protected. The court noted that “as a for-profit bakery, Masterpiece charges its customers for its goods and services” and concluded that when “an entity charges for its goods and services [it] reduces the likelihood that a reasonable observer will believe that it supports the message expressed in its finished product.” The upshot of this rationale is that anyone who speaks for a living may not have any First Amendment interest in the content of their speech.
The issue of occupational speech regulations has come up in a number of contexts, including speech about other hot-button issues. There have been, for example, other abortion-related occupational speech cases in the federal courts on behalf of both abortion opponents and abortion providers. There have been a couple of cases in the circuit courts involving restrictions on so-called “gay reparative therapy”—which is just “talk therapy”—offered by some licensed therapists and the circuits are currently split as to whether these restrictions implicate the First Amendment. And at issue in Wollschlager v. Governor of the State of Fla., were restrictions on physician speech to patients about gun ownership. A panel of the Eleventh Circuit issued a series of decisions upholding this restriction because that speech was occurring within the confines of a professional relationship before eventually being revered by the en banc court.
But the issue of occupational speech arises in other than just hot-button culture-war issues. Ongoing and recent litigation raising the issue of occupational speech—and in which the lower courts have come to a variety of outcomes—have included tour guides, coaches, mathematicians, and, most recently, horseshoeing teachers.
The idea that speech done for profit or as part of an occupation can be regulated without implicating First Amendment rights is wrong. “The degree of First Amendment protection is not diminished merely because . . . speech is sold rather than given away.” Were the rule otherwise, professional reporters could be regulated. Paid-for political advertising would not be protected. And the speech between lawyers and clients, or the kinds of cases a lawyer could bring for a client, could be controlled by government. “Occupational speech” is just speech. It must be protected as such.
To more fully understand the ramifications of the cases now before the Court, it helps to consider a relatively straight-forward example that has nothing to do with culture war issues: teaching vocational skills. Teaching a “specific skill” or communicating advice derived from “specialized knowledge” is speech. Accordingly, restrictions on the content of what can be taught, restrictions on who may teach, and restrictions on who may be taught, are subject to strict scrutiny. Both teaching and learning are protected by the First Amendment; that doesn’t change just because someone pays to learn or gets paid to teach.
In the horseshoeing case—Pacific Coast Horseshoeing School, Inc. v. Grafilo—California law allows anyone to shoe horses. California also allows anyone to teach anyone how to shoe a horse. But if a person charges money for teaching how to shoe a horse, California restricts who the person may teach. California deems anyone who teaches a vocational skill for money—including horseshoeing—a private postsecondary school. It prohibits all such schools from enrolling anyone who does not have a high school diploma or its equivalent, or who takes and passes an “ability to benefit test.” California law thus restricts what may be taught, based on its content, and to whom it may be taught. Its restrictions are therefore subject to First Amendment scrutiny. This is no less true because this case involves paid teaching.
Given the particular culture-war issues underlying Masterpiece Cakeshop and NIFLA, the Supreme Court may not actually address the more general issue of First Amendment protections for speech for compensation in those cases. But, given the number of occupational speech cases pending in the lower federal courts, and the variety of outcomes already reached, the Court will—and hopefully soon—eventually address this increasingly important issue. When it does so, it must protect occupational speech as speech.
Paul Avelar is a Senior Attorney at the Institute for Justice. He represents the plaintiffs in the Pacific Coast Horseshoeing School case and is a member of the Federalist Society’s Free Speech and Election Law Practice Group Executive Committee.
- 1 - No. 16-111.
- 2 - No. 16-1140.
- 3 - http://www.scotusblog.com/wp-content/uploads/2017/05/16-1140-16-1146-16-1153-BIO.pdf
- 4 - Nat'l Inst. of Family & Life Advocates v. Harris, 839 F.3d 823, 836-67, 838-41 (9th Cir. 2016).
- 5 - See Brief of the Institute for Justice as amicus curie, http://www.scotusblog.com/wp-content/uploads/2017/09/16-111_ac_institute_for_justice.pdf.
- 6 - 370 P.3d 272, 287 (Col. Ct. App. 2015).
- 7 - See Thomas More Society, National Institute of Family and Life Advocates v. Rauner, https://www.thomasmoresociety.org/thomas-more-societys-pro-life-doctors-pregnancy-centers-protected-from-required-abortion-referrals/.
- 8 - See ACLU, Planned Parenthood Arizona, Inc. v. Brnovich, https://www.aclu.org/cases/planned-parenthood-arizona-inc-v-brnovich-arizona-medication-abortion-restrictions.
- 9 - Compare King v. Governor of N.J., 767 F.3d 216 (3d Cir. 2014) (sexual orientation change therapy is speech, not conduct, and subject to elevated review, not rational basis review, but ban on therapists performing such therapy on minors subject to lesser protection of speech and is constitutional), with Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2014) (sexual orientation change therapy is conduct, not speech, and subject to rational basis review, not elevated review, and ban on therapists performing such therapy is constitutional).
- 10 - Wollschlaeger v. Governor of the State of Fla., 848 F.3d 1293 (2017) (en banc) (physicians cannot be prohibited from talking to patients about gun ownership).
- 11 - Compare Edwards v. District of Columbia, 755 F.3d 996 (D.C. Cir. 2014) (tour guide licensing violates the First Amendment), with Kagan v. City of New Orleans, 753 F.3d 560 (5th Cir. 2014) (tour guide licensing does not violate the First Amendment).
- 12 - See Institute for Justice, Castillo v. Philip (Florida Diet Coaching), http://ij.org/case/florida-diet-coaching/.
- 13 - See Institute for Justice, Jarlstrom v. Aldridge (Oregon Engineering Speech), http://ij.org/case/oregon-engineering-speech/.
- 14 - See Institute for Justice, Pacific Coast Horseshoeing School, Inc. v. Grafilo (California Trade Schools), http://ij.org/case/california-trade-schools/.
- 15 - City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 756 n.5 (1988).
- 16 - New York Times Co. v. United States, 403 U.S. 713 (1971) (the Pentagon Papers case).
- 17 - New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (full page advertisement sold by the New York Times protected by the First Amendment).
- 18 - Cf. Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001) (government may not restrict lawyers from making certain arguments on behalf of their clients, even when government is paying for the lawyers).
- 19 - Holder v. Humanitarian Law Project, 561 U.S. 1, 28 (2010).
- 20 - Id. Indeed, the Court has even struck down restrictions on teaching and learning for violating the liberty guaranteed by the Fourteenth Amendment’s Due Process Clause. Meyer v. Nebraska, 262 U.S. 390 (1923) (striking down restriction on reaching school age children, and school age children learning, a foreign language).