from the Harvard Law Review:
The conclusion of this article is as follows:
As I have tried to explain above, granting full First Amendment
protection to occupational speech is the only position that is consistent
with binding Supreme Court precedent. It is also the only position
that is consistent, more broadly, with the general trend of the Supreme
Court’s First Amendment jurisprudence over the last 20 years, which
has removed political speech from a position of privilege and now recognizes that speech on a wide variety of topics is entitled to robust
constitutional protection. Whether that was, as Post and Shanor argue,
a “radical ” shift when it began in the 1990s, it is now merely
the long-established law.
To be sure, there are those who wish this shift had never occurred,
but even its most ardent critics recognize that it has occurred.
Thus, whatever merit the democratic self-governance theory of First
Amendment may have in the abstract, it is little help in resolving the
actual First Amendment disputes that have plagued lower courts.
Those courts, unlike academic commentators, are bound by precedent.
In any event, the Supreme Court’s modern approach to the First
Amendment has more to commend it than its status as binding precedent.
In comparison to more instrumental theories, the Court’s modern
approach is unquestionably the more consistent with the First
Amendment’s uncompromising text, which contains no exemptions for commercial speech or occupational speech (or even lower-value speech like depictions of animal cruelty, violent video games, or lies about re-ceiving military honors). More than that, this approach to the First Amendment is rooted in a far more charitable view of the American people. It repudiates the paternalism that rests at the heart of so much regulation of speech, instead viewing Americans as capable of seeking out information on a wide variety of topics and of reaching their own conclusions about the merits of that information. This view is perhaps most eloquently stated in Justice Kennedy’s majority opinion in Citizens United v. FEC126:
When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves.127
Although Justice Kennedy was writing about political speech, his
words are no less true for the sort of advice and information that
countless Americans earn their living by providing. Speech can be
important to its listeners without being political.
Other important article quotes:
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.1 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
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.”
In Lowe, the Securities and Exchange Commission (SEC) brought
an enforcement action against Christopher Lowe, a disgraced former
investment advisor who had lost his registration and been prohibited
from acting as an investment advisor following a conviction on various
felony offenses. Despite his conviction, Lowe continued to publish
newsletters that provided investing advice.10 The SEC believed this tobe a violation of the securities laws and filed a complaint against Lowe
in federal court.
The SEC lost before the district court, but prevailed before the Second
Circuit,12 after which the Supreme Court granted certiorari to
consider “the important constitutional question whether an injunction
against the publication and distribution of petitioners’ newsletters is
prohibited by the First Amendment.” 13 But the Court never reached
this constitutional question. Instead, in an opinion by Justice Stevens,
a majority of the Court concluded on statutory grounds that the registration requirement did not apply to newsletter publishers.14