Occupational Speech and the First Amendment

Millions of Americans — from tour guides to lawyers — earn their living in occupations that consist primarily, if not entirely, of speech. Increasingly, these “speaking occupations” are 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.In Part I, I discuss the history of the Supreme Court’s limited treatment of occupational speech and the way that lower courts have reacted to that treatment. In Part II, I explain why the predominant approach in the lower courts conflicts with the Supreme Court’s most recent case law, and suggest that strict scrutiny is the appropriate standard of review for restrictions on occupational speech. In Part III, I defend this argument from common objections. In Part IV, I examine how this argument has been received in a number of recent First Amendment lawsuits. Finally, in Part V, I briefly discuss how adopting more robust protection for occupational speech is consistent with the Supreme Court’s general approach toward First Amendment issues over the last twenty years.