Content-Neutral, Not Content-Based: Second Circuit Holds New York’s UPL Restrictions on One-to-One Legal Advice Are Subject to Intermediate Scrutiny

Introduction

In Upsolve, Inc. v. James, the United States Court of Appeals for the Second Circuit addressed whether New York’s unauthorized practice of law (UPL) statutes, as applied to a nonprofit program training nonlawyers to give individualized legal advice to debt-collection defendants, violate the First Amendment. The case sits at the intersection of professional regulation and free speech, and it arrives amid acute access-to-justice concerns: debt-collection suits constitute roughly a quarter of New York state-court civil filings, with default judgments occurring in 70–90% of cases.

Plaintiffs—Upsolve, a nonprofit, and Reverend John Udo-Okon, a prospective nonlawyer “Justice Advocate”—seek to give free, one-on-one advice to help New Yorkers complete the state’s check-the-box answer form in debt-collection cases. All parties agree that such individualized advice would violate New York’s UPL statutes. Plaintiffs brought a pre-enforcement First Amendment challenge and obtained a preliminary injunction in the Southern District of New York (Crotty, J.), which held that the UPL statutes, as applied, were content-based and failed strict scrutiny.

The Second Circuit vacated. While agreeing that Plaintiffs’ intended activity is “speech,” the court held the UPL statutes are content-neutral in this application and therefore subject to intermediate, not strict, scrutiny. The panel remanded for the district court to reassess the preliminary injunction under the proper standard.

Summary of the Opinion

• Standing: Plaintiffs have pre-enforcement standing under the relaxed First Amendment framework of Susan B. Anthony List v. Driehaus. The court found (1) intended speech, (2) conduct “arguably proscribed” by the UPL statutes, and (3) a “credible threat” of enforcement, noting the statutes are enforced and the Attorney General declined to disavow prosecution.
• Regulation of Speech: As applied to Plaintiffs, the UPL statutes regulate speech. The State’s enforcement would “kick in” when Justice Advocates communicate legal advice, not when they silently formulate it.
• Content Neutrality: The UPL statutes are content neutral because they apply to the function/purpose of speech—rendering legal advice to particular clients—regardless of topic, idea, or viewpoint. The court relied heavily on its prior decision in Brokamp v. James concerning mental-health licensing, as well as City of Austin v. Reagan and Reed v. Town of Gilbert.
• Scrutiny and Disposition: Because the district court applied strict rather than intermediate scrutiny, it committed legal error. The Second Circuit vacated the preliminary injunction and remanded for application of intermediate scrutiny and for reconsideration of irreparable harm, equities, and the public interest.

Factual and Procedural Background

Upsolve proposes a limited-scope program: nonlawyer “Justice Advocates” would be trained to determine whether a person could benefit from advice, confirm a limited scope, advise on whether to answer a debt-collection lawsuit, guide the litigant through New York’s single-page answer form based on factual responses, and explain how to file and serve the answer. The program includes virtual training, a reviewed guide, confidentiality and conflict safeguards aligned with New York’s Rules of Professional Conduct, and clear warnings that going beyond the program’s scope could trigger UPL prosecution.

Reverend Udo-Okon, a Bronx pastor frequently approached for legal help, sought to participate as a Justice Advocate. He submitted a declaration and a petition signed by over 100 individuals expressing interest in receiving free legal advice from him.

New York broadly prohibits nonlawyers from practicing law, including rendering legal advice to particular clients. The district court granted a preliminary injunction, concluding that Plaintiffs were likely to succeed because the UPL statutes, as applied, are content-based and fail strict scrutiny, and that the other preliminary injunction factors favored relief. The Attorney General appealed under 28 U.S.C. § 1292(a)(1).

Detailed Analysis

Precedents Cited and Their Role

• Pre-enforcement standing:
  • Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014): Established a three-part test for pre-enforcement First Amendment challenges: intended speech, arguably proscribed conduct, and a credible threat of enforcement. The Second Circuit applied this framework, citing its own recent articulation in Cerame v. Slack, 123 F.4th 72 (2d Cir. 2024).
  • Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013): Typically demands imminence but, as the Second Circuit reiterated, First Amendment pre-enforcement cases employ a more forgiving standard.
  • Cayuga Nation v. Tanner, 824 F.3d 321 (2d Cir. 2016): Courts presume reasonable enforcement of non-moribund statutes; the threshold for a “credible threat” is “low.”
  • Mullins v. City of New York, 626 F.3d 47 (2d Cir. 2010): Hearsay can be considered at the preliminary injunction stage, relevant to the petition and declarations supporting imminent advice-giving.
• Speech versus conduct:
  • Holder v. Humanitarian Law Project, 561 U.S. 1 (2010): For as-applied challenges, the court assesses whether the conduct triggering coverage consists of communicating a message. This supported treating Plaintiffs’ intended individualized advice as speech.
  • National Institute of Family & Life Advocates (NIFLA) v. Becerra, 585 U.S. 755 (2018): States can regulate professional conduct even if it incidentally involves speech, but labels are not dispositive; what matters is the regulation’s practical effect. The Second Circuit invoked this caution against recharacterizing speech as conduct.
  • Thomas v. Collins, 323 U.S. 516 (1945): Licensing regimes cannot be used to sidestep First Amendment protections; the court considered the practical burden on speaking.
  • Sorrell v. IMS Health Inc., 564 U.S. 552 (2011), and Bartnicki v. Vopper, 532 U.S. 514 (2001): Creation and dissemination of information is speech; disclosing and publishing information are core speech activities.
  • Billups v. City of Charleston, 961 F.3d 673 (4th Cir. 2020), and Hines v. Pardue, 117 F.4th 769 (5th Cir. 2024): Sister circuits recognized that licensing rules that turn on communication (tour guiding; veterinary advice via phone) regulate speech.
• Content neutrality and licensing:
  • Reed v. Town of Gilbert, 576 U.S. 155 (2015): Content-based laws target speech because of topic, idea, or message; such laws trigger strict scrutiny.
  • City of Austin v. Reagan National Advertising, 596 U.S. 61 (2022): Not all classifications requiring evaluation of speech are content-based. A function- or purpose-based classification can remain content-neutral if it does not target topics or viewpoints.
  • Brokamp v. James, 66 F.4th 374 (2d Cir. 2023): New York’s mental-health licensing requirement was content-neutral because it applied regardless of what was said, keyed instead to the purpose and circumstances of professional counseling. The Second Circuit extended that logic to UPL.
  • Turner Broad. Sys. v. FCC, 520 U.S. 180 (1997): Content-neutral speech regulations are upheld if they advance important government interests unrelated to suppressing speech and do not burden substantially more speech than necessary.
• New York UPL and practice-of-law cases:
  • In re Rowe, 80 N.Y.2d 336 (1992), and El Gemayel v. Seaman, 72 N.Y.2d 701 (1988): New York defines practice of law to include “rendering legal advice and opinions directed to particular clients,” while allowing generalized legal information.
  • Sussman v. Grado, 746 N.Y.S.2d 548 (Dist. Ct. Nassau Cnty. 2002): A nonlawyer paralegal using independent judgment to help a client with a form without attorney supervision engaged in UPL.
• Preliminary injunction standards:
  • Munaf v. Geren, 553 U.S. 674 (2008): Preliminary injunction is extraordinary and not a matter of right.
  • We the Patriots USA, Inc. v. Hochul, 17 F.4th 266 (2d Cir. 2021): Abuse-of-discretion review; legal error (wrong level of scrutiny) is an abuse of discretion; courts must weigh public consequences of an injunction affecting public-interest regulation.
  • Agudath Israel of Am. v. Cuomo, 983 F.3d 620 (2d Cir. 2020): In First Amendment cases, likelihood of success often dominates the preliminary injunction analysis.

Legal Reasoning

1. Standing was established under the First Amendment’s relaxed pre-enforcement framework.

   The court found Plaintiffs’ intended activity—one-to-one legal advice—“arguably affected with a constitutional interest” and “arguably proscribed” by the UPL statutes. On threat of enforcement, the court emphasized that New York’s UPL rules are enforced, the Attorney General declined to disavow prosecution, and evidence (including a petition and sworn declaration) showed imminent counseling to real individuals. This satisfied injury-in-fact; causation and redressability were not disputed.

2. As applied here, UPL enforcement regulates speech, not merely conduct.

   Borrowing the as-applied inquiry from Holder, the panel asked whether the act triggering coverage is communication. It is: Plaintiffs would be punished for speaking—delivering individualized legal advice. The State’s effort to recharacterize the activity as “the conduct of applying legal knowledge and judgment prior to speaking” was unpersuasive because the law would not be enforced against silent mental processes; it “kicks in” at the moment of communication.

3. The regulation is content neutral and therefore subject to intermediate scrutiny.

   The key question under Reed and City of Austin is whether the regulation turns on topic, idea, or viewpoint. The court found it does not: New York’s UPL statutes apply to the function/purpose of individualized legal advice to particular clients, without discriminating among debtors/creditors, among legal topics, or among viewpoints. New York permits generalized legal discussion and publishing; it prohibits only the “particular-client” advice function without a license. The court leaned on its own reasoning in Brokamp, which treated mental-health licensing as content-neutral because it hinged on the counseling function and circumstances, not on what message was conveyed.

4. Legal error at the district court: strict scrutiny applied where intermediate scrutiny governs.

   Because the district court applied strict scrutiny, its preliminary injunction rested on an error of law. The Second Circuit vacated and remanded for the district court to apply intermediate scrutiny, which asks whether the regulation advances important interests unrelated to suppressing speech and does not burden substantially more speech than necessary. The court also directed reconsideration of irreparable harm, equities, and public interest, given that these factors were intertwined with the merits assessment.

5. Scope and limits of the holding.

   The court expressly confined its analysis to Plaintiffs’ as-applied challenge concerning individualized legal advice about completing a one-page answer form. It reserved judgment on whether other aspects of the practice of law (e.g., drafting pleadings, appearing in court) are speech or conduct for First Amendment purposes. The court also noted, but declined to follow, out-of-circuit dicta suggesting all licensing that burdens speech is content-based (Richwine v. Matuszak, 7th Cir. 2025), reaffirming that, in this Circuit, licensing regimes that key to function and circumstances can be content-neutral.

Potential Impact

The opinion establishes an important doctrinal waypoint in the Second Circuit on “professional speech” and licensing:

• Framework for UPL challenges: Plaintiffs challenging UPL enforcement as-applied to individualized advice will now confront intermediate scrutiny, not strict scrutiny, unless they can show topic/idea/viewpoint discrimination. This clarifies that the First Amendment is implicated but does not automatically upend licensing.
• Access to justice initiatives: The court recognizes the speech character of one-to-one legal advice yet preserves state capacity to regulate through content-neutral licensing. On remand, courts may probe whether, for limited-scope, pro bono programs (like Upsolve’s), New York’s interests (consumer protection, preventing harm from incompetent advice, integrity of the courts) can be adequately served by less burdensome approaches—e.g., limited licensure, supervision carveouts, disclaimers, training, or narrow exceptions—or whether a blanket prohibition “burdens substantially more speech than necessary.”
• Professional licensing beyond law: The opinion aligns with Brokamp and out-of-circuit cases like Billups and Hines, suggesting a broad Second Circuit approach: licensing that regulates the function/purpose of professional-client communications (without discriminating on content) will be treated as content-neutral. This may influence telehealth, remote professional advice, and other regimes where the core regulated act is communicative.
• Litigation strategy: Parties should build robust records on (a) the importance and fit of the State’s interests and (b) the real-world burdens on speech and whether narrower, workable alternatives exist. Because intermediate scrutiny does not require the least restrictive means, the State need not adopt every conceivable alternative; but plaintiffs can prevail if they show the law burdens substantially more speech than necessary to achieve the State’s legitimate objectives.
• Practical status: The preliminary injunction was vacated; unless and until a new injunction issues on remand, the Attorney General is not enjoined from enforcing the UPL statutes against Plaintiffs. The district court must now reassess the likelihood of success on the merits under intermediate scrutiny and revisit the remaining injunction factors.

Complex Concepts, Simplified

• Unauthorized Practice of Law (UPL): Rules that bar nonlawyers from doing things reserved to licensed attorneys—like giving individualized legal advice to a client. New York treats “rendering legal advice and opinions to particular clients” as practicing law.
• As-Applied Challenge: A claim that a statute is unconstitutional in the specific way it is being applied to a plaintiff’s conduct, not necessarily in all applications.
• Content-Based vs. Content-Neutral: A law is content-based if it targets speech because of what is said (topic, idea, or viewpoint). It is content-neutral if it regulates speech based on function, purpose, or circumstances without discriminating by subject or viewpoint.
• Strict Scrutiny vs. Intermediate Scrutiny:
  • Strict scrutiny: The law must be narrowly tailored to serve a compelling interest—an exceptionally demanding test that is rarely satisfied.
  • Intermediate scrutiny: The law must further an important governmental interest unrelated to suppressing speech and not burden substantially more speech than necessary—demanding, but more forgiving than strict scrutiny.
• Pre-Enforcement Standing (First Amendment): Plaintiffs can sue before violating a law if they intend to engage in protected speech arguably covered by the law and face a credible threat of enforcement. They need not wait to be prosecuted.
• Why the UPL laws here are content-neutral: They apply regardless of whether the nonlawyer supports a debtor or creditor or what legal theory is advanced; what matters is the function—giving individualized legal advice to a specific person without a license.

What to Watch on Remand

Under intermediate scrutiny, the district court will likely focus on:

• The importance of New York’s interests (consumer protection; preventing harm from incompetent advice; protecting the integrity of judicial processes).
• Empirical or experiential evidence that nonlawyer advice in this narrow, scripted setting risks the harms the State asserts.
• Whether New York’s blanket prohibition “burdens substantially more speech than necessary” in this context, given Upsolve’s training, limited scope, disclaimers, and ethical commitments, and whether less burdensome alternatives are feasible in practice. Intermediate scrutiny does not require the least restrictive means, but gross overbreadth will fail.
• Reassessment of irreparable harm, balance of equities, and public interest, especially in light of the access-to-justice backdrop and the State’s consumer protection mandate.

Conclusion

Upsolve, Inc. v. James clarifies a consequential First Amendment rule in the Second Circuit: New York’s UPL statutes, as applied to individualized legal advice, regulate speech, but they do so in a content-neutral manner because they hinge on the function and circumstances of professional advice, not its topic or viewpoint. That choice of frame shifts the constitutional inquiry from strict to intermediate scrutiny.

The ruling neither blesses nor condemns Upsolve’s program. Instead, it recalibrates the analytical lens and remands for a fresh assessment of whether New York’s important interests can justify the speech burden imposed by its licensing scheme in this narrow context without burdening substantially more speech than necessary. In doing so, the court both preserves meaningful First Amendment scrutiny over professional licensing and acknowledges the State’s longstanding authority to regulate who may provide specialized, one-to-one legal advice. The decision’s practical import will likely be felt not only in UPL enforcement and access-to-justice innovation in New York, but also across regulated professions where the core regulated act is speech.

This commentary is for informational purposes and does not constitute legal advice.