McLemore v. Gumucio: Sixth Circuit Reaffirms the Conduct–Speech Divide—
Auctioneer Licensing Schemes Trigger Only Rational-Basis Review

1. Introduction

The United States Court of Appeals for the Sixth Circuit has once again addressed the constitutional status of occupational–licensing statutes that incidentally burden speech. In Will McLemore et al. v. Roxanna Gumucio, professional auctioneers challenged Tennessee’s 2019 “Online Auction Law,” contending that its licensing requirement for “extended-time” internet auctions impermissibly restricts their First Amendment rights. The district court dismissed the case, and the Sixth Circuit has now affirmed, holding that:

Tennessee’s auctioneer-licensing regime regulates economic conduct, not speech, and therefore is subject only to rational-basis review, which it easily survives.

The ruling cements a doctrinal boundary between protected expression and commercial regulation, relying heavily on the Circuit’s own 2014 decision in Liberty Coins, LLC v. Goodman while harmonizing more recent Supreme Court precedents such as NIFLA, Sorrell, and 303 Creative.

2. Summary of the Judgment

• Disposition: District court’s Rule 12(b)(6) dismissal affirmed.
• Holding: Tennessee’s Online Auction Law regulates professional conduct and survives rational-basis scrutiny; it does not impose a content- or speaker-based restriction on protected speech.
• Key Rationale:
  • Analogous to Liberty Coins, auctioneering is a commercial service that the State may regulate through licensing without triggering heightened First Amendment scrutiny.
  • Any burden on speech is merely incidental; the statute targets who may perform the service, not what may be said.
  • The licensing scheme is rationally related to Tennessee’s legitimate interest in preventing fraud and safeguarding the public in auction transactions, including modern online formats.
• Separate Concurrence (Bush, J.): Adds a historical-tradition justification: auctioneer licensing predates the First Amendment and therefore falls outside its core protections, invoking the “history-and-tradition” analytic framework recently endorsed in Vidal v. Elster.

3. Analysis

3.1 Precedents Cited and Their Influence

• Liberty Coins, LLC v. Goodman, 748 F.3d 682 (6th Cir. 2014)
    • Upheld an Ohio licensing law for precious-metals dealers. McLemore treats it as controlling: professional licensing that merely incidentally touches speech is economic regulation.
• National Institute of Family & Life Advocates v. Becerra (“NIFLA”), 585 U.S. 755 (2018)
    • Clarified that the State may not compel speech because of its content, but may regulate professional conduct. The panel uses NIFLA’s distinction to show Tennessee targets conduct.
• Sorrell v. IMS Health Inc., 564 U.S. 552 (2011)
    • Quoted for the proposition that restrictions on conduct may impose incidental burdens on speech without violating the First Amendment.
• Central Hudson (commercial-speech test) and 303 Creative LLC v. Elenis (pure speech vs. conduct)
    • Cited by appellants; the court distinguishes them because they address direct regulation of speech, not licensing of professional services.
• Billups v. City of Charleston, 961 F.3d 673 (4th Cir. 2020)
    • Plaintiffs’ key out-of-circuit authority. Sixth Circuit rejects its applicability, noting Billups involved speech on public sidewalks—a “traditional public forum”—while auctioneering occurs in a private commercial setting.
• Giboney v. Empire Storage (1949), Lowe v. SEC (1985 conc.), EMW Women’s Surgical Center v. Beshear (6th Cir. 2019)
    • Support the proposition that professional conduct remains regulable notwithstanding its verbal elements.

3.2 Court’s Legal Reasoning

1. Threshold Framing – Speech or Conduct?
   The panel first asks whether the challenged statute regulates speech qua speech. Citing Liberty Coins and NIFLA, it holds that the Online Auction Law targets who may perform auctions (conduct), not the content or manner of auctioneers’ speech.
2. No Content- or Speaker-Based Discrimination.
   Exemptions for fixed-price listings and “timed listings” do not rest on message or identity; they track transaction format and the accompanying risk of fraud.
3. Appropriate Level of Scrutiny.
   Because no fundamental right or suspect class is implicated, rational-basis review applies. The panel expressly rejects intermediate or strict scrutiny urged by plaintiffs under commercial-speech doctrine.
4. Rational Relationship Satisfied.
   Tennessee’s interest—consumer protection against fraud, escalation tactics, and misrepresentation—is legitimate and long-recognized. Requiring a modest exam/education prerequisite for auctioneers is rationally related to that interest, especially in the online context where anonymity heightens risk.
5. Concurrence’s Historical Lens.
   Judge Bush fortifies the holding with an originalist argument, documenting colonial auctioneer-licensing and Congress’s 1794 national license, paralleling Vidal v. Elster. The concurrence suggests professional licensing of auctioneers is so “deeply rooted” that it falls outside the First Amendment’s intended scope.

3.3 Likely Impact of the Decision

• Occupational-Speech Litigation: Plaintiffs in the Sixth Circuit will face higher hurdles when challenging licensing regimes framed as consumer-protection measures. The decision shores up Liberty Coins as a bulwark against using the First Amendment to dismantle economic-regulation statutes.
• Online Platform Economy: States experimenting with extending bricks-and-mortar licensing rules to online iterations (tele-auctioneering, tele-medicine, online real-estate closings) may cite McLemore to defend such laws.
• Speech-Conduct Doctrine Nationally: The ruling contrasts with Fourth-Circuit’s Billups, contributing to a potential split on how far professional-speech protections extend. Supreme Court review is possible if circuits diverge further.
• Originalist Methodology: Judge Bush’s concurrence gives lower courts a blueprint for invoking history-and-tradition to validate older forms of economic regulation against First Amendment attack, echoing trends in Bruen and Vidal.

4. Complex Concepts Simplified

Incidental Burden on Speech

When a law mainly regulates conduct (here, who may run an auction) but unavoidably affects speech (the auction chant), the speech impact is “incidental.” Such laws usually receive deferential review.

Rational-Basis Review

The most lenient constitutional test: the government need only show its law is conceivably related to a legitimate purpose. Plaintiffs must negate every rational justification to win—an almost insurmountable task.

Content-Based vs. Content-Neutral

If a statute targets the subject matter or message of speech, strict scrutiny applies. Here, the law targets transactions, not messages, so is content-neutral.

Professional Speech / Conduct

Speech uttered in the course of providing professional services (legal advice, medical counsel, auction calls) may be regulated as part of the State’s police power to set competency standards.

History-and-Tradition Test

An emerging judicial tool: if a form of regulation has deep historical pedigree co-existing with the Constitution, courts presume it is constitutionally permissible absent counter-evidence.

5. Conclusion

McLemore v. Gumucio clarifies that the First Amendment does not convert every talk-heavy occupation into a free-speech sanctuary. By reinforcing the conduct–speech divide and applying rational-basis review to Tennessee’s Online Auction Law, the Sixth Circuit preserves longstanding state authority to license professionals—even in digital marketplaces—while signaling that First Amendment challenges must identify genuine content-based censorship, not merely incidental speech effects. The concurrence’s historical analysis strengthens the doctrinal foundation, aligning occupational licensing with other traditional regulations such as trademark law. Unless and until the Supreme Court revisits the scope of professional-speech protections, McLemore will stand as a guidepost for courts and legislatures navigating the intersection of economic regulation and free expression in the modern economy.