Introduction

The case of Vizaline, L.L.C.; Brent Melton, Plaintiffs-Appellants v. Sarah Tracy, P.E.; et al., decided on February 14, 2020, by the United States Court of Appeals for the Fifth Circuit, marks a significant turning point in the intersection of occupational licensing and First Amendment rights. The plaintiffs, Vizaline and its owner Brent Melton, challenged Mississippi's occupational licensing requirements for surveyors, arguing that these regulations infringed upon their First Amendment rights by restricting their ability to disseminate information.

The central issue revolves around whether Mississippi's licensing regime for surveyors constitutes a form of regulated speech that merits First Amendment scrutiny. Vizaline's business model involves converting legal property descriptions into computer-generated maps and selling them to community banks as a cost-effective alternative to formal land surveys. The Mississippi Board of Licensure for Professional Engineers and Surveyors argued that Vizaline's activities constituted the unlicensed practice of surveying, leading to a legal confrontation that questioned the balance between professional regulations and free speech rights.

Summary of the Judgment

The Fifth Circuit appellate court reversed the district court's decision, which had previously dismissed Vizaline's First Amendment challenge on the grounds that occupational licensing requirements are immune from such scrutiny. The appellate court emphasized that the Supreme Court's decision in National Institute of Family & Life Advocates v. Becerra (NIFLA) explicitly rejected the "professional speech" doctrine, which posited that professional licensing inherently exempts regulated professions from First Amendment analysis.

By aligning with the NIFLA precedent, the Fifth Circuit determined that Mississippi's licensing requirements do not automatically fall outside the scope of First Amendment protections. Instead, it mandated a conduct-versus-speech analysis to ascertain whether the restrictions pertain solely to conduct, speech, or both, thereby reinstating the necessity for First Amendment scrutiny in such cases.

Analysis

Precedents Cited

The court extensively referenced the Supreme Court's decision in National Institute of Family & Life Advocates v. Becerra (NIFLA), 138 S. Ct. 2361 (2018), which fundamentally altered the landscape of occupational licensing and First Amendment jurisprudence. Prior to NIFLA, the Fifth Circuit had adhered to the "professional speech" doctrine as seen in Hines v. Alldrege, 783 F.3d 197 (5th Cir. 2015), which claimed that professional licensing regulations do not invoke First Amendment protections. However, NIFLA disavowed this doctrine, establishing that occupational licensing does not inherently shield regulated professions from First Amendment challenges.

Additionally, the judgment references other key cases such as Sorrell v. IMS Health, Inc., 564 U.S. 552 (2011), which acknowledges the creation and dissemination of information as protected speech, and City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750 (1988), which underscores that selling information does not negate First Amendment protections.

Legal Reasoning

The court's legal reasoning pivots on the rejection of the "professional speech" exception, a doctrine that previously allowed occupational licensing regulations to bypass First Amendment analysis by categorizing regulated activities as non-speech conduct. The Supreme Court in NIFLA clarified that such a categorization is untenable, emphasizing that speech is not unprotected merely because it is performed by professionals.

Applying this reasoning, the Fifth Circuit concluded that Mississippi's licensing requirements for surveyors must undergo standard First Amendment scrutiny to determine if they constitute a content-based restriction on speech or if they impermissibly burden expressive activities. The district court's categorization of licensing as solely regulating conduct without considering its impact on speech was deemed inconsistent with NIFLA, necessitating a remand for further deliberation under the correct legal framework.

Impact

This judgment has profound implications for occupational licensing across various professions. By affirming that licensing requirements are not automatically exempt from First Amendment scrutiny, the court signals a shift towards greater protection of expressive activities within regulated professions. Entities engaged in professions that involve the dissemination of information may now challenge licensing regulations on free speech grounds more effectively.

Furthermore, this decision reinforces the need for courts to perform a nuanced analysis distinguishing between regulation of conduct and regulation of speech, thereby ensuring that licensing laws do not suppress legitimate expressive activities. This could lead to more challenges against occupational licensing regimes that are perceived to infringe upon free speech, potentially prompting legislative reforms to balance professional regulation with constitutional freedoms.

Complex Concepts Simplified

• Occupational Licensing: A system whereby the government restricts the practice of a profession to individuals who have met certain criteria, such as education, examinations, and ethical standards.
• First Amendment Scrutiny: The judicial process applied to determine whether a government action violates the First Amendment's free speech protections. This involves assessing the nature of the regulation and its impact on expressive activities.
• Professional Speech Doctrine: A previously accepted legal principle that exempted certain professional communications from First Amendment protections, viewing them purely as conduct rather than speech.
• Conduct-versus-Speech Analysis: A legal framework used to distinguish whether a regulation targets conduct (actions) or speech (expressive activities), determining the level of First Amendment protection applicable.
• Remand: When an appellate court sends a case back to the lower court for further action, in this context, to reassess the licensing requirements under the correct First Amendment analysis.

Conclusion

The Fifth Circuit's decision in Vizaline v. Tracy et al. underscores a pivotal shift in the treatment of occupational licensing within the realm of First Amendment jurisprudence. By overturning the "professional speech" doctrine and aligning with the Supreme Court's precedent in NIFLA, the court ensures that occupational licensing cannot be used as a blanket shield against free speech challenges.

This judgment reinforces the necessity for a scrutinized approach when evaluating licensing requirements, ensuring that they do not impinge upon the expressive rights of professionals. As a result, it paves the way for more robust protections of free speech within regulated professions, balancing the state's interest in maintaining professional standards with the constitutional imperative to safeguard foundational freedoms.