DEFENDING A FIRST AMENDMENT RIGHT TO WORK AGAINST OCCUPATIONAL OVERREGULATION BY STATES
Crownholm v. Moore (U.S. Supreme Court)
October 15, 2024
This case straddles two sets of important rights, First Amendment rights and economic rights. The question it asks is when should heightened First Amendment scrutiny apply to occupational licensing law that restricts someone’s ability to speak and hence to work.
Ryan Crownholm’s company makes and sells site plans created from publicly available geographical data. They are sold with prominent disclaimers alerting buyers that they are not the product of a professional surveyor. In 2021, the California Board of Professional Engineers, Land Surveyors, and Geologists cited Crownholm for violating the state’s licensing requirement for practicing as a professional surveyor. It cited him for his conduct in “[p]reparing” or “offering to prepare” site plans “which depict the location of property lines, fixed works, and the geographical relationship thereto,” all of which supposedly “falls within the definition of land surveying” in California.
Crownholm sued in federal court. He alleged that the sale of site plans created from public data is protected First Amendment speech and cannot be regulated as if it were merely professional conduct with an incidental element of speech. In an unpublished decision, the Ninth Circuit upheld the dismissal of the action, agreeing with the board that Crownhold’s offense was the unlicensed practice of surveying, i.e., conduct and not speech. Crownholm’s petition to the Supreme Court followed.
In support of his petition, NELF has filed an amicus brief in which it engages in a searching critique of the appeals court’s reasoning. NELF notes that in framing the issues the way it did, the appeals court simply substituted professional conduct for professional speech, thereby evading the Supreme Court’s prohibition on granting professional speech reduced First Amendment protection.
NELF then details how, in making their rulings against Crownholm, both the board and the appeals court focused on the informational contents of the site plans (i.e., on speech). They thereby implicated heightened First Amendment scrutiny of the law. The appeals court, however, refused to apply that standard, declaring that the law was either content-neutral or only incidentally affected speech. NELF rebutted both arguments, noting in particular that the decisive legal significance the appeals court choose to give to the contents of the site plans contradicted any reasonable meaning of “incidental” (i.e., something of minor importance, etc., etc.).
NELF also places the case in the context of the recent increase in occupational overregulation by the states and the resulting excessive barriers raised against entry into the job market. Even according to the model laws of the professional association of engineers and surveyors, there would be no need for Crownholm to get a license to do the kind of work he does.
NELF concludes by urging the Supreme Court to take the case in order to provide much-needed clarity on this difficult and important juncture of First Amendment rights and occupational licensing laws.