Arshil Sulayman | Rational Basis or Intermediate Scrutiny: How Can States Determine Whether Professional Conduct Can Be Regulated Under the First Amendment?

Background

The free speech clause of the First Amendment to the U.S. Constitution can be limited by the state to regulate professional conduct that contains speech. For example, a state may require a professional to be licensed in their field before being able to legally practice within that state. This expresses the state’s interest in promoting an ethical industry that limits potential harm to its citizens. If said professional is not licensed, the state may suppress their ability to communicate certain services or information to potential clients.  

Michael Jones founded a drone company, 360 Virtual Drone Services LLC, in 2017 after receiving certification from the FAA to fly drones commercially. The business provided several services such as wedding photography, construction site surveying, and capturing images for real estate development. Eventually, Jones began to offer land surveying services: his drones would take several pictures of a large lot of land, and he would stitch the photographs together into what is known as an orthomosaic map.

The problem? Jones had never been licensed as a land surveyor. Because of this, the North Carolina Board of Examiners for Engineers and Surveyors sent Jones a letter in late 2018 stating that because his business offered land surveying services, he was in violation of licensing requirement laws pursuant to the North Carolina Engineering and Land Surveying Act, N.C. Gen. Stat. § 89C-1 to 2. The letter further stated that Jones may be subject to criminal and civil liabilities and that he must stop offering these services immediately.

The requirements to obtain a land surveyor license are especially stringent in North Carolina, requiring about 7 to 9 years of practical education and experience, at least 5 professional references, and two interviews. Because of this, Jones sued the Board, alleging the Act violates his free speech rights under the First Amendment. The district court in North Carolina granted summary judgment to the Board after evaluating whether the Act is constitutional under the First Amendment’s regulation of professional conduct as speech. Applying intermediate scrutiny, the court held that the state’s interest in regulating a practice with licensing requirements outweighs Jones’ free speech interest, and thus the Act survives. The Court of Appeals for the Fourth Circuit affirmed the district court’s use of intermediate scrutiny in this evaluation.

Issue

Whether the constitutionality of a law that implicates the First Amendment’s regulation of professional conduct as speech should be evaluated through a more rigorous intermediate scrutiny review or a more lenient rational basis review.

The Split

This split is not a new one—the Fourth Circuit simply affirms its lone status in applying intermediate scrutiny in this type of evaluation. It rationalizes this affirmation by referring to Supreme Court precedent in National Institute of Family & Life Advocates v. Becerra, 585 U.S. 755 (2018) (“NIFLA”), in which the Court used intermediate scrutiny to determine that a California Act requiring pro-life pregnancy centers to disclose information regarding low-cost services, including abortions, was unconstitutional. However, the Ninth, Sixth, and Eleventh Circuits opted to follow its own circuit precedent in using rational basis to evaluate these First Amendment claims.

The Fourth Circuit

In the case mentioned above, 360 Virtual Drone Services LLC v. Ritter, 102 F.4th 263 (4th Cir. 2024) the district court granted summary judgment to the government defendants, reasoning that (1) the Act does implicate the First Amendment; (2) because the Act restricts a certain practice to those who are licensed, it regulates professional conduct rather than speech; (3) the First Amendment regulation of conduct implicates intermediate scrutiny; and (4) the act survives intermediate scrutiny. The Court of Appeals for the Fourth Circuit affirmed.

In making this decision, the Court of Appeals recognized that it stands alone in this split but is nonetheless bound by prior Fourth Circuit precedent that relies on NIFLA. The court also acknowledges that in applying intermediate scrutiny, legislators in the Fourth Circuit have a higher bar to satisfy in their laws than legislatures in other circuits that employ rational basis. 

The Ninth, Sixth, and Eleventh Circuits

The Ninth Circuit, in Tingley v. Ferguson, 47 F.4th 1055 (9th Cir. 2022), employed rational basis to deem a state statute prohibiting mental health practitioners from performing conversion therapy on minors to be constitutional. Further, the court in Crownholm v. Moore, 2024 U.S. App. LEXIS 9181 (9th Cir. Apr. 16, 2024) also used rational basis to evaluate the constitutionality of a land surveying statute and dismissed the idea of using intermediate scrutiny as in NIFLA and its progeny as dicta.  

In EMW Women's Surgical Center., P.S.C. v. Beshear, 920 F.3d 421 (6th Cir. 2019), the court expressly declined to follow the Fourth Circuit in consistently employing intermediate scrutiny post-NIFLA. The court argues that NIFLA sets out two major exceptions to its ruling, one of which being laws that regulate professional conduct. Id. at 436 (quoting NIFLA, 782). Thus, when evaluating laws that regulate professional conduct, a court need not employ intermediate scrutiny in evaluating its constitutionality—rather, the level of scrutiny is left to the states.

In Castillo v. Secretary, Florida Department of Health, 26 F.4th 1214 (11th Cir. 2022), the Eleventh Circuit used rational basis to conclude that an Act that required dieticians and nutritionists to have a license to practice in Florida was constitutional under the First Amendment. The court did not engage in much analysis because rational basis is a relatively low bar to meet. Additionally, the court relied on Eleventh Circuit precedent that existed before NIFLA (Locke v. Shore, 634 F.3d 1185 (11th Cir. 2011)). This was justified by arguing that NIFLA simply refused to categorize professional speech as a separate category of speech, but still upheld that a state can regulate professional conduct that involves speech. Castillo 26 F.4th at 1222. This holding does not abrogate the Circuit precedent in Locke, and thus the Circuit can still use rational basis rather than the intermediate scrutiny used in NIFLA.

Looking Forward

This split causes drastic differences in the way a state can regulate professional conduct. Rational basis jurisdictions grant states more power to regulate conduct, while intermediate scrutiny jurisdictions make it harder for a state to regulate conduct. In the former, certain practices are less likely to raise ethical concerns, but practitioners and businesses are more limited in the information and services they can provide to their clients. In the latter, ethical concerns may be more frequent, causing possible harms and misinformation to clients, but practitioners and businesses have more freedom in their provision of services to clients.

The plaintiff in 360 Virtual Drone Servs. LLC v. Ritter have filed a petition for certiorari with the Supreme Court. In this petition, the plaintiff proposes clarity to the Court’s decision on the standard of review to be used in the evaluation of the First Amendment’s application to occupational-licensing laws. The Court could view this issue as of a low priority and generally leave it to the states’ discretion. However, with the Roberts Court’s recent history of deciding the law of the land, the Court could make the decision on how states should regulate professional conduct themselves.

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