People can speak without government permission. The First Amendment guarantees it. But regulators in many states have found a workaround.
They simply redefine some speech as conduct and then punish people for talking without an occupational license. Health coach Heather Kokesch Del Castillo received a cease-and-desist letter when regulators caught her talking about kale without a dietician license in Florida. History buff Kim Billups faced prosecution for talking about city landmarks without a tour guide license in South Carolina. And end-of-life doulas Akhila Murphy and Donna Peizer got busted for talking about in-home wakes without a funeral director license in California.
Anyone who speaks for a living can come under attack. So can concerned citizens who simply want to share their knowledge for free.
Mats Järlström, who has a degree in electrical engineering, did the math on red-light cameras after his wife got a ticket in Oregon. Using a calculator at the dining room table is not a crime. But when Järlström spoke up about flaws in the automated traffic enforcement system, the state hit him with a $500 fine for the unlicensed practice of engineering.
The message was clear: Shut up or pay.
Occupational licensing boards, set up to regulate conduct, frequently stray into the realm of speech. They flex their authority as modern censorship panels, and the problem is getting worse. Occupational licensing boards claimed jurisdiction over 5% of the US workforce in 1960. Today this rate has quintupled to 25%.
Fuzzy, shifting definitions — which the boards themselves control — put even more people at risk. Anything involving math can look like engineering, for example, if your influence expands every time you find new potential violations.
The mission creep caught up to North Carolina retiree Wayne Nutt in spring 2021. When he volunteered as an expert witness in a negligence case involving the design of a storm drainage system, the state Board of Examiners for Engineers and Surveyors investigated Nutt for illegally opining about engineering issues. The board concluded those opinions had been misdemeanors and told Nutt to never write or testify about engineering matters again.
The board’s investigation had nothing to do with improper conduct. Nutt worked for 45 years as a chemical engineer for DuPont and other companies, so he knew how to follow standards. Instead, the state targeted Nutt for sharing his opinions without a professional engineering license — something he never needed during his career.
Rather than stay quiet, Nutt sued North Carolina and scored a First Amendment victory on Dec. 20, 2023. Our public interest law firm, the Institute for Justice, represents him.
“At its core, this case concerns the extent to which a law-abiding citizen may use his technical expertise to offer a dissenting perspective against the government,” the court held. “Stating that dissent required the speaker to use his expertise in several ways. He had to do some math. He had to apply recognized methodologies. He even had to write a report memorializing his work. Some of that work may plausibly be considered conduct. But it ends up providing him the basis to speak his mind.”
Other courts have come to similar conclusions. Järlström proved his right to talk about red-light cameras in 2018. Billups and other South Carolina tour guides won in the 4th US Circuit Court of Appeals in 2020. And end-of-life doulas in California secured a favorable ruling in 2023.
All of these cases build on NIFLA v. Becerra, a 2018 Supreme Court ruling that bans the government from claiming “unfettered power” to reduce a group’s First Amendment rights by imposing licensing requirements. “Speech is not unprotected merely because it is uttered by ‘professionals,’” the majority held.
Despite the string of First Amendment victories, battles remain. Del Castillo sued for her right to talk about food in Florida, but lost her case in 2019. A federal district judge held that her advice was “conduct,” not “speech.” Other professionals, ranging from teletherapists to horse massage instructors, have cases pending.
The underlying issue is clear: Experts and professionals have the right to express themselves. Their opinions matter, even when the topic is something technical like the design of public works.