Approximately 25 percent of jobs in the United States require some kind of occupational license. A condition on which many occupational licenses are granted is that the applicant have “good moral character,” a term that about 70 percent of states that include this language in their occupational licensing regulations don’t define.
According to John Wrench, an attorney with the Institute for Justice, “good moral character” phrases in occupational licensing regulations put a lot of power in the hands of licensing boards. Wrench called the phrase an “eye of the beholder issue,” which allows licensing boards to read their personal preferences into the statute and discriminate against license applicants on that basis.
According to Wrench, social media also provides a “semi-permanent trove of statements about issues of public importance” that state licensing boards can use against applicants.
Gray, a resident of Massachusetts, works as a private investigator in Boston. In January of 2018, Gray, who was looking to expand his business into Maine, applied for a private investigator license in Maine. His application was denied by the Maine Department of Public Safety (DPS), the agency responsible for licensing private investigators in the state, which alleged comments critical of a police shooting he’d posted on Facebook contained factual inaccuracies and demonstrated Gray lacked the good moral character required to obtain a license.
On Facebook, Gray commented about the 2017 shooting deaths of Kadhar Bailey and Ambroshia Fagre at the hands of Maine police, at one point characterizing the deaths as “murder” and speculating about whether an off-duty police offier who lived near the scene of the incident and responded could have been drinking.
Some of the statements Gray made turned out to be factually incorrect. Gray corrected some of his errors on his Facebook post.
As Wrench pointed out, at the same time Gray was speculating about the police-involved shooting, the newspapers and other media were doing the same thing.
According to Wrench, the DPS’ decision, which was made by the chief of the Maine police to deny Gray a license on the basis he lacked good moral character, explicitly relied on the statements he made on Facebook.
Gray appealed the decision, first to Kennebec County Superior Court, and then to the Maine Supreme Judicial Court. In both cases, the courts ruled against Gray. After hearing oral arguments in February, Maine’s highest court ruled unanimously against Gray in April.
After examining whether Gray’s First Amendment rights were violated, the court found his case didn’t present a factual Constitutional challenge.
The court ruled, “The Department denied Gray’s application not because of the viewpoint he expressed on social media but because of the false, uninvestigated information that Gray presented as fact using the name of his Massachusetts private investigation business. The Department’s rationale for its decision goes to the heart of professional responsibility concerns and does not chill any speech other than that which would, for a professional investigator, violate standards of conduct in a profession that is focused on the investigation and accurate communication of facts.”
According to the court, the DPS’ application of the state’s licensing statutes was “narrowly tailored to serve the significant governmental interest in maintaining standards for licensing professional investigators.”
In doing so, the court applied a standard of intermediate scrutiny to the case, which is less rigorous than the standard of strict scrutiny courts usually apply to cases where content-based restriction of speech is at issue.
According to Wrench, the Maine Supreme Judicial Court got a few things wrong about the First Amendment.
“If that opinion stands, it will drastically increase the authority of licensing boards to basically have an exception to the First Amendment,” said Wrench.
In its ruling, the Maine Supreme Judicial Court stated the DPS wasn’t restricting the content of Gray’s speech because the licensing statute doesn’t say anything about speech. But according to Wrench, what triggers the application of the statue matters. The DPS looked at Gray’s speech while making its decision about whether to grant or deny his application. According to Wrench, that makes the court’s unwillingness to say DPS’ decision was based on speech a big deal.
Wrench stated that in asserting that DPS’ application of the good moral character clause was based on professional conduct, not speech, the Maine Supreme Judicial Court reintroduced an argument that the U.S. Supreme Court invalidated in 2018.
The “professional speech doctrine” was an idea lower courts were considering prior to the Supreme Court’s ruling in NIFLA v. Becerra, which suggested that when licensed professionals provide information in their professional capacity, they are less subject to First Amendment protection.
The Supreme Court rejected that idea in NIFLA v. Becerra, but according to Wrench, the Maine Supreme Judicial Court’s focus on professional conduct in Gray’s case returns to this idea.
Wrench also took issue with the Maine court’s refusal to conduct an independent review of Gray’s record. Previous rulings from the U.S. Supreme Court have said a court reviewing a case involving content-based restriction of speech allegations is obligated to conduct an independent review of the record in order to prevent an agency from restricting speech while claiming to do something else, like uphold standards of professional conduct.
The justices of Maine’s highest court refused to do this while reviewing Gray’s case. The court said it would not conduct an independent review and would only overturn DPS’ ruling if the evidentiary record compelled them to.
According to Wrench, this is a very deferential standard and puts licensing boards in a unique position where the First Amendment applies less to them.
Also at issue in this case is the actual malice standard, a Supreme Court precedent set in New York Times v. Sullivan. The actual malice standard requires public figures or officials who want to sue someone for libel to prove false or derogatory comments made against them were motivated by a desire to harm their reputation.
According to Wrench, if the police officers involved in the 2017 case about which Gray commented on Facebook attempted to sue him, their case would fail under the actual malice standard.
Wrench questioned why, if the police couldn’t go after Gray for defamation under that standard, then DPS shouldn’t be able to deny his application.
Wrench also specified that actual malice isn’t the standard Gray is asking to be applied. The standard that should govern Gray’s case is strict scrutiny. Strict scrutiny requires that, in order for the government to make content-based restrictions of speech, it must demonstrate a compelling interest, that its restrictions are narrowly tailored and use the least restrictive means possible.
According to Wrench, the last case of a similar nature to Gray’s was Konigsberg v. State Bar of California. The case involved an applicant to California’s state bar who was denied admittance because he authored a series of editorials critical of the political issues of the time, including the Korean War, claiming these were a sign he lacked good moral character. According to Wrench, the petition of certiorari IJ filed in Gray’s case is an invitation to the Supreme Court to apply the standard it set in the Konigsberg case.
According to Wrench, the reason there haven’t been more cases similar to Gray’s is because that case is settled law.
The Supreme Court has not yet agreed to hear Gray’s case, but it was docketed on September 9. According to Wrench, DPS has until October 12 to respond. If they fail to do so, the Court can compel them to respond.