Category Archives: First Amendment

On Saturday, Ronald Reagan Washington National Airport (DCA) posted a warning on X, formerly known as Twitter. "TRAFFIC ALERT," it read. "Expect delays around the airport due to a group in vehicles exercising first amendment rights in roadway. Use caution and expect slow moving vehicles."

The post was a reference to a caravan, with several vehicles flying Palestinian flags, that claimed every lane as they inched along the roadway to the airport, reportedly causing hefty traffic delays.

It is certainly a driver's free speech prerogative to fly their flag of choice. That has nothing to do, however, with obstructing traffic, which is entirely irrelevant to the First Amendment.

One legally confused post from an airport in Virginia doesn't necessarily say much when viewed in a vacuum. But the assertion is indicative of a larger trend, as highway blockades continue to pick up steam across the country. In January, pro-Palestine activists cut off access to the Brooklyn, Manhattan, and Williamsburg Bridges, along with the Holland Tunnel, during rush hour. We've seen similar demonstrations in Seattle, Boston, Chicago, San Francisco, and Philadelphia. That list is not exhaustive. And DCA is not the first airport targeted by protesters: In late December, for example, demonstrators obstructed traffic outside Kennedy International Airport and Los Angeles International Airport during one of the busiest travel weeks of the year.

A settlement in New York essentially seeks to sanction the practice. "Where an FAA [First Amendment Activity] temporarily blocks vehicular or pedestrian traffic or otherwise obstructs public streets or sidewalks, the NYPD [New York Police Department] shall whenever possible accommodate the demonstration," reads a proposed agreement between the American Civil Liberties Union (ACLU) of New York, the Legal Aid Society, New York Attorney General Letitia James, and the NYPD in response to lawsuits pertaining to the police's handling of various protests in 2020.

The settlement is still up in the air; the police union is trying to fight it. But there is something richly ironic about the state's top law enforcement officer attempting to give the public a green light to break the law. And the ACLU, also involved in the settlement, acknowledges in its own guidance that detaining people by blocking a roadway is not a legal, First Amendmentprotected activity.

"The right to peacefully assemble and protest is sacrosanct and foundational to our democracy," said New York Attorney General James in September after the settlement was unveiled. "Too often peaceful protesters have been met with force that has harmed innocent New Yorkers simply trying to exercise their rights."

James is correct that freedom of expression is crucial and central to the American project. It's also not a force field by which people are shielded from other rules. If I want to get people's attention by, say, driving 120 miles an hour while sporting a Palestinian flag, I cannot tell the officer who pulls me over for reckless driving that I'm simply exercising my free speech rights. The First Amendment does not give carte blanche to violate the law.

Activists may invoke the father of the civil rights movement, Martin Luther King Jr., when defending blockades. That's understandable. It's also misguided. As I wrote in 2022:

Though King did lead a protest from Selma to Montgomery, famously filling the Edmund Pettus Bridge, it was a march. It did not block interstate and highway traffic indefinitely for the sake of ita tactic King was not comfortable with, despite pressure in the 1960s to get on board. "Even though King didn't come out and criticize it in public, in private he thought it was a misguided tactic," said Brandon Terry, assistant professor of African and African American Studies and Social Studies at Harvard University. "The NAACP thought it was ridiculous." King reportedly posited that such a move pushed the boundaries of acceptable demonstrations and would come back to bite the movement politically.

Protesting isn't meant to be convenient. But you might find it difficult to convince people you're the good guy when your blockades are hurting the vulnerable people you often claim to stand for, like this man who may have lost his parole, or this woman who went into labor.

Some folks may disagree. That is indisputably their right, and I'm thankful for that. Also not in dispute: It is not their right to detain people, no matter how righteous they believe their cause to be.

Link:
No, Blocking Traffic Is Not Protected by the First Amendment - Reason

Neither the FCC nor FTC has a particularly good track record of standing up to broadband and cable giants when it comes to their longstanding track record ofanticompetitive behavior, price gouging, or nickel-and-diming their often captive customers with bogus,hidden fees.

Though occasionally one of the two agencies does step in to try make a bare minimum effort to rein in the industrys worst impulses, such as the FTCs attempt,unveiled last March, to force companies to stop making cancelling service a pain in the ass. As you probably already know, many companies require you jump through elaborate hoops if you want to cancel, upselling you the entire time.

The FTCsproposed provisionwould make it just as easy to cancel a service as it is to sign up, requiring companies provide easy, one click access to cancelling service online. Said FTC boss Lina Khan at the time:

The proposal would save consumers time and money, and businesses that continued to use subscription tricks and traps would be subject to stiff penalties.

But the cable and broadband industry, which has a long and proud tradition of whining about every last consumer protection requirement (no matter how basic), is kicking back at the requirement. At ahearinglast week, former FCC boss-turned-top-cable-lobbying Mike Powell suggested such a rule wouldnt be fair, because it might somehow (?)prevent cable companies from informing customers about better deals:

The proposed simple click-to-cancel mechanism may not be so simple when such practices are involved. A consumer may easily misunderstand the consequences of canceling and it may be imperative that they learn about better options, NCTA CEO Michael Powell said at the hearing. For example, a customer may face difficulty and unintended consequences if they want to cancel only one service in the package, as canceling part of a discounted bundle may increase the price for remaining services.

Not to be outdone, Powell took things one step further and attempted ye olde throw every argument possible at a wall and see what sticks legal approach, at one point even trying to claim the FTCs requirements would harm the cable industrys first amendment rights (which makes no coherent sense):

the FTC proposal prevents almost any communication without first obtaining a consumers unambiguous, affirmative consent. That could disrupt the continuity of important services, choke off helpful information and forgo potential savings. It certainly raises First Amendment issues.

The cable and broadband industry makes its bundle pricing as complicated and punitive as possible, not only making it hard to simply outright cancel service, but often making it impossible to actually know how much youll pay for service in the first place. The goal isnt just to rip you off; its to making pricing so convoluted that its hard to do price comparisons or understand how much youre even paying.

Comcast and friends are alreadyfighting a separate initiative by the FCCrequiring they be up front and transparent about the specifics of your broadband line and how much it costs.

Again, this isnt even regulators trying advanced policies like trying to regulate rates or encourage competition. These are just very basic initiatives trying to force lumbering telecom and cable giants to make pricing transparent and transactions easy. And even these efforts result in years of legal wrangling, assuming they can survive a rightward lurching, corporate-friendly court system in the first place.

And this all comes before the looming Supreme Court rulings designed to make U.S. regulatorsmore impotent than ever. Defanging and defunding U.S. regulators always comes under the pretense that this will somehow result in unbridled innovation, when, as the cable and broadband industry routinely demonstrates, that simply couldnt be any further from the truth.

Cable Giants Insist That Forcing Them To Make Cancellations Easier Violates Their First Amendment Rights

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Cable Giants Insist That Forcing Them To Make Cancellations Easier Violates Their First Amendment Rights - Above the Law

Public Institutions

It depends. As with private universities, your public college or university can discipline you for your speech if it determines that the speech violates the university's student conduct rules, or other established rules and guidelines. However, that investigation and determination must adhere,first and foremost, to First Amendment protections (outlined in the general First Amendment section above), as well as to the rules outlined in the universitys student code of conduct so, knowledge of your college or universitys code of conduct and/or policies is essential.

Before a public institution disciplines a student or student group, such as by expelling the student or revoking official recognition from a group on campus, it must provide the student or student group with due process. This includes providing students with the names of witnesses against them, an opportunity to present a defense, and the results and findings of the hearing. Unless otherwise stated in their own rules, public institutions are not required to provide legal representation for students, allow them to bring a legal representative, allow students or student groups to cross-examine witnesses, or record the hearing.

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Know Your Rights: Students in Higher Education & the First Amendment - New York Civil Liberties Union

Home > SPJ News > SPJ co-authors legal brief supporting First Amendment right to record and publish livestreamed court hearings

SPJ co-authors legal brief supporting First Amendment right to record and publish livestreamed court hearings

CONTACT: Ashanti Blaize-Hopkins, SPJ National President, ashanti.blaize@gmail.com Andrew Geronimo, Case Western Reserve University School of Law First Amendment Clinic, andrew.geronimo@case.edu Kim Tsuyuki, SPJ Communications Specialist, ktsuyuki@hq.spj.org

INDIANAPOLIS The Society of Professional Journalists is urging a federal appeals court to protect journalists First Amendment right to photograph, record, and redistribute images of court hearings that are livestreamed for remote viewing.

In a legal brief joined by the National Press Photographers Association, SPJ asks the Sixth Circuit U.S. Court of Appeals to reverse a federal district court ruling from Michigan, which found that there is no constitutionally protected right to create and publish screenshots of court proceedings even if the courts themselves televise the proceedings.

Although judges have been given latitude to exclude photojournalists from the physical courtroom on the grounds that cameras might be noisy or distracting, the same principle does not apply when a journalist, or other spectator, is recording the hearing in the privacy of a home or workplace, the brief argues: By self-publishing the audio or video of a proceeding, the judge has conceded that there is no harm in letting the public listen and watch.

The brief was filed Jan. 8 by attorneys Andrew Geronimo, Sara E. Coulter and Siobhan Gerber of the Milton and Charlotte Kramer First Amendment Law Clinic at Case Western Reserve University School of Law, who are providing pro-bono counsel to SPJ and NPPA.

The brief was filed in support of a Michigan lawyer, Nicholas Somberg, who is suing prosecutors for seeking sanctions against him after he took a screenshot of a hearing in which he was participating by Zoom and shared the image on Facebook. Prosecutors had initiated contempt proceedings against Somberg under a court rule that restricts the use of cameras inside the courtroom without the judges permission. A U.S. district judge threw out Sombergs lawsuit, agreeing with prosecutors that the rule against cameras inside courtrooms applies equally to a livestreamed remote hearing. Somberg is asking the Sixth Circuit to reinstate his case.

SPJ and NPPA ask the appeals court to overturn the district court, which failed to require the government to demonstrate why it is legitimate to extend the courtroom cameras ban beyond the walls of the courthouse. The organizations argue that the ban is unconstitutionally broad, prohibiting the re-use of any images of courtroom video, even in cases of great public concern that involve no sensitive privacy issues.

News media coverage of the courts serves an essential public-education function, enabling far more people than could ever sit in the courtroom to have the civic benefit of viewing the workings of the justice system for themselves, the brief argues. Video of judicial proceedings, whether broadcast by the news media or streamed directly by the court, provides the most complete record of what took place, rather than leaving the public to rely on second-hand accounts, the accuracy of which might be questioned.

The case is Somberg v. McDonald, No. 23-01872.

SPJ promotes the free flow of information vital to informing citizens; works to inspire and educate the next generation of journalists; and fights to protect First Amendment guarantees of freedom of speech and press. Support excellent journalism and fight for your right to know. Become a member, give to the Legal Defense Fund or give to the SPJ Foundation.

-END-

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SPJ co-authors legal brief supporting First Amendment right to record and publish livestreamed court hearings - Society of Professional Journalists

An election year is hard to avoid in Washington, even at the Federal Communications Commission.

Chair Jessica Rosenworcel is playing down the prospect that former President Donald Trump could make good on his recent threats to go after some TV networks that he views as hostile to his candidacy. The First Amendment is something that we take seriously, Rosenworcel said Thursday. It stands for the proposition that we cannot prohibit speech. The thing that is clearest to me is that we have licensing authority over broadcast stations, and its something that needs to be understood more widely and certainly in some of our candidate circles.

When reporters put the same question to Commissioner Brendan Carr, he declined to comment. As we move into election season, I'm not going to be making comments on every statement from candidates as they're working through this process, he said.

It is not the first time Trump has blown off steam toward his adversaries by suggesting the FCC should yank their licenses. He made similar comments in 2017. It drew a critical response from the National Association of Broadcasters, the Radio Television Digital News Association, and some in Congress, but ultimately little came of it.

In other FCC news, Commissioner Anna Gmez has made some staff changes, including those who are advising her on media issues. Deena Shetler will serve as Chief of Staff and advise Gomez on media and international matters. And Harsha Mudaliar will serve as Policy Advisor, focusing on media and technology issues.

Shetler most recently worked on Capitol Hill where she served as a research assistant for the Senate Subcommittee on Communications, Media, and Broadband. Previously, she interned at the FCC in the Office of Legislative Affairs.

Mudaliar joins Gmezs staff from Rosenworcels office, where she served as Deputy Chief of Staff for Administration. She has held numerous leadership roles at the FCC since taking her first job at the agency in 1996, including Deputy Chief of the Office of Economics and Analytics, Deputy Managing Director, Associate Chief of the Wireline Competition Bureau, and as a Legal Advisor to Commissioner Gloria Tristani. Mudaliar has also stepped away from the FCC on two occasions, to work at the National Telecommunications and Information Administration (NTIA) from 2010 to 2011 and the Department of Justice Antitrust Division from 2016-2017.

Gmez also announced Edyael Casaperalta will serve as Legal Advisor for Wireless, Public Safety and Consumer Protection. Hayley Steffen will serve as Legal Advisor for Wireline and Space. And Anna Holland will serve as Executive Assistant in her office.

I am pleased to announce that members of my acting staff have agreed to join my office long term Gmez said. They bring years of communications legal and policy experience along with a longstanding commitment to public service and a can-do attitude.

Read the original post:
FCC's Jessica Rosenworcel On Trump Broadcast License Threats: First Amendment Guides Us. - Insideradio.com

I dont quite understand how anyone could misinterpret the First Amendment, as many people seem to do. It specifically states the following: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

Our forefathers came to America to escape religious bigotry and to practice their religious beliefs without fear of retribution. So when people say we need to put religion into the government, they are defying the intent of the First Amendment.

Choosing to believe or not believe in a particular religion is a very personal decision. When someone says, I cant do that, its against my religion, thats perfectly acceptable. But when someone says, You cant do that, its against my religion. This is unacceptable for the obvious reason that it takes away the freedom to choose to believe differently than you.

When anyone imposes their beliefs on others, it diminishes the right of other people to think for themselves. Let us respect each others personal choices when it comes to religion. Isnt that what true freedom really means?

Kae Luppens

Lemay

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Letter writer reminds others about intent behind the First Amendment - Call Newspapers

Indianas student-to-counselor ratio ranks worst in the nation, according to the 2023 State of the Indiana Girl Report published in September.

Two bills introduced in the General Assembly one in the House, the other in the Senate seek to fill the counselor void, but critics say their solution is unconstitutional and could end up further harming some childrens emotional and mental health.

House Bill 1192 and Senate Bill 50 would allow public and charter schools to employ chaplains, or approve them as volunteers, to counsel students and staff. Though school chaplains wouldnt be required to divulge privileged or confidential communications, the bills are written to invite skepticism as to the ultimate goal of allowing pastoral care.

The Senate version, authored by Sen. Stacey Donato, R-Logansport, says a chaplain may only provide secular assistance, unless the student (or their parent or guardian) gives consent for religious advice, guidance and support services. The House proposal of Rep. Doug Miller, R-Elkhart, does not include such language.

The primary role of chaplains is to provide pastoral or religious counseling to people in spiritual need, the American Civil Liberties Union of Indiana said in a statement. Allowing them to assume official positions whether paid or voluntary in public schools will create an environment ripe for religious coercion and indoctrination of students.

Without any oversight to prevent chaplains from imposing their own religious viewpoint on the children they counsel, HB 1192 and SB 50 could undermine the religious freedom of students of all faiths and no faith.

For a transgender student experiencing mental health concerns, especially in light of Senate Enrolled Act 480 that banned childrens gender-affirming care last year, having a chaplain provide counsel could be harmful.

The Indiana Youth Institute and Girl Coalition of Indiana examined mental health data and surveys completed by school-age children and found schools statewide employed just 1,494 counselors for more than 1 million students.

Proponents of HB 1192 and SB 50 likely will tout the proposals as remedies to the mental health needs of Hoosier students.

Chaplains are trained and certified to provide spiritual and emotional support. Lawmakers should leave mental health care services to the professional school counselors qualified to do that job.

Originally posted here:
Faith-based school chaplains would test First Amendment - Fort Wayne Journal Gazette

On January 20, the official Twitter account for Ronald Reagan Washington National Airport (DCA) warned that passengers might be delayed due to a group in vehicles exercising first amendment rights in roadway, prompting a backlash from readers and a Community Note.

The delays were caused by at least six vehicles driving slowly on the roads approaching the airport, many of which flew Palestinian flags out of windows and sunroofs.

The blocking of public roadways is not protected by the First Amendment, however, and restrictions on such activity by state and federal authorities is generally considered constitutional.

While the First Amendment protects a wide range of free speech activities, including the rights to assemble and protest, the Supreme Court has long recognized the governments right to restrict speech in certain circumstances. Generally speaking, the government may impose content-neutral restrictions on the time, place, and manner of expression, so long as they are narrowly tailored to a substantial government interest, Eugene Volokh, a professor of law at UCLA and First Amendment expert, told The Dispatch Fact Check.

So, while the state of Virginia, where DCA is located, could not constitutionally restrict demonstrations in roadways only for pro-Palestinian protests, it is fully constitutional for it to restrict the blocking of roadways in general. In fact, Virginia does just this: The state has laws against both purposefully impeding the progress of vehicles on highways and the obstruction of free passage of others.

Courts have consistently found that theres a substantial interest in allowing people to get around from place to place and to use the U.S. roadways for the purpose they were designed for, which is to have people go from place A to place B, Volokh explained. The government is entitled to protect that and limitsin fact has basically a presumptive prohibition ondemonstrations on public streets.

Arrest is a common outcome across the U.S. for individuals protesting in public roadways. On January 9, 2024, more than 300 people were arrested for blocking roads and bridges in New York City during a pro-Palestinian protest, and three climate protesters were arrested for blocking lanes on the George Washington Memorial Parkway in April 2023. Nobody has a right to block other peoples ability to get where theyre going, Volokh said.

If you have a claim you would like to see us fact check, please send us an email at factcheck@thedispatch.com. If you would like to suggest a correction to this piece or any other Dispatch article, please email corrections@thedispatch.com.

Read more at The Dispatch

The Dispatch is a new digital media company providing engaged citizens with fact-based reporting and commentary, informed by conservative principles. Sign up for free.

The rest is here:
No, There Is No First Amendment Right to Block a Roadway - AOL

Kameleon007/Getty Images Signature

The House Republicans won a rhetorical victory last month in the congressional hearing addressing antisemitism on college campuses. The then presidents of Harvard University, the Massachusetts Institute of Technology and the University of Pennsylvania could not thread the needle necessary to reconcile their institutions prior robust regulation of speech in the name of community inclusivity with their recent failure to take action against hateful speechindeed, sometimes conductdirected at Jewish students. Under questioning, the presidents appeared insensitive, evasive and inconsistent. In short, the leaders of our top universities, advised by a top law firm, got schooled.

But this rhetorical victory will soon prove Pyrrhic if higher education draws the wrong lessons. Already, mandatory diversity trainings and more aggressive code of conduct enforcement are being touted as solutions to our present morass. Indeed, it was not clear whether the Republican inquisitors wanted universities to follow the First Amendment and embrace broad speech protections or adopt more vigorous codes of conduct that would aggressively punish hateful speech.

What was clear from the hearing was that universities engage in viewpoint-based enforcement of their policies, with examples eagerly shared by Republicans, including speaker cancellations, faculty discipline and revocations of admission offers based on student social media posts. Such selective enforcement is not only politically toxic but legally problematic as a potential violation of TitleVI of the Civil Rights Act and universities contractual promises of evenhanded conduct-code enforcement.

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There is a principled and prudent way out of higher educations crisis of its own making. Though they are not required to do so, private universities should explicitly embrace the First Amendments speech protections in their student handbooks and conduct codes. Language tracking the First Amendment, as some private universities claim to have, is not enough. Such policy statements are easily subject to manipulation by poorly monitored decision-making bodies such as university conduct committees and offices of equity. Indeed, in todays academic climatewhere universities have punished silence and offer trainings that state that cisheterosexism and fatphobia are abusevague suggestions in student handbooks that speech will only be sanctioned when it becomes conduct provide little comfort.

By voluntarily embracing a First Amendment speech standard, private universities would incorporate by reference a large body of case law and evaluative principles. In an area as confused and subject to manipulation as speech and conduct codes, this approach has obvious benefits. University committees tasked with assessing a situation could rely on case law instead of their own often meager and contradictory internal precedents, and university counsel could provide clearer guidance.

Moreover, students or faculty who believe they were wrongly punished for their speech would be able to challenge the university in court for violating its First Amendment commitment. A court, rather than wading through opaque university promises and deciding whether they are enforceable, could instead look to well-developed First Amendment jurisprudence for guidance. With an explicit First Amendment endorsement, student handbooks could no longer be disregarded as too indefinite to establish any concrete promises of protection, as some courts have been inclined to rule.

If universities retain their current speech and conduct regulations, enforcement must be impartial. Given the one-sidedness of their present politics, a point revealed by the congressional hearing, elite universities are not well constituted to ensure neutrality.

But uneven enforcement creates legal and regulatory risk. TitleVI of the Civil Rights Act requires that universities accepting federal funds not discriminate based on race. The Biden administration has announced a number of civil rights investigations sparked by the present speech controversy. Should a Republican win the presidency in 2024, we can anticipate even more aggressive investigations and sanctions, including the possible loss of federal funding. Moreover, students are already bringing private litigation alleging both TitleVI and contract violations stemming from universities inconsistent enforcement of their speech and conduct rules.

By contrast, a private universitys promise to commit to the First Amendment would neither imperil learning nor encourage chaos in Americas most elite private institutions of higher education. We know this because our nations public institutions are already subject to the First Amendment as state actors.

And public universities seem to be faithfully following the First Amendment. In the Foundation for Individual Rights and Expressions university speech rankings, 45 of the 50 best colleges for speech are public institutions, with private colleges taking the majority of the bottom slots. Yet state universities have not experienced the same campus disruptions as their more censorious private peers. Indeed, it seems that allowing students to debate hard topics within the broadthough not boundlesslimits of the First Amendment may actually promote both education and order, two things sorely needed in these challenging times.

Max Schanzenbach is the Seigle Family Professor of Law at Northwestern Universitys Pritzker School of Law. Kimberly Yuracko is the Judd and Mary Morris Leighton Professor of Law, also at the Pritzker School of Law.

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Private colleges should follow the First Amendment (opinion) - Inside Higher Ed

Regulatory agencies can often be an essential part of day-to-day life, preventing people from engaging in activities they have no expertise in something that could potentially endanger a lot of people. But they can also be overbearing brutes whose only concern is whether or not theyve managed to extract as much money as possible from people who are experts in their field but have no desire to pay for the privilege of utilizing their skills.

In Oregon, a sequence of events involving an unlicensed engineer who had things to say about traffic light timing resulted in thestate licensing board apologizingto Mats Jarlstrom for (expertly) saying things the government didnt want to hear. Jarlstroms ended up with a complete win, with his (unlicensed) research on yellow light timingmaking it clear citieswere putting people in danger by shortening yellow light times for the sole purpose of increasing revenue via traffic citations.

A similar thing is happening in North Carolina. Retired engineer Wayne Nutt was told by the North Carolina Board of Examiners and Surveyors to stop offering his expert opinion on engineering matters, even though he was fully qualified to do so. The only thing he was missing was a permission slip from the state board in the form of a professional engineers license.

Nutt refused. He decided to sue instead, represented by the Institute for Justice. He has obtained his first victory, in the form of a federal courtdecision[PDF] that says his expert opinion is protected by the First Amendment and cannot legally be silenced by the state. (viaVolokh Conspiracy)

Heres Nutts background:

Nutt worked as a chemical engineer from 1967 to 2013. He never obtained a professional engineering license because he qualified to practice engineering under the industrial exception of the licensing requirement in North Carolina. A portion of his responsibilities involved overseeing the design, construction, and repair of building trench systems to manage both stormwater and potential chemical spills at his work facility. As a result, he developed expertise in hydraulics, fluid flow, and piping systems.

Since his retirement, he has continued using his expertise to support the efforts of various local interest groups. He has testified to the Wilmington City Council regarding the flaws he identified in a development proposals traffic impact study. He has also testified about an error he discovered in a development plans calculation of the capacity of a stormwater detention pond. His opinion and recommendations led to meaningful changes in the design of those projects.

A long career followed by an unpaid career in public service. None of this was a problem until Nutt tried to offer his expert testimony in a 2020 lawsuit against the county government over allegedly negligent storm drain design that had contributed to additional flooding during Hurricane Florence.

At that point, the government had had enough of Nutt and his expert interloping. The governments lawyers said allowing Nutt to testify in this case would constitute the unauthorized practice of engineering. It made an attempt to silence him by sending him an email suggesting he would be breaking the law if he chose to offer his testimony, leading off by informing him he was not even legally allowed to refer to himself as an engineer.

The Board sent an email, explaining that an unlicensed individual cannot publicly use the term engineer in their descriptive title or offer testimony likely to be perceived by the public as engineering advice.The Board also provided a position statementthe focus of Nutts claimwarning that testimony impacting the public, including expert witness testimony on engineering matters in the courtroom or during depositions and testimony based on engineering education, training or experience, requires licensing. The statement also indicated that expert reports are also evidence of the practice of the profession. The Board stated that it has proceeded against unlicensed individuals for the unlicensed practice of engineering.

Nutt testified anyway. The irritated board responded with some per our previous email saber rattling. Then the expert witness testifying for the government filed a formal complaint against Nutt, accusing him of engaging in unlicensed engineering. A couple of months later following an investigation by the state board, Nutt received another email informing him he had broken the law and that he would likely be fined/cited if he insisted on offering his expert opinion during litigation involving the government.

The court says the emails and the threats they contained are enough to both show standing and demonstrate Nutt has a reasonable fear of prosecution if he continues to offer his expert opinion on engineering matters.

The state tried to moot the lawsuit by claiming the board was no longer pursuing any action against Nutt because the case he testified in had been dismissed. Not good enough, says the court. And stop pretending you didnt do the things you did while that litigation was still a going concern. (Emphasis in the original.)

At oral argument, the Board argued that Nutt should no longer reasonably expect prosecution for providing engineering testimony as an expert witness because it has not tried, and will not try, to prohibit Nutt from testifying as an expert witness. But the Boardhastried to prohibit Nutts speech. Moreover, renouncing its pre-filing enforcement position, while denying the true nature of its past practices, does not make it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.

In hopes of exiting this lawsuit, the state dug its own hole with a combination of contradictory assertions and concessions to certain arguments made by Nutt. It all adds up to a First Amendment violation.

As mentioned above, Nutt seeks a judgment declaring that the Act, as interpreted and enforced, violates the First Amendment, both on its face and as applied to him and others similarly situated. He also seeks a permanent injunction allowing him and others similarly situated to testify about topics that require engineering knowledge without first obtaining an engineering license. The Board has conceded on paper and at argument that it will not enforce the Act to prohibit Nutt and others similarly situated from testifying on engineering matters.

As explained above, this concession does not render the parties dispute moot.It does,however, make clear that the Board does not contest Nutts core claim. Namely, the prohibition on unlicensed expert engineering testimony violates the First Amendment. Therefore, in light of the parties positions, the court will accept that claim as applied to Nutt. The court will also enjoin the Board from enforcing the Act against Nutt for testifying about topics that require engineering knowledge without first obtaining an engineering license.

The court acknowledges that the licensing program helps protect the public by ensuring those offering engineering services are actually capable of performing that job competently. But telling qualified engineers theyre not allowed to speak publicly about these matters without the permission of the board violates their rights. The government is always free to seek to have testimony from unlicensed engineers thrown out of court or otherwise seek to have this testimony blocked from admission. What it cant do is pursue criminal proceedings against engineers for speaking.

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. 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. Thus, although the government may properly exercise its interests in policing the use of technical knowledge for non-expressive purposes, those interests must give way to the nations profound national commitment to free speech in this case. At the very least, the government had to show that it seriously considered less restrictive alternatives before targeting pure speech. The government failed to meet its obligations under the First Amendment.

Thats pretty cut and dry. The board is still welcome to regulate the act of engineering. But it has no business regulating their speech.

Full opinion

Federal Court Says First Amendment Protects Engineers Who Offer Expert Testimony Without A License

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Federal Court Says First Amendment Protects Engineers Who Offer Expert Testimony Without A License - Above the Law