Private investigator Joshua Gray could have stayed silent when he read about a 2017 police shooting in Maine that left two people dead. Instead, Gray spoke up on Facebook about what he perceived as excessive use of force.
The First Amendment protected his speech, so Gray should have been safe from government backlash. But the Maine Department of Public Safety decided to punish him anyway for the criticism, which focused on two of its officers and a local police chief.
The chance for retaliation came when Gray tried to expand his Massachusetts-based business from Winchendon, a small town near New Hampshire, into Maine in 2018. Like most other states, Maine requires private investigators to obtain a government-issued occupational license. Applications in Maine go through the Department of Public Safety, the same agency that Gray had blasted on social media.
Most of the requirements for approval are clear, and Gray met all the objective standards. He had a clean criminal history, sufficient education, and ample experience. Yet Maine also enforces a fuzzy requirement that applicants must demonstrate “good moral character.”
Questions of morality naturally fall within the realm of religion, but the chief of the Maine State Police is appointed within the Department of Public Safety as the final arbiter of virtue for private investigators.
The chief looked into Gray’s soul and found him wanting. The reason? Some of Gray’s comments about the shooting contained opinion, imprecise language, and at least one factual error. Specifically, Gray initially misidentified the officer who fatally shot the teenage passenger in a car driven by a 25-year-old man.
In reality, the officer had shot and killed the driver and a different officer had shot and killed the passenger. Gray published a correction as soon as new information became available, but his overall conclusions did not change.
Rather than accept the denial of his license, Gray sued the state. The Maine Supreme Judicial Court ruled against him in April 2021, but Gray has continued fighting. With representation from our public interest law firm, the Institute for Justice, he petitioned the Supreme Court on Sept. 3, 2021, to hear his case.
The outcome will have nationwide implications for private investigators, barbers, day care providers, crane operators, and wage earners in dozens of other regulated industries. Overall, about 20% of workers need occupational licenses to earn income, and many oversight boards impose good moral character requirements.
If government gatekeepers can sift through social media accounts and reject applications based on arguable errors and exaggerations, then occupational licensing boards set up to protect public health and safety will morph into censorship panels. Silence will be the only safe option for workers worried about paying rent and feeding their families.
Gray’s case shows the risks. Even when boards do not actively censor speech, just the possibility of censorship has a chilling effect. During the pandemic, for instance, at least one law school warned its students not to criticize licensing authorities’ response to the emergency because public criticism “may not be a smart strategy for passing Character & Fitness with ease.”
Meanwhile, other occupational licensing boards have started punishing speech in situations in which nobody has said anything controversial — simply because industry insiders want to protect their turf from outside competition.
The Oregon State Board of Examiners for Engineering and Land Surveying harassed Mats Jarlstrom for two years after he publicly suggested that yellow traffic lights should last slightly longer to accommodate cars making right turns. Jarlstrom, a Swedish-born electrical engineer, had the math to show that his calculations were correct, but the board tried to fine him $500 anyway for practicing engineering without a license.
A similar board ordered retired engineer Wayne Nutt not to talk publicly about piping systems in North Carolina. Perhaps even more bizarre, occupational licensing boards in Connecticut, New Mexico, Oklahoma, and Texas have ordered unlicensed interior designers not to call themselves “interior designers” — as if government bureaucrats have a monopoly on the dictionary.
The Supreme Court already has weighed in on states using occupational licensing laws to circumvent the First Amendment. In a 2018 ruling involving compelled speech for pregnancy counselors in California, the high court rejected the argument that occupational licensing boards regulate conduct, not speech, when they tell professionals what they can and cannot say.
Speech is speech, even when uttered by someone who needs government permission to earn an honest living. Unfortunately for Gray, Maine, along with many other states, missed the memo.
Rob Johnson is a senior attorney. Daryl James is a writer at the Institute for Justice in Arlington, Virginia.
