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The Free Speech of Unlicensed Experts

There are strong arguments against the requirement of licensure for a great many occupations where the public may be at risk of harm but the requirement of a license serves more to preclude entry into the position than to save anyone from a dangerous charlatan. But does that apply to professionals, where the testing of educational and experiential requirements serve to provide some modicum of assurance that these people know what they’re doing?

And if a license is required, can someone testify in court as an expert even though he has no license? Eastern District of North Carolina Judge Richard Myers in Nutt v. Ritter held that he can.

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 nonexpressive purposes, those interests must give way to the nation’s 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.

The speech-conduct distinction seems to be a tough analogy to sell. Sure, engineers are typically required to stamp papers, but the physical act of stamping is little more than an expressive act of approval shown by marks on paper. So it’s speech, then. But it’s professional speech. Does that not mean anything? As to Nutt, not much.

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 proposal’s traffic impact study. He has also testified about an error he discovered in a development plan’s calculation of the capacity of a stormwater detention pond. His opinion and recommendations led to meaningful changes in the design of those projects.

Having a wealth of experience in the lawful performance of engineering duties, it’s hard to see any rational basis to preclude Nutt’s testimony as an expert in the field. Indeed, many would argue that he had vastly more experience than some snot-nosed engineer with a license and little to no field experience. The North Carolina Board of Examiners for Engineers and Surveyors was unimpressed. If Nutt had no license, Nutt could not proffer an expert opinion. Judge Myers held this violated the First Amendment.

Despite the content-based nature of the Act’s challenged application to unlicensed expert engineering reports, the Board maintains intermediate scrutiny should apply based on the “exception for professional regulations that incidentally affect speech,” as articulated in National Institute of Family and Life Advocates v. Becerra (2018) …. The Board places dispositive value on the fact that the Act “generally functions” as a regulation on professional conduct….

[But] when the Supreme Court rejected the idea of a professional speech doctrine, it also rejected the idea that the government could regulate any speech “uttered by professionals” simply because “it involves personalized services and requires a professional license from the State.” The Court explained that that would allow the government to get a free pass to abridge speech by “simply imposing a licensing requirement.”

This is where the rationale takes a hard left turn, as it conflates the efforts to use professional licensure with the imposition of a general speech code upon anyone holding a license (think ABA Model Rule 8.4[g], relating to unwoke lawyer speech) and speech integral to the performance of a professional function. While licensure isn’t a magic impose-a-speech-code-at-will fix, it still permits the prohibition of randos from hanging up a shingle to practice law.

The saying is that bad cases make bad law, and the fact that Nutt is an outlier by virtue of his vast experience and undeniable qualifications does not mean everyone who wants to hold himself out as an engineer sans license should be similarly able to do so. Many builders would argue that they, like Nutt, have sufficient experience in construction to decide what size load bearing beam is necessary in the construction of a house, and he very well may. But should the building inspector rely on this experience? What happens to the homeowner if the building comes down after a heavy snow?

The problem faced in First Amendment challenges to professional licensing requirements is that the test cases are often very different than what might follow if licensure is held unconstitutional. Sure, Nutt was qualified. That doesn’t mean Casey Jones is. And that doesn’t mean the public has the ability to tell whether someone without a license is a Nutt.

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