Free speech is a valuable protector of economic liberty

July 14, 2021 | By CALEB TROTTER

When Oklahoma enacted a new law in 2016 limiting which artists could market their art as American Indian-made, the effect was to make it much harder for some artists to earn a living selling their art in the state.

When California enacted the now-infamous AB 5 law in 2019 redefining which professionals could work as independent contractors, rather than employees—and what types of work could be completed by those professionals—the law caused thousands of individuals in hundreds of professions to lose substantial amounts of paying work.

When the governor of New York imposed capacity restrictions on reopening businesses following the initial months of the COVID-19 pandemic, he arbitrarily placed limits on small theaters, with those limits varying based on the purpose of the gathering. Unsurprisingly, small theater operators were put at a major disadvantage to businesses with more lax restrictions.

Governments routinely regulate and restrict people’s right to earn a living. While often done in the name of protecting the public from health and safety hazards, or from fraud and other forms of economic chicanery, regulation is also frequently the result of lobbying to protect existing market participants from competition.

Whatever the reason, the effect such laws can have on an individual’s right to free speech is typically overlooked when government reaches too far.

In Oklahoma, the law restricting who could market as an American Indian artist banned all but a select group of American Indians from describing their heritage and tribal membership. Because the law prohibited artist Peggy Fontenot from truthfully representing herself as a Native artist, the Patawomeck photographer and jewelry maker sued to vindicate her right to free speech.

In California, AB 5 singled out journalists and photographers with severe limits on the amount of work they could complete as freelancers, and entirely banned freelance photographers from shooting video. In response to such a blatant attack on the press and speech rights of independent journalists, the American Society of Journalists and Authors and the National Press Photographers Association joined forces to sue to protect their First Amendment rights.

In New York, Governor Andrew Cuomo’s arbitrary limits on reopening businesses kept theaters at 33% capacity, whereas churches and other businesses—including restaurants with live entertainment—were allowed 50% capacity. Faced with the prospect of being allowed only a third of its capacity for theatrical performances, whereas a church renting the same space could admit up to 50% capacity, a small Times Square theater called the Clementine Company sued to enforce its First Amendment rights not to be treated differently due to the content of its productions.

All three cases—brought with the help of Pacific Legal Foundation—illustrate a pernicious government tactic of regulating people and businesses differently based on what they say.

Whether one markets herself as a Native artist rather than just an artist, or produces journalism rather than press releases, or stages theatrical rather than liturgical performances can mean different government rules based on nothing more than the content of speech.

But the Supreme Court of the United States views with great suspicion government efforts to regulate the content of speech.

In the seminal case of Reed v. Town of Gilbert, the Supreme Court held that laws which apply to speech due to “the topic discussed or the idea or message expressed,” and those which by their function or purpose regulate speech, are subject to the highest form of judicial scrutiny.

Under such “strict” scrutiny, laws rarely survive review by the courts.

In contrast, courts typically apply minimal review when challenging general economic regulations that do not implicate speech. Under “rational basis” review, courts are loath to second-guess lawmakers, and rarely hold that laws limiting the right to earn a living go too far.

The most likely way for a law to fail rational basis review is if it was enacted out of economic favoritism for certain industry participants, or if the government’s rationales defy logic.

Regardless of the validity of “rational basis” review, courts take seriously challenges to laws restricting speech. This is especially true when the government regulates the content of one’s speech. Indeed, liberty cannot flourish where the government can pick and choose which messages are expressed by the people.

As government increasingly seeks to limit and regulate what people say in pursuing their livelihoods, people will always fight for their right to speak freely and pursue their chosen profession. Whether it’s Native artists in Oklahoma, journalists in California, or theater owners in New York, PLF will be there to help.