How Anne Brontë violated Nevada law by speaking without permission

April 13, 2015 | By TIMOTHY SANDEFUR

Last week, we filed the final papers asking a federal judge in Las Vegas to stop the state from enforcing its “private investigator” licensing law—that’s the law that says that if you “furnish…information” about a “person,” and get paid for it, you’re a “private investigator” and must get a license. If you don’t, you risk fines and even jail time. Not only that, but to have a license, you must keep your “principal place of business” inside state lines—a significant burden on professionals in other states, like our client, Troy Castillo, who’s located in Palm Springs, California.

State bureaucrats have opposed our motion by saying that they don’t intend to enforce the law against people who have no Nevada-based employees. They’re wrong: state law clearly says that any person, whether or not he or she has employees, must have a license, and to keep an office in the state. State officials don’t have any authority to disregard these requirements.

Amusingly, the state’s brief includes literary quotations from the authors Anne Brontë and Irene Hunt, and claims (quoting Brontë) that we’re taking “affronts where none are intended.” But as Shakespeare might have replied, there is offense, and much offense, too.

Nevada law plainly forbids any person from “furnish[ing]…information” about “[t]he identity, habits, conduct…honesty, integrity, credibility, knowledge, trustworthiness…loyalty…acts, [or] reputation…of any person,” the “location…of lost or stolen property,” or “[a] crime or tort that has been committed” without first getting permission from the state. This means that it is a crime in Nevada to write, say, a biography of Anne Brontë or Irene Hunt, without having a PI license, since doing so would be “investigating” to “obtain” “information” about the “reputation” of “persons” for money. It is against the law to do that without having a license.

It is illegal to give a public lecture about, say, the killing of Tupac Shakur (crimes which have been committed) or to present a television series speculating about where Bill Brennan took the money he stole in the famous 1992 Stardust Casino heist (the location of stolen property), or to teach a class of students about Mark Twain’s days in Virginia City (the conduct or acts of a person), give a tour of the Governor’s Mansion and talk about past Nevada governors (the habits of a person), or even to publish a newspaper column criticizing a political candidate’s “honesty, integrity, credibility, knowledge, trustworthiness,” or “loyalty,” unless one gets the government’s permission first. Brontë would be required to get a license to publish her poem “To Cowper,” since it’s about the “identity,” “habits,” and “conduct” of a person, whereas her poem “The Captive Dove” could be published without a license, since it’s not about “a person.”

That’s what we in the biz call a prior restraint and a content-based speech restriction. The government can’t require you to get its permission before you “furnish…information” and it can’t impose different burdens on speech based on the content of that speech. Nor are these First Amendment concerns exaggerated, since the Nevada Private Investigator Licensing Board recently prosecuted someone for testifying as an expert witness in a criminal trial, because it said that made the person a “private investigator.” (The state later passed a law exempting expert witnesses—and only expert witnesses—from the law.) Remarkably, state officials make no effort to respond to our First Amendment arguments.

The judge has not yet scheduled a hearing on our motion. We’ll blog it if and when she does. In the meantime, you can read our opening brief here, the government’s brief here, and our response here.