July 6, 2016

States can't evade the First Amendment by labeling speech "professional conduct"

By Anastasia P. Boden Attorney

Today we filed this brief asking a full panel of the Eighth Circuit Court of Appeals to rehear our case on behalf of Leslie Young.

Leslie Young is an advertising broker.  She started her business—eList.me—to help people who want to sell their homes without the use of a real estate broker, or “for sale by owner” (FSBO).  The way her business works is she enters information about FSBO homes into online databases, and those databases publish that information in the form of advertisements on various websites.  Leslie doesn’t show homes or interact with potential buyers; the advertisements connect buyers directly with sellers. And Leslie doesn’t handle any client funds or complete any closing paperwork.  She is paid per advertisement that she posts online, regardless of whether the property sells.

Nebraska law calls Leslie’s business the practice of “real estate brokerage,” and requires a license for it.  PLF challenged the law in federal court, alleging that the Nebraska licensing law violates her right to free speech and her right to earn a living free of arbitrary government interference.  The Eighth Circuit Court of Appeals upheld the law on the basis that the law regulated the conduct of real estate brokerage, not speech.  But as we argue in our brief, laws that regulate communications based on the topic discussed are restrictions on speech, subject to strict First Amendment scrutiny.  A state cannot evade that scrutiny by calling the regulated speech “professional conduct.”  Other courts agree: licensing laws for professional fundraisers, palm readers, psychologists, and tour guides have all been analyzed under the First Amendment.

We hope that Eighth Circuit decides to take up this important question and reverse the decision, which threatens the speech rights of many—merely because they are paid to speak.

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