December 11, 2015

States can't license free speech by calling it "conduct"

By Anastasia P. Boden Attorney

On Tuesday I’ll be arguing our case in Young v. Ricketts in front of the Eighth Circuit Court of Appeals.  Our client, Leslie Young, is an internet-entrepreneur based in California, and she provides advertising services for people who want to sell their homes on a for-sale-by-owner basis (ie. without the use of a licensed real estate broker).  Nebraska law calls Leslie’s advertising business the practice of “real estate brokerage” and requires a license for it.

But getting a real estate broker’s license is an expensive and time-consuming process—and the licensing requirements are wholly unrelated to Leslie’s job as an advertiser.  For example, real estate brokers have to undergo annual training in matters like completing closing paperwork, handling client funds, and negotiating the terms of sale—none of which Leslie does.  Most absurd, Nebraska law prohibits licensed real estate brokers from advertising homes on a for-sale-by-owner basis, meaning that if she were to get a license, she would be legally barred from doing her job anyway!

We argued in the district court that requiring Leslie to get a license violates the First Amendment because it is an unconstitutional restriction on her right to free speech.  When we conducted discovery, we discovered just how much speech is covered by the statute.  The Director of the Real Estate Commission testified that even calling up your friend and telling him or her that your neighbor’s house was for sale would qualify as real estate brokerage, if your neighbor paid you for it!  But rather than addressing our claims, the court ruled that Leslie’s business qualified as real estate brokerage under the Nebraska statute, and dismissed the case.  Of course, we had conceded all along that her business qualified as real estate brokerage—that is exactly what makes the Nebraska statute unconstitutional.

Now we are asking the Eighth Circuit to hear our constitutional claims and rule that Nebraska can’t regulate speech by calling it “professional conduct” and requiring a license for it.  Statutes that encompass such a broad amount of speech, and that the government applies to people who are only engaged in speech, are subject to strict First Amendment scrutiny.  Because the law forces so many speakers to get a license, yet bears no relationship at all to their speech or business, it fails that scrutiny.

You can read our briefs here.

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