The Hill: Massage licensing law violates the Fourth Amendment

In Billings, Mont., a new law forces massage therapists, including those working from home, to open the door for government agents to search their properties and patient-treatment logs on demand. Insisting that the police or code enforcement return with a warrant, as the Constitution requires, can be grounds for arrest, prosecution and jail time. So is refusing to open locked doors, cabinets or other spaces.

The city has trumpeted the law as a tool for combating prostitution, but it sweeps too broadly, ensnaring within its grasp professional, law-abiding massage therapists who care deeply about the wellbeing and privacy of their patients and employees.

Theresa Vondra owns a massage therapy business in Billings, where she employs seven therapists, including herself. She has been leading the opposition to this law since it was introduced and has coordinated with other massage therapists in the city to appear at city council meetings in force and oppose this unconstitutional measure.

When it appeared that the law would pass, she decided to fight back with a lawsuit. With representation from my firm, Pacific Legal Foundation (PLF), Vondra and other, similarly situated therapists filed a lawsuit asserting that the city’s licensing scheme tramples on the constitutional rights of massage therapists and their patients, to insist that police get a warrant before invading their businesses, records and homes.

This last place — homes — is particularly important to plaintiff Donna Podolak, who works as a massage therapist from her home in a 55-and-over apartment community, where she provides therapeutic care to victims of workplace and automotive accidents, among other clients with physical and psychological pain and trauma. The idea that her home could be searched without cause or a warrant, merely because she is a massage therapist in Billings, was more than Podolak was willing to bear.

The Fourth Amendment to the U.S. Constitution guarantees the “right to be secure” in property and privacy against “unreasonable searches and seizures” of “persons, houses, papers and effects.” Nowhere is that right more sacred than in the home. And only in the case of extremely dangerous activities, such as underground mining or firearms manufacturing, has the U.S. Supreme Court found that the Constitution allows even commercial property to be searched without cause or a warrant.

Thus, Vondra, Podolak and the other plaintiffs challenging the Billings massage law have the Constitution on their side.

But the ordinance appears to have been cleverly drafted to attempt to sidestep the Constitution. Rather than announcing that all massage therapists’ workplaces can be searched without a warrant, it requires all massage therapists to apply for a facility license or exemption — importantly, the “exemption” for solo practitioners still requires complying with the search rules. As part of the application, a massage therapist must agree ahead of time to warrantless searches of their homes or business premises.

Consent is the great exception to the Constitution’s rule against searches of property without a warrant. But consent must be voluntary. In the case of the Billings law, the “consent” to searches of massage therapists’ properties could not be less voluntary. That’s because the law makes it illegal to practice massage therapy in Billings without a special city license. If a massage therapist is to continue working in the profession, he or she must apply for one of these licenses or risk prosecution — and the only way to obtain a license is by surrendering the right to insist that the government obtain a warrant before searching private property.

Fortunately, Vondra and her fellow massage therapists have the Constitution on their side here again. The legal doctrine of “unconstitutional conditions” prohibits governments from demanding that someone surrender their constitutional rights in exchange for a government license, permit or benefit.

Cities and states throughout the country should take note. The increasing march of requiring licenses or permits for even innocuous professions does not allow the government to insist that people give up their constitutional rights. When the government does so or drowns them in overly broad regulations, courageous people remain vigilant and willing to stand up for themselves, their clients, and their freedoms.

This op-ed was originally published by The Hill on April 11, 2022.