248 A.3d 212
Me.2021Background
- Joshua A. Gray applied for a Maine professional investigator license; the Department denied the application based on social‑media posts using his PI business account that accused a Maine State Police lieutenant of being intoxicated, having "murdered" a woman, and having multiple internal‑affairs complaints.
- Gray admitted making the posts and characterized many statements as opinions; the lieutenant and the Office of Professional Standards provided affidavits contradicting Gray’s allegations.
- The Department found Gray published uninvestigated, false statements under his business name, concluding he lacked competency and good moral character to be licensed and that his communications showed reckless disregard for the truth.
- The Superior Court remanded for a determination whether Gray acted with "actual malice" under New York Times v. Sullivan, then later affirmed the Department’s denial after the Department again found actual malice and lack of competency.
- The Maine Supreme Judicial Court reviewed de novo the First Amendment question, applied intermediate scrutiny to occupational licensing provisions that incidentally burden speech, and affirmed the denial of Gray’s license.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether denying the license violated the First Amendment | Gray: denial punished protected speech on a matter of public concern; record insufficient to show actual malice | DPS: licensing standards regulate professional conduct and may incidentally affect speech; denial based on false, uninvestigated statements harming fitness to practice | Court: No First Amendment violation; intermediate scrutiny applies and the denial was permissible |
| Whether "actual malice" must be shown to deny a license | Gray: Department must prove NYT actual malice (knowledge of falsity or reckless disregard) | DPS: actual malice standard not necessarily applicable to licensing regulation of professional conduct | Court: Actual malice need not be shown; intermediate scrutiny is the proper test for statutes incidentally burdening speech |
| Proper level of scrutiny for licensing rules that incidentally burden speech | Gray: protections for speech require heightened review | DPS: statutes regulate conduct and are aimed at fitness to practice | Court: Intermediate scrutiny applies to regulations of conduct that incidentally affect speech |
| Whether Department's factual findings are supported and narrowly tailored | Gray: record does not support findings of reckless falsehood or lack of competency | DPS: evidence (posts, admissions, affidavits) shows uninvestigated false claims and misuse of business reputation | Court: Findings are supported by substantial evidence; application of statutes was narrowly tailored to protect the public and professional standards |
Key Cases Cited
- N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964) (actual malice standard for false statements about public officials)
- Pickering v. Board of Education, 391 U.S. 563 (1968) (balancing public employee speech and government interest)
- Garcetti v. Ceballos, 547 U.S. 410 (2006) (speech made pursuant to professional duties not protected in same way)
- Nat'l Inst. of Fam. & Life Advocates v. Becerra, 138 S. Ct. 2361 (2018) (professional speech not a separate category exempt from First Amendment analysis)
- Packingham v. North Carolina, 137 S. Ct. 1730 (2017) (intermediate scrutiny language for content‑neutral restrictions impacting speech)
- Lowe v. SEC, 472 U.S. 181 (1985) (concurrence endorsing rational‑basis review for professional‑entry regulations)
- Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978) (states' power to regulate professions even when speech is involved)
- Fla. Bar v. Went for It, Inc., 515 U.S. 618 (1995) (state interests in regulating professional practice and protecting the public)
- Capital Associated Indus. v. Stein, 922 F.3d 198 (4th Cir. 2019) (applied intermediate scrutiny to professional licensing restriction that incidentally affected speech)
- Vizaline, L.L.C. v. Tracy, 949 F.3d 927 (5th Cir. 2020) (discussing whether occupational licensing exemptions from First Amendment scrutiny remain viable)
- In re R. M. J., 455 U.S. 191 (1982) (state regulation affecting speech must serve a substantial interest and be proportionate)