949 F.3d 927
5th Cir.2020Background
- Vizaline converts existing metes-and-bounds legal descriptions into computer-generated "simple maps" overlaid on satellite imagery and sells them to community banks as a low-cost product.
- Vizaline does not advertise its product as a "Legal Survey," does not perform field measurements or monument retracement, and tells customers to hire licensed surveyors when discrepancies arise.
- The Mississippi Board of Licensure for Professional Engineers and Surveyors (through the state Attorney General) sued Vizaline in state court for practicing surveying without a license and sought an injunction and disgorgement.
- Vizaline filed a federal suit asserting that applying Mississippi’s surveyor-licensing statute to its mapmaking violates the First Amendment because creating and selling these maps is speech.
- The district court dismissed, holding occupational-licensing rules are categorically exempt from First Amendment scrutiny; Vizaline appealed.
- The Fifth Circuit reversed and remanded: relying on the Supreme Court’s decision in NIFLA, it held that occupational-licensing regulations are not immune from First Amendment review and that courts must analyze whether the regulation targets speech, conduct, or conduct that incidentally burdens speech.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether occupational-licensing requirements are categorically immune from First Amendment scrutiny | Vizaline: No—its mapmaking is dissemination of information (speech) protected by the First Amendment and cannot be automatically stripped of protection by a licensing regime | Board: Yes—states may regulate professions; licensing provisions regulate conduct and thus are exempt from First Amendment review under circuit precedent | Reversed: Occupational-licensing rules are not categorically exempt. Under NIFLA, courts must perform a speech-vs.-conduct analysis to determine applicable scrutiny |
| Whether the court must decide now if Vizaline's maps are protected speech | Vizaline: Its maps are speech (visual depictions) and commercial sale does not remove protection | Board: The licensing regulation governs who may perform the professional activity; it primarily regulates conduct | Not decided: The Fifth Circuit declined to resolve whether Vizaline’s practice is speech or conduct, or what level of scrutiny applies; remanded for further proceedings applying the conduct/speech framework |
Key Cases Cited
- Nat’l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361 (2018) (rejected the “professional speech” doctrine and directed courts to apply the speech-versus-conduct framework)
- Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) (creation and dissemination of information is protected speech)
- Hines v. Alldredge, 783 F.3d 197 (5th Cir. 2015) (Fifth Circuit decision adopting professional-speech reasoning; abrogated insofar as it relied on that doctrine)
- Moore‑King v. County of Chesterfield, 708 F.3d 560 (4th Cir. 2013) (example of circuit-level professional‑speech precedent criticized in NIFLA)
- Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) (recognizes that providing specialized advice can qualify as protected speech)
- City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750 (1988) (commercial transactions in speech do not eliminate First Amendment protection)