JOSHUA A. GRAY v. DEPARTMENT OF PUBLIC SAFETY
Ken-20-168
Maine Supreme Judicial Court
April 6, 2021
2021 ME 19
HUMPHREY, J.
Argued: February 10, 2021. Panel: MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ. Reporter of Decisions.
HUMPHREY, J.
[¶2] Joshua A. Gray appeals from a judgment of the Superior Court (Kennebec County, Murphy, J.) affirming the Department of Public Safety‘s denial of Gray‘s application for a professional investigator license based on posts and comments that Gray made on social media, using an account bearing the name of his out-of-state private investigation business, concerning a Maine State Police lieutenant. Gray argues that the court erred in concluding that the Department had not, in denying his application, violated his free speech rights conferred by the First and Fourteenth Amendments of the United States Constitution.2 Although Gray challenges the determination that he acted with “actual malice”3 in posting and commenting on social media, we conclude that actual malice need not be shown and that we must apply intermediate scrutiny to review the licensing standards as applied to Gray here. Applying that standard, we affirm the judgment.
[¶3] On January 26, 2018, Gray applied to the Department for a professional investigator license. See
[¶4] Gray appealed to the Superior Court. See
[¶5] On remand, the Department propounded thirty-nine questions to Gray about certain assertions he had made using a social media account identifying himself as a “PI” and including the name of his Massachusetts private investigation business, NSI Surveillance & Investigation. Gray responded to the questions and admitted that he had made on social media posts and comments that stated that a Maine State Police lieutenant was “[p]ossibl[y] drunk” during the time of a police incident that resulted in a woman‘s death and that the lieutenant had “murdered” the woman. He asserted to the Department that the statements were opinions, not facts, and that when he learned that another officer—not the lieutenant whom he had named—had shot the woman, he provided that information on social media. He also admitted that he had stated on social media that the lieutenant had been the subject of multiple internal affairs investigations, though he again asserted that his statement was an expression of opinion.
[¶6] During its examination of Gray‘s responses, the Department reviewed affidavits from (1) the lieutenant in question, who swore that he had not consumed alcohol on the day of the incident or at any time during his life, and (2) the commander of the Department‘s Office of Professional Standards (OPS), formerly the Office of Internal Affairs, who reported that only one complaint had been made against the lieutenant—a complaint initiated by Gray that had resulted in an investigation. The Department also considered hundreds of pages of printouts of Gray‘s posts and comments on social media and other internet platforms.
[¶7] The Department issued a second decision denying Gray‘s application, finding that Gray had made certain statements on social media with actual malice—knowing that they were false or with reckless disregard of their truth or falsity—including statements about the lieutenant‘s intoxication; statements that the lieutenant had “murdered,” “executed,” or “killed”
[¶8] The decision also stated, however, that the actual malice standard did not apply because even if Gray had the right to say the things he did, he was not entitled to a professional license if he did not meet the competency and character standards for a professional investigator. The Department found that Gray had reported erroneous, uninvestigated conclusions on social media, placing behind those conclusions “the authority of the reputation of [Gray‘s] business” and of “the private investigator license of the State of Massachusetts.” The Department also found that Gray “lacks the basic competency and requisite good moral character” to hold a professional investigator‘s license and that his “communications have demonstrated a pattern of reckless disregard for the truth.”
[¶9] On October 28, 2019, Gray again appealed to the Superior Court by filing a petition for review of the Department‘s denial of his application for a license. See
II. DISCUSSION
[¶10] We review an administrative agency‘s decision “directly for errors of law, abuse of discretion, or findings not supported by substantial evidence in the record.” Palian v. Dep‘t of Health & Hum. Servs., 2020 ME 131, ¶ 10, 242 A.3d 164 (quotation marks omitted). To conduct this review here, we will (A) summarize the standards governing the licensing of professional investigators in Maine and (B) review whether the Department, in denying Gray‘s license application, violated the First Amendment.
A. Standards for Licensing Professional Investigators
[¶11] Licensed professional investigators in Maine are authorized to conduct private investigations, including by accepting consideration to obtain information about a crime committed in violation of the law or “[t]he identity, habits, conduct, movements, whereabouts, affiliations, associations, transactions, reputation or character of any person.”
[¶12] To qualify for a professional investigator license, a person must have “demonstrated good moral character.” Id. § 8105(4). The Chief of the Maine State Police may refuse to issue a license if an applicant is incompetent, meaning that the applicant “[e]ngaged in conduct that evidences a lack of ability or fitness to discharge the duty owed by the licensee to the client or the general public” or “[e]ngaged in conduct that evidences a lack of knowledge or an inability to apply principles or skills to carry out the practice” for which the person seeks the license. Id. § 8113(6). A license may also be denied if the applicant has violated “standards of acceptable professional conduct adopted by rule” by the Chief of the Maine State Police. Id. § 8113(11); see
B. First Amendment
[¶13] The construction of the First Amendment presents a question of law that we review de novo. See Palian, 2020 ME 131, ¶ 10, 242 A.3d 164; Burr v. Dep‘t of Corr., 2020 ME 130, ¶ 20, 240 A.3d 371.
[¶14] The First Amendment provides, “Congress shall make no law . . . abridging the freedom of speech . . . .”
[¶15] Gray argues that the record does not support a finding of actual malice, but the Department argues in response that the actual malice standard is not applicable. To resolve this dispute, we (1) determine the proper standard for evaluating whether the First Amendment has been violated in these circumstances, and (2) apply that standard in reviewing the Department‘s decision on Gray‘s application.
1. Standard for Determining a First Amendment Violation
[¶16] We review the constitutionality of the applicable statutes as they were applied and do not treat Gray‘s argument as a facial constitutional challenge because Gray does not argue that the challenged statutes “cannot be applied constitutionally on any set of facts.” Guardianship of Chamberlain, 2015 ME 76, ¶ 10, 118 A.3d 229.
[¶17] Gray analogizes his situation to that of the teacher in Pickering v. Board of Education, whose employment was terminated after he criticized the local board of education in a published letter to the editor of a newspaper. 391 U.S. at 564-65. Unlike in Pickering, however, Gray has not had government employment terminated based on his exercise of the right to speak as a private citizen on a matter of public concern.5 See id. at 564-65, 573-74. Rather, he has been subjected to regulations governing the licensing of professional investigators based on his conduct as a member of the profession for which he seeks a license. Cf. Garcetti v. Ceballos, 547 U.S. 410, 421, 426 (2006) (“We reject . . . the notion that the First Amendment shields from discipline the expressions employees make pursuant
[¶18] Because of the power of government to regulate conduct, governmental authority “to regulate the professions is not lost whenever the practice of a profession entails speech.” Greater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Council of Balt., 879 F.3d 101, 109 (4th Cir. 2018) (quotation marks omitted). “States may regulate professional conduct, even though that conduct incidentally involves speech.” Nat‘l Inst. of Fam. & Life Advocs. [NIFLA] v. Becerra, 138 S. Ct. 2361, 2372 (2018). The State “bears a special responsibility for maintaining standards among members of the licensed professions” and “does not lose its power to regulate commercial activity deemed harmful to the public whenever speech is a component of that activity.” Ohralik v. Ohio State Bar Ass‘n, 436 U.S. 447, 456, 460 (1978).
[¶19] Occupational licensing requirements are not categorically exempt from First Amendment scrutiny, however, see Vizaline, L.L.C. v. Tracy, 949 F.3d 927, 934 (5th Cir. 2020), and the Supreme Court has signaled that professional speech does not fall into a unique category that is exempt from First Amendment protections, see NIFLA, 138 S. Ct. at 2373-75. The pertinent standard for determining whether a regulation governing entry into a profession violates the First Amendment has become a subject of some confusion throughout the United States.
[¶20] Following the issuance of Lowe v. Securities and Exchange Commission in 1985, many courts cleaved to the standard set forth in Justice White‘s concurring opinion in that matter: “Regulations on entry into a profession, as a general matter, are constitutional if they have a rational connection with the applicant‘s fitness or capacity to practice the profession.” Lowe v. Securities and Exchange Commission, 472 U.S. 181, 228 (1985) (White, J., concurring) (quotation marks omitted); see, e.g., Hines v. Alldredge, 783 F.3d 197, 201-02 & n.17 (5th Cir. 2015), abrogation recognized by Vizaline, 949 F.3d at 933-34; Nat‘l Ass‘n for the Advancement of Multijurisdiction Prac. v. Howell, 851 F.3d 12, 16, 19-20 (D.C. Cir. 2017) (applying rational basis review to restrictions on who may appear as counsel before a local federal court); Nat‘l Ass‘n for the Advancement of Multijurisdiction Prac. v. Castille, 799 F.3d 216, 221 (3d Cir. 2015) (“It has long been true that [a] State can require high standards of qualification, such as good moral character or proficiency in its law, before it admits an applicant to the bar, so long as any requirement has a rational connection with the applicant‘s fitness or capacity to practice law.” (alteration in original) (quotation marks omitted)).
[¶21] Because, however, the Supreme Court held in 2018 that it has never recognized “professional speech as a unique category that is exempt from ordinary First Amendment principles,” NIFLA, 138 S. Ct. at 2375, it is unclear whether the “rational connection” test is appropriately applied even as to standards of qualification to practice a profession, see Vizaline, 949 F.3d at 934 (“While we hold the district court erred by categorically exempting occupational-licensing requirements from First Amendment scrutiny, we express no view on what level of scrutiny might be appropriate for applying Mississippi‘s licensing requirements to [the plaintiff]‘s practice.“).
[¶22] The Supreme Court has made clear that if regulations impose content-based restrictions on speech, strict scrutiny or intermediate scrutiny may be applied, depending on whether the affected
[¶23] The treatment of regulations governing the licensing of professionals that place a merely incidental burden on speech is, however, unclear. Free speech concerns are implicated in such cases because “constitutional violations may arise from the deterrent, or chilling, effect of governmental [efforts] that fall short of a direct prohibition against the exercise of First Amendment rights.” Umbehr, 518 U.S. at 674 (alteration in original) (quotation marks omitted) (explaining that “unconstitutional conditions” may not be placed on government benefits).7 However, it is unclear whether such regulations are subject to the “rational connection” test, see Lowe, 472 U.S. at 228 (White, J., concurring), or must survive intermediate scrutiny, meaning that they “must be narrowly tailored to serve a significant governmental interest,” Packingham v. North Carolina, 137 S. Ct. 1730, 1736 (2017) (quotation marks omitted). The Supreme Court did not decide the question in NIFLA, 138 S. Ct. at 2373-75, but a handful of courts have since opined on the issue.
[¶24] The United States Court of Appeals for the Fourth Circuit recently considered a North Carolina ban on the practice of law by corporations—a professional regulation that incidentally affected speech. Capital Associated Indus. v. Stein, 922 F.3d 198, 207 (4th Cir. 2019). As that court stated, “Many laws that regulate the conduct of a profession or business place incidental burdens on speech, yet the Supreme Court has treated them differently than restrictions on speech.” Id. at 207-08.
[¶25] The court held that the practice of law involved both communicative and noncommunicative aspects and that the pertinent statutes did not target “the communicative aspects of practicing law, such as the advice lawyers may give to clients” but instead focused on who may act as a lawyer. Id. at 208. “Licensing laws inevitably have some effect on the speech of those
[¶26] The court observed that, although intermediate scrutiny ordinarily applies to regulations of conduct that incidentally impact speech, “the [Supreme] Court‘s cases have not been crystal clear about the appropriate standard of review” given that regulations relating to admission to a profession fall in “an area in which [the Court] ‘has afforded less protection for professional speech.‘” Id. (quoting NIFLA, 138 S. Ct. at 2372); see also AMA v. Stenehjem, 412 F. Supp. 3d 1134, 1148-49 (D.N.D. 2019) (following Stein). The court concluded, however, that intermediate scrutiny should be applied, stating, “We think this a sensible result, as it fits neatly with the broad leeway that states have to regulate professions.” Stein, 922 F.3d at 209; but see Doyle v. Palmer, 365 F. Supp. 3d 295, 304-05 (E.D.N.Y. 2019) (holding that the requirement of a sponsor‘s affidavit for Bar admission “is nothing more than a standard regulation of the legal profession that . . . passes rational basis review“).
[¶27] Confronting the question of the proper level of scrutiny, another court described the legal ambiguity as follows:
[T]he Court in NIFLA explained that a lower level of scrutiny should be applied to two kinds of content-neutral restrictions: (1) laws that require professionals to disclose factual, noncontroversial information in their commercial speech []; and (2) regulations of professional conduct that incidentally burden speech. Although the Court in NIFLA did not specifically state what level of review—how much lower than strict scrutiny—applied to regulations of professional conduct that incidentally burden speech, the Court appeared to apply intermediate scrutiny.
McLemore v. Gumucio, No. 3:19-cv-00530, 2020 U.S. Dist. LEXIS 228082, at *59 (M.D. Tenn. Dec. 4, 2020) (emphasis added) (quotation marks omitted) (citation omitted). That court, citing Stein, 922 F.3d at 209, assumed for purposes of deciding a motion to dismiss that intermediate scrutiny would apply if the merits were reached. Id. at *60-61.
[¶28] In light of NIFLA and Stein, we similarly conclude that intermediate scrutiny is the proper test to apply when a regulation of conduct that does not explicitly target speech but incidentally burdens it is challenged on First Amendment grounds.8 Here, the licensing standards, requiring good character and competency in investigating matters, do not on their face prohibit or constrain speech. Cf. NIFLA, 138 S. Ct. at 2372. The licensing statutes incidentally affect an applicant‘s speech, however, because determining whether an applicant meets the requirements of good character and competency may depend—as it does here—upon the applicant‘s communications. See id.;
2. Application of Intermediate Scrutiny
[¶29] Unlike a determination of actual malice, which “involve[s] legal, as well as factual, elements,” and requires an independent examination of the record, intermediate scrutiny does not involve that
a. Review of Findings
[¶30] We review the decision of the Department to determine whether its findings are “supported by substantial evidence in the record.” Palian, 2020 ME 131, ¶ 10, 242 A.3d 164 (quotation marks omitted).
[¶31] In its final decision, the Department specifically found that Gray made uninvestigated and false statements, using the social media account of his investigation business, in which he suggested that the lieutenant was intoxicated; stated that the lieutenant had “murdered,” “executed,” or “killed” a woman; and indicated that the lieutenant had been subject to multiple complaints filed with the OPS. Gray admitted, through his responses to the Department‘s written questions, that the statements, which were made part of the evidentiary record, were his.
[¶32] Substantial evidence in the record supports the Department‘s determination that Gray used a social media account bearing his investigation business‘s name to repeatedly publicize uninvestigated and false statements. The evidence also supports the Department‘s ultimate finding that Gray‘s behavior demonstrated that he lacked the necessary good character and competency to serve as an investigator in Maine. See
b. Intermediate Scrutiny of the Licensing Standards as Applied
[¶33] The question before us is whether the statutory licensing standards, as applied in Gray‘s case, were “narrowly tailored to serve a significant governmental interest.” Packingham, 137 S. Ct. at 1736 (quotation marks omitted); see NIFLA, 138 S. Ct. at 2372.
[¶34] The Department denied the license application because, as the record supports, Gray published uninvestigated speculation as fact using his job title and the name of his Massachusetts private investigation business—conduct that demonstrated a lack of capacity to distinguish between fact and opinion, and to investigate and honestly report facts. See
[¶35] The Department denied Gray‘s application not because of the viewpoint he expressed on social media but because of the false, uninvestigated information that Gray presented as fact using the name of his Massachusetts private investigation business. The Department‘s rationale for its decision goes to the heart of professional responsibility concerns and does not chill any speech other than that which would, for a professional investigator, violate standards of conduct in a profession that is focused on the investigation and accurate communication of facts. See In re R. M. J., 455 U.S. 191, 203 (1982) (holding that, when a state regulates in a way that affects speech, it must have “a substantial interest and the interference with speech must be in proportion to the interest served“). The Department‘s application of the statutes was, therefore, narrowly tailored to serve the significant governmental interest in maintaining standards for licensing professional investigators, who are responsible for researching and reporting on some of the most consequential details of people‘s lives by investigating “[t]he identity, habits, conduct, movements, whereabouts, affiliations, associations, transactions, reputation or character” of others.
The entry is:
Judgment affirmed.
Roger L. Hurley, Esq. (orally), Camden, for appellant Joshua A. Gray
Aaron M. Frey, Attorney General, and Kent Avery, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for cross-appellant Department of Public Safety
Kennebec County Superior Court docket number AP-2019-49
FOR CLERK REFERENCE ONLY