The Fight for Free Speech in the Courts

Paul Sherman joins us for a discussion on free speech issues, particularly the right to political and occupational speech.

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How did SpeechNow and Citizens United change how elections are financed? Where does the distrust of money we so often see in politics come from? What’s wrong with making people disclose their donations?

What’s the problem with occupational licensing? Doesn’t it seem sensible in some cases for the government to license certain things to make sure people aren’t hurting others with their advice?

How are these two issues related? 

This week Paul Sherman from the Institute for Justice joins us to discuss free speech as it applies to politics and elections (political speech), occupational licensing (occupational speech), and the future of the First Amendment.

Show Notes and Further Reading

Sherman’s article in the Harvard Law Review, “Occupational Speech and the First Amendment.”

Amanda Shanor and Robert Post’s response to Sherman’s article, “Adam Smith’s First Amendment.”

Institute for Justice cases dealing with free speech issues that we mentioned in this episode:



Trevor Burrus: Welcome to Free Thoughts from and the Cato Institute. I’m Trevor Burrus.

Aaron Ross Powell: And I’m Aaron Powell.

Trevor Burrus: Joining us today is Paul Sherman, a senior attorney with the Institute for Justice. Paul received his law degree from George Washington University in 2006. He has a master’s degree in political campaigning from the University of Florida and has a bachelor’s degree in political science from the University of Florida. Welcome to Free Thoughts.

Paul Sherman: Thanks so much for having me.

Trevor Burrus: You predominantly work on free speech issues. So I figured today we just sort of talk about these two areas where you have done a lot of work on. The first one is campaign finance and you were particularly involved with a case that is – if people don’t know the name, it’s probably notorious at least for its effects and the case is called versus Federal Election Commission. Can you explain what that case was about?

Paul Sherman: Certainly. So versus FEC was the case that gave rise to what are popularly known as super PACs. The Institute for Justice co-litigated the case with a group called the Center for Competitive Politics and basically what the case was about was this anomaly that had existed in the campaign finance laws since the 1970s.

It had always been legal for individuals to spend as much of their own money as they wanted on political speech. So if Bill Gates wanted to, he could spend a billion dollars on political advertising. But under the Federal Election Campaign Act, if two or more people got together to do the same thing, they were limited to putting in $5000 a piece. So Bill Gates can spend a billion dollars. You and I collectively can only spend $10,000.

We took those to the federal courts and we said this just doesn’t make any sense. In fact if the campaign finance laws are about trying to prevent the skew of big money in politics, this seems to empower billionaires at the expense of other people.

Aaron Ross Powell: What does “collectively” mean in this case? Is that they – so two people come together and each pays for half an ad or they’re coordinating somehow?

Paul Sherman: Right. So anytime people come together and jointly pay for political advertising, that would be them acting collectively and under the federal campaign finance laws, as soon as they spent $1000, they were considered a political committee and the contribution limits kicked in.

Trevor Burrus: How does this case relate to the more widely known Citizens United decision?

Paul Sherman: So they actually raise very different legal issues but the combination of the two cases is what has given us sort of the system that we have in place now. did not have anything to do with corporations or unions getting involved in campaigns. It was only about individual US citizens pooling their money to speak collectively about political candidates and in fact the charter for expressly said that they would not raise money from corporations and unions.

While we were litigating that case, Citizens United versus FEC came down and that case of course very famously removed restrictions on independent spending by corporations and unions. So once both decisions came down, it went to the Federal Election Commission and they said the effect of these two decisions is that you can set up what are now called super PACs and they can raise unlimited amounts from individual corporations or unions to spend on independent political speech.

Trevor Burrus: Now you say that this – before there was this anomaly too that assisted or at least gave preference to billionaires like Bill Gates. But now what we have in the super PACs is – I mean so most of these super PACs are not funded by $5000 contributions. Now you still – Bill Gates or Sheldon Adelson or any of these billionaires giving tons of money to the super PAC. So has it actually decreased the influence of billionaires in our elections?

Paul Sherman: Well, I think what it has allowed people to do is it has allowed people of more modest means to leverage their political contributions by joining with people who are able to give more because before SpeechNow was decided, if you had only $4000 to spend on political speech, that really doesn’t make any sort of an impact on a national election or on a senatorial election.

But you can join with someone who wants to put in more money, $100,000 or a million dollars. You can have this collective effort and feel like you’re part of it. So I think it opened up new avenues for people to participate in politics even if they’re not super wealthy.

Aaron Ross Powell: Do we see that in the numbers after it? Have we seen an increase in the amount of – I guess low dollar amount campaign spending by ordinary people?

Paul Sherman: Well, I think – I don’t have the numbers committed to memory but certainly we must because we have this new entity that didn’t exist before. Now it is true certainly that large contributors are giving the bulk of the money to these organizations but that’s actually not any different than what we see with charitable organizations. Most charities receive the bulk of their money in a small number of large contributions but then they have a broader base of contributors who give small contributions.

Trevor Burrus: This is the dark money problem though too, because we also don’t know who these people are.

Paul Sherman: Well, that’s not true with regard to super PACs and in fact, that’s a common misconception about super PACs. So super PACs are subject to all of the same disclosure regulations that apply to regular political committees and under federal law, that means anyone who gives more than $200 to a super PAC has to have their name, address, occupation and employer disclosed to the Federal Election Commission.

Now contributions and amounts that are less than $200 don’t have to be individually disclosed. Those are just disclosed as a lump sum but that’s the way things have always operated with PACs and just as a practical matter, there’s no informational benefit in requiring us to disclose who gave $50 to a super PAC because nobody is ever going to be interested in that information.

Trevor Burrus: So what is dark money? As you understand the term, what is it referring to if it’s not referring to super PACs?

Paul Sherman: So dark money is the pejorative term that is used for money that is spent on political speech and does not get disclosed or the source of the money is not disclosed.

What that typically refers to is money that is given to 501(c)(4) nonprofit organizations. So these are organizations that are allowed to raise money and spend it on political speech. They can’t spend all of their money on political speech. They still have to have what’s considered a charitable purpose by the IRS. But they are not required to individually disclose their donations.

Trevor Burrus: So when you were fighting for SpeechNow, did you – you had seen some of the backlash to Citizens United at that – because it was 2012 I think with SpeechNow, correct?

Paul Sherman: Well, so the decisions came down almost simultaneously. Citizens United was decided and then one week later, we had oral arguments before the en banc DC Circuit Court of Appeals in the SpeechNow case.

Actually the very first question that then Chief Judge Sentelle asked Steve Simpson who argued the case for the Institute for Justice was, “What do you have to tell us that Justice Kennedy didn’t tell us last week?”

So it was a short time after that, that we got a unanimous decision from the DC Circuit deciding SpeechNow in our favor.

Trevor Burrus: So did you expect the level of animosity that has come out of both – those other combinations of these two cases and the notoriety that we’ve seen about the super PAC entities?

Paul Sherman: I can’t – I guess the best way I can put it is, I was disappointed to see how much animosity there was. But it’s also just a fact that the public has long been extremely distrustful of money spent in politics and part of that I think is because the so-called reform groups, the groups that want to restrict what people can spend on political speech have done a brilliant job of marketing. Political spending is something that is inherently corrupt.

Aaron Ross Powell: What’s at play here? I mean there are the legal issues and there’s the constitutional issues about what the government – what sorts of restrictions are permissible for the government to create political speech.

But the groups advocating on the many sides of this, what are they hoping to get out of it? So do we have say evidence that if we can radically restrict the amount of money that wealthy people can spend, it will change political outcomes in a certain way or the other way around? I mean I’m thinking of it – it was just a few days ago before recording this that Jeb Bush dropped out of the election after doing terribly and spending enormous amounts of money. So it doesn’t seem like there’s a data point that say spending a ton of money buys you an election.

So what’s driving these groups besides the obvious they have principled positions on the law?

Paul Sherman: I think that campaign finances an area where you have a tremendous number of assumptions about the role that money plays in politics, that are backed up by essentially no empirical evidence, whatsoever.

So there is a widespread belief that political spending contributes to public disaffection with politics. The people are less trustful of government if you have a deregulated campaign finance system.

There’s absolutely no evidence to support this and one of the ways that we know this is we can look at the 50 states, which have a wide variety of different campaign finance regimes. There are some states that have very restrictive campaign finance laws with very low contribution limits. There are other states like Virginia or Utah or Missouri that have no contribution limits and there’s absolutely no evidence that there’s any systematic difference in the way people perceive corruption in these states.

Trevor Burrus: Now what about the corruption of politicians themselves by these super PACs, by the idea that, “Hey, you’re spending all this money in support of me. Would you like an oil pipeline”?

Paul Sherman: So, this is another argument that is commonly made and political scientists have struggled in vain for decades to try and demonstrate that political contributions lead to corruption in the quid pro quo sense of corruption and they just haven’t been able to do this and part of the reason is that it’s much easier to support candidates who are already sort of ideologically aligned with your interest than it is to take a candidate who’s sort of a blank slate and convince him to support all the policy positions that you support.

So I think most people believe in what is borne out by the evidence is that money tends to follow political ideology rather than money being a determinant of candidates’ ideologies.

Trevor Burrus: Are there other barriers to little people, so to speak, average people – not little people, average people.

Aaron Ross Powell: Maybe small.

Trevor Burrus: They might be, yes, physically small. There are other barriers to them speaking about politics and elections that you’ve brought up other than SpeechNow. You’ve worked on some cases dealing with – well, actually, my hometown of Parker, Colorado, you dealt with some campaign finance restrictions there that were fairly ridiculous, what happened in Parker North.

Paul Sherman: Well, the situation in Parker North, Colorado was a great example of how these laws which are ostensibly designed to deal with big money in politics often have their largest negative impact on people who are engaged in relatively modest grassroots efforts.

So in Parker or actually just north of Parker in a community called appropriately enough Parker North, it’s a part of unincorporated Douglas County and there was a proposal to annex Parker North into the town of Parker.

There were people who lived in Parker North who didn’t want this. They thought that the county did a better job of snow removal and various other services and so they were opposed to the annexation and they did exactly what you would expect Americans to do. They spoke out. They walked around their neighborhood. They distributed postcards. One of them owned a print shop and he printed up signs that said “No annexation”.

For doing this, they found themselves sued by the principal proponent of the annexation because in Colorado, anytime two or more people get together and spend as little as $200, supporting or opposing a ballot issue, they become what’s called a political committee and they have to register with the government. They have to open a separate bank account. They have to keep meticulous records of every penny that comes in and out of their organization, including even in kind contributions like donations of signs and things like that. It’s a tremendous burden on these organizations.

Aaron Ross Powell: The $200, is that over a certain time period on a specific issue? I mean so Trevor and I ran a blog together for a long time in our undergrad years and we made all sorts of commentary about politics. I don’t recall exactly discussing ballot issues. But we may very well have.

Trevor Burrus: We might have, yeah.

Aaron Ross Powell: And we probably spent well over 200 bucks on domain names and server hosting and such. So were we in violation of the law for not registering?

Paul Sherman: Well, you know, I would have to look at what was on the ballot and when you were speaking. But generally speaking, once something is on the ballot, if an organization over any period of time, while it remains on the ballot, spends more than $200 advocating its passage or defeat, they become a political committee.

Now we challenge this. We said that this is unconstitutional. We got it up to the 10th Circuit Court of Appeals which agreed and basically said, “We’re not going to decide where the threshold is,” where it becomes constitutional to require groups to register and report this sort of thing. But we know that in this case where the organization spent less than $1000, spent about $700, that’s just far too low and the informational benefit of requiring people to register and disclose at that threshold is just nil compared to the burden that it imposes on grassroots speakers. So that was a great victory.

Trevor Burrus: What was the argument here? Because there’s something strange that the government made because there’s something strange about a ballot initiative first of all. Speaking about a ballot initiative is not a candidate you can corrupt. You cannot buy something from them. So what is the argument that the state made, that why they – even these people had to register and make their names known to the government in order to talk about this ballot initiative?

Paul Sherman: Yes. So as you point out, when candidates are at issue, there is the concern that candidates will be corrupted by spending. But with the ballot issue, a ballot issue is essentially just proposed legislation and all you’re doing is advocating for it or against it. You can’t corrupt it.

So what the government argued is just there’s a pure informational benefit in people knowing who is talking about these issues and what position they take. This is sometimes in the political science literature referred to as cues or heuristics. It’s the idea that politics is complicated. It’s very difficult to figure out what the effect of ballot issues is going to be.

So it’s easier if we just tell you who supports each side and then you can say, “Well, I don’t like this group that supports the passage of this. So I must be opposed to this ballot issue,” or vice versa. I like them and so I must like the ballot issue.

Trevor Burrus: In your experience, do you – governments, because I know you brought more than – a few more governments. But do they make this argument on any contribution whatsoever? One dollar is – if you give one dollar, there’s an informational interest in knowing who you work for, so the voter can use that as a heuristic?

Paul Sherman: Yeah. That’s exactly the argument that governments make. In fact we challenged a similar law in Florida which unfortunately was upheld. Florida has first dollar disclosure. So meaning that if you give a dollar or frankly even a penny to support a ballot issue, your name and address has to be disclosed as a supporter of that ballot issue and this information goes on the internet where anyone can find it. There’s really no plausible informational benefit to voters in disclosing it.

Aaron Ross Powell: Even if there is informational benefit at some level of the disclosure, doesn’t it kind of push against the – the drive for it seems to push against how we think political discussion ought to be and how we think we ought to engage with these issues. It’s almost like legislating into the system ad hominem attacks.

It’s precisely the opposite of how we dream politics should be, which is where we all get together and we express ideas and engage intellectually and wrestle through the repercussions and the data and come to some conclusion but saying instead now what really matters is whether you like the person who’s saying it or not.

Paul Sherman: That’s exactly what it is and in fact the 10th Circuit Court of Appeals made exactly that comparison. They said that, you know, when you’re dealing with candidates, they sort of are ad hominem affairs because you’re concerned about the identity of the person. But we don’t want to inject that same sort of consideration when what we’re talking about are political issues. I think it does have the effect of diminishing the level of political discourse.

Trevor Burrus: Now when it comes to disclosure though, it seems that this should be the kind of thing that we concede on. I mean if we’re – we want to free up campaign spending and I mean our side. But we should be conceding that yes, OK, as Justice Kennedy did in Citizens United and things like this like let them spend, but just tell us who you are and that’s a good, happy medium between their side and our side. Disclosures help solve those problems that are attendant to campaign spending.

Paul Sherman: Well, I think it’s a big and unjustified assumption to say that disclosure has solved any problems that are associated with campaign spending and the approach that I would take and that I think is the correct one under the First Amendment is we should simply ask, “Does disclosure burden the exercise of First Amendment rights?”

It seems quite clear that it does, that it chills political participation. If it does, then the question we ask is, “Can the government show that the disclosure is necessary and that it’s reasonably tailored to the government’s interest?”

Aaron Ross Powell: So this argument for disclosure, I guess I’m wondering if there’s a way to distinguish it from making exactly the same argument with the conclusion being – so money spending influences politics, they say, and so we want to let you know who is influencing politics. So you have more information to act upon.

So when people vote, they tend to vote consistently over time. If you vote republican, you tend to keep voting republican. If you support certain kinds of ballot issues, you’re likely to support other ones of a similar type. We can argue about the math of it. But most people believe that their vote influences political outcomes. So therefore shouldn’t we force people to disclose their vote history to each other?

Paul Sherman: Yeah. In fact there’s no limit on what you could force people to disclose. I mean certainly there are people who if they knew that a majority of Latinos in their community supported a particular ballot issue, they would be opposed to that ballot issue or if they knew that a majority of the gay community supported a ballot issue, they would be opposed to that ballot issue and yet nobody thinks or I hope nobody thinks it would be reasonable to force people to disclose the race or sexual orientation of people who are making political contributions. So it’s not clear why we also need to know their occupation, their employer or their name.

Trevor Burrus: Are we seeing any judges or circuits or districts out there really scrutinizing disclosure at all? Because as you said, it would seem to me if the 10th Circuit says that we have this heuristic device and we can use these to make our vote, well then you can have limited disclosure where people just disclosed what party they are or whether or not they worked for a labor union or things like this.

But instead we have them disclose their name and their address which seems to not actually pair up with what we’re trying to get out of them. Is any court out there that you have worked in front of really looking at this closely?

Paul Sherman: Well, unfortunately, this is an area where federal courts at all levels including the Supreme Court have mostly checked out of doing any kind of seriously engaged look at the evidence and at the tailoring of campaign disclosure laws.

The 10th Circuit I think did a quite good job in the Parker North case. But the 10th Circuit is something of an outlier. Other appellate courts that have looked at this have been extremely deferential to the line drawing that states have done without any evidence, to support where these lines are drawn.

Aaron Ross Powell: Are there differences in the way that judges address this question depending on whether they happen to be in jurisdictions where judges are elected or not?

Paul Sherman: That’s a pretty good question. I don’t know the answer to that. Certainly on some campaign finance issues, I think there have been differences in the way elected state judges deal with them as opposed to appointed federal judges. One of the areas where this happened is restrictions just on campaigning by judges. So there was a case that went before the Supreme Court last term called Williams-Yulee versus the Florida Bar that restricted the ability of judicial candidates to raise money for their campaigns. Their campaign could raise the money but the candidate couldn’t solicit the money.

Most of the federal courts that had looked at that issue had said the First Amendment prohibits this. Most of the elected State Supreme Courts that had looked at it said the First Amendment absolutely does not prohibit this and this is a fine restriction. Went to the Supreme Court which on a very narrow vote affirmed the State Supreme Court decision in Florida and said that you can restrict that, but that’s the only area that I’m – off the top of my head, I can think of where there has been a difference.

Trevor Burrus: Now you’re currently in Colorado with another case about another absurd law that Colorado has dealing with private enforcement of campaign or private action in campaign finance laws. Can you tell us about how that works?

Paul Sherman: Yeah, I would be happy to. Colorado is rare but not unique in the way that it enforces its campaign finance laws and effectively, what the state has done is they have outsourced the enforcement of those laws to every politician with a grudge because under Colorado law, any private citizen who wants to can file a private lawsuit to enforce the campaign finance laws and the secretary of state is then required to forward that lawsuit to the Office of Administrative Courts. So there’s no screening by any sort of government employee or by any kind of campaign finance agency to weed out frivolous claims.

Basically with just an email to the government, you can pull someone into full-blown litigation for any alleged violation of campaign finance laws.

Trevor Burrus: That would seem to be therefore something that would be – well, I don’t want to use the word “strategically”. If you’re just trying to win in politics, it seems that strategically suing your opponent might be a good way of doing it.

Paul Sherman: Yeah. So this is played out in practice exactly the way you would think it has and a great example of this is the client that we’re representing now Tammy Holland. Tammy lives in Strasburg, Colorado, which is about an hour east of Denver and she is a mom who is very concerned about the effect that common core curriculum is having in her school district.

So to voice her opinion on this, she took out a series of newspaper ads in the I-70 Scout, which is her local newspaper. Just talking about common core and her complaints about it and all of this was fine until last September when the school board election was coming up. She took out two ads in the paper that said there’s an election coming up. We have some new candidates running this time, challenging the incumbents. Here’s information on all of the candidates including the incumbents and you owe it to yourself to become educated and cast an informed ballot.

She didn’t call for the defeat or election of any candidate and yet she found herself sued twice by members of the school board who were upset with her ad. First the superintendent of the school district and then when he withdrew his lawsuit and she refused to drop a counterclaim for attorney’s fees, she was sued again by the president of the school board.

Trevor Burrus: So the case is – it’s not them referring her case to the Colorado Elections Commission. It’s them suing her specifically?

Paul Sherman: Right. So what happens is they file a complaint form, with the Colorado Secretary of State. Under the Colorado constitution, the secretary is required to immediately forward that complaint to the Office of Administrative Courts, which then treats it as full-blown litigation. People have discovery rights. They can take depositions. Then you have judges on the Office of Administrative Courts which primarily hears worker’s compensation claims, deciding complicated campaign finance lawsuits that are fraught with tremendous First Amendment importance.

Trevor Burrus: So you’re claiming this is – that the whole endeavor of allowing private enforcement like this without any screening is itself unconstitutional?

Paul Sherman: Yeah, this is a system where the process is the punishment and the effect is people who would get engaged in the political debate don’t because they have essentially no protection. Someone can file even a frivolous complaint against them and force them to defend themselves in court.

Trevor Burrus: So before we move on, I guess the – to our second topic, I guess the end result is – would you say that anyone listening to this who wants to – wherever they are in the United States, who wants to speak about elections or do something like your client take out an ad, should they consult a lawyer first?

Paul Sherman: Well, there’s a joke about the McCain-Feingold Law. So its official name is the Bipartisan Campaign Reform Act or BCRA and the joke that campaign finance lawyers tell them. You can see what a great sense of humor we have. It’s that BCRA stands for “before campaigning, retain attorney”.

Yeah. If you talk about politics in America particularly in the context of elections, if you talk about candidates, if you talk about ballot issues, you are taking a tremendous risk in a number of states that you can be sued, that you can be subject to thousands of dollars in liability, and you never would have expected it. These laws are a trap for the unwary.

Trevor Burrus: Now the other issue that you’ve been working on recently in the broad area of free speech has to do with occupational speech and occupational licensing. So can you give us just an idea of what that kind of area looks like right now?

Paul Sherman: Sure. So occupational speech, probably the simplest definition is it’s just speech that people do for a living. People earn their living by speaking and whereas in the past, most people earn their living by making goods or providing services. Today, many people are paid for the information or the advice they can provide.

This is everyone from tour guides to psychologists, to people who provide dietary advice, to even lawyers. A lot of what lawyers do is speak for a living. Interestingly, the US Supreme Court has never squarely addressed the level of constitutional protection that this sort of speech enjoys.

The consequence of that silence is that we have a growing body of law that restricts who you can get advice from, even on common topics of life like parenting or diet.

Aaron Ross Powell: Before we turn to the specifics of these cases and the kinds of scrutiny that speech done by commercial agents ought to get. I just have to ask about the relationship between levels of scrutiny and particularly the First Amendment because the argument goes, “Should we have a rational basis test?” which basically means the government gets to do whatever it wants or should have strict scrutiny which means it’s really hard for the government to do what it wants.

But we’re talking about an amendment that says simply congress shall make no law. It doesn’t say congress shall make a law – shall make no law unless it has a narrowly-tailored solution to a very specific problem. It’s just a no. So how do we get from no law to a law but only a few really mean it?

Paul Sherman: So what I will do now is proceed to summarize essentially all of 20th century constitutional jurisprudence.

Trevor Burrus: Go for it.

Paul Sherman: So it is a very difficult question and I can’t really sit here and justify the tiers nor is it frankly in my interest to justify the tiers of constitutional scrutiny that have been developed. But what listeners should understand is that essentially over the last 75 years, what the Supreme Court has done is divide rights up into groups that it looks at very closely and gives a very high level of protection to you and rights, that it gives a very low level of protection to you.

So enumerated constitutional rights like the right to speak typically get a very high level of protection with some exceptions. Under a test, it’s called “strict scrutiny” and un-enumerated rights like the right to earn an honest living, the right to keep property, those get a very low level called rational basis review.

Then there’s a hodgepodge of what are called “intermediate scrutiny” that applies to commercial speech, such as commercial advertising, restrictions in the time, manner and place of speech. The important thing to remember is that all of these are judicial inventions. There’s nothing in the text of the constitution that requires this and frankly, I would be much happier if we had a system of First Amendment jurisprudence in which everything got a very high level of strict scrutiny type review.

Trevor Burrus: Do we see any – like it seems like what we talked about in terms of campaign finance, it doesn’t seem like they’re giving strict scrutiny to these laws in campaign finance and that’s right on political speech.

Paul Sherman: Yes. So one of the things that is constantly said is that there’s nothing more central to the meaning of the First Amendment than political speech and that it should get the very highest level of protection.

Yet within the area of campaign finance, we see I think three very different levels of judicial review. Restrictions on political spending are reviewed with strict scrutiny and they are routinely struck down. Restrictions on contribution limits get a type of intermediate scrutiny if it’s called “exacting scrutiny” or sometimes it’s called …

Trevor Burrus: It sounds like we’re just like inventing words, distinctions that are hard for me to even parse. Immediate versus exacting.

Paul Sherman: Yeah. And I mean this is a real problem. There are so many types of tests the court has described as intermediate and they’re described in sort of similar but not quite exactly the same terms and so you never really know. Is this intermediate scrutiny decision going to be precedent in a future intermediate scrutiny case in a different area? Because when the court wants to address it as oh, that’s a different type of scrutiny.

Aaron Ross Powell: So in the occupational speech – I mean there’s a sliding scale of kind of how sympathetic we might be to requiring licensing or something. So on the one end, like your primary care physician operates through – he or she earns a living through speech basically, telling you what you ought to do or what you ought to take or not do. We could say like yeah, maybe it makes sense for them to be licensed because if they give you bad advice, they could have very bad outcomes.

But then on the opposite end, there’s the case. You’ve written about this, that DC tour guide stuff, where licensing tour guides because presumably there’s some sort of catastrophic outcome if they tell you that that’s the Lincoln Memorial and it’s actually the Jefferson.

Paul Sherman: Yeah. So DC until recently was one of a handful of municipalities that said if you want to be a tour guide, you have to be licensed by the government and you have to take a government mandated test to prove that you have a certain knowledge of history.

We challenge that law and our argument was essentially that tour guides are storytellers and the government has no greater interest in regulating tour guides than it does in regulating novelists or stand-up comedians or anyone else who engages in that kind of entertaining speech.

The government’s counterargument essentially was, well hey, we license doctors and lawyers. So of course we can license tour guides. It’s a dangerous view of the First Amendment where as soon as money is changing hands, as soon as you’re engaged in a financial transaction, suddenly the protections of the First Amendment disappear.

Aaron Ross Powell: I assume that behind these tour guide licenses, it’s not like these kind of – came in because some legislator somewhere had a bad experience or someone thought that this was just something to do. But I mean it was – other tour guides have a strong interest in licensing tour guides because it limits the number that can be there.

Paul Sherman: Yeah, that’s exactly what happened. So there are kind of two ways the laws come about. Some of them are just like DC’s law, are actually just very, very old. They’ve been around for forever and maybe not particularly strictly enforced and then suddenly kind of existing tour guides get together and say, “We want to put some teeth in this,” and they push for strong regulations.

Then there are some places that have historically not regulated tour guides like Philadelphia and tour guides will get together and they will push for licensing. But this is a – this is sort of a public choice dynamic that we see with a lot of licensing.

Trevor Burrus: But there has to be at least more of a governmental interest in tour guide licensing than say a storyteller or newspaper writer licensing or something like that, because presumably the tourism industry is a pretty big deal in DC. I’m sure it is. I don’t know how big of our economy, but I’m sure it’s quite large and therefore we don’t want people to come here and have a really bad experience of the tour guides. So we will make sure that we know the tour guides are good and they’re going to show the city in its best light and then they can percolate out and help the economic development of DC if someone came and had a really good time and they had a great tour guide. The law can help solve that.

Paul Sherman: One could certainly make that argument and DC did make that argument. The counterargument is that some of the great cities of the United States, in fact the vast majority of cities in the United States including heavily-touristed cities don’t have tour guide licensing and there’s absolutely no evidence that that has caused any problems. So if you want to go to Chicago or San Francisco, you can go on a tour in those cities and that tour guide is totally unregulated. He never had to pass a government-issued test and yet the tourism industry in those cities doesn’t seem to be suffering as a result.

Aaron Ross Powell: I mean the other counterargument seems to be – like if my Twitter feed is any indication, almost everybody in DC is a journalist and so journalism is big money industry in the District and probably way more people read journalism produced in the District and are influenced by it than attend tours. So they might be getting – I mean they certainly are getting a lot of bad and misleading information.

Trevor Burrus: So we should license them.

Aaron Ross Powell: Every journalist.

Trevor Burrus: Yeah, especially Breitbart journalists, yeah.

Paul Sherman: Well, and of course kind of the classic First Amendment counterargument to that and the one that I believe is that the remedy for speech that you disagree with or that you think is mistaken is more speech. But if the city is truly concerned about tour guides, it does have options available to it that don’t violate the First Amendment and one of the things that the city could do is create a voluntary certification for tour guides.

DC could say if you pass this test, you can advertise yourself as a DC city certified tour guide and it could prevent other people from calling themselves that because that would just be false commercial speech, if they were to falsely claim that they have that credential and they don’t.

That would address the city’s concern. Customers who wanted only someone who had passed this test would be able to identify who had done it and it wouldn’t restrict anybody else’s speech.

Trevor Burrus: Now what happened in that – in the DC tour guide’s case?

Paul Sherman: So we lost before the district court, the trial court, and then we took it up to the DC Circuit Court of Appeals and we got a tremendous decision by Janice Rogers Brown, which essentially said there’s no evidence to support this tour guide licensing scheme and in fact it’s so obviously unconstitutional that not only would it fail under strict scrutiny but it fails under intermediate scrutiny.

Trevor Burrus: The Supreme Court, did they appeal that to the Supreme Court or …

Paul Sherman: DC did not seek certiorari in that case, so they didn’t try to take it to the Supreme Court. When we were litigating that case, we were simultaneously litigating a similar challenge in New Orleans. We lost that case before the Fifth Circuit Court of Appeals. So there’s actually a circuit split on this issue right now.

We tried to get the court to take the case and they declined. We are currently challenging other tour guide laws in Savannah and in Charleston, South Carolina and it’s our hope that one of those cases will allow the Supreme Court to review this issue.

Aaron Ross Powell: What’s involved in getting a tour guide license?

Paul Sherman: So, in most places with tour guide licensing, you have to take and pass some kind of multiple choice test, which is usually just whatever random assortment of picayune facts the test creator thinks would be relevant. In fact in one of our tour guide cases, I can’t remember now if it’s in Savannah or Charleston. I think it’s Savannah. The woman who designed the test is a professor at a local university.

Even she says like this is a terrible test for judging whether someone would be a good tour guide. It’s just basically random facts about the city that I pulled out of a book.

One of the things about these laws that’s particularly pernicious is there are different kinds of tours. People may want to give a tour of Charleston, South Carolina that focuses on the legacy of slavery in the South or some people give tours that are not historically-related at all. They give culinary tours or even ghost tours. They talk about famous ghosts in Savannah.

The government doesn’t test that sort of information and no one should have to take a test before they can talk about it.

Trevor Burrus: How does the interplay between the occupational speech cases work with the current state of occupational licensing law and commercial speech doctrine? Because some people might say, OK, well, you’re just trying to undercut licensing through a different – in a different way. We used to have this system – this is not me saying this. But we used to have the system in the Lochner where all these economic laws that were protecting workers including licensing laws and things like this were struck down in protecting consumers. So now you just come up with this free speech argument and you said, OK, well, I’m going to attack this on free speech rather than licensing. Is that true?

Paul Sherman: Well, no, because there is no occupational licensing exception to the First Amendment. I mean what we are really dealing with now is the fact that technologies have changed and the types of ways people earn their living have changed. We have done occupational speech cases that involve real estate listing services where people want to put up for-sale-by-owner websites and the government says, “Well, if you want to do that, you have to be a licensed real estate broker,” even though basically all you’re doing is putting up an online classified ad.

With the growth of the internet, more people are communicating with people in multiple jurisdictions. So not just in their community but people are reaching out and giving information and seeking information from people all around the world.

So for example, we had a case in Texas involving a veterinarian named Ron Hines who was retired and he gave veterinary advice to people, most of whom were outside the United States and Texas said you can’t do that unless you have physically examined the animal to which the advice pertains, which is a practical matter. It means that pet owners who live in places where they are not served by local veterinarians have no access to this kind of information and the question is, “Should the First Amendment protect that?” I think it should.

Trevor Burrus: Well, in terms of trading information too, you could argue that Uber is merely an information trading system wherein you are allowed to communicate with someone who might want to give you a ride and they’re allowed to communicate back. So would you say that there could be a First Amendment claim against cities that are trying to put Uber out of business? They’re just trading information. I mean via an app, it’s still trading information.

Paul Sherman: Well, so the actual driving of the car obviously would not be trading information and the government could regulate who can drive cars and under what conditions without offending the First Amendment although they may offend other provisions of the constitution.

But yeah, there is a strong argument that these app-based information services are protected by the First Amendment.

Trevor Burrus: Now, where wouldn’t you go though? You said lawyers. Lawyers speak for a living. Doctors, some doctors speak. Some do other things like cut people open. But doctors do a lot of speaking. Interior decorators do a lot of speaking. This could go very far.

Aaron Ross Powell: Podcast hosts.

Trevor Burrus: Podcast hosts. Yeah, we might be – certified accountants do a lot of speaking. It’s hard to – even mimes. I mean since action is speech. If you’re licensing mimes …

Paul Sherman: Mimes are engaged in symbolic speech.

Trevor Burrus: Exactly. So how far would you take this?

Paul Sherman: Well, so, I think every case has to be judged on its own facts and in fact there are cases that deal with the First Amendment protection for speech by doctors. There’s a case out of the 9th Circuit called Conant v. Walters where the federal government tried to tell doctors that if you merely recommend the patients use medical marijuana – so this was not even prescribing, merely recommending. We will revoke your right to prescribe medicine to people and the 9th Circuit said you can’t do that. That kind of physician-patient speech is protected by the First Amendment.

Now on the other hand, we’ve got a case in the 11th Circuit right now involving what’s called the – when I say we, the Institute for Justice not litigating this case, but this case exists, called Wollschlaeger versus Governor of Florida which deals with the Florida law that prohibits doctors from asking their patients whether they own firearms. This law was pushed by the NRA and gun rights groups after the American Medical Association urged doctors to collect this sort of information. So that if a patient comes into your office and says, “I’m really depressed, I’m feeling suicidal,” they can look at the charts and say, “Well, you have a gun. Maybe you better give your gun to a family member and get it out of the house.”

There has been a First Amendment challenge brought against that law. It is now going up before the en banc 11th Circuit. It was previously upheld in three different opinions by the panel in that case.

So the notion that doctor speech or even lawyer speech should be protected by the First Amendment isn’t all that radical.

Trevor Burrus: Now you actually have done – you have a – well, a doctor-ish case, at least a psychologist case, having to do with advice in I think the 5th Circuit.

Paul Sherman: Well, this was in Kentucky. So yeah, represented John Rosemond who some of your listeners may have heard of. He’s a nationally-syndicated newspaper columnist and he lives in North Carolina and he’s a licensed psychologist in North Carolina and he writes about parenting issues, giving people advice on how to deal with the challenges of raising young kids or teenagers.

A couple of years ago, he wrote a column responding to the parents of a highly-spoiled underachiever as they described him. They were upset about their teenager and they just didn’t know what to do. So John wrote this column where he said you need to take away your kids’ electronic devices. Take away all the screens and don’t give them back until the kid shows a sustained improvement in his behavior and his grades.

Now, you can agree or disagree with that advice. But I think everyone can admit as well within the mainstream of kind of contemporary American parenting. When he wrote this column, he was contacted by the Kentucky Board of Examiners of Psychology.

Now, keep in mind John lives in North Carolina. But his paper was syndicated in Kentucky and the Kentucky psychology board said, “Your newspaper column is the unlicensed practice of psychology because you were responding to a specific person’s inquiry for help about their kid.”

We don’t even know where the parents are from, like whether they were from Kentucky or wherever. So it’s a very radical position but it is kind of the logical outcome of the belief that occupational speech enjoys no First Amendment protection. Thankfully we took this to court and the district court said that the board had clearly violated the First Amendment and enjoying them from interfering with this column in the future. The government chose not to appeal that decision.

Trevor Burrus: Well, that seems again possibly dangerous to let people just give advice about parenting. I mean Aaron …

Aaron Ross Powell: Stay off of the Northern Virginia moms …

Paul Sherman: Everyone is allowed to give advice about parenting and as anyone with kids can attest, everyone does give advice about parenting. No one thinks that it’s radical, that people can go out and write books about parenting, without having the information from the government. So why should it be radical that people can give one-on-one advice about parenting without getting permission from the government? I mean that’s how most people have learned about parenting for most of human history.

Trevor Burrus: But some of it could go into the medical – some sort of – some types of advice because you did say – you qualified it when you were describing the case that the advice to take away the screens was quite mainstream. Other types of advice might get a little bit more bizarre or it might be advocate for something that required more medical knowledge than someone else has. Then there could be a problem there, correct?

Paul Sherman: Well, I think that when we’re dealing with the common problems of life, things like how to raise your kids, we have long trusted parents to consider information from competing sources and make the decision that they think is best for their children. It would require an extraordinary amount of evidence that this kind of advice was harmful before the government would have the prerogative to come in and regulate it.

Aaron Ross Powell: So you wrote an article for the Harvard Law Review on occupational speech and got a response from the dean of Yale Law …

Paul Sherman: Yale Law School, Robert Post.

Aaron Ross Powell: So I was going through that and I was struck by how – it wasn’t just that the argument was happening on the level of like if a given type – like, are there genuine interests here in protecting people from bad information and how should the government protect that? Is this an effective way? But this like fundamentally different notion of the state and how it operates and what our relationship is to it and almost like a baffling lack of understanding of how this stuff might play out in the real world.

So I was struck in particular at the beginning of it, that the dean writes – the dean is really up in arms that the DC tour guide stuff was struck down and this was the Edwards decision.

Paul Sherman: Yeah.

Aaron Ross Powell: And so he quotes from the Edwards decision, but then he says – as if this is like a self-evidently bad thing. Edwards put the constitutional burden of justifying regulations of marketplace speech squarely and onerously on the state.

Paul Sherman: Yeah, astonishing, isn’t it?

Aaron Ross Powell: It’s like, well, where else is this supposed to rest? Like, of course if I tell you, you can’t do something, it ought to be up to me to say like, “And here’s why.” I don’t understand. It’s like a totally alien world view.

Paul Sherman: Well, and so as a libertarian, I am totally on your side and I think that when – and this is something that the Institute for Justice argues is that when the government wants to restrict people’s liberty, no matter what domain it’s restricting in, the burden should be on the government, to justify why it is doing that.

Now there are a lot of people in the legal academy who disagree with that quite vehemently, even when we’re dealing with situations of enumerated rights like the First Amendment and this is an example – sometimes people wonder like, “Well, why does legal philosophy matter? Is it really all that important? Shouldn’t we just be concerned about the facts of individual cases?”

This is an example, if you read Dean Post’s article, where the philosophy behind his ideas is outcome-determinative. If you take a more libertarian approach and you think that the government should have to justify burdens on speech, you’re going to come to – I think the position that I articulated in my article. Dean Post’s idea is that the First Amendment is a much more instrumental thing, that it’s not really about protecting liberty because liberty is good. But that it’s about protecting democratic self-governance and the ability of people to kind of instantiate the will of the majority into law.

So if that’s what your theory of the First Amendment is, you’re going to restrict lots of speech that you think gets in the way of that.

Trevor Burrus: It is – the title of his article is telling. Adam Smith’s First Amendment. Yeah, Adam Smith’s First Amendment which again the attack he puts on that is not really looking at what we’ve been talking about today, about, oh, let’s look at the law. Let’s look at the burden. Let’s see if it actually advances this burden we’ve been talking about at the campaign finance and an occupational speech and then we can have a discussion. It’s more throwing bombs about, oh, you’re just trying to be a laissez-faire and you’re trying to – for free markets, you’re trying to do a backdoor …

Aaron Ross Powell: Resuscitate …

Trevor Burrus: Resuscitating Lochner, not even acknowledging that some of these laws maybe deserve some – even any scrutiny, whatsoever.

Paul Sherman: Yeah. Frankly, Dean Post’s position is difficult to square with the last 20 years of First Amendment jurisprudence. If there has been a trend in constitutional law in the last 20 years, it’s that the court has become much more libertarian when it deals with First Amendment issues and this has happened both in the campaign finance domain but also in the area of occupational speech.

The court hasn’t squarely taken up the issue but in cases like Holder v. Humanitarian Law Project which was decided in 2010, the court held that even individualized legal advice to designated terrorist groups was fully protected by the First Amendment. The government had to satisfy strict scrutiny if it wanted to restrict that kind of speech.

It’s very difficult to square those trends in First Amendment jurisprudence with Dean Post’s view of what the First Amendment protects.

Aaron Ross Powell: I wonder how much of this motive for philosophies like Dean Post articulates or arguments against liberalizing campaign spending is based on this notion that we should have more radical democracy. So we should do – we should stop anything that might limit the people enacting their will but that we’re quite certain that if the people could enact their will without any of the fetters that spending or these dastardly laissez-faire purists want, that it would match what I want.

That Dean Post is presumably – I’m going to throw a wild guess out here. It’s fairly progressive in his politics. America does not tend to be as progressive as this staff of Yale Law School and the reason for that is because billionaires are spending all sorts of money. PACs are getting in the way. We don’t have enough regulations protecting the interests of the common man and so America would be a progressive paradise whereas is he – do you want to limit the constitution if we end up with President Trump?

I know it seems to be that it’s based on this – the people agree with me therefore as opposed to …

Trevor Burrus: They would agree with me.

Aaron Ross Powell: They would agree with me, therefore, as opposed to like – because the problem with democracy is people – democracies can decided on some pretty abhorrent stuff and the constitution is meant as a check against that.

Paul Sherman: I agree with everything that you’ve just said. I’m so glad that you brought that up, because I think the big myth behind campaign finance law in particular is this notion that there is a general will and that we can uncover it. We can measure it and that the general will corresponds with the political outcomes we get when we have my preferred set of campaign finance laws in place.

Really it’s – I think it’s an insulting view of the American voter because basically it’s saying that voters – the voters who disagree with me, who are led to the “wrong conclusion” by the speech are all rubes. They can’t figure this stuff out. Of course me and my political allies, none of us are rubes. We’ve figured it all out.

Aaron Ross Powell: Well, I mean the staff of Yale Law School is a bunch of smart people.

Paul Sherman: Yeah, they’re smart people but if we wanted to say, well, we should just be ruled by smart people, we could call that a lot of things. I don’t think we would call that democracy. So I think it’s ironic that these people wrap themselves in the mantle of democracy.

Trevor Burrus: I actually got the – a party before Christmas. We’re recording this in February of 2016. A party before Christmas, I met a guy from Common Cause who we had a – I will not say his name because this is an off-the-record conversation. But I asked him basically if he thought that voters were idiots.

Aaron Ross Powell: He would have to disclose his side …

Trevor Burrus: He should have to disclose. Yes. But I asked him if he thought voters were idiots and we kind of went back and forth. I said, “Don’t you at the end of the day you really believe in managed democracy?” and he said, “Yes. I guess you could say that I believe in managed democracy,” which I thought was an outstanding admission that he wouldn’t do publicly I’m sure. But he did do it at a party that he wants to manage the democracy for outcomes …

Paul Sherman: Yeah, and I do think that’s an insulting view of the American voter. I don’t think that American voters are stupid. I think that they are rationally ignorant in a lot of things. I mean frankly, we live in a world that is far too complex for anyone to be expert or informed on all of the issues that our government gets involved in. So in many ways, we have set up an impossible task for voters. We expect them to be fully informed on an array of issues that our own politicians are not fully informed on.

That to me is an argument for restricting the number of things that we’ve put up for democratic deliberation as opposed to restricting people engaging in peaceful political speech and association.

Trevor Burrus: Thank you for listening. Free Thoughts is produced by Evan Banks and Mark McDaniel. To learn more, find us on the web at