Bad Hindsight: Freedom of Speech – What Does It Mean?

The First Amendment to the U.S. Constitution enshrines freedom of speech, freedom of religion, the right to peaceably assemble, and the right to petition the government for a redress of grievances in a remarkably compact sentence of 45 words. What could be easier to understand? Well, apparently everything.

Most scholars understand freedom of speech to mean the right to express one's opinions and ideas without interference, censorship, restriction, or retaliation from any branch of government – local, state, or federal. That seems pretty clear, and most laypeople like me understand that interpretation and what it implies. Of course, over time, the courts have placed some logical limits on that freedom (the old refrain about yelling “fire” in a crowded theater, and some other obvious limitations).

Free speech is often equated with “freedom of expression,” but that particular term is not found in the Constitution or its amendments. Free speech is essentially an “interpretation” of the constitutional right to free speech (albeit through a series of U.S. Supreme Court decisions) that allows actions like wearing an offensive t-shirt or burning a flag to be equated with speech. The problem with interpretations is that they are constantly subject to further interpretation, and organizations like the ACLU are constantly pushing for the broadest possible interpretation of such rights. Sometimes that expansion is for very compelling reasons, and sometimes… not so much.

One of the organizations seeking the broadest definition of free speech they can get is the Institute for Justice (IJ). The IJ argues that activities such as commerce should be included in First Amendment rights. In California, the case Crownholm v. Moore et al, recently decided in an appeals court, was based on the IJ's argument that Crownholm had a First Amendment right to provide services reserved under California law to licensed land surveyors. When the regulator charged and fined Crownholm for producing site maps with boundary information, the IJ stepped in and filed suit against the agency and its individual members. In North Carolina, the Drone360 case, recently decided in favor of the licensing board in an appeals court, was based on the IJ asserting a First Amendment right for Michael Jones of Drone360 to perform aerial mapping services otherwise reserved for licensed land surveyors under North Carolina law. Both cases involved redefining commercial activity as a First Amendment right and thus outside of a board's regulatory authority.

So the IJ somehow believes in and advocates extending free speech to commercial activities. Am I crazy for thinking that such an extension devalues ​​what is actually a constitutional right? Assuming these two early IJ defeats don't deter them from their mission, they will no doubt try to file lawsuits in the other 48 states. Sooner or later, some crazy judge or overly politicized appeals court will rule in their favor. And what happens after that? Providing any service could become a protected right, subject to no regulation. Selling drugs or other contraband becomes a protected activity. Refusing to pay taxes could simply be an expression of free speech. Where does this end? Short answer: It won't stop.

The issue relevant to surveyors like you and me is the ongoing need for effective regulation of our profession to ensure that the work of all practitioners is of an appropriate standard and that the unqualified and unlicensed do not have pre-emption rights over our practice. If the Crownholm and Drone360 cases have seemed too abstract to you so far and you don't think they have any impact on you as an individual or as a professional, then think of it this way: Do you want to offer your services in an unregulated environment where a cool logo and colorful website have more influence on the consumer than a resume with 30 years of excellent professional work? Because that's exactly where it's headed. Get ready for Crazy Eddie's discount surveys (Their prices are crazy!).

Deregulating the profession and leaving the responsibility for weeding out bad practitioners to “the market” is a recipe for mob rule and lasting harm to the public.