Do You Have a License to Say That? Occupational Licensing and Internet Speech
37 Pages Posted: 22 Mar 2013 Last revised: 28 Mar 2013
Date Written: January 1, 2013
The proliferation of occupational licensing statutes throughout the 20th century has led to an increase in the amount of governmental regulation of private economic activity. Licensing statutes cover a wide range of professions, including those where the primary service being provided is advice or speech. Occupational licensing statutes that regulate the ability of professionals to render speech services can often run afoul of the First Amendment. This conflict becomes even more prominent when the speech is rendered by non-professionals who are providing advice or experiences on areas such as finance, medicine, and nutrition. Where does the line exist between speech that is subject to an occupational license and speech that is made by a non-professional? Particularly in the Internet Age when so many people look towards the Internet for ideas and information? This Article argues that speech rendered by non-professionals on the Internet should not be subject to occupational licensing statutes because it would constitute a content-based regulation of speech. The governmental interest in licensing certain professions is not enough to overcome First Amendment protections for speech. Utilizing the “marketplace of ideas” doctrine, this Article argues that both the content of the speech and medium that the speech is expressed should push the Supreme Court to reject the licensing of speech by non-professionals.
Keywords: free speech, First Amendment, speech, Internet, internet speech, occupational licensing, licensing, economic regulation, marketplace of ideas
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