The First Amendment to the US Constitution enshrines the Freedom of Speech, along with the Freedom of Religion, right to assemble peaceably and the right to petition the Government for redress of grievances in a remarkably compact, 45-word sentence. What could be simpler to understand? Well, everything, apparently.
Most scholars understand Freedom of Speech as the right to express your opinion and ideas without interference, censorship, restraint, or retaliation from any branch of government, local, state, or federal. That seems pretty clear, and most laymen like me understand this interpretation and what it implies. Of course, the courts have, over time place some logical limits on this freedom (the old chestnut about yelling “fire” in a crowded theater, and a few other obvious limitations).
Freedom of Speech is often conflated with the “Freedom of Expression” but that particular phrase is not actually contained within the Constitution or the Amendments thereto, Freedom of Expression is essentially an ‘interpretation’ of the constitutional right to free speech, (albeit by a series of US Supreme Court decisions), which allows for equating actions like wearing an offensive t-shirt or burning a flag, with speech. The problem with interpretations is that they are continuously open to further interpretation and organizations such as ACLU constantly push for the broadest possible construal of such rights. Sometimes this broadening is for very compelling reasons, and sometimes… not so much.
One of the organizations seeking the most expansive definition they can get for the Freedom of Speech is the Institute for Justice (I.J.). The I.J. advocates that activities such as commerce are included with the rights granted in the First Amendment. In California, the Crownholm v. Moore, et al case recently decided at the appellate court level, was based upon the I. J. arguing that Crownholm had a First Amendment right to perform services reserved to licensed land surveyors by California Law. When the regulation board cited and fined Crownholm for making site plans containing boundary information, the I.J. stepped in and filed suit against the board and its individual members. In North Carolina, the Drone360 case, recently decided in favor of the licensing board at the appellate court level, was predicated on the I.J. asserting a First Amendment right for Michael Jones of Drone360 to perform aerial mapping services otherwise restricted to licensed land surveyors by North Carolina Law. Both cases centered on redefining commercial activities as being a First Amendment right and therefore beyond the ability of an agency to regulate.
So, the I.J. somehow believes and advocates for expanding the Freedom of Speech to include commercial activities. Am I crazy in thinking that such an expansion cheapens the actual right enshrined in the Constitution? Assuming these two early losses by I.J. will not dissuade them from their mission, they are no doubt looking to file lawsuits in the other 48 states. Sooner or later, some lunatic judge or overly politicized appellate court will rule their way. And what happens after that? Offering any service could become a protected right, immune to regulation. Selling drugs or other contraband becomes a protected activity. Refusing to pay taxes might simply be exercising free speech. Where does this stop? Short answer: it won’t.
The issue relevant to Land Surveyors like you and me, is the ongoing need for effective regulation of our profession to ensure that the work of all practitioners is held to a reasonable standard and that the unqualified and unlicensed do not have a preemptive right to our practice. If the Crownholm and Drone360 cases have been too abstract for you until now; if you don’t think these have any effect on you as an individual or as a professional, consider it in these terms: do you want to offer your services in an unregulated environment where a bitchin’ logo and colorful website carries more influence with the consumer than a CV carrying 30 years of excellent professional work? Because that is where this is headed. Get ready for Crazy Eddie’s Discount Surveys (their prices are Insane!).
Deregulating the profession and letting ‘the market’ be responsible for weeding out the bad practitioners is a recipe for mob rule and continuous public injury.