License to Speak

The state of Oregon is abusing its authority to regulate professional services to silence its critics.

Nearly 20 years ago, a man in Oregon found himself threatened with 98 years in prison for testifying against a proposed gravel mine.

It took a team of pro bono lawyers—including me—to convince a state board that this frontal attack on free speech violated the U.S. and Oregon constitutions.

Bureaucracies are slow to internalize bad news, however. Today, an Oregon man named Mats Jarlstrom is fighting the same free speech battle in the same state—represented by lawyers and the libertarian Institute for Justice. His fight implicates free speech in all 50 states—wherever state and local governments regulate and license professional services. In both cases, state bodies attempted to use their licensing authority to silence critics with the professional backgrounds to substantiate their objections.

Jarlstrom is in trouble with a state board called the Oregon State Board of Examiners for Engineering and Land Surveying. His “offense” was to use mathematical calculations to suggest to his local government that there might be a better way to time yellow lights at intersections. He was fined for “the unlicensed practice of engineering.”

It’s eerily familiar. In 2000, our client, Mark Reed, was a professor of geology at the University of Oregon.  A local sand and gravel company asked county authorities for permission to excavate for a mine on a site within a mile of his home.

Reed examined public documents and testified at a public hearing of the County Commission. He stated, and wrote, that in his opinion there were errors in the engineering studies accompanying the application, and asked that the commission turn down the company’s application.

The company complained to the Oregon Board of Geologist Examiners, which dutifully wrote to Reed that it had received an allegation of 49 counts of “the unlicensed public practice of geology”; each count carried a maximum sentence of two years in prison and a $1,000 fine. The Board generously agreed to waive the fines if Reed would sign an agreement to keep his mouth shut from now on.

Let’s count the number of reasons this was a world-class government overreach. Reed’s “unlicensed practice” consisted of (1) reading documents available to the public and (2) giving his negative opinion of the project to his local government while (3) noting truthfully that he was using his highly relevant geology training to understand them.

There was no allegation that he was not a geologist by training, that he had charged anyone a dollar for his services, or that he had said anything false. His “offense” was talking about geology without getting a license from the board.

No one disputes that a state can guard against fraud and professional malpractice by requiring education and training, licensing exams, and registration from those who wish to practice specialized professions for pay. But truthful, non-misleading speech on a matter of public interest by a citizen to his or her elected representatives is at the absolute core of what is called “core political speech.” Government “licensing” of speakers in these circumstances is a grotesque violation of the First Amendment.

The Supreme Court addressed this very question in a 1945 case called Thomas v. Collins. A Texas statute requiring “labor union organizers” to register with the state before “soliciting members.” A local sheriff jailed the International President of the United Automobile Workers Union for speaking to a union rally in Houston. His conviction violated both the Speech and Assembly Clauses, the Court said:

As a matter of principle a requirement of registration in order to make a public speech would seem generally incompatible with an exercise of the rights of free speech and free assembly. Lawful public assemblies, involving no element of grave and immediate danger to an interest the state is entitled to protect, are not instruments of harm which require previous identification of the speakers.

We went to court, and the board agreed to drop the complaint against Reed, change the regulations under which it had proceeded against him, and ask the legislature to change the geology licensing statute.

Flash forward to 2013, when a woman named Laurie Jarlstrom got a ticket for allegedly running a red light in Beaverton, Oregon. The ticket was issued after an automatic camera captured a picture of her car in the intersection after the yellow light had turned red. Her husband, Mats Jarlstrom, began to wonder whether the traffic lights in his home town were allowing motorists enough time to clear the intersection before yellow turned red.

Piqued by the ticket, he worked out the physics of cars passing through an intersection and concluded that the current system for timing stoplights—devised more than 50 years ago—was in error; combined with traffic cameras, the result was tickets to drivers who hadn’t really committed an offense.

Math and physics are familiar to Jarlstrom. A native of Sweden, completed a four-year engineering course at a technical secondary school and one year of advanced training there. Since coming to the US, he has worked as a technical consultant who helps design audio systems. As a matter of free speech, it really doesn’t matter whether these calculations are the best thing since Einstein’s theory of general relativity or a bald-faced claim that pi equals 3.

As it happens, Jarlstrom’s calculations seem to have been pretty good. Alexei A. Maradudin, research professor of physics at the University of California at Irvine, was one of the original authors of the intersection-crossing paradigm. In a phone interview he said, “I’m pretty well convinced he’s right.”

Jarlstrom shared his engineering background, and his calculations, with a less sympathetic audience, however—his local city government. “They were laughing at me at city council meetings,” he recalled. He also submitted his calculations to the engineering board. The board instructed him to stop performing engineering work.

The Oregon state statute forbids anyone not registered with the Board from either “impl[ying] that the person is an engineer or a registered professional”; or “[a]ppl[ying] special knowledge of the mathematical, physical and engineering sciences to such professional services or creative work [or]  testimony.” Because Jarlstrom was not licensed under Oregon law, he could apparently not 1) mention his own engineering training in public; 2) perform—perhaps even in his head—mathematical work like the traffic-stop calculations or 3) discuss his results with his local government—or anyone else.

Jarlstrom had written about his work to his local sheriff, to Dr. Maradudin, and to 60 Minutes about his calculations. The board considered each of these a violation. It assessed a $500 fine.

In the words of President Trump, WRONG! Any citizen has a right to describe his or her own educational background, as long as he or she doesn’t perform or offer professional services without a license. (I’m a lawyer by training and I have the right to say so; I can’t claim bar membership if I don’t have it.) The First Amendment doesn’t have a Calculate Clause, but Jarlstrom’s math was fully protected as well. Finally, any citizen also has a right to criticize government operations, either to government itself or to the public and news media.

In fact, the Supreme Court recently held that even false public speech about a person’s background or experience can’t be punished unless it’s actually fraudulent. In 2012, the court voided the conviction of a blowhard who falsely told a public meeting that he was a veteran and a Medal of Honor winner. “Where false claims are made to effect a fraud or secure moneys or other valuable considerations,” the court said, “it is well established that the Government may restrict speech without affronting the First Amendment.” But falsity by itself cannot be punished “absent any evidence that the speech was used to gain a material advantage.” For good measure, Kennedy added, “Our constitutional tradition stands against the idea that we need Oceania's Ministry of Truth.”

The action against Jarlstrom was not a fluke. As detailed on the Institute for Justice website, the engineering board has fined a local activist who objected at a meeting to the noise level of a proposed power plant; fined a retired licensed engineer because in public testimony he failed to say he was retired; threatened a Portland woman because a local magazine called her an engineer, though she was not quoted as making that claim; and even formally investigated two political candidates for truthfully listing their educational qualifications in election materials. (False claims by political candidates are doubly protected.)

I predict not only that Jarlstrom will win his lawsuit, but that the state’s position will be laughed out of court. I hope the court will take notice that Oregon has been on notice of the free-speech problem with its regulatory boards for more than a decade.

The Institute, a Koch-funded libertarian advocacy group, wants a First Amendment precedent it can use in other states.  Institute lawyer Sam Gedge said in an email (hyperlinks added) that:

Oregon’s engineering board is an extreme example of a state agency targeting speech.  But it’s hardly unique.  Kentucky’s psychology-licensing board took aim at a nationally syndicated advice columnist for writing about behavioral issues without a Kentucky license.  North Carolina’s dietetics board took a red pen to a citizen’s diet blog.  And Texas’s psychologist-licensing board threatened to punish a political candidate who referred to herself—truthfully—as a “psychologist” in her campaign materials.

I am sympathetic with states that want to regulate their professions; often they must  rely on volunteers from the regulated specialties, who have little understanding of law. But Oregon state agencies have been crossing the free-speech line for more 15 years. Looking at the pattern, I have to conclude that this is not a mistake or a miscalculation; it is calculated lawlessness.

It is the responsibility of the state to provide competent legal advice to these regulators. I asked both the board and Oregon’s attorney general, Ellen Rosenblum (whose office provides counsel to state boards) what possible legal justification there can be for this attack on free speech. Both declined comment on “pending litigation.”