Paul M. Sherman and Daniel Nelson of the Institute for Justice have posted The (Weak) Historical Case for Licensing Speech:
Increasingly, governments use occupational licensing to control who may speak on certain subjects and what licensees may say. The Supreme Court has twice rejected governments' doctrinal justifications for excluding occupational speech from First Amendment protection-first in NIFLA (2018) and again in Chiles (2026). But it has left open one possible source that could justify such exclusion: "persuasive evidence" of a "heretofore unrecognized" tradition of regulating occupational speech. This Article--the first to fully examine whether any such tradition exists--shows it does not.
This history has direct implications for today. Protecting occupational speech would protect against government controls on conversations between professionals and their patients that extend beyond the "conversion therapy" at issue in Chiles, like gender-affirming talk therapy. And it would undermine modern-day bans on "unlicensed" advice, including bans on who may provide legal advice, which have spurred our nation's current "access-to-justice crisis.
--Dan Ernst
