Vizaline, L.L.C. v. Sarah Tracy, P.E., et a ( 2020 )

Case: 19-60053 Document: 00515311136 Page: 1 Date Filed: 02/14/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 19-60053 United States Court of Appeals
Fifth Circuit
FILED
February 14, 2020
VIZALINE, L.L.C.; BRENT MELTON,
Lyle W. Cayce
Plaintiffs-Appellants Clerk
v.
SARAH TRACY, P.E.; BILL MITCHELL, P.E./P.S.; JOSEPH FRANKLIN
LAUDERDALE, P.E./P.S.; JOSEPH E. LAUDERDALE, P.E./P.S.; STEVEN
A. TWEDT, P.E.; DOCTOR DENNIS D. TRUAX, P.E.; RICHARD THOMAS
TOLBERT, P.S.; JOE W. BYRD, P.S.; SHANNON D. TIDWELL, P.S.,
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Mississippi
Before OWEN, Chief Judge, and BARKSDALE and DUNCAN, Circuit Judges.
STUART KYLE DUNCAN, Circuit Judge:
We address a First Amendment challenge to Mississippi’s occupational-
licensing regime for surveyors.
Vizaline, L.L.C., converts existing legal descriptions of real property into
computer-generated drawings and then sells them to community banks as a
low-cost alternative to formal land surveys. Believing Vizaline’s practice
constitutes the unlicensed practice of surveying, the Mississippi Board of
Licensure for Professional Engineers and Surveyors sued Vizaline to enjoin its
business and disgorge its profits. In turn, Vizaline sued the Board, alleging
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that as applied to its practice, Mississippi’s surveyor-licensing requirements
violate the First Amendment. See, e.g., Sorrell v. IMS Health, Inc., 564 U.S.
552, 570 (2011) (explaining the Supreme Court “has held that the creation and
dissemination of information are speech within the meaning of the First
Amendment”). The Board moved to dismiss on the ground that occupational-
licensing requirements like Mississippi’s are immune from First Amendment
scrutiny. The district court agreed and dismissed Vizaline’s suit.
The Supreme Court has recently disavowed the notion that occupational-
licensing regulations are exempt from First Amendment scrutiny. In
overturning the “professional speech” doctrine deployed by some circuits,
including ours, 1 the Court rejected any theory of the First Amendment that
“gives the States unfettered power to reduce a group’s First Amendment rights
by simply imposing a licensing requirement.” Nat’l Inst. of Family & Life
Advocates v. Becerra [NIFLA], 138 S. Ct. 2361, 2375 (2018). The district court’s
ruling in this case—that Mississippi’s licensing requirements for surveyors do
not trigger any First Amendment scrutiny—was inconsistent with NIFLA. We
therefore reverse and remand for further proceedings.
I.
According to the complaint, plaintiff-appellant Vizaline, L.L.C., 2
converts existing metes-and-bounds 3 descriptions of real property into “simple
map[s].” It does so through a computer program that overlays lines onto
1 Our decision in Hines v. Alldredge, 783 F.3d 197, 202 (5th Cir. 2015), adopted the
professional speech doctrine. As explained below, Hines’ reasoning does not survive NIFLA.
2Brent Melton, one of Vizaline’s two owners, is also a plaintiff-appellant. We refer to
Melton and Vizaline collectively as “Vizaline.”
3 As the complaint explains, “[m]etes and bounds descriptions are established by
surveyors” and “are used as legal descriptions for property in deeds, easements, and other
legal documents.” Accord Metes and bounds, Black’s Law Dictionary (10th ed. 2014) (defining
“metes and bounds” as “[t]he territorial limits of real property as measured by distances and
angles from designated landmarks and in relation to adjoining properties”).
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satellite images. Vizaline sells these maps exclusively to community banks who
would otherwise have to obtain costly surveys of small, “less-expensive”
properties that serve as loan collateral. Vizaline does not “establish or purport
to establish metes and bounds descriptions of property,” “locate control
monuments[,] or measure items that are not defined within the legal
description.” Nor does it “locate, relocate, establish, reestablish, lay out[,] or
retrace any property boundary or easement.” The only thing Vizaline does is
make “simple map[s]” from legal descriptions of real property and sell them to
community banks. Furthermore, Vizaline “does not market its services as a
survey or as a substitute for surveys” and alerts its customers that its product
“is not a Legal Survey” and is not “intended to be or replace a Legal Survey.”
When Vizaline encounters potential discrepancies in a drawing—for instance,
if the metes-and-bounds descriptions do not form a closed shape—Vizaline
recommends its customers resolve the issue by hiring licensed surveyors to
perform a formal survey. Vizaline has six employees and operates in five
states, serving over thirty community banks.
In May 2015, the Mississippi Board of Licensure for Professional
Engineers and Surveyors, whose members are the defendant-appellants here, 4
took notice of Vizaline’s practice and “called on Vizaline to revise its website,
not market to the general public, and clarify that Vizaline’s work product is
not intended to be used as a survey.” Vizaline complied.
Two years later, the Mississippi Attorney General, on behalf of the
Board, sued Vizaline in state court. According to the Board, Vizaline is engaged
in the practice of surveying without a license, which is a civil and criminal
offense. See Miss. Code § 73-13-95 (“Any person who shall practice, or offer to
practice, surveying in this state without being licensed . . . shall be guilty of a
4 We refer to the Board and its members collectively as “the Board.”
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misdemeanor . . . .”); id. (providing for “criminal penalties” in addition to civil
penalties). The Board alleges that Vizaline violated Mississippi Code § 73-13-
95(c), which prohibits “receiv[ing] any fee” for performing “any service, work,
act or thing which is any part of the practice of surveying” without a surveying
license. 5 The Board’s lawsuit, which is ongoing, seeks an injunction against
Vizaline’s practice and disgorgement of all its compensation.
In addition to defending against the Board’s lawsuit, Vizaline filed this
action, 6 claiming application of § 73-13-95 (the “licensing requirements”) to its
practice violates the First Amendment. Vizaline argues that its practice—
5 As used in this provision, “the practice of surveying” means
providing professional services such as consultation, investigation, testimony
evaluation, expert technical testimony, planning, mapping, assembling and
interpreting reliable scientific measurement and information relative to the
location, size, shape or physical features of the earth, improvements on the
earth, the space above the earth, or any part of the earth, utilization and
development of these facts and interpretation into an orderly survey map, plan
or report and in particular, the retracement of or the creating of land
boundaries and descriptions of real property.
Miss. Code § 73-13-71(4). Among other things, the term includes:
(a) Locating, relocating, establishing, reestablishing, laying out or retracing
any property boundary or easement[,]
(b) Making any survey for the subdivision of any tract of land, including rights-
of-way and easements[,]
(c) Determining, by the use of principles of surveying, the position for any
survey monument or reference point; or setting, resetting or replacing any such
monument or reference point, commonly known as control surveys[,] [and]
(d) Creating, preparing or modifying electronic or computerized data, including
land information systems and geographic information systems, relative to the
performance of the activities in the above-described paragraphs (a) through (c).
Id.
6 Vizaline’s action was initially postured as a third-party complaint against the
Board’s members. This is because the plaintiff in the Board’s lawsuit is the Board itself,
which is not a “person” under 42 U.S.C. § 1983. See Will v. Mich. Dep’t of State Police, 491
U.S. 58, 70 (1989) (state agencies are not persons).
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generating “simple map[s]” using existing legal property descriptions and
selling those “visual depictions” to customers—is dissemination of information,
which is speech under the First Amendment. See Sorrell, 564 U.S. at 570
(noting “creation and dissemination of information are speech for First
Amendment purposes” (citing Bartnicki v. Vopper, 532 U.S. 514, 527 (2001)).
Vizaline likens its visual depictions to matter it contends the Supreme Court
has treated as “speech,” such as information pharmacies gather regarding
physicians’ prescribing habits. See id. at 558. Vizaline also points out that the
fact that it sells this speech does not “diminish[]” its First Amendment
protection. See City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 756
n.5 (1988). Along the same lines, Vizaline highlights the Supreme Court’s
recent reaffirmance of the principle that “provid[ing] specialized advice”
qualifies as protected speech. See NIFLA, 138 S. Ct. at 2374 (citing Holder v.
Humanitarian Law Project, 561 U.S. 1, 27–28 (2010)). 7
The Board moved to dismiss Vizaline’s complaint, citing the states’
“broad power to establish standards for licensing practitioners and regulating
the practice of professions.” See Hines v. Alldrege, 783 F.3d 197, 201 (5th Cir.
2015). The Board argued that under NIFLA, the licensing requirements
“regulate professional conduct” which “incidentally involves speech.” The
district court agreed, concluding that regulations that dictate “who is
permitted to provide certain professional services and who is not . . . do not
trigger First Amendment scrutiny.” Analyzing Mississippi’s licensing
requirements as occupational-licensing regulations, the district court
distinguished NIFLA and held that the requirements merely “incidentally
7 Because our holding is cabined to reversing the district court’s decision that
occupational-licensing requirements are immune from First Amendment scrutiny, we do not
decide whether, or to what extent, Vizaline’s practice involves protected speech.
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infringed upon” Vizaline’s speech because they only “determin[e] who may
engage in certain speech.” The court therefore granted the Board’s motion to
dismiss. Vizaline timely appealed.
II.
“We review de novo a district court’s dismissal under Rule 12(b)(6).”
Cicalese v. Univ. of Tex. Med. Branch, 924 F.3d 762, 765 (5th Cir. 2019)
(citation omitted).
III.
On appeal, Vizaline argues the district court erred in holding that
occupational-licensing restrictions are categorically exempt from First
Amendment scrutiny. We agree.
The district court’s holding that occupational-licensing provisions “do not
trigger First Amendment scrutiny” is contrary to the Supreme Court’s decision
in NIFLA, 138 S. Ct. 2361. NIFLA makes clear that occupational-licensing
provisions are entitled to no special exception from otherwise-applicable First
Amendment protections. Rather, the relevant question is whether, as applied
to Vizaline’s practice, Mississippi’s licensing requirements regulate only
speech, restrict speech only incidentally to their regulation of non-expressive
professional conduct, or regulate only non-expressive conduct. Id. at 2372–73.
The district court did not perform this analysis, and it should do so in further
proceedings on remand.
NIFLA involved a First Amendment challenge to the California
Reproductive Freedom, Accountability, Comprehensive Care, and
Transparency Act (the “FACT Act”). Id. at 2368. The FACT Act required
certain clinics that serve pregnant women to notify their patients that
“California provides free or low-cost services, including abortions, and give
them a phone number to call.” Id. Several pregnancy centers challenged the
FACT Act on First Amendment grounds. Id. at 2370. Applying a “lower level
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of scrutiny” to the notice requirements, the district court and the Ninth Circuit
rejected the challenge by applying the so-called “professional speech” doctrine.
Id. (citations omitted; cleaned up).
This doctrine had been deployed by some circuits to “except” from normal
First Amendment scrutiny regulations of speech by “professionals.” Id. at 2371.
“Professionals” were “individuals who provide personalized services to clients
and who are subject to ‘a generally applicable licensing and regulatory
regime.’” Id. (quoting Moore-King v. Cty. of Chesterfield, 708 F.3d 560, 569 (4th
Cir. 2013)). “Professional speech” was, in turn, “any speech by these
individuals that is based on their expert knowledge and judgment,” id. (quoting
King v. Governor of N.J., 767 F.3d 216, 232 (3d Cir. 2014)) (cleaned up), or that
occurred “within the confines of the professional relationship,” id. (quoting
Pickup v. Brown, 740 F.3d 1208, 1227–29 (9th Cir. 2014) (cleaned up). The
upshot of the doctrine was that “a state’s regulation of a profession raises no
First Amendment problem where it amounts to generally applicable licensing
provisions affecting those who practice the profession.” Moore-King, 708 F.3d
at 569 (citations omitted; cleaned up); accord Accountant’s Soc. of Va. v.
Bowman, 860 F.2d 602, 604 (4th Cir. 1988) (“A statute that governs the
practice of an occupation is not unconstitutional as an abridgment of the right
to free speech, so long as any inhibition of that right is merely the incidental
effect of observing an otherwise legitimate regulation.” (citation omitted;
cleaned up)).
In NIFLA, the Supreme Court rejected the professional speech doctrine,
holding instead that the FACT Act’s notice requirements were subject to
typical First Amendment scrutiny. NIFLA, 138 S. Ct. at 2370–76. Specifically,
the Court rejected the Third, Ninth, and Fourth Circuits’ demarcation of
“‘professional speech’ as a separate category of speech that is subject to
different rules.” Id. at 2371 (citing King, 767 F.3d at 232; Pickup, 740 F.3d at
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1227–29; and Moore-King, 708 F.3d at 568–70). While it did not “foreclose the
possibility that some such reason exists” for treating professional speech
differently, id. at 2375, the Court explained that “[s]peech is not unprotected
merely because it is uttered by ‘professionals.’” Id. at 2371–72. A professional
speech exception, it warned, would “give[] the States unfettered power to
reduce a group’s First Amendment rights by simply imposing a licensing
requirement.” Id. at 2375.
Instead of recognizing a new category of unprotected speech, the Court
adhered to the traditional conduct-versus-speech dichotomy. See id. at 2374–
76 (collecting decisions and observing that “this Court’s precedents have long
drawn” the “line between speech and conduct”). “[P]rofessionals are no
exception to th[e] rule” that states may enact “regulations of professional
conduct that incidentally burden speech.” Id. This was merely an application
of the general principle that legislatures may “impos[e] incidental burdens on
speech” by regulating “commerce or conduct.” Id. (citing Sorrell, 564 U.S. at
567). Applying that analysis, the Court held that the Act’s notice requirements
were a content-based restriction on speech that failed to satisfy even lesser
scrutiny for conduct regulations that incidentally burden speech. See id. at
2375–76 (applying “intermediate scrutiny” and concluding the Act was “not
sufficiently drawn to achieve” any substantial state interest).
In dismissing Vizaline’s free speech challenge to Mississippi’s surveyor-
licensing requirements, the district court erred in distinguishing NIFLA. The
court distinguished NIFLA on the ground that it did not involve occupational-
licensing restrictions, i.e., “restrictions on who may engage in a profession.” In
the court’s view, occupational-licensing restrictions—like Mississippi’s
surveyor regulations—restrict only conduct, not speech. The court therefore
held that Mississippi’s regulations only “incidentally infringed upon” Vizaline’s
speech because they merely “determin[e] who may engage in certain speech.”
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The court therefore applied no First Amendment scrutiny to the surveyor-
licensing requirements.
This analysis runs afoul of NIFLA. By discarding the professional speech
doctrine, NIFLA rejected the proposition that First Amendment protection
turns on whether the challenged regulation is part of an occupational-licensing
scheme. See 138 S. Ct. at 2375. The Court overruled circuit decisions that had
exempted regulations from First Amendment scrutiny merely because they
arose from “generally applicable licensing provisions affecting those who
practice the profession.” Moore-King, 708 F.3d at 569 (citations omitted;
cleaned up). In other words, application of the now-discarded professional
speech doctrine often went hand-in-hand with occupational-licensing regimes.
See, e.g., id. at 569–70 (applying doctrine to a “licensing and regulatory regime
for fortune tellers”); Bowman, 860 F.2d at 603 (addressing statute governing
“licensing and regulating the profession of accountancy in Virginia”).
Accordingly, the Court warned that the doctrine gave “the States unfettered
power to reduce a group’s First Amendment rights by simply imposing a
licensing requirement.” 138 S. Ct. at 2375 (emphasis added); see also id.
(observing that courts applying the professional speech doctrine had held a
“profession” means simply that the activity “involves personalized services and
requires a professional license from the State” (emphasis added)). The Court
thus made clear that First Amendment scrutiny does not turn on whether
censored speakers are professionals, licensed or not. Instead, NIFLA
reoriented courts toward the traditional taxonomy that “draw[s] the line
between speech and conduct.” Id. at 2373; see also, e.g., Sorrell, 564 U.S. at 567
(explaining that “the First Amendment does not prevent restrictions directed
at commerce or conduct from imposing incidental burdens on speech” (citing
Rumsfeld v. Forum for Acad. and Inst. Rights, Inc., 547 U.S. 47, 62 (2006);
R.A.V. v. St. Paul, 505 U.S. 377, 385 (1992); Giboney v. Empire Storage & Ice
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Co., 336 U.S. 490, 502 (1949))). 8
The district court also relied on our pre-NIFLA decision in Hines v.
Alldredge for the proposition that “generally applicable licensing provisions
limiting the class of persons who may practice the profession” are not “subject
to First Amendment scrutiny.” 783 F.3d at 202 (citation omitted). Vizaline
argues that NIFLA abrogated Hines to the extent that Hines relied on the
professional speech doctrine. We agree.
Hines rejected a First Amendment challenge to Texas’s requirement that
a veterinarian physically examine an animal before treating it. Id. at 198, 202.
Our court “beg[a]n—and end[ed]—[its] First Amendment analysis” with the
principle that “States have broad power to establish standards for licensing
practitioners and regulating the practice of professions.” Id. at 201 (citations
omitted; cleaned up). It observed that “[i]f the government enacts generally
applicable licensing provisions limiting the class of persons who may practice
the profession, it cannot be said to have enacted a limitation on freedom of
speech or the press subject to First Amendment scrutiny.” Id. at 202 (citation
omitted). Hines further noted that different treatment for “content-neutral
regulation of the professional-client relationship . . . has been embraced by
many circuits.” Id. (citing, inter alia, Moore-King, 708 F.3d at 569–70). Finally,
8 Defending the district court’s opinion, the Board cites the plurality opinion in
Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) (opinion of
O’Connor, Kennedy, and Souter, JJ.), for the proposition that “there is no need for
consideration of” whether the practice is “conduct” or “speech” or whether any burden is
“incidental” or “non-incidental.” But NIFLA also forecloses that argument. NIFLA
specifically treated Casey as an example of lesser scrutiny given to “regulations of
professional conduct that incidentally burden speech.” 138 S. Ct. at 2373 (emphasis added).
According to NIFLA, Pennsylvania’s requirement that abortion providers provide informed
consent “regulated speech only as part of” the conduct involved in practicing medicine. Id.
(citing Casey, 505 U.S. at 884) (emphasis in original). It was that characteristic, not special
treatment for occupational-licensing restrictions, that saved the informed-consent
requirement.
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Hines analyzed the Texas requirement based not on whether it regulated
conduct or speech, but on whether it was a “state regulation of the practice of
a profession.” Id. at 201.
Prior to NIFLA, our court suggested that Hines adopted some form of the
professional speech doctrine. See Serafine v. Branaman, 810 F.3d 354, 359 &
n.3 (5th Cir. 2016). NIFLA has now rejected that doctrine, making Hines’
reasoning unsound. Indeed, Hines relied in part on the Fourth Circuit’s Moore-
King decision, a professional speech case NIFLA rejected by name. See Hines,
783 F.3d at 202 (citing Moore-King, 708 F.3d at 569–70); see also NIFLA, 138
S. Ct. at 2371 (rejecting Moore-King). We therefore must recognize that, to the
extent Hines relied on the professional speech doctrine, its reasoning has been
abrogated by NIFLA. Cf. Capital Associated Indus., Inc. v. Stein, 922 F.3d 198,
207 (4th Cir. 2019) (acknowledging NIFLA’s abrogation of Fourth Circuit’s
professional speech doctrine). 9
***
While we hold the district court erred by categorically exempting
occupational-licensing requirements from First Amendment scrutiny, we
express no view on what level of scrutiny might be appropriate for applying
Mississippi’s licensing requirements to Vizaline’s practice. We also need not
decide to what degree Vizaline’s practice constitutes speech or conduct. We
merely reiterate NIFLA’s insistence on the conduct-speech analysis.
Similarly, we say nothing to suggest that Mississippi has no valid
interests in regulating Vizaline’s practice. Whatever its regulatory interests
might turn out to be, though, Mississippi’s surveyor requirements are not
wholly exempt from First Amendment scrutiny simply because they are part
9We express no opinion on whether the Texas regulation at issue in Hines would have
been upheld under the proper conduct-versus-speech analysis.
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of an occupational-licensing regime.
We therefore REVERSE the district court’s judgment dismissing
Vizaline’s First Amendment claims and REMAND for further proceedings
consistent with this opinion.
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