Cato’s latest amicus brief highlights our continuing attempt to allow the public to benefit from the exercise of free speech that is protected by the First Amendment. New York prohibits the unlicensed practice of law (UPL); previously, the Second Circuit Court of Appeals had directed the district court examining New York’s UPL statutes to analyze them by means of intermediate scrutiny. The district court did so, finding that the UPL statutes sufficiently serve consumer-protection interests and thereby withstand that level of scrutiny. Cato has filed a brief supporting the plaintiffs’ appeal of the district court’s finding.

New York’s enforcement of its prohibition of the UPL statutes against plaintiffs (the nonprofit Upsolve, Inc., and one of its unpaid volunteers) creates profound constitutional difficulties. In consumer debt actions, New York allows defendants to use a one-page, state-created answer form that streamlines responses through a series of checkboxes. Upsolve seeks to train nonlawyer volunteers to help low-income individuals complete these forms at no cost. Those volunteers would neither represent anyone in court nor draft legal filings. They want only to speak. Yet New York’s UPL regime criminalizes this speech because it constitutes individualized legal advice, transforming a conversation into a crime based solely on its content.

If plaintiffs advise someone about financial strategies for managing debt, that’s lawful; if plaintiffs advise someone about the legal implications of debt or alleged debt, that’s a crime. This content-based speech restriction intrudes on fundamental First Amendment rights and therefore requires strict scrutiny. The appellate court’s previous instruction to the trial court that called for the application of intermediate scrutiny resulted in a distinction without a difference: That theory allowed states to suppress speech on any topic subject to occupational licensing. The U.S. Supreme Court rejected that approach in a previous opinion, National Institute of Family and Life Advocates v. Becerra, explaining that speech does not receive lower constitutional protection merely because it comes from a professional or touches on a regulated field. There is no licensing shield against First Amendment scrutiny.

Cato has filed an amicus brief supporting the petition. Our brief makes three arguments. First, we explain the public-choice dynamic that makes this case important. Restrictions on the unauthorized practice of law were historically championed by incumbent lawyers seeking to limit competition. This case exemplifies how occupational licensing can serve as a device for rent-seeking rather than for consumer protection. Second, we document the access-to-justice crisis these restrictions produce. Millions of Americans face civil legal problems without any professional help, and programs like Upsolve’s are precisely the kind of innovation that categorical prohibitions suppress. The debt-collection crisis in NYC demonstrates that New York is in particular need of Upsolve’s services. Finally, we explain that the Second Circuit’s rule threatens First Amendment protections far beyond the legal profession. Any licensed profession could invoke the same framework to suppress disfavored speech while claiming to regulate conduct.

This case, in short, rests on straightforward First Amendment doctrine: When a law prohibits speech based on the topic or message expressed, that is a content-based restriction subject to strict scrutiny. The government cannot evade the heightened scrutiny this restriction requires.