Regulatory agencies can often be an essential part of day-to-day life, preventing people from engaging in activities they have no expertise in — something that could potentially endanger a lot of people. But they can also be overbearing brutes whose only concern is whether or not they’ve managed to extract as much money as possible from people who are experts in their field but have no desire to pay for the privilege of utilizing their skills.
In Oregon, a sequence of events involving an “unlicensed” engineer who had things to say about traffic light timing resulted in the state licensing board apologizing to Mats Jarlstrom for (expertly) saying things the government didn’t want to hear. Jarlstrom’s ended up with a complete win, with his (unlicensed) research on yellow light timing making it clear cities were putting people in danger by shortening yellow light times for the sole purpose of increasing revenue via traffic citations.
A similar thing is happening in North Carolina. Retired engineer Wayne Nutt was told by the North Carolina Board of Examiners and Surveyors to stop offering his expert opinion on engineering matters, even though he was fully qualified to do so. The only thing he was missing was a permission slip from the state board in the form of a professional engineer’s license.
Nutt refused. He decided to sue instead, represented by the Institute for Justice. He has obtained his first victory, in the form of a federal court decision [PDF] that says his expert opinion is protected by the First Amendment and cannot legally be silenced by the state. (via Volokh Conspiracy)
Here’s Nutt’s background:
Nutt worked as a chemical engineer from 1967 to 2013. He never obtained a professional engineering license because he qualified to practice engineering under the industrial exception of the licensing requirement in North Carolina. A portion of his responsibilities involved overseeing the design, construction, and repair of building trench systems to manage both stormwater and potential chemical spills at his work facility. As a result, he developed expertise in hydraulics, fluid flow, and piping systems.
Since his retirement, he has continued using his expertise to support the efforts of various local interest groups. He has testified to the Wilmington City Council regarding the flaws he identified in a development proposal’s traffic impact study. He has also testified about an error he discovered in a development plan’s calculation of the capacity of a stormwater detention pond. His opinion and recommendations led to meaningful changes in the design of those projects.
A long career followed by an unpaid career in public service. None of this was a problem until Nutt tried to offer his expert testimony in a 2020 lawsuit against the county government over allegedly negligent storm drain design that had contributed to additional flooding during Hurricane Florence.
At that point, the government had had enough of Nutt and his expert interloping. The government’s lawyers said allowing Nutt to testify in this case would “constitute the unauthorized practice of engineering.” It made an attempt to silence him by sending him an email suggesting he would be breaking the law if he chose to offer his testimony, leading off by informing him he was not even legally allowed to refer to himself as an “engineer.”
The Board sent an email, explaining that an unlicensed individual cannot publicly use the term “engineer” in their descriptive title or offer testimony likely to be perceived by the public as “engineering advice.” The Board also provided a position statement–the focus of Nutt’s claim–warning that “testimony impacting the public,” including “expert witness testimony on engineering … matters in the courtroom … or during depositions” and testimony based on “engineering education, training or experience,” requires licensing. The statement also indicated that expert reports are also “evidence of the practice of the profession.” The Board stated that it “has proceeded against unlicensed individuals … for the unlicensed practice of engineering.”
Nutt testified anyway. The irritated board responded with some “per our previous email” saber rattling. Then the expert witness testifying for the government filed a formal complaint against Nutt, accusing him of engaging in unlicensed engineering. A couple of months later — following an “investigation” by the state board, Nutt received another email informing him he had broken the law and that he would likely be fined/cited if he insisted on offering his expert opinion during litigation involving the government.
The court says the emails and the threats they contained are enough to both show standing and demonstrate Nutt has a reasonable fear of prosecution if he continues to offer his expert opinion on engineering matters.
The state tried to moot the lawsuit by claiming the board was no longer pursuing any action against Nutt because the case he testified in had been dismissed. Not good enough, says the court. And stop pretending you didn’t do the things you did while that litigation was still a going concern. (Emphasis in the original.)
At oral argument, the Board argued that Nutt should no longer reasonably expect prosecution for providing engineering testimony as an expert witness because it has not tried, and will not try, to prohibit Nutt from testifying as an expert witness. But the Board has tried to prohibit Nutt’s speech. Moreover, renouncing its pre-filing enforcement position, while denying the true nature of its past practices, does not “make it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.”
In hopes of exiting this lawsuit, the state dug its own hole with a combination of contradictory assertions and concessions to certain arguments made by Nutt. It all adds up to a First Amendment violation.
As mentioned above, Nutt seeks a judgment declaring that the Act, as interpreted and enforced, violates the First Amendment, both on its face and as applied to him and others similarly situated. He also seeks a permanent injunction allowing him and others similarly situated to testify about topics that require engineering knowledge without first obtaining an engineering license. The Board has conceded on paper and at argument that it will not enforce the Act to prohibit Nutt and others similarly situated from testifying on engineering matters.
As explained above, this concession does not render the parties’ dispute moot. It does,however, make clear that the Board does not contest Nutt’s core claim. Namely, the prohibition on unlicensed expert engineering testimony violates the First Amendment. Therefore, in light of the parties’ positions, the court will accept that claim as applied to Nutt. The court will also enjoin the Board from enforcing the Act against Nutt for testifying about topics that require engineering knowledge without first obtaining an engineering license.
The court acknowledges that the licensing program helps protect the public by ensuring those offering engineering services are actually capable of performing that job competently. But telling qualified engineers they’re not allowed to speak publicly about these matters without the permission of the board violates their rights. The government is always free to seek to have testimony from unlicensed engineers thrown out of court or otherwise seek to have this testimony blocked from admission. What it can’t do is pursue criminal proceedings against engineers for speaking.
At its core, this case concerns the extent to which a law-abiding citizen may use his technical expertise to offer a dissenting perspective against the government. Stating that dissent required the speaker to use his expertise in several ways. He had to do some math. He had to apply recognized methodologies. He even had to write a report memorializing his work. Some of that work may plausibly be considered conduct. But it ends up providing him the basis to speak his mind. Thus, although the government may properly exercise its interests in policing the use of technical knowledge for non-expressive purposes, those interests must give way to the nation’s profound national commitment to free speech in this case. At the very least, the government had to show that it seriously considered less restrictive alternatives before targeting pure speech. The government failed to meet its obligations under the First Amendment.
That’s pretty cut and dry. The board is still welcome to regulate the act of engineering. But it has no business regulating their speech.
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