Abuse of licensing statute to stifle unwanted criticism violates 1st Amendment, says NM Court of Appeals

A recent case from the New Mexico Court of Appeals demonstrates that professional licensing statutes exist to protect consumers and members of the public, not to shield the tender feelings of government officials from unwelcome criticism.

William Turner, a board member of the Middle Rio Grande Conservancy District, was asked by one of his constituents to inspect the District’s irrigation ditches. Turner, who has taken courses in civil engineering, but is not a licensed engineer, did so and produced a report which criticized the District’s management of the irrigation ditches, and in particular criticized the conduct of the District’s chief engineer, Subhas Shah. Turner presented his report at a District board meeting, while saying that he wasn’t a licensed engineer, and wasn’t pretending to be one. Turner had no client and received no payment for his report, which expressed his own opinions.

A District “contract employee” then reported Turner to the New Mexico Board of Licensure for Professional Engineers and Professional Surveyors, complaining that he was engaging in the forbidden practice of engineering without a license. After all, you can’t have just any old riff-raff expressing opinions without a piece of paper from the government saying they’re qualified to do so. 

Amazingly, the Board of Licensure agreed with the complainant, and held that Turner engaged in the “practice” of engineering by applying engineering principles to investigate and evaluate the flow of water in the District’s ditches. The Board ordered Turner to stop “practicing” engineering, pay a civil penalty of $2,500, and pay an additional administrative hearing cost of $2,670.93.

Turner appealed to the District Court, where Judge Valerie Huling reversed the decision, holding that prohibiting Turner from applying his knowledge and expressing his opinion in public violated the First Amendment, a law with which the Board seems to have had little previous familiarity.

At this point, the Board could have stopped trying to punish Turner for daring to express his opinions without first seeking the Board’s permission. The Board could have learned a valuable lesson in free speech principles, and called it a day, thus ensuring that its effort to squelch free speech would fade into obscurity.

But instead of wisely allowing the matter to drop, the Board doubled down, and asked the Court of Appeals to reverse Judge Huling. Now, the Board has received the fruit of its efforts — a precedential benchslap.

In New Mexico Board of Licensure for Professional Engineers and Professional Surveyors, written by Judge Miles Hanisee, the Court of Appeals unsurprisingly held that the Board’s use of the professional licensing statutes to punish unwelcome criticism could not withstand First Amendment scrutiny. It is not known whether the Board will appeal to the New Mexico Supreme Court, or whether the Board has had enough, now that two courts have schooled it in basic First Amendment principles.

The opinion is an important win for the public, because it demonstrates that the scope of professional licensing statutes is limited — such statutes are meant to protect the public from unqualified practitioners of professional disciplines, not to protect the tender sensitivities of government bureaucrats, or to allow professional licensing boards to decide who may express opinions, and who may not.

Unfortunately, Turner’s case isn’t the only one. Similar attempts to abuse licensing statutes to censor unwanted opinions have been made in other states — witness the case of a blogger in North Carolina, Diabetes Warrior, who has had the audacity to express his opinions on matters of diet and nutrition without a permission slip from another group of censorious bureaucrats, the North Carolina Board of Dietetics/Nutrition.

We all owe a debt of gratitude to people like William Turner, who refused to give in to this intimidation, doubtless at significant personal expense and stress. Three cheers for William Turner and the First Amendment.