States often impose costly licensing restrictions on professionals who want to engage in certain businesses. Mississippi, however, has taken this practice to an absurd level in an attempt to regulate not only a profession, but also the definition of a commonly used word. A Magnolia State statute prevents anyone from using the term “engineer” commercially unless licensed by the state as an engineer.
Express Oil Change and Tire Engineers, a business that provides tire repair, maintenance, and replacement services, has a long-standing trademark on the term “Tire Engineers.” Express has refused to change the term, arguing that the First Amendment protects its use. Much is at stake for Express: the penalties for violating the statute include severe punishments like imprisonment, all for “misusing” a phrase that it had trademarked. Mississippi sued Express and won in district court, before losing last week before the U.S. Court of Appeals for the Fifth Circuit. The case is Express Oil Change v. Mississippi Board of Licensure for Professional Engineers & Surveyors.
The First Amendment guarantees that speech—even when done for money—is constitutionally protected. But such speech is subject to government regulation, the contours of which were defined by the U.S. Supreme Court in Central Hudson Gas & Electric Corp. v. Public Service Commission (1980). First, the speech itself “must concern lawful activity and not be misleading” to receive protection. To justify regulating the speech, a court asks if “the asserted governmental interest is substantial.” Finally, a court must establish “whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.”
Read more at https://www.cato.org/blog/judicial-sanity-occupational-licensing-first-amendment
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