Opinion

Veterans Guardian VA Claim Consulting LLC v. Matthew J. Platkin

133 F.4th 213

Court: Court of Appeals for the Third Circuit
Filed: Apr 1, 2025
Status: Published
Cited by: 21 cases
Authority: More cited than 76.6%

“The first two factors are ‘gateway factors’: A plaintiff must satisfy them both to be eligible for preliminary relief.”

How later courts described this case

“The first two factors are ‘gateway factors’: A plaintiff must satisfy them both to be eligible for preliminary relief.”

Written by the judges who cited it.

The opinion

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 24-1097

_______________

VETERANS GUARDIAN VA CLAIM

CONSULTING LLC;

JOHN F. RUDMAN; ANDRE JESUS SOTO,

Appellants

MATTHEW J. PLATKIN, in his official capacity

as Attorney General of New Jersey

_______________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 3:23-cv-20660)

District Judge: Honorable Michael A. Shipp

_______________

Argued: November 8, 2024

Before: KRAUSE, BIBAS, and SCIRICA, Circuit Judges

(Filed: April 1, 2025)

Martine E. Cicconi [ARGUED]

Kristen Loveland

James E. Tysse

Caroline L. Wolverton

AKIN GUMP STRAUSS HAUER & FELD

2001 K Street NW

Washington, DC 20006

Counsel for Appellants

Joshua P. Bohn

Michael L. Zuckerman [ARGUED]

NEW JERSEY ATTORNEY GENERAL’S OFFICE

25 Market Street

Richard J. Hughes Justice Complex

Trenton, NJ 08625

Meghan Musso

Andrew H. Yang

NEW JERSEY ATTORNEY GENERAL’S OFFICE

124 Halsey Street

Newark, NJ 07101

Counsel for Appellee

Christian W. Lansinger

Paul M. Sherman

INSTITUTE FOR JUSTICE

901 N Glebe Road

Suite 900

Arlington, VA 22203

Counsel for Amicus Institute for Justice in Support of

Appellants

Caleb R. Trotter

PACIFIC LEGAL FOUNDATION

555 Capitol Mall

Suite 1290

Sacramento, CA 95814

Counsel for Amicus Pacific Legal Foundation in Support

of Appellants

Glenn R. Bergmann

Thomas Polseno

Daniel D. Wedemeyer

BERGMANN & MOORE

25 W Middle Lane

Rockville, MD 20850

Counsel for Amici Veterans of Foreign Wars of the United

States, American Legion, Paralyzed Veterans of America,

& Vietnam Veterans of America in Support of Appellee

Brian Hunt Rowe

WASHINGTON ATTORNEY GENERAL’S OFFICE

800 Fifth Avenue

Suite 2000

Seattle, WA 98104

Cristina Sepe

WASHINGTON ATTORNEY GENERAL’S OFFICE

1125 Washington Street SE

P.O. Box 40100

Olympia, WA 98504

Counsel for Amici States of Washington, Colorado, Con-

necticut, Delaware, Illinois, Maine, Maryland, Michigan,

Minnesota, Nevada, New Mexico, Oregon, Rhode Island,

Commonwealth of Pennsylvania, and District of Colum-

bia in Support of Appellee

_______________

OPINION OF THE COURT

_______________

BIBAS, Circuit Judge.

The marketplace of ideas is not just a metaphor. Many

Americans, from journalists to playwrights to therapists, speak

for a living. Laws that bar these professionals from earning

money on that speech limit their ability to speak and so must

survive First Amendment scrutiny. New Jersey recently passed

one such law, banning charging for some advice on how to

claim veterans benefits. Because this law likely burdens

speech, yet the District Court thought otherwise and so denied

a preliminary injunction, we will vacate and remand.

I. NEW JERSEY DOUBLY RESTRICTS CHARGING

FOR ADVICE ABOUT CLAIMING VETERANS BENEFITS

Veterans who are left disabled by their service qualify for

benefits. But first, they must claim them. To do that, they send

a form to the Department of Veterans Affairs (VA) listing their

disabilities and explaining how their service caused or aggra-

vated them. The VA reviews the information and decides what

benefits, if any, each veteran can get. For some, the story ends

there: They get the benefits they earned and enjoy a grateful

nation’s compensation. Others get less happy news: The VA

has awarded them less than they think they deserve. They can

appeal by filing a notice of disagreement, triggering review by

the Board of Veterans’ Appeals. 38 U.S.C. § 7105(a), (b)(3).

Because this benefits bureaucracy can be frustrating, many

veterans seek help submitting claims. And because the VA

pays out billions per year, a booming industry of consultants

has sprung up to help veterans claim benefits in exchange for

a cut of the payout. As the benefits-consulting industry has

grown, so have worries about veterans getting ripped off.

To prevent that abuse, an elaborate federal code regulates

the people whom veterans can hire to help them get benefits.

Two rules are relevant here. First, before anyone “may act as

an agent or attorney in the preparation, presentation, or prose-

cution of any claim” for veterans benefits, he must be accred-

ited by the VA. 38 U.S.C. § 5901(a); 38 C.F.R. § 14.629(b)(1);

accord 38 C.F.R. § 14.636(b). Second, these agents and attor-

neys may not charge for any services that they provide before

the VA’s initial benefits decision. 38 U.S.C. § 5904(c)(1); 38

C.F.R. § 14.636(c). Though federal law sets these rules, it does

not empower the VA or anyone else to enforce them.

New Jersey took that job upon itself. It passed a law that it

says mirrors federal law but adds civil-enforcement mecha-

nisms. Under Section (a)(1) of New Jersey’s law, “[n]o person

shall receive compensation for advising or assisting” anyone

with “the preparation, presentation, or prosecution of any

claim” for veterans benefits, except as allowed by federal law.

N.J. Stat. Ann. § 56:8-228(a)(1), (d). And under Section (a)(4),

“[n]o person shall receive any compensation for any services

rendered before” a veteran appeals the VA’s initial benefits

decision to the Board of Veterans’ Appeals. § 56:8-228(a)(4).

New Jersey’s law is a problem for Veterans Guardian, a

nationwide consulting company that charges veterans for advice

on how to claim benefits. Fearing that its business model vio-

lated the law, it closed its doors in the state. The law is also a

problem for John Rudman and Andre Soto, two New Jersey

veterans who had planned to use Veterans Guardian’s services.

Veterans Guardian, Rudman, and Soto sued New Jersey’s

Attorney General, claiming that the law violates their First

Amendment rights and seeking a preliminary injunction. The

District Court declined to grant the injunction, and now they

appeal.

On appeal from the denial of a preliminary injunction, we

normally “review the District Court’s factual findings for clear

error, its legal rulings de novo, and its ultimate decision for

abuse of discretion.” Del. State Sportsmen’s Ass’n v. Del.

Dep’t of Safety & Homeland Sec., 108 F.4th 194, 198 (3d Cir.

2024). But in First Amendment cases, we must examine the

whole record independently, drawing our own inferences and

deferring to factual findings only if they are about witness cred-

ibility. Child Evangelism Fellowship of N.J. v. Stafford Twp.

Sch. Dist., 386 F.3d 514, 524 (3d Cir. 2004) (Alito, J.); Tenafly

Eruv Ass’n v. Borough of Tenafly, 309 F.3d 144, 156–57

(3d Cir. 2002).

II. PRELIMINARY INJUNCTIONS ARE

EXTRAORDINARY REMEDIES

“A preliminary injunction is an extraordinary remedy

granted in limited circumstances.” Issa v. Sch. Dist., 847 F.3d

121, 131 (3d Cir. 2017). Whether a plaintiff can get one depends

on whether (1) he is likely to succeed on the merits, (2) he will

suffer irreparable harm without preliminary relief, (3) the bal-

ance of equities favors an injunction, and (4) an injunction is

in the public interest. Winter v. NRDC, 555 U.S. 7, 20 (2008).

The first two factors are “gateway factors”: A plaintiff must

satisfy them both to be eligible for preliminary relief. Reilly v.

City of Harrisburg, 858 F.3d 173, 179 (3d Cir. 2017). But they

are not equally demanding.

On the first factor, a likelihood of success on the merits

means only a “reasonable probability” of success—odds that

are “significantly better than negligible but not necessarily

more likely than not.” Id. at 176, 179. And though plaintiffs

usually bear the burden of showing that they are likely to suc-

ceed, that burden flips in First Amendment cases. Greater

Phila. Chamber of Com. v. City of Philadelphia, 949 F.3d 116,

133 (3d Cir. 2020). Because “[t]he government bears the bur-

den of proving that” a law complies with the First Amendment,

it also bears the burden of proving that a plaintiff is unlikely to

succeed on the merits. Id.

The standard for irreparable harm is more demanding: The

plaintiff must show that it is more likely than not. Reilly, 858

F.3d at 179. That said, a violation of First Amendment rights

presumptively inflicts irreparable harm. Del. State, 108 F.4th at

204.

If both gateway factors are satisfied, the court must still

weigh all four factors before granting preliminary relief. Id. at

202–03; see also Winter, 555 U.S. at 26, 31–33 (denying pre-

liminary injunction solely on the balance of equities and public

interest). It should also consider whether the injunction is

needed to keep the case alive until the court can award final

relief. Del. State, 108 F.4th at 200–03.

*****

Courts typically start with the merits. The District Court also

stopped there, deciding that Veterans Guardian was unlikely to

succeed and so the court did not need to reach the remaining

preliminary-injunction factors. That holding rested on several

mistakes, as we go on to explain. First, the District Court held

that New Jersey’s law did not even trigger the First Amend-

ment. We disagree: Veterans Guardian is likely engaged in

speech, which New Jersey’s law burdens. Second, the District

Court analyzed New Jersey’s law as a monolithic whole, when

the law imposes two separate burdens on speech that must be

analyzed separately. But though we correct these oversights,

the record is not developed enough for us to decide the serious

constitutional questions that the merits raise, let alone to weigh

the other preliminary-injunction factors. So we will remand for

the District Court to reconsider Veterans Guardian’s motion

with the benefit of a fuller record and our guidance.

III. NEW JERSEY’S LAW LIKELY BURDENS SPEECH,

SO IT MUST SATISFY THE FIRST AMENDMENT

Veterans Guardian has a reasonable probability of show-

ing that its services are speech and that New Jersey’s law

burdens that speech. So the state must show that its law satis-

fies the First Amendment.

A. Veterans Guardian is likely to succeed in showing

that its services are speech

At this early stage, Veterans Guardian need show only a

reasonable probability of success on the merits, including show-

ing that its services are speech. On the current record, they are.

Professional services delivered by speaking or writing are

speech. King v. Governor of N.J., 767 F.3d 216, 224–25 (3d

Cir. 2014), abrogated on other grounds by Nat’l Inst. of Fam.

& Life Advocs. v. Becerra (NIFLA), 585 U.S. 755 (2018). Vet-

erans Guardian delivers professional services by speaking and

writing. It advises clients about how to claim benefits: what

disabilities to claim, what evidence to include, and how to fill

out forms. That advice is likely speech. See Upsolve, Inc. v.

James, 604 F. Supp. 3d 97, 112 (S.D.N.Y. 2022) (distinguishing

conduct of filing motions from speech of offering legal advice).

B. Laws that forbid charging for speech burden speech

If indeed Veterans Guardian’s services are speech, then

New Jersey’s law burdens it. The District Court thought other-

wise because New Jersey does not bar giving advice but only

charging for it. So, the court reasoned, the law does not burden

the plaintiffs’ First Amendment rights because it regulates not

speech but conduct.

Yet laws that ban charging for speech burden the right to

speak. Supreme Court cases establish this. See United States v.

Nat’l Treasury Emps. Union, 513 U.S. 454, 468–70 (1995);

Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims

Bd., 502 U.S. 105, 115–16 (1991); see also Riley v. Nat’l Fed’n

of the Blind of N.C., 487 U.S. 781, 801 (1988) (“[A] speaker is

no less a speaker because he or she is paid to speak.”). Com-

mon sense agrees. Someone who cannot earn money from

speaking has less incentive to speak and so will speak less.

Nat’l Treasury Emps. Union, 513 U.S. at 468–70. Indeed,

many canonical examples of protected speech involve profes-

sionals speaking for pay: think of novelists, speechwriters, and

newspaper columnists. A law that allowed their speech but

banned their livelihoods would reduce how much they could

speak, which in turn would dam up the flow of ideas in our

democracy. By barring payment for speech, New Jersey’s law

burdens the right to speak.

The District Court thought otherwise, misreading a passing

comment in Expressions Hair Design v. Schneiderman, 581

U.S. 37 (2017). In that case, the Supreme Court observed that

a hypothetical law setting sandwich prices at $10 would target

conduct, even though it would also require delis to write “$10”

on their menus and quote that price to inquiring customers. Id.

at 47. Because “the law’s effect on speech would be only inci-

dental to its primary effect on conduct,” the Court noted, it

would not pose a First Amendment problem. Id.

The District Court thought that Expressions Hair Design

meant that price restrictions cannot implicate the First Amend-

ment. But a law regulating the price of sandwiches burdens the

conduct of selling sandwiches. By contrast, a law regulating

the price of speech burdens speech.

IV. THERE IS NO SEPARATE CATEGORY

OF PROFESSIONAL SPEECH

Having decided that the First Amendment applies, we next

ask how strong its protections are. Our circuit used to carve out

a separate category of professional speech and give it less pro-

tection. King, 767 F.3d at 232. But seven years ago, in NIFLA

v. Becerra, the Supreme Court clarified that there is no separate

category of professional speech. 585 U.S. at 767–68. With few

exceptions, the same First Amendment principles apply when

professionals speak to clients as when anyone else talks. Id.

That said, NIFLA confirms that lesser scrutiny is warranted

where there is “persuasive evidence of a long (if heretofore un-

recognized) tradition to that effect.” Id. at 767 (cleaned up).

And it preserved two exceptions when regulations of profes-

sional speech get reviewed more deferentially: (1) “laws that

require professionals to disclose factual, noncontroversial in-

formation in their commercial speech” and (2) regulations of

“professional conduct, even though that conduct incidentally

involves speech.” Id. at 768 (internal quotation marks omitted).

New Jersey tries to jam its law into NIFLA’s second excep-

tion by arguing that the law regulates price instead of speech,

that it regulates speech incidental to illegal conduct, and that

Section (a)(1) is a neutral professional licensing scheme. Id. at

768–70; United States v. Hansen, 599 U.S. 762, 783 (2023);

Appellee’s Br. 20–28. The first two arguments do not work,

and the record is too sparse for us to confidently decide the

third.

Start with New Jersey’s contention that its law targets only

the conduct of charging money. As we discussed above,

pricing regulations are not exempt from the First Amend-

ment—restricting compensation to licensed counselors still

imposes a financial burden on speech.

Second, Veterans Guardian’s speech is not integral to ille-

gal conduct. Because New Jersey reads its law as mirroring

federal requirements, it argues that any speech it bans must be

integral to breaking federal law. That argument is wrong twice

over. For one, Veterans Guardian’s speech is not just one step

in service of some separately illegal act, unlike the speech

involved in soliciting a crime, demanding ransom, or posting

a “White applicants only” sign as part of hiring discrimination.

See Hansen, 599 U.S. at 783; Rumsfeld v. FAIR, 547 U.S. 47,

62 (2006). Veterans Guardian’s speech is the core of what it

does. For another, though New Jersey says federal law outlaws

Veteran Guardian’s activities, that federal law is equally sub-

ject to the First Amendment. Veterans Guardian does not chal-

lenge the federal scheme, and we take no position on whether

it is valid. But states cannot immunize their laws from constitu-

tional scrutiny by pointing to a federal scheme that may suffer

the same constitutional defects. To hold otherwise would let

states end-run around the First Amendment.

Finally, New Jersey attempts to frame Section (a)(1), which

incorporates federal accreditation requirements, as a neutral

licensing scheme regulating professional conduct. Appellee’s

Br. 20–21. Yet we have very little information on how the fed-

eral accreditation scheme works or what it covers. The District

Court ruled on a different basis and did not address whether the

law should be viewed as a professional licensing scheme or

whether, as a licensing scheme, it would fit within NIFLA’s

second exception. We leave it to the District Court to consider

those questions in the first instance on remand.

When it does, it should reconsider one more part of its rea-

soning. It held that New Jersey’s law was content neutral in

part because the state did not intend to suppress disfavored

ideas. But courts judge laws based on their effects on speech,

not just on legislatures’ purposes or motives. United States v.

O’Brien, 391 U.S. 367, 383 (1968); Reed v. Town of Gilbert,

576 U.S. 155, 165–66 (2015). For instance, they usually decide

whether a law is content based—and so presumptively uncon-

stitutional—by judging whether it “single[s] out any topic or

subject matter for differential treatment.” City of Austin v.

Reagan Nat’l Advert. of Austin, LLC, 596 U.S. 61, 71 (2022);

Reed, 576 U.S. at 163–64; Camp Hill Borough Republican

Ass’n v. Borough of Camp Hill, 101 F.4th 266, 269–70 (3d Cir.

2024). We take no position on whether this law is content neu-

tral, leaving that to the District Court on remand. But when it

does reach that question, its answer should be based on whether

the law applies to speech based on its content or topic, regard-

less of the legislature’s good intentions.

V. COURTS MUST ANALYZE PLAINTIFFS’ CHALLENGES

TO SEPARATE PROVISIONS SEPARATELY

The District Court also overlooked that New Jersey’s law

restricts speech in two different ways. It considered the first

way: It thought that Section (a)(1) bars charging for claims advice

without VA accreditation. That limits who can charge for advice—

only people accredited by the VA.

But it did not consider the second way: Section (a)(4) bars

accepting pay for services done before a veteran files a notice

of disagreement (the equivalent of a notice of appeal). N.J. Stat.

Ann. § 56:8-228(a)(4). That limits when people can charge for

advice—only after a veteran appeals. And it imposes that total

ban on everyone, even licensed counselors. It might also limit

what advice people can charge for. If some choices in the initial

claim cannot be changed on appeal (for instance, what disabil-

ity the veteran claimed for), then by limiting paid advice to

appeals, the law would effectively bar paid advice about these

aspects of a claim. Either way, Sections (a)(1) and (a)(4) impose

separate limits on speech and must be analyzed separately.

On remand, the District Court should distinguish these sec-

tions and test the constitutionality of each.

VI. SECTION (a)(4)’S CONSTITUTIONALITY

IS A SERIOUS QUESTION

Distinguishing Section (a)(4) is especially important because

we seriously doubt that it is constitutional. True, New Jersey

has a strong interest in protecting veterans from fraud and pred-

atory pricing. See Heffner v. Murphy, 745 F.3d 56, 92 (3d Cir.

2014). But any law pursuing this interest must be tailored to it.

New Jersey has not pointed to any evidence that a ban on pre-

appeal counseling fees furthers its interest. In fact, the state

never even raised its concern that pre-appeal fees are exploita-

tive until oral argument before us.

Either way, New Jersey’s law must satisfy some form of

heightened scrutiny. Though we need not decide which tier

applies, we are skeptical that at least Section (a)(4) is tailored

enough to satisfy even intermediate scrutiny. Under that stand-

ard, New Jersey would need to show that “alternative measures

that burden substantially less speech would fail to achieve the

government’s interests.” Bruni v. City of Pittsburgh, 824 F.3d

353, 367 (3d Cir. 2016) (quoting McCullen v. Coakley, 573

U.S. 464, 495 (2014)). At oral argument, New Jersey asserted

that Section (a)(4)’s ban protects veterans because no one needs

paid help to file a claim: The first stage is simple, and other

services will help claimants for free. But New Jersey could use

less-restrictive alternatives; for instance, it could require paid

advisers to tell veterans that they can get free help elsewhere.

It has never explained why a more targeted solution would not

work.

Still, the current record is too thin to resolve this question.

In moving for a preliminary injunction, plaintiffs challenged

both Sections (a)(1) and (a)(4) without analyzing them sepa-

rately. Then the District Court ignored (a)(4). So that section

has never gotten adequate briefing or produced a well-developed

record. We will leave that task to the District Court on remand.

VII. THE DISTRICT COURT SHOULD FIND MORE FACTS

The District Court will need to gauge New Jersey’s interests

and the law’s tailoring, and it may need to weigh preliminary-

injunction factors other than the merits. Each inquiry is riddled

with unknowns.

Start with New Jersey’s interests. They depend on how often

paid services covered by the law are predatory, how often they

are merely useless, and how often they are valuable. The record

contains no answers. Nor does it show how big a problem paid

consultants are. Though the District Court noted that “benefits

consultants and other businesses ha[ve] defrauded veterans of

over $414 million,” the document it relies on lumps together

all sources of fraud, from identity theft to “bogus investment

schemes” and “sweepstakes and lotteries.” App. 17, 217. In

fact, this document lists the eleven most common sources of

fraud, but predatory benefits-claiming services are not among

them.

The extent of tailoring is also foggy. Neither the District

Court nor the parties have discussed whether less restrictive

alternatives to Sections (a)(1) and (a)(4) would have achieved

New Jersey’s interests. And each section raises its own ques-

tions that the record does not answer. Section (a)(1) purports

to fight exploitation by forcing providers to follow federal law.

But how effective is federal law at stopping fraud and incom-

petence? And at what cost to speech? Section (a)(4) bans paid

advice before appeal. The weight of this burden depends in part

on whether the appeal is too late to offer some advice. Is it? On

remand, the District Court should fill these gaps.

*****

Advice about claiming veterans benefits appears to be

speech. But when weighing preliminary injunctions, courts

must proceed cautiously and be wary of locking in their views

on the merits. Del. State, 108 F.4th at 203. And though there

are many non-merits factors, the District Court never analyzed

them. We will remand to let it fill in the record and apply the

law that we have laid out here.

KRAUSE, Circuit Judge, concurring.

I join the majority opinion in full but write separately

with some observations about the review of reasonable

professional licensing schemes in the wake of National

Institute of Family and Life Advocates v. Becerra (NIFLA), 585

U.S. 755 (2018).

On the one hand, NIFLA established that professional

speech, as a whole, is not a unique category subject to lesser

protections than other protected speech and cautioned against

giving states “unfettered power” to impose content-based

restrictions on speech “by simply imposing a licensing

requirement.” Id. at 773. Taken to the extreme, the Court

observed, states could enact onerous licensing laws that, in

effect, “impose invidious discrimination of disfavored

subjects,” id. (internal quotation marks omitted), for example,

by restricting publishers from printing books by certain authors

or lawyers from advocating for clients outside the courtroom—

all under the guise of regulating professional conduct, cf.

Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims

Bd., 502 U.S. 105, 115 (1991) (striking down the “Son of Sam”

law placing financial disincentives on convicts speaking about

their crimes); NAACP v. Button, 371 U.S. 415, 433, 444 (1963)

(holding a law “proscribing any arrangement by which

prospective litigants are advised to seek the assistance of

particular attorneys” unconstitutional).

Indeed, the Court has long cautioned that states may

neither “foreclose the exercise of constitutional rights by mere

labels” nor ignore those rights “under the guise of prohibiting

professional misconduct.” Button, 371 U.S. at 429, 439. Thus,

in NIFLA, the Court determined California’s law requiring

licensed clinics to disclose the availability of services that “in

no way relate[d] to the services that licensed clinics provide,”

585 U.S. at 769, was a content-based regulation of speech and

therefore identified no reason to shield it from strict

scrutiny1—notwithstanding its commercial context, id. at 766,

773.

On the other hand, NIFLA confirmed that more

deferential scrutiny continues to apply in the commercial

context where there is “‘persuasive evidence . . . of a long (if

heretofore unrecognized) tradition’ to that effect,” and it

identified two such situations. Id. at 767–68 (quoting United

States v. Alvarez, 567 U.S. 709, 722 (2012)). The first was

“laws that require professionals to disclose factual,

noncontroversial information in their ‘commercial speech,’”

like the fee disclaimer regulation for lawyers in Zauderer v.

Office of Disciplinary Counsel of Supreme Court of Ohio, 471

U.S. 626, 650–53 (1985). Id. at 768. And the second was for

“regulations of professional conduct that incidentally burden

speech.” Id. at 769. In support of both exceptions, the Court

cited Ohralik v. Ohio State Bar Association, in which the Court

held that a state can discipline a lawyer for in-person

solicitation in certain circumstances, 436 U.S. 447, 449 (1978),

The Court did not foreclose that some reason may exist to

“treat[] professional speech as a unique category that is exempt

from ordinary First Amendment principles,” but it did not

decide that issue because the challenged regulation failed

under intermediate scrutiny. Nat’l Inst. of Fam. & Life Advocs.

v. Becerra (NIFLA), 585 U.S. 755, 773 (2018). Of course,

under ordinary First Amendment principles, “content-based

regulations of speech are subject to strict scrutiny.” Id. at 767;

see also Sorrell v. IMS Health Inc., 564 U.S. 552, 565–66

(2011).

reasoning the solicitation ban was more like a conduct

regulation in which speech “is an essential but subordinate

component,” id. at 457, and observing “that the State does not

lose its power to regulate commercial activity deemed harmful

to the public whenever speech is a component of that activity,”

id. at 456 (listing examples of “communications that are

regulated without offending the First Amendment”).

As another example of NIFLA’s second category, the

Court cited Planned Parenthood of Southeastern Pennsylvania

v. Casey, which “rejected a free-speech challenge to [an]

informed consent requirement” for an abortion procedure,

explaining that the law “regulated speech only ‘as part of the

practice of medicine, subject to reasonable licensing and

regulation by the State.’” NIFLA, 585 U.S. at 770 (quoting

Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 884

(1992)). Even though the regulations in Ohralik and Casey

were content based, in that they targeted certain subject matter

in the context of regulating a particular profession,2 the NIFLA

Court cited them as part of our Nation’s “long . . . tradition” of

professional-conduct regulations that incidentally burden

speech and nevertheless are excepted from the demands of

strict scrutiny. Id. at 767–68 (quoting Alvarez, 567 U.S. at

722).

That long tradition of professional licensing schemes in

our law dates back well before the Founding, with deep roots

in English law. In the Middle Ages, craft guilds, chartered by

the monarch, functioned as early licensing authorities, with

See City of Austin v. Reagan Nat’l Advert. of Austin, 596 U.S.

61, 69 (2022); Reed v. Town of Gilbert, 576 U.S. 155, 163

(2015).

membership a prerequisite to entering trades like weaving and

goldsmithing.3 As early as 1421, doctors in England petitioned

Parliament to exclude unqualified practitioners,4 and the Royal

College of Physicians was established in 1518 to grant licenses

and regulate the practice of medicine.5 Membership in the

English Inns of Court, founded in the mid-fourteenth century,

ensured the qualifications of those practicing law.6 And by the

seventeenth century, licensing schemes governed the

See Stella Kramer, The English Craft Gilds and the

Government 17 (1905); Paul J. Larkin, Jr., Public Choice

Theory and Occupational Licensing, 39 Harv. J.L. & Pub.

Pol’y 209, 212–13 (2016) [hereinafter Larkin].

John H. Raach, English Medical Licensing in the Early

Seventeenth Century, 16 Yale J. Biology & Med. 267, 268

(1944).

B. Abbott Goldberg, Horseshoers, Doctors and Judges and

the Law on Medical Competence, 9 Pac. L.J. 107, 122 (1978).

The College was established by a charter issued by King Henry

VIII in 1518 and confirmed by Parliament in 1522. Parliament

initially authorized the licensing of physicians by bishops in

1511, but the effect of that law was undercut by the

establishment of the College. Id.; see 3 Henry VIII ch. 11,

reprinted in Charles Goodall, Royal College of Physicians of

London Founded and Established by Law 1 (M. Flesher ed.,

1684) [hereinafter Goodall]; 14, 15 Henry VIII ch.5, reprinted

in Goodall at 5.

Jonathan Rose, The Legal Profession in Medieval England:

A History of Regulation, 48 Syracuse L. Rev. 1, 24 (1998); see

also id. at 5 (“[M]edieval regulation reveals the foundation for

the modern control of the admission and the conduct of

practicing lawyers.”).

professions of tavern owner, peddler, coach driver, and many