Texas Department of Insurance and Cassie Brown, in Her Official Capacity as Commissioner of the Texas Department of Insurance v. Stonewater Roofing, Ltd. Co.

Supreme Court of Texas

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No. 22-0427

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Texas Department of Insurance and Cassie Brown, in her Official

Capacity as Commissioner of the Texas Department of Insurance,

Petitioners,

v.

Stonewater Roofing, Ltd. Co.,

Respondent

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On Petition for Review from the

Court of Appeals for the Seventh District of Texas

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JUSTICE YOUNG, concurring.

I join the opinion of the Court but write separately to emphasize

my understanding of two points with significance for future cases.

First, the federal due-process clause (or the Texas due-course

clause) is generally satisfied when the State rationally regulates

professional conduct to ensure competence and safeguard public safety.

Stonewater does not challenge the statutory licensure and conflict-of-

interest requirements on due-process grounds but as violations of the

First Amendment’s free-speech clause. Because of the Court’s narrow

statutory construction, any speech that that the statute touches is only

incidental to conduct, the regulation of which is of even less concern to

the First Amendment than it is to the due-process clause. I agree with

the Court, therefore, that today’s case turns out to be easier than it might

first have appeared. But I emphasize that, to benefit from today’s

holding, it is not enough for the State to call something conduct. The

State wins today despite, not because of, its overweening theory of what

constitutes “conduct” that it may subject to professional regulation.

Second, I am concerned about what comes next. Not every case

will be so easy. It will not be possible or proper to construe every statute

that regulates professions as only incidentally burdening speech and

targeting only non-expressive conduct. What then? As it stands today,

the relevant First Amendment doctrine is a mind-numbing morass of

tangled precedents developed in contexts very different from professional

licensing. There is just enough of a whiff of original meaning to disguise

a stew of ad hoc conclusions—the way that heavy sauces can fool diners

into enjoying meat that sat for hours out in the sun.

The doctrine as we have it seems poorly equipped to address

legitimate public-licensing regulation that does affect speech or expressive

conduct more than “incidentally.” The outcome is basically determined

at the first move: if conduct, the regulation survives; if speech, it is

doomed. Worse, the conduct-speech dichotomy is, to put it mildly, rather

malleable. The First Amendment can surely be obeyed with better

rationales—and recent cases provide some reason for hope that the U.S.

Supreme Court will clarify and rationalize its jurisprudence. If so, the

speech implications for professional licensure will likewise become clearer.

I

The State’s theory of its authority to impose professional licenses

without violating the First Amendment is too vast.

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A

The normal framework for challenging professional licensure

sounds in due process. “Competence” and “public safety” are the kinds of

neutral criteria that the police power allows the State to invoke to defend

regulations like licensing regimes. “[T]he state may have an interest in

shielding the public against the untrustworthy, the incompetent, or the

irresponsible, or against unauthorized representation of agency. A usual

method of performing this function is through a licensing system.”

Thomas v. Collins, 323 U.S. 516, 545 (1945) (Jackson, J., concurring).

Stonewater does not contend that the statutory provisions it challenges

fail this constitutional requirement. We must assume that the licensing

and conflict-of-interest provisions are important and rational measures

to protect the public, and indeed various amici have explained in detail

why this is so. See, e.g., Brief for American Property Casualty Insurance

Association et al. as Amici Curiae 15–17 (highlighting the risks to the

public of unlicensed and unregulated contractors pocketing money from

settled insurance claims).

Legislation must satisfy not only due process, of course, but also

every other constitutional requirement. And with the expansion of

professional licensing to a greater number of professions, challenges like

this one increasingly sound in free speech. Asserting that a licensure

requirement burdens protected speech does not make it so, but neither

is it inherently implausible. Imagine licensing not just the structural

engineer who will ensure that a new cathedral does not collapse, but also

the bishop who will preach in it. Or not just the truck driver who

transports stacks of hot-off-the-press newspapers, but the journalists who

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write the articles printed in them. Likewise for poets, painters, political

consultants, and on and on. Would such licenses satisfy the free-speech

clause (and perhaps other clauses)?

The scope of the State’s theory is not entirely clear. But, as I

understand it, that theory encompasses examples like these by converting

speech into conduct, much as nominalizations convert verbs into nouns:

the “act” of doing a job that involves speech, especially when it is a paid

“act.” Under this view, only “conduct” is reached—“journalism” becomes

the “act” of taking money from employers to produce news articles for

those employers, for instance. The State’s theory seems to be that it gets

to decide who is competent to undertake conduct and can impose a

licensure requirement without offending—or even implicating—the free-

speech clause. The State’s argument appears to at least agree that “pure

speech” cannot be nominalized into mere conduct to evade First-

Amendment review—but I am not sure the State truly concedes that any

profession involves “pure speech.” It describes “prototypical professional

conduct” as “taking defined actions on behalf of a client in exchange for

payment.”

The problem, therefore, is not that the State denies that expression

is protected. Rather, it is how broadly the State may seek to define

“conduct.” And the more broadly one defines “conduct”—using the

formula “acting as [fill-in-the-blank]”—the less room there is for speech.

The less speech, the less likely that any regulation is subject to an

exacting judicial inquiry. Thus, even accepting the true rule that the

First Amendment permits only incidental burdens on speech without

heightening the scrutiny, the effect of that rule depends entirely on what

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we classify as speech, conduct, expressive, non-expressive, and the like.

Said differently, it is understandable—in the context of someone

being paid to do a job, after all—to regard the resulting work as just paid-

for conduct rather than something that implicates the First Amendment.

In many contexts that is true enough. But in others, it is just a way to

subtly erase the role of the First Amendment. Jack Phillips was paid to

make cakes—and so the State of Colorado did not think it was a big deal

to demand that he toe the line, despite the expressive nature of the

custom cakes that he designed to convey deep meaning. See Masterpiece

Cakeshop, Ltd. v. Colo. Civ. Rts. Comm’n, 584 U.S. 617 (2018); see also

303 Creative LLC v. Elenis, 600 U.S. 570 (2023) (protecting a graphic-

design maker from being compelled to create expressive designs when the

designer disagrees with the messages the designs convey).

Our conduct-speech dichotomy lends itself to confusion and abuse

because conduct and speech are not hermetically sealed categories.

Burning a piece of cloth is conduct; banning the burning of cloth in public

spaces regulates that conduct. But banning burning pieces of cloth in

public only if the cloth has alternating red and white stripes and a blue

field studded with fifty white stars is to regulate conduct that is imbued

with speech. See Texas v. Johnson, 491 U.S. 397 (1989). I make such

elementary points precisely because the State’s theory—and I guess I

cannot blame it for trying—seems largely to elide, or at least downplay,

these fundamental principles. Its focus is on “acting” in a given way,

transforming it into “conduct” that can be regulated, period.

I understand the Court to reject the State’s blunt theory, too. The

most important word of the most important sentence in the opinion, to

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me, is “nonexpressive”: “The gravamen of the defined profession is the

role a person plays in a nonexpressive commercial transaction, not what

anyone may or may not say.” Ante at 14. Without the word

“nonexpressive,” I do not see why the State could not require licenses and

impose restrictions (like those here) for portraitists, political consultants,

journalists, ministers of the Gospel, and so many others, including as to

the parts of their jobs that only convey messages.

The Court also, however, emphasizes that, in this case, “the

profession’s actuating activity and dominant focus is employment in a

representative (or agency) capacity.” Id. Although I join the Court’s

opinion, I do so only on the understanding that this sentiment, which is

sprinkled throughout, is understood to address nonexpressive conduct. To

be honest, I doubt that “representative (or agency) capacity,” by itself, has

anything to do with the First Amendment analysis. Speech and

expressive conduct are no less protected because they are made on behalf

of another or for compensation. “[T]he First Amendment extends to all

persons engaged in expressive conduct, including those who seek profit

(such as speechwriters, artists, and website designers).” 303 Creative,

600 U.S. at 600. “It is well settled that a speaker’s rights are not lost

merely because compensation is received; a speaker is no less a speaker

because he or she is paid to speak.” Riley v. Nat’l Fed’n. of the Blind of

N.C., Inc., 487 U.S. 781, 801 (1988).

Agency, in my view, is therefore all but irrelevant to the First

Amendment analysis—except that it is too easily looked upon to abridge

First-Amendment rights. Regulating expressive conduct taken “in a

representative (or agency) capacity” is subject to no less scrutiny than the

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same conduct taken in a non-representative or non-agency capacity. It is

not the details of the commercial relationship that matter, but whether

expression is at the core of the undertaking.

Because the Court concludes that the statute, as construed,

regulates nonexpressive conduct, there is no option but to reverse. As I

describe below, however, a harder case will come to us, sooner or later.

It could even come in this context—the legislature could, for example,

amend the law at issue in a way that really does constrict speech.

B

Today’s narrow statutory construction allows the State to bar

Stonewater from undertaking Stonewater’s desired conduct—adjusting

insurance claims while financially benefiting from that work in a

different capacity. But today’s construction allows Stonewater to do quite

a lot that the government may want to forbid—including discussing, in

detail, the damage and costs of repair with the insurance company. See

ante at 24 (opinion of the Court); ante at 2–3 (Blacklock, J., concurring in

the judgment). This narrow construction avoids serious constitutional

problems.

Even if the legislature amends the law to impose greater

restrictions on parties like Stonewater, any burdens on speech may still

be merely incidental to the conduct that the Court describes. The vast

majority of states, as the Court observes, see ante at 2, 6 n.17, do what the

two challenged statutes do here: (1) require that insurance adjusters be

licensed and (2) prevent conflict-of-interest problems by prohibiting dual-

capacity arrangements (preventing the same actor from being both a

contractor and an insurance adjuster).

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The State’s argument about why its regulation is permissible, even

with a less narrowly construed statute, emphasizes cases like the Eleventh

Circuit’s decision in Del Castillo v. Secretary, Florida Department of

Health, 26 F.4th 1214 (11th Cir. 2022). That case upheld a Florida law

that regulates the practice of nutrition and dietetics, including “advising

and assisting individuals or groups on appropriate nutrition intake by

integrating information from the nutrition assessment.” Fla. Stat.

§ 468.503(10). Del Castillo alleged that the law violated her First

Amendment free-speech rights. The Eleventh Circuit held that

“[a]ssessing a client’s nutrition needs, conducting nutrition research,

developing a nutrition care system, and integrating information from a

nutrition assessment are not speech. They are ‘occupational conduct’;

they’re what a dietician or nutritionist does as part of her professional

services.” Del Castillo, 26 F.4th at 1225–26. The court therefore concluded

that the licensing scheme for dieticians and nutritionists regulated

professional conduct and only incidentally burdened speech. Id. at 1226.

The First Amendment, it held, did not require heightened scrutiny. Id.

If a dietician’s “advising” or “counseling” people about nutrition is

not speech, then public insurance adjusting is not either. Like providing

nutrition and diet counseling, public insurance adjusters must engage

mainly in conduct for which communicating with an insurer is only

incidental. The Court recognizes the important conduct involved in

settling an insured’s claim: “evaluating insurance coverage, assessing

property value, assessing property damage, and calculating repair costs”

and ultimately “payment, satisfaction, or final adjustment” of the damage

claim. Ante at 15–16. Stonewater’s position certainly does not lack force,

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but especially as the Court construes the statute, communicating the

value of the claim to the insurer is not remotely the defining characteristic

of a public insurance adjuster’s job. It is as incidental to professional

conduct as speech can be—far more incidental than communicating a

diet and nutrition plan formulated according to professional standards,

which is why the Eleventh Circuit reached the result it did in Del Castillo.

In other words, if the dietician’s job is mainly to figure out what the health

and nutrition needs of a client are, the public insurance adjuster’s

primary role is to figure out what a proper insurance claim is in light of a

damage-causing event.

Assessing the constitutionality of the specific provisions

Stonewater challenges—Insurance Code §§ 4102.051(a) and 4102.163(a)—

is therefore straightforward. Section 4102.051(a) bars an individual from

acting or holding himself out as a public insurance adjuster without a

license. The first half of this prohibition is constitutional under the

analysis laid out above. I agree with the Court and with Justice Blacklock

that the latter part of this prohibition is constitutional too—holding

oneself out as an adjuster restricts speech, but it merely bars false

commercial statements, which the Constitution does not protect. Ante at

12–13 (opinion of the Court); ante at 3 (Blacklock, J., concurring in

judgment); see, e.g., Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n

of N.Y., 447 U.S. 557, 563–64, 566 (1980).

In my view, at least as to this case, the Court correctly concludes

that there is no colorable basis for a constitutional challenge. To prevail,

the State does not need such an overreaching theory.

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II

On the other hand, it is not clear that Del Castillo is exactly right.

Really, no speech interests are involved in a dietician giving nutrition

advice and counseling? That work is nothing but nonexpressive conduct?

Is the conduct–speech divide even the right line to look for—does

it ask the right questions? Current First Amendment doctrine does not,

formally at least, care too much about the context in which speech is

infringed, including if it is a statute imposing professional-licensure

requirements that does so. “[T]he traditional conduct-versus-speech

dichotomy” remains the doctrinally mandated way to determine whether

such a requirement violates the First Amendment. Vizaline, L.L.C. v.

Tracy, 949 F.3d 927, 932 (5th Cir. 2020) (citing Nat’l Inst. of Fam. & Life

Advocs. v. Becerra, 585 U.S. 755, 771–75 (2018) (NIFLA)).

In cases like this one that challenge a professional-licensure

regime, therefore, courts must ask whether the regulation burdens

(1) speech, (2) conduct, or (3) speech incidental to conduct. The answer to

this question may raise additional questions—if the answer is conduct,

for example, whether it is inherently expressive conduct. The Court today

concludes that this case is easy. Even so, drawing the line is often hard.

Del Castillo strikes me as harder than today’s case—but even assuming

that case got it just right, cases pushing the line are coming.

A

When they come, how will courts react? One problem is that

drawing the line is somewhat questionable. The “enterprise of labeling

certain verbal or written communications ‘speech’ and others ‘conduct’ is

unprincipled and susceptible to manipulation.” King v. Governor, N.J.,

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767 F.3d 216, 228 (3d Cir. 2014), abrogated on other grounds by NIFLA,

585 U.S. 755. The Eleventh Circuit—which decided Del Castillo—has

made the exact same observation. Wollschlaeger v. Governor, Fla., 848

F.3d 1293, 1308 (11th Cir. 2017) (en banc) (quoting King, 767 F.3d

at 228); see also, e.g., Otto v. City of Boca Raton, 981 F.3d 854, 865 (11th

Cir. 2020). If courts must decide these cases by drawing this line, and if

drawing this line is a manipulable exercise, then it may turn out that

First Amendment jurisprudence does care an awful lot about the context

in which a challenge arises, even if the formal doctrine purports to be the

same always and everywhere.

The importance of protecting speech means that courts should be

wary of this conduct-speech dichotomy, and particularly of too quickly or

without rigorous reasons concluding that a regulation touches just

conduct. It is precisely because the doctrine formally does not distinguish

among contexts that a lack of discipline in this area is troubling. If it is

comparatively easy to hold that any professional licensure is “just

conduct,” what will stop regulation of the same “conduct” outside that

regulatory context? Justice Cardozo wrote of “the tendency of a principle

to expand itself to the limit of its logic.” Benjamin N. Cardozo, The Nature

of the Judicial Process 51 (1921). Where is the limit here, exactly, that

does not threaten individual liberties more generally? This concern is one

of the reasons why I observed above that it is a mistake to be led into

thinking that there is any lesser protection for those who are engaged in

remunerative conduct in an “agency” or “representative” capacity.

B

The distinction between speech and conduct is also significant

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because it dictates the appropriate level of scrutiny that courts must

apply. A regulation invites strict scrutiny, which is typically fatal, when

the regulation “ ‘targets speech based on its communicative content’—that

is, if it ‘applies to particular speech because of the topic discussed or the

idea or message expressed.’ ” City of Austin v. Reagan Nat’l Advert. of

Austin, LLC, 596 U.S. 61, 69 (2022) (alteration omitted) (quoting Reed

v. Town of Gilbert, 576 U.S. 155, 163 (2015)). Regulation of a different

profession—one that involves expressive conduct (perhaps the legal or

medical professions)—might demand O’Brien’s intermediate scrutiny,

which is sometimes fatal but possible to survive. See United States v.

O’Brien, 391 U.S. 367 (1968). Or we may apply no scrutiny under the

First Amendment at all when, as here, the target is legitimately seen as

nonexpressive conduct. See, e.g., Hines v. Alldredge, 783 F.3d 197, 201–

02 (5th Cir. 2015) (citing Lowe v. SEC, 472 U.S. 181, 211 (1985) (White,

J., concurring in the result)), abrogated on other grounds by NIFLA, 585

U.S. 755. In such cases, only rational-basis review under the due-process

clause remains—and it is rare indeed for a governmental action to

succumb to that level of scrutiny.

Combining the conduct-speech dichotomy’s apparent malleability

with the all-but-determinative level of scrutiny yields serious problems

for courts, the other branches of government, and the regulated public.

Public suspicion that courts work backwards—that they categorize laws

so that the desired level of scrutiny applies, not the other way around—

could follow from a perception, whether fair or not, that this endeavor

lends itself both to inconsistent categorization (speech, expressive

conduct, neither) and to wildly divergent results based on the chosen

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categorization. At the least, the very risk of inconsistency makes the

whole endeavor open to the charge.

I am hardly alone in wondering if the tiers of scrutiny are moored

in the Constitution’s text and original meaning. Jurists from every

perspective have expressed concern. “[T]he label the Court affixes to its

level of scrutiny in assessing whether the government can restrict a given

right—be it ‘rational basis,’ intermediate, strict, or something else—is

increasingly a meaningless formalism. As the Court applies whatever

standard it likes to any given case, nothing but empty words separates

our constitutional decisions from judicial fiat.” Whole Woman’s Health v.

Hellerstedt, 136 S. Ct. 2292, 2326–27 (2016) (Thomas, J., dissenting)

(emphasis added). Compounding the problem, judges treat the tiers of

scrutiny as “guidelines informing [their] approach to the case at hand, not

tests to be mechanically applied.” Williams-Yulee v. Fla. Bar, 575 U.S.

433, 457 (2015) (Breyer, J., concurring). “Such an amorphous inquiry

risks . . . judges upholding or invalidating . . . laws at will—without

respect to the original public meaning of the” relevant constitutional

provision. United States v. Jimenez-Shilon, 34 F.4th 1042, 1051–52 (11th

Cir. 2022) (Newsom, J., concurring).

Scholars have reasonably doubted whether the tiers of scrutiny

“have [any] basis in the text or original meaning of the Constitution. They

emerged as a political solution invented by the justices to navigate

internal factions at the Supreme Court, and they do not withstand critical

analysis even on their own terms.” Joel Alicea & John D. Ohlendorf,

Against the Tiers of Constitutional Scrutiny, 41 Nat’l Affs. 72, 73 (2019).

Using tiers of scrutiny to “displace longstanding national traditions as the

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primary determinant of what the Constitution means” is troubling at best.

United States v. Virginia, 518 U.S. 515, 570 (1996) (Scalia, J., dissenting).

Today’s Supreme Court—some Justices more than others—

appears to have found new doubts about the proper role of the tiers of

scrutiny. See, e.g., N.Y. State Rifle & Pistol Ass’n v. Bruen 597 U.S. 1

(2022); Students for Fair Admissions, Inc. v. President & Fellows of Harv.

Coll., 600 U.S. 181 (2023) (Thomas, J., concurring). Indeed, the Bruen

majority claimed that its new text, history, and tradition test “comports”

and “accords with” how the Court protects free-speech rights. 597 U.S.

at 24–25. That is at least partially true. The Court has looked at history

to define categories of unprotected or lesser-protected speech. See Tingley

v. Ferguson, 144 S. Ct. 33, 35 (2023) (Thomas, J., dissenting from denial

of certiorari) (“Accordingly, the Court has instructed that states may not

‘impose content-based restrictions on speech without “persuasive

evidence . . . of a long (if heretofore unrecognized) tradition” to that

effect.’ ” (quoting NIFLA, 585 U.S. at 767)). In other contexts too, like the

religion clauses, the Court has construed the scope of the asserted right

“by ‘reference to historical practices and understandings.’ ” Kennedy v.

Bremerton Sch. Dist., 597 U.S. 507, 510 (2022) (quoting Town of Greece v.

Galloway, 572 U.S. 565, 576 (2014)).

But the Supreme Court has continued to embrace balancing tests

to determine whether a regulation imposed on protected speech is

constitutional—and so, therefore, do the lower courts. Decreasing the

role of these balancing tests and increasing consideration of the history of

regulating certain professions, at least as a first step and in this kind of

context, might bring the judicial approach to First Amendment

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challenges to professional-licensure regulations more in line with how we

assess due-process claims. After all, that doctrine is the one under which

professional-licensure challenges have traditionally been raised. The

U.S. Supreme Court has said that “the Due Process Clause specially

protects those fundamental rights and liberties which are, objectively,

deeply rooted in this Nation’s history and tradition.” Washington v.

Glucksberg, 521 U.S. 702, 720–21 (1997) (internal quotation marks

omitted). Perhaps a similar inquiry as a starting point might be a good

first step in isolating novel licensure regimes that warrant First

Amendment scrutiny from those that have clear historical roots such that

heightened scrutiny would be more problematic (or more needed).

Whether a better and clearer approach to assessing First

Amendment challenges will emerge, even in limited contexts like

professional licensure, remains to be seen. I reserve further thoughts for

future cases, if they come. This Court, like all courts, must of course

follow the Supreme Court’s First Amendment guidance, and I hope that

Court will continue to refine its jurisprudence in this area. But it is for

this Court to determine the proper analytical framework for cases that

arise under the Texas Constitution’s free-speech clause, see Tex. Const.

art. I, § 8—if parties raise, research, preserve, and press contentions

under that provision, which Stonewater did not.

Evan A. Young

Justice

OPINION FILED: June 7, 2024

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