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Making a Living with Free Speech

Free speech protections in the United States are pretty far reaching, including protections for commercial free speech and occupational free speech. If you make your living by giving tours or lecturing students or instructing trainees, the First Amendment still applies. Unfortunately, many states encroach on that freedom of expression when it comes to occupational licensing. The Institute for Justice is currently representing Jon and Tracy McGlothian of Virginia, who are challenging their state’s requirements that they be licensed and otherwise regulated for operating a vocational training business.

The case highlights an odd aspect of Virginia law, by which the McGlothians can offer instruction for hobbyists, but not would-be professionals:

As it turns out, in Virginia, you can teach anyone anything—except how to earn an honest living. Any Virginians can legally teach hobbies like yoga or karate. But, incredibly, Virginians who teach job skills without a state license can face criminal charges and tens of thousands of dollars in fines.

Jon and Tracy learned firsthand that getting permission to teach means going through an expensive, time-consuming and byzantine application process. Over the last two years, they’ve spent thousands of dollars and dozens of hours putting together a heavy binder to prove their fitness to teach, but they keep getting rejected and asked to provide more and more information.

These restrictions, of course, act as a barrier to entry that shields existing vocational training operations from competition. Similar policies are unfortunately common across the country—regulations theoretically meant to protect consumers are proposed and supported by current members of a profession as a way to artificially limit the number people competing with them. The good folks at the Charles Koch Institute have been working on this issue for many years, as have a wide array of scholars at other organizations, including places like the Brookings Institution, the R Street Institute, the American Civil Liberties Union, and both the Obama and Trump administrations.

Thanks to my colleague Cabe Crandall for suggesting this week’s video.