Joshua Gray is a private investigator in Massachusetts who would like to also work in his home state of Maine. When he applied for a license in Maine, however, he was denied because of a Facebook post criticizing conduct of Maine police after a controversial shooting of two people. Gray also commented on the shooting on LinkedIn where he discussed his own history with one of the officers involved in the shooting.

When he applied for a private investigator license, the Maine Department of Public Safety went through his Facebook post and determined that he lacked the “good moral character” to be a PI. They accused him of making “factual errors,” some of which he acknowledged and corrected and some that weren’t “factual” claims at all but merely his opinion.

The department seems to be punishing Gray for his speech criticizing the department itself. Moreover, Gray spoke out on a controversial issue of public concern, which certainly implicates the First Amendment. Represented by our friends at the Institute for Justice, Gray filed suit. The Maine Supreme Court upheld the denial of a license by completely deferring to the department’s claims about what was a factual error and whether the errors were serious enough to deny Gray a license.

The Maine Supreme Court’s decision is troubling for a variety of reasons. Around 20 percent of workers need a license to work, and most of those licenses have a “good moral character” requirement that is nebulous and easily subject to abuse, especially if courts constantly defer to the licensing agency. Fortunately, the Supreme Court recently ruled, in National Institute of Family & Life Advocates v. Becerra, that professional speech is fully protected by the First Amendment. At minimum, that means that courts can’t blindly defer to a licensing agency’s determination of what is “good moral character” when speech is involved.

Gray has petitioned the Supreme Court for review and Cato has filed an amicus brief supporting his case. We argue that heightened judicial scrutiny must apply when good moral character requirements are triggered by speech on public issues. The First Amendment protects not only the right to express oneself, but the free flow of those thoughts in the proverbial marketplace of ideas. If state licensing boards can weaponize good moral character requirements to silence speech critical of government, the First Amendment is indeed nothing more than a parchment guarantee.