2016 “And to Your Left You’ll See . . .” 187
able to maximize his profits.
170
He would have then had two choices:
get funnier, or find a new job. Licenses are not necessary to regulate
many professions; they regulate themselves.
171
The above examples may seem obvious, but that is the point.
Consumers react to unsatisfactory experiences and purchases because
they know that this will cause the producers in the market to react,
therefore lessening the likelihood of a repeat performance.
172
There
certainly are professions where licensing is appropriate and necessary
(e.g., medicine and law)
173
, but the line must be drawn somewhere,
and the Kagan decision is blurring an already wavering line.
174
For
example, in 2013, the Fourth Circuit upheld a licensing requirement
for fortune tellers against a First Amendment challenge.
175
The
Fourth Circuit applied one of the “least developed areas of First
Amendment doctrine,”
176
the professional speech doctrine,
177
to
determine whether or not the license requirement constituted a
violation of the plaintiff’s First Amendment rights.
178
The court
likened the licensing in question to the basic “regulatory
requirements . . . appli[cable] to law [and] medicine.”
179
There is a
clear logical disconnect between regulations in the legal and medical
professions and regulations in the fortune telling profession.
180
Moreover, the Fourth Circuit applied the professional speech doctrine
170. George Carlin was very funny. See Melissa Locker, 10 Genius George Carlin Jokes,
IFC (Sep. 19, 2013), http://www.ifc.com/2013/09/10-genius-george-carlin-jokes
(“When it comes to comedy, George Carlin sets the gold standard.”).
171. See infra note 203 and accompanying text.
172. See e.g., Epstein, supra note 163.
173. See, e.g., Medical Licensure, A
M. MED. ASS’N, http://www.ama-
assn.org/ama/pub/education-careers/becoming-physician/medical-licensure.page
(last visited Oct. 31, 2016); Bar Admissions Basic Overview, A
M. BAR ASS’N,
http://www.americanbar.org/groups/legal_education/resources/bar_admissions/basic
_overview.html (last visited Oct. 31, 2016).
174. See generally Kagan II, 753 F.3d 560 (5th Cir. 2014) (holding that New Orleans’
licensing requirements for tour guides do not violate the First Amendment).
175. Moore-King v. County of Chesterfield, 708 F.3d 560, 561 (4th Cir. 2013).
176. David T. Moldenhauer, Circular 230 Opinion Standards, Legal Ethics and First
Amendment Limitations on the Regulation of Professional Speech by Lawyers, 29
S
EATTLE U. L. Rev. 843, 843 (2006).
177. Nicole Brown Jones, Did Fortune Tellers See This Coming? Spiritual Counseling,
Professional Speech, and the First Amendment, 83 M
ISS. L.J. 639, 649 (2014)
(“[T]he professional speech doctrine has been applied when there is a ‘collision
between the power of government to license and regulate those who would pursue a
profession . . . and the rights of freedom of speech . . . .’”) (quoting Lowe v. SEC,
472 U.S. 181, 228 (1985) (White, J., concurring)).
178. Moore-King, 708 F.3d at 569–70.
179. Id. at 570.
180. Id.