The First Amendment Protects the Right to Give Basic Legal Advice
Thomas A. Berry, Dan Greenberg, and Alexander Xenos
Like all states, New York prohibits the unauthorized practice of law (UPL). But New York’s overzealous application of its UPL laws could squelch an innovative nonprofit and thereby make the crisis of access to legal aid even worse. Now the Supreme Court has a chance to hear an important First Amendment challenge that would vindicate the right to give basic legal advice and provide crucial relief in access to justice.
In consumer debt actions, New York allows defendants sued for alleged unpaid debts to use a one-page, state-created answer form that streamlines responses through a series of checkboxes. The nonprofit group Upsolve seeks to train nonlawyer volunteers to help low-income individuals complete these forms at no cost. Those volunteers would neither represent anyone in court nor draft legal filings. They want to speak only to provide basic advice on how to fill out the form. Yet New York’s UPL regime criminalizes this speech because it constitutes individualized legal advice, transforming a conversation into a crime based solely on its content.
New York’s UPL laws operate entirely on the basis of speech content. If Upsolve and its volunteers advise someone about financial strategies for managing debt, that’s lawful; if they advise someone about the legal implications of debt or alleged debt, that’s a crime. The district court held that this content-based speech restriction triggers “strict scrutiny,” the most skeptical form of judicial review. And the district court blocked enforcement of New York’s UPL laws against Upsolve, holding that the laws’ justifications in this context did not satisfy strict scrutiny. But the Second Circuit reversed, holding that only “intermediate scrutiny” should apply because the UPL laws regulate on the basis of the “purpose, focus, and circumstance” of the speech rather than its content.
Now, Upsolve has asked the Supreme Court to take its case, and Cato has filed an amicus brief in support of that petition.
Our brief makes four key points. First, we explain that New York’s restriction is content-based under established precedent. The Ninth Circuit erred in holding that UPL laws are content-neutral because they focus on the “purpose, focus, and circumstance” of speech. That reasoning creates a distinction without a difference: it would allow states to suppress speech on any topic subject to occupational licensing. The US Supreme Court rejected that approach in a prior opinion, National Institute of Family and Life Advocates v. Becerra (2018), explaining that speech does not receive less constitutional protection merely because it is spoken by a professional or concerns a regulated field. The Second Circuit’s rule threatens First Amendment protections far beyond the legal profession. Any licensed profession could invoke the same framework to suppress disfavored speech while claiming to regulate conduct. But there is no licensing shield against First Amendment scrutiny.
Second, we present the public-choice context that makes this case important. Restrictions on the unauthorized practice of law were historically championed by incumbent lawyers seeking to limit competition. This case exemplifies how occupational licensing can serve as a device for rent-seeking rather than for consumer protection. Third, we document the access-to-justice crisis these restrictions produce. Millions of Americans face civil legal problems without any professional help, and programs like Upsolve’s are precisely the kind of innovation that such categorical prohibitions suppress. The debt-collection crisis in New York City demonstrates that the city is particularly in need of Upsolve’s services.
This case, in short, rests on straightforward First Amendment doctrine: When a law prohibits speech based on the topic or message expressed, that is a content-based restriction subject to strict scrutiny. The government cannot evade the strict scrutiny this restriction requires by characterizing that restriction as targeting the speech’s “purpose” or “function.”
The Supreme Court should grant review and make clear that speech does not lose First Amendment protection merely because it concerns professional advice.