Joshua A. Gray v. Department of Public Safety

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2021 ME 19
Docket: Ken-20-168
Argued: February 10, 2021
Decided: April 6, 2021

Panel: MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.

JOSHUA A. GRAY

v.

DEPARTMENT OF PUBLIC SAFETY

HUMPHREY, J.

[¶1] In this appeal, we consider whether the First Amendment rights of

an applicant for a professional license were abridged by the application of

statutory competency standards to his conduct on social media.1

[¶2] Joshua A. Gray appeals from a judgment of the Superior Court

(Kennebec County, Murphy, J.) affirming the Department of Public Safety’s

denial of Gray’s application for a professional investigator license based on

posts and comments that Gray made on social media, using an account bearing

the name of his out-of-state private investigation business, concerning a Maine

1Gray raises the free speech provisions of only the United States Constitution, U.S. Const. amend. I,
and does not make any argument regarding the Maine Constitution’s free speech protections. See Me.
Const. art. I, § 4; City of Bangor v. Diva’s, Inc., 2003 ME 51, ¶¶ 10-11 & n.4, 830 A.2d 898; Portland v.
Jacobsky, 496 A.2d 646, 648-49 (Me. 1985).
2

State Police lieutenant. Gray argues that the court erred in concluding that the

Department had not, in denying his application, violated his free speech rights

conferred by the First and Fourteenth Amendments of the United States

Constitution.2 Although Gray challenges the determination that he acted with

“actual malice”3 in posting and commenting on social media, we conclude that

actual malice need not be shown and that we must apply intermediate scrutiny

to review the licensing standards as applied to Gray here. Applying that

standard, we affirm the judgment.

I. BACKGROUND

[¶3] On January 26, 2018, Gray applied to the Department for a

professional investigator license. See 32 M.R.S. § 8107 (2020). The Chief of the

Maine State Police issued the decision of the Department denying Gray’s

application on August 31, 2018. See 32 M.R.S. §§ 8103(1-B), 8113 (2020). The

Department found that Gray had made “materially false” statements on social

2Gray also argues that the court abused its discretion in deciding the matter without holding oral
argument. Oral argument was not required by M.R. Civ. P. 80C(l), see Lindemann v. Comm’n on
Governmental Ethics & Election Pracs., 2008 ME 187, ¶ 26, 961 A.2d 538, and we discern no abuse of
discretion in the court’s decision not to hear oral argument before deciding the matter. Gray did not
bring any independent claims, and the court rejected as untimely his notice of objection to the
record—a ruling that Gray does not challenge on appeal. See M.R. Civ. P. 80C(f) (requiring that notice
of an objection to the record be served on the agency within ten days after the record is filed).
3 Statements are made with “actual malice” when they are made with knowledge that they are
false or with reckless disregard of their truth or falsity. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279
80 (1964); see Pickering v. Bd. of Educ., 391 U.S. 563, 573-75 (1968).
3

media, including on his private investigation business’s Facebook page, which

cast into question Gray’s “ability to competently investigate and then report

investigative findings with accuracy, objectivity, and without bias,” and, as a

result, that Gray lacked the requisite competency and fitness of character to act

as a professional investigator in Maine.

[¶4] Gray appealed to the Superior Court. See 5 M.R.S. § 11001(1)

(2020); M.R. Civ. P. 80C. The court held that the Department could not deprive

Gray of a license for having expressed himself on social media unless the

statements he made fell outside the protection of the First Amendment. The

court remanded for the Department to determine whether the limited privilege

that applies to even false statements about public figures on matters of public

concern was overcome by a finding, by clear and convincing evidence, that Gray

made the statements on social media with “actual malice,” meaning with

knowledge that the statements were false or with reckless disregard of their

truth or falsity. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964); see

Pickering v. Bd. of Educ., 391 U.S. 563, 573-75 (1968).

[¶5] On remand, the Department propounded thirty-nine questions to

Gray about certain assertions he had made using a social media account

identifying himself as a “PI” and including the name of his Massachusetts
4

private investigation business, NSI Surveillance & Investigation. Gray

responded to the questions and admitted that he had made on social media

posts and comments that stated that a Maine State Police lieutenant was

“[p]ossibl[y] drunk” during the time of a police incident that resulted in a

woman’s death and that the lieutenant had “murdered” the woman. He

asserted to the Department that the statements were opinions, not facts, and

that when he learned that another officer—not the lieutenant whom he had

named—had shot the woman, he provided that information on social media.

He also admitted that he had stated on social media that the lieutenant had been

the subject of multiple internal affairs investigations, though he again asserted

that his statement was an expression of opinion.

[¶6] During its examination of Gray’s responses, the Department

reviewed affidavits from (1) the lieutenant in question, who swore that he had

not consumed alcohol on the day of the incident or at any time during his life,

and (2) the commander of the Department’s Office of Professional Standards

(OPS), formerly the Office of Internal Affairs, who reported that only one

complaint had been made against the lieutenant—a complaint initiated by Gray

that had resulted in an investigation. The Department also considered
5

hundreds of pages of printouts of Gray’s posts and comments on social media

and other internet platforms.

[¶7] The Department issued a second decision denying Gray’s

application, finding that Gray had made certain statements on social media with

actual malice—knowing that they were false or with reckless disregard of their

truth or falsity—including statements about the lieutenant’s intoxication;

statements that the lieutenant had “murdered,” “executed,” or “killed” the

woman who died in the incident; and statements that the lieutenant had been

subject to multiple complaints filed with the OPS.

[¶8] The decision also stated, however, that the actual malice standard

did not apply because even if Gray had the right to say the things he did, he was

not entitled to a professional license if he did not meet the competency and

character standards for a professional investigator. The Department found that

Gray had reported erroneous, uninvestigated conclusions on social media,

placing behind those conclusions “the authority of the reputation of [Gray’s]

business” and of “the private investigator license of the State of Massachusetts.”

The Department also found that Gray “lacks the basic competency and requisite

good moral character” to hold a professional investigator’s license and that his
6

“communications have demonstrated a pattern of reckless disregard for the

truth.”

[¶9] On October 28, 2019, Gray again appealed to the Superior Court by

filing a petition for review of the Department’s denial of his application for a

license. See 5 M.R.S. § 11001(1); M.R. Civ. P. 80C. The court entered a judgment

on June 1, 2020, affirming the Department’s decision, concluding that the

Department’s finding of actual malice was supported by the administrative

record. Gray timely appealed, and the Department cross-appealed. See 5 M.R.S.

§ 11008 (2020); M.R. App. P. 2B(c)(1).

II. DISCUSSION

[¶10] We review an administrative agency’s decision “directly for errors

of law, abuse of discretion, or findings not supported by substantial evidence in

the record.” Palian v. Dep’t of Health & Hum. Servs., 2020 ME 131, ¶ 10, 242 A.3d

164 (quotation marks omitted). To conduct this review here, we will

(A) summarize the standards governing the licensing of professional

investigators in Maine and (B) review whether the Department, in denying

Gray’s license application, violated the First Amendment.
7

A. Standards for Licensing Professional Investigators

[¶11] Licensed professional investigators in Maine are authorized to

conduct private investigations, including by accepting consideration to obtain

information about a crime committed in violation of the law or “[t]he identity,

habits, conduct, movements, whereabouts, affiliations, associations,

transactions, reputation or character of any person.” 32 M.R.S. § 8103(4-A)(A),

(B) (2020). The statutes governing the licensing of professional investigators

in Maine establish qualifications for a license, an application process, and

standards for denying an application. See 32 M.R.S. §§ 8105, 8107, 8113 (2020).

[¶12] To qualify for a professional investigator license, a person must

have “demonstrated good moral character.” Id. § 8105(4). The Chief of the

Maine State Police may refuse to issue a license if an applicant is incompetent,

meaning that the applicant “[e]ngaged in conduct that evidences a lack of ability

or fitness to discharge the duty owed by the licensee to the client or the general

public” or “[e]ngaged in conduct that evidences a lack of knowledge or an

inability to apply principles or skills to carry out the practice” for which the

person seeks the license. Id. § 8113(6). A license may also be denied if the

applicant has violated “standards of acceptable professional conduct adopted

by rule” by the Chief of the Maine State Police. Id. § 8113(11); see 32 M.R.S.
8

§ 8103(1-B). No standards of conduct have been adopted by rule, however,4

meaning that the applicable standards are those provided by statute.

B. First Amendment

[¶13] The construction of the First Amendment presents a question of

law that we review de novo. See Palian, 2020 ME 131, ¶ 10, 242 A.3d 164; Burr

v. Dep’t of Corr., 2020 ME 130, ¶ 20, 240 A.3d 371.

[¶14] The First Amendment provides, “Congress shall make no law . . .

abridging the freedom of speech . . . .” U.S. Const. amend. I. By virtue of the

Fourteenth Amendment, the prohibition against governmental abridgement of

the freedom of speech applies to state governments. See U.S. Const. amend. XIV,

§ 1 (“No State shall make or enforce any law which shall abridge the privileges

or immunities of citizens of the United States . . . .”); Jones v. Sec’y of State, 2020

ME 113, ¶ 19, 238 A.3d 982.

[¶15] Gray argues that the record does not support a finding of actual

malice, but the Department argues in response that the actual malice standard

is not applicable. To resolve this dispute, we (1) determine the proper standard

for evaluating whether the First Amendment has been violated in these

The only adopted rule pertaining to professional investigators requires a written examination
4

regarding “handgun safety, weapons handling mechanical operations, and use of force.” 16-222
C.M.R. ch. 9, § 9.03 (effective Aug. 1, 1998).
9

circumstances, and (2) apply that standard in reviewing the Department’s

decision on Gray’s application.

1. Standard for Determining a First Amendment Violation

[¶16] We review the constitutionality of the applicable statutes as they

were applied and do not treat Gray’s argument as a facial constitutional

challenge because Gray does not argue that the challenged statutes “cannot be

applied constitutionally on any set of facts.” Guardianship of Chamberlain, 2015

ME 76, ¶ 10, 118 A.3d 229.

[¶17] Gray analogizes his situation to that of the teacher in Pickering v.

Board of Education, whose employment was terminated after he criticized the

local board of education in a published letter to the editor of a newspaper.

391 U.S. at 564-65. Unlike in Pickering, however, Gray has not had government

employment terminated based on his exercise of the right to speak as a private

citizen on a matter of public concern.5 See id. at 564-65, 573-74. Rather, he has

5 Such a termination of government employment may violate First Amendment rights because

teachers cannot “constitutionally be compelled to relinquish the First Amendment rights they would
otherwise enjoy as citizens to comment on matters of public interest in connection with the operation
of the public schools in which they work.” Pickering, 391 U.S. at 568. In such instances, courts must
“arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of
public concern and the interest of the State, as an employer, in promoting the efficiency of the public
services it performs through its employees.” Id. The Supreme Court therefore held that “absent proof
of false statements knowingly or recklessly made by [a teacher], a teacher’s exercise of [the] right to
speak on issues of public importance may not furnish the basis for [the teacher’s] dismissal from
public employment.” Id. at 574.
10

been subjected to regulations governing the licensing of professional

investigators based on his conduct as a member of the profession for which he

seeks a license. Cf. Garcetti v. Ceballos, 547 U.S. 410, 421, 426 (2006) (“We reject

. . . the notion that the First Amendment shields from discipline the expressions

employees make pursuant to their professional duties.”). The analysis set forth

in Pickering is, therefore, inapposite.

[¶18] Because of the power of government to regulate conduct,

governmental authority “to regulate the professions is not lost whenever the

practice of a profession entails speech.” Greater Balt. Ctr. for Pregnancy

Concerns, Inc. v. Mayor & City Council of Balt., 879 F.3d 101, 109 (4th Cir. 2018)

(quotation marks omitted). “States may regulate professional conduct, even

though that conduct incidentally involves speech.” Nat’l Inst. of Fam. & Life

Advocs. [NIFLA] v. Becerra, 138 S. Ct. 2361, 2372 (2018). The State “bears a

special responsibility for maintaining standards among members of the

licensed professions” and “does not lose its power to regulate commercial

activity deemed harmful to the public whenever speech is a component of that

activity.” Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456, 460 (1978).

[¶19] Occupational licensing requirements are not categorically exempt

from First Amendment scrutiny, however, see Vizaline, L.L.C. v. Tracy, 949 F.3d
11

927, 934 (5th Cir. 2020), and the Supreme Court has signaled that professional

speech does not fall into a unique category that is exempt from First

Amendment protections, see NIFLA, 138 S. Ct. at 2373-75. The pertinent

standard for determining whether a regulation governing entry into a

profession violates the First Amendment has become a subject of some

confusion throughout the United States.

[¶20] Following the issuance of Lowe v. Securities and Exchange

Commission in 1985, many courts cleaved to the standard set forth in Justice

White’s concurring opinion in that matter: “Regulations on entry into a

profession, as a general matter, are constitutional if they have a rational

connection with the applicant’s fitness or capacity to practice the profession.”

472 U.S. 181, 228 (1985) (White, J., concurring) (quotation marks omitted); see,

e.g., Hines v. Alldredge, 783 F.3d 197, 201-02 & n.17 (5th Cir. 2015), abrogation

recognized by Vizaline, 949 F.3d at 933-34; Nat’l Ass’n for the Advancement of

Multijurisdiction Prac. v. Howell, 851 F.3d 12, 16, 19-20 (D.C. Cir. 2017)

(applying rational basis review to restrictions on who may appear as counsel

before a local federal court); Nat’l Ass’n for the Advancement of Multijurisdiction

Prac. v. Castille, 799 F.3d 216, 221 (3d Cir. 2015) (“It has long been true that [a]

State can require high standards of qualification, such as good moral character
12

or proficiency in its law, before it admits an applicant to the bar, so long as any

requirement has a rational connection with the applicant’s fitness or capacity

to practice law.” (alteration in original) (quotation marks omitted)).

[¶21] Because, however, the Supreme Court held in 2018 that it has

never recognized “professional speech as a unique category that is exempt from

ordinary First Amendment principles,” NIFLA, 138 S. Ct. at 2375, it is unclear

whether the “rational connection” test is appropriately applied even as to

standards of qualification to practice a profession, see Vizaline, 949 F.3d at 934

(“While we hold the district court erred by categorically exempting

occupational-licensing requirements from First Amendment scrutiny, we

express no view on what level of scrutiny might be appropriate for applying

Mississippi’s licensing requirements to [the plaintiff]’s practice.”).

[¶22] The Supreme Court has made clear that if regulations impose

content-based restrictions on speech, strict scrutiny or intermediate scrutiny

may be applied, depending on whether the affected speech was commercial

speech. See NIFLA, 138 S. Ct. at 2374-75; Otto v. City of Boca Raton, 981 F.3d

854, 859-68 (11th Cir. 2020) (applying strict scrutiny to an ordinance

prohibiting sexual orientation change therapies because the ordinance

imposed content- and viewpoint-based restrictions on speech); see also Holder
13

v. Humanitarian L. Project, 561 U.S. 1, 27-28 (2010) (stating that although a law

may be directed at conduct, the conduct triggering the application of that law

may consist of communicating a particular message and therefore may require

a court to apply First Amendment principles).6

[¶23] The treatment of regulations governing the licensing of

professionals that place a merely incidental burden on speech is, however,

unclear. Free speech concerns are implicated in such cases because

“constitutional violations may arise from the deterrent, or chilling, effect of

governmental [efforts] that fall short of a direct prohibition against the exercise

of First Amendment rights.” Umbehr, 518 U.S. at 674 (alteration in original)

(quotation marks omitted) (explaining that “unconstitutional conditions” may

not be placed on government benefits).7 However, it is unclear whether such

regulations are subject to the “rational connection” test, see Lowe, 472 U.S. at

6 Before National Institute of Family & Life Advocates [NIFLA] v. Becerra, 138 S. Ct. 2361, 2372
(2018), some intermediate level of scrutiny was applied in reviewing content-based standards
governing attorney conduct that included “actual malice” language prohibiting a lawyer from making
“a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity
concerning the qualifications, integrity, or record of a judge.” Standing Comm. on Discipline of the U.S.
Dist. Ct. v. Yagman, 55 F.3d 1430, 1437 (9th Cir. 1995) (quotation marks omitted) (applying an
objective test of whether the attorney “had a reasonable factual basis for making the statements,
considering their nature and the context in which they were made”); In re Dixon, 994 N.E.2d 1129,
1132-37 (Ind. 2013) (same).
7 “[I]f the government could deny a benefit to a person because of his constitutionally protected
speech or associations, his exercise of those freedoms would in effect be penalized and inhibited.”
Perry v. Sindermann, 408 U.S. 593, 597 (1972).
14

228 (White, J., concurring), or must survive intermediate scrutiny, meaning that

they “must be narrowly tailored to serve a significant governmental interest,”

Packingham v. North Carolina, 137 S. Ct. 1730, 1736 (2017) (quotation marks

omitted). The Supreme Court did not decide the question in NIFLA, 138 S. Ct. at

2373-75, but a handful of courts have since opined on the issue.

[¶24] The United States Court of Appeals for the Fourth Circuit recently

considered a North Carolina ban on the practice of law by corporations—a

professional regulation that incidentally affected speech. Capital Associated

Indus. v. Stein, 922 F.3d 198, 207 (4th Cir. 2019). As that court stated, “Many

laws that regulate the conduct of a profession or business place incidental

burdens on speech, yet the Supreme Court has treated them differently than

restrictions on speech.” Id. at 207-08.

[¶25] The court held that the practice of law involved both

communicative and noncommunicative aspects and that the pertinent statutes

did not target “the communicative aspects of practicing law, such as the advice

lawyers may give to clients” but instead focused on who may act as a lawyer.

Id. at 208. “Licensing laws inevitably have some effect on the speech of those

who are not (or cannot be) licensed. But that effect is merely incidental to the

primary objective of regulating the conduct of the profession.” Id.
15

[¶26] The court observed that, although intermediate scrutiny ordinarily

applies to regulations of conduct that incidentally impact speech, “the

[Supreme] Court’s cases have not been crystal clear about the appropriate

standard of review” given that regulations relating to admission to a profession

fall in “an area in which [the Court] ‘has afforded less protection for professional

speech.’” Id. (quoting NIFLA, 138 S. Ct. at 2372); see also AMA v. Stenehjem,

412 F. Supp. 3d 1134, 1148-49 (D.N.D. 2019) (following Stein). The court

concluded, however, that intermediate scrutiny should be applied, stating, “We

think this a sensible result, as it fits neatly with the broad leeway that states

have to regulate professions.” Stein, 922 F.3d at 209; but see Doyle v. Palmer,

365 F. Supp. 3d 295, 304-05 (E.D.N.Y. 2019) (holding that the requirement of a

sponsor’s affidavit for Bar admission “is nothing more than a standard

regulation of the legal profession that . . . passes rational basis review”).

[¶27] Confronting the question of the proper level of scrutiny, another

court described the legal ambiguity as follows:

[T]he Court in NIFLA explained that a lower level of scrutiny should
be applied to two kinds of content-neutral restrictions: (1) laws
that require professionals to disclose factual, noncontroversial
information in their commercial speech[]; and (2) regulations of
professional conduct that incidentally burden speech. Although the
Court in NIFLA did not specifically state what level of review—how
much lower than strict scrutiny—applied to regulations of
16

professional conduct that incidentally burden speech, the Court
appeared to apply intermediate scrutiny.

McLemore v. Gumucio, No. 3:19-cv-00530, 2020 U.S. Dist. LEXIS 228082, at *59

(M.D. Tenn. Dec. 4, 2020) (emphasis added) (quotation marks omitted)

(citation omitted). That court, citing Stein, 922 F.3d at 209, assumed for

purposes of deciding a motion to dismiss that intermediate scrutiny would

apply if the merits were reached. Id. at *60-61.

[¶28] In light of NIFLA and Stein, we similarly conclude that intermediate

scrutiny is the proper test to apply when a regulation of conduct that does not

explicitly target speech but incidentally burdens it is challenged on First

Amendment grounds.8 Here, the licensing standards, requiring good character

and competency in investigating matters, do not on their face prohibit or

constrain speech. Cf. NIFLA, 138 S. Ct. at 2372. The licensing statutes

incidentally affect an applicant’s speech, however, because determining

whether an applicant meets the requirements of good character and

competency may depend—as it does here—upon the applicant’s

communications. See id.; 33 M.R.S. §§ 8105(4), 8113(6). We therefore apply

Although we apply intermediate scrutiny based on our reading of NIFLA, 138 S. Ct. at 2370-75,
8

applying the less stringent “rational connection” test would yield the same result, Lowe v. SEC,
472 U.S. 181, 228 (1985) (White, J., concurring) (quotation marks omitted).
17

intermediate scrutiny to review the Department’s application of the licensing

statutes to Gray’s application.

2. Application of Intermediate Scrutiny

[¶29] Unlike a determination of actual malice, which “involve[s] legal, as

well as factual, elements,” and requires an independent examination of the

record, intermediate scrutiny does not involve that level of review, and we will

accept the facts found by the Department unless they are unsupported by

evidence in the record. Hernandez v. New York, 500 U.S. 352, 367-68 (1991);

see Palian, 2020 ME 131, ¶ 10, 242 A.3d 164. Thus, we proceed to (a) review

the findings of the Department and (b) apply intermediate scrutiny to the

licensing standards as applied.

a. Review of Findings

[¶30] We review the decision of the Department to determine whether

its findings are “supported by substantial evidence in the record.” Palian, 2020

ME 131, ¶ 10, 242 A.3d 164 (quotation marks omitted).

[¶31] In its final decision, the Department specifically found that Gray

made uninvestigated and false statements, using the social media account of his

investigation business, in which he suggested that the lieutenant was

intoxicated; stated that the lieutenant had “murdered,” “executed,” or “killed” a
18

woman; and indicated that the lieutenant had been subject to multiple

complaints filed with the OPS. Gray admitted, through his responses to the

Department’s written questions, that the statements, which were made part of

the evidentiary record, were his.

[¶32] Substantial evidence in the record supports the Department’s

determination that Gray used a social media account bearing his investigation

business’s name to repeatedly publicize uninvestigated and false statements.

The evidence also supports the Department’s ultimate finding that Gray’s

behavior demonstrated that he lacked the necessary good character and

competency to serve as an investigator in Maine. See 32 M.R.S. § 8105(4)

(requiring the demonstration of “good moral character”); id. § 8113(6)

(authorizing the denial of a professional investigator’s license if the applicant

lacks competency to carry out the duties of an investigator); id. § 8103(4-A)(A),

(B) (establishing a professional investigator’s role in investigating the crimes,

conduct, reputation, or character of others). The record also supports the

Department’s finding that Gray’s responses to the questions propounded on

him demonstrated a lack of capacity to distinguish between fact and opinion—

an ability that a professional investigator must possess. See id. § 8113(6)(B).

The Department therefore did not err in its findings.
19

b. Intermediate Scrutiny of the Licensing Standards as Applied

[¶33] The question before us is whether the statutory licensing

standards, as applied in Gray’s case, were “narrowly tailored to serve a

significant governmental interest.” Packingham, 137 S. Ct. at 1736 (quotation

marks omitted); see NIFLA, 138 S. Ct. at 2372.

[¶34] The Department denied the license application because, as the

record supports, Gray published uninvestigated speculation as fact using his

job title and the name of his Massachusetts private investigation business—

conduct that demonstrated a lack of capacity to distinguish between fact and

opinion, and to investigate and honestly report facts. See 32 M.R.S.

§§ 8103(4-A)(A), (B), 8105(4), 8113(6); see also Office of Pro. Regul. v. McElroy,

824 A.2d 567, 568-69, 571 (Vt. 2003). The government has a significant

interest in maintaining standards of good character and competency for those

who investigate and report on the intimate details of others’ lives. See 32 M.R.S.

§ 8103(4-A)(A), (B); Fla. Bar v. Went for It, Inc., 515 U.S. 618, 625 (1995)

(“States have a compelling interest in the practice of professions within their

boundaries, and . . . as part of their power to protect the public health, safety,

and other valid interests they have broad power to establish standards for
20

licensing practitioners and regulating the practice of professions.” (quotation

marks omitted)).

[¶35] The Department denied Gray’s application not because of the

viewpoint he expressed on social media but because of the false, uninvestigated

information that Gray presented as fact using the name of his Massachusetts

private investigation business. The Department’s rationale for its decision goes

to the heart of professional responsibility concerns and does not chill any

speech other than that which would, for a professional investigator, violate

standards of conduct in a profession that is focused on the investigation and

accurate communication of facts. See In re R. M. J., 455 U.S. 191, 203 (1982)

(holding that, when a state regulates in a way that affects speech, it must have

“a substantial interest and the interference with speech must be in proportion

to the interest served”). The Department’s application of the statutes was,

therefore, narrowly tailored to serve the significant governmental interest in

maintaining standards for licensing professional investigators, who are

responsible for researching and reporting on some of the most consequential

details of people’s lives by investigating “[t]he identity, habits, conduct,

movements, whereabouts, affiliations, associations, transactions, reputation or

character” of others. 32 M.R.S. § 8103(4-A)(A), (B); see Packingham, 137 S. Ct.
21

at 1736. In short, the Department’s application of the licensing standards to

Gray did not violate the First Amendment.

The entry is:

Judgment affirmed.

Roger L. Hurley, Esq. (orally), Camden, for appellant Joshua A. Gray

Aaron M. Frey, Attorney General, and Kent Avery, Asst. Atty. Gen. (orally), Office
of the Attorney General, Augusta, for cross-appellant Department of Public
Safety

Kennebec County Superior Court docket number AP-2019-49
FOR CLERK REFERENCE ONLY