Veterans Guardian Va Claim Consulting LLC; John F. Rudman; Andre Jesus Soto v. Matthew J. Platkin

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 24-1097
_______________
VETERANS GUARDIAN VA CLAIM
CONSULTING LLC;
JOHN F. RUDMAN; ANDRE JESUS SOTO,
Appellants
v.
MATTHEW J. PLATKIN, in his official capacity
as Attorney General of New Jersey
_______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 3:23-cv-20660)
District Judge: Honorable Michael A. Shipp
_______________
Argued: November 8, 2024
Before: KRAUSE, BIBAS, and SCIRICA, Circuit Judges
(Filed: April 1, 2025)

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Martine E. Cicconi [ARGUED]
Kristen Loveland
James E. Tysse
Caroline L. Wolverton
AKIN GUMP STRAUSS HAUER & FELD
2001 K Street NW
Washington, DC 20006
Counsel for Appellants
Joshua P. Bohn
Michael L. Zuckerman [ARGUED]
NEW JERSEY ATTORNEY GENERAL’S OFFICE
25 Market Street
Richard J. Hughes Justice Complex
Trenton, NJ 08625
Meghan Musso
Andrew H. Yang
NEW JERSEY ATTORNEY GENERAL’S OFFICE
124 Halsey Street
Newark, NJ 07101
Counsel for Appellee
Christian W. Lansinger
Paul M. Sherman
INSTITUTE FOR JUSTICE
901 N Glebe Road
Suite 900
Arlington, VA 22203
Counsel for Amicus Institute for Justice in Support of
Appellants

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Caleb R. Trotter
PACIFIC LEGAL FOUNDATION
555 Capitol Mall
Suite 1290
Sacramento, CA 95814
Counsel for Amicus Pacific Legal Foundation in Support
of Appellants
Glenn R. Bergmann
Thomas Polseno
Daniel D. Wedemeyer
BERGMANN & MOORE
25 W Middle Lane
Rockville, MD 20850
Counsel for Amici Veterans of Foreign Wars of the United
States, American Legion, Paralyzed Veterans of America,
& Vietnam Veterans of America in Support of Appellee
Brian Hunt Rowe
WASHINGTON ATTORNEY GENERAL’S OFFICE
800 Fifth Avenue
Suite 2000
Seattle, WA 98104
Cristina Sepe
WASHINGTON ATTORNEY GENERAL’S OFFICE
1125 Washington Street SE
P.O. Box 40100
Olympia, WA 98504

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Counsel for Amici States of Washington, Colorado, Con-
necticut, Delaware, Illinois, Maine, Maryland, Michigan,
Minnesota, Nevada, New Mexico, Oregon, Rhode Island,
Commonwealth of Pennsylvania, and District of Colum-
bia in Support of Appellee
_______________
OPINION OF THE COURT
_______________
BIBAS, Circuit Judge.
The marketplace of ideas is not just a metaphor. Many
Americans, from journalists to playwrights to therapists, speak
for a living. Laws that bar these professionals from earning
money on that speech limit their ability to speak and so must
survive First Amendment scrutiny. New Jersey recently passed
one such law, banning charging for some advice on how to
claim veterans benefits. Because this law likely burdens
speech, yet the District Court thought otherwise and so denied
a preliminary injunction, we will vacate and remand.
I. NEW JERSEY DOUBLY RESTRICTS CHARGING
FOR ADVICE ABOUT CLAIMING VETERANS BENEFITS
Veterans who are left disabled by their service qualify for
benefits. But first, they must claim them. To do that, they send
a form to the Department of Veterans Affairs (VA) listing their
disabilities and explaining how their service caused or aggra-
vated them. The VA reviews the information and decides what
benefits, if any, each veteran can get. For some, the story ends
there: They get the benefits they earned and enjoy a grateful

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nation’s compensation. Others get less happy news: The VA
has awarded them less than they think they deserve. They can
appeal by filing a notice of disagreement, triggering review by
the Board of Veterans’ Appeals. 38 U.S.C. § 7105(a), (b)(3).
Because this benefits bureaucracy can be frustrating, many
veterans seek help submitting claims. And because the VA
pays out billions per year, a booming industry of consultants
has sprung up to help veterans claim benefits in exchange for
a cut of the payout. As the benefits-consulting industry has
grown, so have worries about veterans getting ripped off.
To prevent that abuse, an elaborate federal code regulates
the people whom veterans can hire to help them get benefits.
Two rules are relevant here. First, before anyone “may act as
an agent or attorney in the preparation, presentation, or prose-
cution of any claim” for veterans benefits, he must be accred-
ited by the VA. 38 U.S.C. § 5901(a); 38 C.F.R. § 14.629(b)(1);
accord 38 C.F.R. § 14.636(b). Second, these agents and attor-
neys may not charge for any services that they provide before
the VA’s initial benefits decision. 38 U.S.C. § 5904(c)(1); 38
C.F.R. § 14.636(c). Though federal law sets these rules, it does
not empower the VA or anyone else to enforce them.
New Jersey took that job upon itself. It passed a law that it
says mirrors federal law but adds civil-enforcement mecha-
nisms. Under Section (a)(1) of New Jersey’s law, “[n]o person
shall receive compensation for advising or assisting” anyone
with “the preparation, presentation, or prosecution of any
claim” for veterans benefits, except as allowed by federal law.
N.J. Stat. Ann. § 56:8-228(a)(1), (d). And under Section (a)(4),
“[n]o person shall receive any compensation for any services

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rendered before” a veteran appeals the VA’s initial benefits
decision to the Board of Veterans’ Appeals. § 56:8-228(a)(4).
New Jersey’s law is a problem for Veterans Guardian, a
nationwide consulting company that charges veterans for advice
on how to claim benefits. Fearing that its business model vio-
lated the law, it closed its doors in the state. The law is also a
problem for John Rudman and Andre Soto, two New Jersey
veterans who had planned to use Veterans Guardian’s services.
Veterans Guardian, Rudman, and Soto sued New Jersey’s
Attorney General, claiming that the law violates their First
Amendment rights and seeking a preliminary injunction. The
District Court declined to grant the injunction, and now they
appeal.
On appeal from the denial of a preliminary injunction, we
normally “review the District Court’s factual findings for clear
error, its legal rulings de novo, and its ultimate decision for
abuse of discretion.” Del. State Sportsmen’s Ass’n v. Del.
Dep’t of Safety & Homeland Sec., 108 F.4th 194, 198 (3d Cir.
2024). But in First Amendment cases, we must examine the
whole record independently, drawing our own inferences and
deferring to factual findings only if they are about witness cred-
ibility. Child Evangelism Fellowship of N.J. v. Stafford Twp.
Sch. Dist., 386 F.3d 514, 524 (3d Cir. 2004) (Alito, J.); Tenafly
Eruv Ass’n v. Borough of Tenafly, 309 F.3d 144, 156–57
(3d Cir. 2002).

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II. PRELIMINARY INJUNCTIONS ARE
EXTRAORDINARY REMEDIES
“A preliminary injunction is an extraordinary remedy
granted in limited circumstances.” Issa v. Sch. Dist., 847 F.3d
121, 131 (3d Cir. 2017). Whether a plaintiff can get one depends
on whether (1) he is likely to succeed on the merits, (2) he will
suffer irreparable harm without preliminary relief, (3) the bal-
ance of equities favors an injunction, and (4) an injunction is
in the public interest. Winter v. NRDC, 555 U.S. 7, 20 (2008).
The first two factors are “gateway factors”: A plaintiff must
satisfy them both to be eligible for preliminary relief. Reilly v.
City of Harrisburg, 858 F.3d 173, 179 (3d Cir. 2017). But they
are not equally demanding.
On the first factor, a likelihood of success on the merits
means only a “reasonable probability” of success—odds that
are “significantly better than negligible but not necessarily
more likely than not.” Id. at 176, 179. And though plaintiffs
usually bear the burden of showing that they are likely to suc-
ceed, that burden flips in First Amendment cases. Greater
Phila. Chamber of Com. v. City of Philadelphia, 949 F.3d 116,
133 (3d Cir. 2020). Because “[t]he government bears the bur-
den of proving that” a law complies with the First Amendment,
it also bears the burden of proving that a plaintiff is unlikely to
succeed on the merits. Id.
The standard for irreparable harm is more demanding: The
plaintiff must show that it is more likely than not. Reilly, 858
F.3d at 179. That said, a violation of First Amendment rights
presumptively inflicts irreparable harm. Del. State, 108 F.4th at
204.

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If both gateway factors are satisfied, the court must still
weigh all four factors before granting preliminary relief. Id. at
202–03; see also Winter, 555 U.S. at 26, 31–33 (denying pre-
liminary injunction solely on the balance of equities and public
interest). It should also consider whether the injunction is
needed to keep the case alive until the court can award final
relief. Del. State, 108 F.4th at 200–03.
* * * * *
Courts typically start with the merits. The District Court also
stopped there, deciding that Veterans Guardian was unlikely to
succeed and so the court did not need to reach the remaining
preliminary-injunction factors. That holding rested on several
mistakes, as we go on to explain. First, the District Court held
that New Jersey’s law did not even trigger the First Amend-
ment. We disagree: Veterans Guardian is likely engaged in
speech, which New Jersey’s law burdens. Second, the District
Court analyzed New Jersey’s law as a monolithic whole, when
the law imposes two separate burdens on speech that must be
analyzed separately. But though we correct these oversights,
the record is not developed enough for us to decide the serious
constitutional questions that the merits raise, let alone to weigh
the other preliminary-injunction factors. So we will remand for
the District Court to reconsider Veterans Guardian’s motion
with the benefit of a fuller record and our guidance.
III. NEW JERSEY’S LAW LIKELY BURDENS SPEECH,
SO IT MUST SATISFY THE FIRST AMENDMENT
Veterans Guardian has a reasonable probability of show-
ing that its services are speech and that New Jersey’s law

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burdens that speech. So the state must show that its law satis-
fies the First Amendment.
A. Veterans Guardian is likely to succeed in showing
that its services are speech
At this early stage, Veterans Guardian need show only a
reasonable probability of success on the merits, including show-
ing that its services are speech. On the current record, they are.
Professional services delivered by speaking or writing are
speech. King v. Governor of N.J., 767 F.3d 216, 224–25 (3d
Cir. 2014), abrogated on other grounds by Nat’l Inst. of Fam.
& Life Advocs. v. Becerra (NIFLA), 585 U.S. 755 (2018). Vet-
erans Guardian delivers professional services by speaking and
writing. It advises clients about how to claim benefits: what
disabilities to claim, what evidence to include, and how to fill
out forms. That advice is likely speech. See Upsolve, Inc. v.
James, 604 F. Supp. 3d 97, 112 (S.D.N.Y. 2022) (distinguishing
conduct of filing motions from speech of offering legal advice).
B. Laws that forbid charging for speech burden speech
If indeed Veterans Guardian’s services are speech, then
New Jersey’s law burdens it. The District Court thought other-
wise because New Jersey does not bar giving advice but only
charging for it. So, the court reasoned, the law does not burden
the plaintiffs’ First Amendment rights because it regulates not
speech but conduct.
Yet laws that ban charging for speech burden the right to
speak. Supreme Court cases establish this. See United States v.
Nat’l Treasury Emps. Union, 513 U.S. 454, 468–70 (1995);
Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims

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Bd., 502 U.S. 105, 115–16 (1991); see also Riley v. Nat’l Fed’n
of the Blind of N.C., 487 U.S. 781, 801 (1988) (“[A] speaker is
no less a speaker because he or she is paid to speak.”). Com-
mon sense agrees. Someone who cannot earn money from
speaking has less incentive to speak and so will speak less.
Nat’l Treasury Emps. Union, 513 U.S. at 468–70. Indeed,
many canonical examples of protected speech involve profes-
sionals speaking for pay: think of novelists, speechwriters, and
newspaper columnists. A law that allowed their speech but
banned their livelihoods would reduce how much they could
speak, which in turn would dam up the flow of ideas in our
democracy. By barring payment for speech, New Jersey’s law
burdens the right to speak.
The District Court thought otherwise, misreading a passing
comment in Expressions Hair Design v. Schneiderman, 581
U.S. 37 (2017). In that case, the Supreme Court observed that
a hypothetical law setting sandwich prices at $10 would target
conduct, even though it would also require delis to write “$10”
on their menus and quote that price to inquiring customers. Id.
at 47. Because “the law’s effect on speech would be only inci-
dental to its primary effect on conduct,” the Court noted, it
would not pose a First Amendment problem. Id.
The District Court thought that Expressions Hair Design
meant that price restrictions cannot implicate the First Amend-
ment. But a law regulating the price of sandwiches burdens the
conduct of selling sandwiches. By contrast, a law regulating
the price of speech burdens speech.

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IV. THERE IS NO SEPARATE CATEGORY
OF PROFESSIONAL SPEECH
Having decided that the First Amendment applies, we next
ask how strong its protections are. Our circuit used to carve out
a separate category of professional speech and give it less pro-
tection. King, 767 F.3d at 232. But seven years ago, in NIFLA
v. Becerra, the Supreme Court clarified that there is no separate
category of professional speech. 585 U.S. at 767–68. With few
exceptions, the same First Amendment principles apply when
professionals speak to clients as when anyone else talks. Id.
That said, NIFLA confirms that lesser scrutiny is warranted
where there is “persuasive evidence of a long (if heretofore un-
recognized) tradition to that effect.” Id. at 767 (cleaned up).
And it preserved two exceptions when regulations of profes-
sional speech get reviewed more deferentially: (1) “laws that
require professionals to disclose factual, noncontroversial in-
formation in their commercial speech” and (2) regulations of
“professional conduct, even though that conduct incidentally
involves speech.” Id. at 768 (internal quotation marks omitted).
New Jersey tries to jam its law into NIFLA’s second excep-
tion by arguing that the law regulates price instead of speech,
that it regulates speech incidental to illegal conduct, and that
Section (a)(1) is a neutral professional licensing scheme. Id. at
768–70; United States v. Hansen, 599 U.S. 762, 783 (2023);
Appellee’s Br. 20–28. The first two arguments do not work,
and the record is too sparse for us to confidently decide the
third.
Start with New Jersey’s contention that its law targets only
the conduct of charging money. As we discussed above,

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pricing regulations are not exempt from the First Amend-
ment—restricting compensation to licensed counselors still
imposes a financial burden on speech.
Second, Veterans Guardian’s speech is not integral to ille-
gal conduct. Because New Jersey reads its law as mirroring
federal requirements, it argues that any speech it bans must be
integral to breaking federal law. That argument is wrong twice
over. For one, Veterans Guardian’s speech is not just one step
in service of some separately illegal act, unlike the speech
involved in soliciting a crime, demanding ransom, or posting
a “White applicants only” sign as part of hiring discrimination.
See Hansen, 599 U.S. at 783; Rumsfeld v. FAIR, 547 U.S. 47,
62 (2006). Veterans Guardian’s speech is the core of what it
does. For another, though New Jersey says federal law outlaws
Veteran Guardian’s activities, that federal law is equally sub-
ject to the First Amendment. Veterans Guardian does not chal-
lenge the federal scheme, and we take no position on whether
it is valid. But states cannot immunize their laws from constitu-
tional scrutiny by pointing to a federal scheme that may suffer
the same constitutional defects. To hold otherwise would let
states end-run around the First Amendment.
Finally, New Jersey attempts to frame Section (a)(1), which
incorporates federal accreditation requirements, as a neutral
licensing scheme regulating professional conduct. Appellee’s
Br. 20–21. Yet we have very little information on how the fed-
eral accreditation scheme works or what it covers. The District
Court ruled on a different basis and did not address whether the
law should be viewed as a professional licensing scheme or
whether, as a licensing scheme, it would fit within NIFLA’s

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second exception. We leave it to the District Court to consider
those questions in the first instance on remand.
When it does, it should reconsider one more part of its rea-
soning. It held that New Jersey’s law was content neutral in
part because the state did not intend to suppress disfavored
ideas. But courts judge laws based on their effects on speech,
not just on legislatures’ purposes or motives. United States v.
O’Brien, 391 U.S. 367, 383 (1968); Reed v. Town of Gilbert,
576 U.S. 155, 165–66 (2015). For instance, they usually decide
whether a law is content based—and so presumptively uncon-
stitutional—by judging whether it “single[s] out any topic or
subject matter for differential treatment.” City of Austin v.
Reagan Nat’l Advert. of Austin, LLC, 596 U.S. 61, 71 (2022);
Reed, 576 U.S. at 163–64; Camp Hill Borough Republican
Ass’n v. Borough of Camp Hill, 101 F.4th 266, 269–70 (3d Cir.
2024). We take no position on whether this law is content neu-
tral, leaving that to the District Court on remand. But when it
does reach that question, its answer should be based on whether
the law applies to speech based on its content or topic, regard-
less of the legislature’s good intentions.
V. COURTS MUST ANALYZE PLAINTIFFS’ CHALLENGES
TO SEPARATE PROVISIONS SEPARATELY
The District Court also overlooked that New Jersey’s law
restricts speech in two different ways. It considered the first
way: It thought that Section (a)(1) bars charging for claims advice
without VA accreditation. That limits who can charge for advice—
only people accredited by the VA.
But it did not consider the second way: Section (a)(4) bars
accepting pay for services done before a veteran files a notice

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of disagreement (the equivalent of a notice of appeal). N.J. Stat.
Ann. § 56:8-228(a)(4). That limits when people can charge for
advice—only after a veteran appeals. And it imposes that total
ban on everyone, even licensed counselors. It might also limit
what advice people can charge for. If some choices in the initial
claim cannot be changed on appeal (for instance, what disabil-
ity the veteran claimed for), then by limiting paid advice to
appeals, the law would effectively bar paid advice about these
aspects of a claim. Either way, Sections (a)(1) and (a)(4) impose
separate limits on speech and must be analyzed separately.
On remand, the District Court should distinguish these sec-
tions and test the constitutionality of each.
VI. SECTION (a)(4)’S CONSTITUTIONALITY
IS A SERIOUS QUESTION
Distinguishing Section (a)(4) is especially important because
we seriously doubt that it is constitutional. True, New Jersey
has a strong interest in protecting veterans from fraud and pred-
atory pricing. See Heffner v. Murphy, 745 F.3d 56, 92 (3d Cir.
2014). But any law pursuing this interest must be tailored to it.
New Jersey has not pointed to any evidence that a ban on pre-
appeal counseling fees furthers its interest. In fact, the state
never even raised its concern that pre-appeal fees are exploita-
tive until oral argument before us.
Either way, New Jersey’s law must satisfy some form of
heightened scrutiny. Though we need not decide which tier
applies, we are skeptical that at least Section (a)(4) is tailored
enough to satisfy even intermediate scrutiny. Under that stand-
ard, New Jersey would need to show that “alternative measures
that burden substantially less speech would fail to achieve the

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government’s interests.” Bruni v. City of Pittsburgh, 824 F.3d
353, 367 (3d Cir. 2016) (quoting McCullen v. Coakley, 573
U.S. 464, 495 (2014)). At oral argument, New Jersey asserted
that Section (a)(4)’s ban protects veterans because no one needs
paid help to file a claim: The first stage is simple, and other
services will help claimants for free. But New Jersey could use
less-restrictive alternatives; for instance, it could require paid
advisers to tell veterans that they can get free help elsewhere.
It has never explained why a more targeted solution would not
work.
Still, the current record is too thin to resolve this question.
In moving for a preliminary injunction, plaintiffs challenged
both Sections (a)(1) and (a)(4) without analyzing them sepa-
rately. Then the District Court ignored (a)(4). So that section
has never gotten adequate briefing or produced a well-developed
record. We will leave that task to the District Court on remand.
VII. THE DISTRICT COURT SHOULD FIND MORE FACTS
The District Court will need to gauge New Jersey’s interests
and the law’s tailoring, and it may need to weigh preliminary-
injunction factors other than the merits. Each inquiry is riddled
with unknowns.
Start with New Jersey’s interests. They depend on how often
paid services covered by the law are predatory, how often they
are merely useless, and how often they are valuable. The record
contains no answers. Nor does it show how big a problem paid
consultants are. Though the District Court noted that “benefits
consultants and other businesses ha[ve] defrauded veterans of
over $414 million,” the document it relies on lumps together
all sources of fraud, from identity theft to “bogus investment

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schemes” and “sweepstakes and lotteries.” App. 17, 217. In
fact, this document lists the eleven most common sources of
fraud, but predatory benefits-claiming services are not among
them.
The extent of tailoring is also foggy. Neither the District
Court nor the parties have discussed whether less restrictive
alternatives to Sections (a)(1) and (a)(4) would have achieved
New Jersey’s interests. And each section raises its own ques-
tions that the record does not answer. Section (a)(1) purports
to fight exploitation by forcing providers to follow federal law.
But how effective is federal law at stopping fraud and incom-
petence? And at what cost to speech? Section (a)(4) bans paid
advice before appeal. The weight of this burden depends in part
on whether the appeal is too late to offer some advice. Is it? On
remand, the District Court should fill these gaps.
* * * * *
Advice about claiming veterans benefits appears to be
speech. But when weighing preliminary injunctions, courts
must proceed cautiously and be wary of locking in their views
on the merits. Del. State, 108 F.4th at 203. And though there
are many non-merits factors, the District Court never analyzed
them. We will remand to let it fill in the record and apply the
law that we have laid out here.

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KRAUSE, Circuit Judge, concurring.
I join the majority opinion in full but write separately
with some observations about the review of reasonable
professional licensing schemes in the wake of National
Institute of Family and Life Advocates v. Becerra (NIFLA), 585
U.S. 755 (2018).
On the one hand, NIFLA established that professional
speech, as a whole, is not a unique category subject to lesser
protections than other protected speech and cautioned against
giving states “unfettered power” to impose content-based
restrictions on speech “by simply imposing a licensing
requirement.” Id. at 773. Taken to the extreme, the Court
observed, states could enact onerous licensing laws that, in
effect, “impose invidious discrimination of disfavored
subjects,” id. (internal quotation marks omitted), for example,
by restricting publishers from printing books by certain authors
or lawyers from advocating for clients outside the courtroom—
all under the guise of regulating professional conduct, cf.
Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims
Bd., 502 U.S. 105, 115 (1991) (striking down the “Son of Sam”
law placing financial disincentives on convicts speaking about
their crimes); NAACP v. Button, 371 U.S. 415, 433, 444 (1963)
(holding a law “proscribing any arrangement by which
prospective litigants are advised to seek the assistance of
particular attorneys” unconstitutional).
Indeed, the Court has long cautioned that states may
neither “foreclose the exercise of constitutional rights by mere
labels” nor ignore those rights “under the guise of prohibiting
professional misconduct.” Button, 371 U.S. at 429, 439. Thus,
in NIFLA, the Court determined California’s law requiring
licensed clinics to disclose the availability of services that “in

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no way relate[d] to the services that licensed clinics provide,”
585 U.S. at 769, was a content-based regulation of speech and
therefore identified no reason to shield it from strict
scrutiny1—notwithstanding its commercial context, id. at 766,
773.
On the other hand, NIFLA confirmed that more
deferential scrutiny continues to apply in the commercial
context where there is “‘persuasive evidence . . . of a long (if
heretofore unrecognized) tradition’ to that effect,” and it
identified two such situations. Id. at 767–68 (quoting United
States v. Alvarez, 567 U.S. 709, 722 (2012)). The first was
“laws that require professionals to disclose factual,
noncontroversial information in their ‘commercial speech,’”
like the fee disclaimer regulation for lawyers in Zauderer v.
Office of Disciplinary Counsel of Supreme Court of Ohio, 471
U.S. 626, 650–53 (1985). Id. at 768. And the second was for
“regulations of professional conduct that incidentally burden
speech.” Id. at 769. In support of both exceptions, the Court
cited Ohralik v. Ohio State Bar Association, in which the Court
held that a state can discipline a lawyer for in-person
solicitation in certain circumstances, 436 U.S. 447, 449 (1978),
1 The Court did not foreclose that some reason may exist to
“treat[] professional speech as a unique category that is exempt
from ordinary First Amendment principles,” but it did not
decide that issue because the challenged regulation failed
under intermediate scrutiny. Nat’l Inst. of Fam. & Life Advocs.
v. Becerra (NIFLA), 585 U.S. 755, 773 (2018). Of course,
under ordinary First Amendment principles, “content-based
regulations of speech are subject to strict scrutiny.” Id. at 767;
see also Sorrell v. IMS Health Inc., 564 U.S. 552, 565–66
(2011).

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reasoning the solicitation ban was more like a conduct
regulation in which speech “is an essential but subordinate
component,” id. at 457, and observing “that the State does not
lose its power to regulate commercial activity deemed harmful
to the public whenever speech is a component of that activity,”
id. at 456 (listing examples of “communications that are
regulated without offending the First Amendment”).
As another example of NIFLA’s second category, the
Court cited Planned Parenthood of Southeastern Pennsylvania
v. Casey, which “rejected a free-speech challenge to [an]
informed consent requirement” for an abortion procedure,
explaining that the law “regulated speech only ‘as part of the
practice of medicine, subject to reasonable licensing and
regulation by the State.’” NIFLA, 585 U.S. at 770 (quoting
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 884
(1992)). Even though the regulations in Ohralik and Casey
were content based, in that they targeted certain subject matter
in the context of regulating a particular profession,2 the NIFLA
Court cited them as part of our Nation’s “long . . . tradition” of
professional-conduct regulations that incidentally burden
speech and nevertheless are excepted from the demands of
strict scrutiny. Id. at 767–68 (quoting Alvarez, 567 U.S. at
722).
That long tradition of professional licensing schemes in
our law dates back well before the Founding, with deep roots
in English law. In the Middle Ages, craft guilds, chartered by
the monarch, functioned as early licensing authorities, with
2 See City of Austin v. Reagan Nat’l Advert. of Austin, 596 U.S.
61, 69 (2022); Reed v. Town of Gilbert, 576 U.S. 155, 163
(2015).

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membership a prerequisite to entering trades like weaving and
goldsmithing.3 As early as 1421, doctors in England petitioned
Parliament to exclude unqualified practitioners,4 and the Royal
College of Physicians was established in 1518 to grant licenses
and regulate the practice of medicine.5 Membership in the
English Inns of Court, founded in the mid-fourteenth century,
ensured the qualifications of those practicing law.6 And by the
seventeenth century, licensing schemes governed the
3 See Stella Kramer, The English Craft Gilds and the
Government 17 (1905); Paul J. Larkin, Jr., Public Choice
Theory and Occupational Licensing, 39 Harv. J.L. & Pub.
Pol’y 209, 212–13 (2016) [hereinafter Larkin].
4 John H. Raach, English Medical Licensing in the Early
Seventeenth Century, 16 Yale J. Biology & Med. 267, 268
(1944).
5 B. Abbott Goldberg, Horseshoers, Doctors and Judges and
the Law on Medical Competence, 9 Pac. L.J. 107, 122 (1978).
The College was established by a charter issued by King Henry
VIII in 1518 and confirmed by Parliament in 1522. Parliament
initially authorized the licensing of physicians by bishops in
1511, but the effect of that law was undercut by the
establishment of the College. Id.; see 3 Henry VIII ch. 11,
reprinted in Charles Goodall, Royal College of Physicians of
London Founded and Established by Law 1 (M. Flesher ed.,
1684) [hereinafter Goodall]; 14, 15 Henry VIII ch.5, reprinted
in Goodall at 5.
6 Jonathan Rose, The Legal Profession in Medieval England:
A History of Regulation, 48 Syracuse L. Rev. 1, 24 (1998); see
also id. at 5 (“[M]edieval regulation reveals the foundation for
the modern control of the admission and the conduct of
practicing lawyers.”).

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5
professions of tavern owner, peddler, coach driver, and many
more on that side of the Atlantic.7
Credentialing practices followed the colonists to early
America, where the medical and legal professions were among
the first to be licensed and regulated,8 along with traders,
tanners, printers, peddlers, boat pilots, tavern and innkeepers,
distillers, and purveyors of liquor.9 By the early-nineteenth
century, licensing schemes expanded to include barbers,
boarding house operators, insurance agents, midwives, real
estate brokers, steamboat operators, embalmers, horseshoers,
7 Thomas K. Urdhal, The Fee System in the United States, 77–
80 (1898) [hereinafter Urdhal].
8 Id. at 102–03, 128–29; Barlow F. Christensen, The
Unauthorized Practice of Law: Do Good Fences Really Make
Good Neighbors-or Even Good Sense?, 5 Am. Bar Found.
Rsch. J. 159, 163 (1980) (“The earliest legislation ‘for the
better regulation of attorneys and the great fees exacted by
them’ was enacted in 1642-43. It severely limited fees [and]
prohibited pleading without a license from the court.”);
Lawrence M. Friedman, Freedom of Contract and
Occupational Licensing 1890-1910: A Legal and Social Study,
53 Cal. L. Rev. 487, 494 (1965) (“The licensing of inn-keepers
and of lawyers went back to colonial times and indeed to
English practice.”). By the late-nineteenth century, “more than
half of the states required licenses to practice as a physician,
dentist, pharmacist, or lawyer.” Larkin, supra note 3, at 213.
9 Urdhal, supra note 7, at 97 n.1, 100 & n.5, 102–05; Larkin,
supra note 3, at 212–13; see also, e.g., Act of Oct. 25, 1710,
reprinted in 1 Acts of Assembly, Passed in the Colony of
Virginia, from 1662 to 1715, at 325 (1727) (requiring license
for sale of alcohol).

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6
undertakers, veterinarians, auctioneers, and pawnbrokers,
among many others.10
The inevitable challenges to these regulatory regimes
gave the Supreme Court opportunity to explain their place in
our legal system and to acknowledge their importance. In
rejecting a challenge to a medical licensing regime in 1889, for
example, the Supreme Court recognized the inherent authority
of the states to prescribe regulations to combat “consequences
of ignorance and incapacity, as well as of deception and fraud,”
10 Larkin, supra note 3, at 213; Urdhal, supra note 7, at 129;
see also, e.g., Laws of the State of New-Jersey 19–20, 235–40,
246, 355, 416 (William Patterson ed., 1800) (licensing hunters,
tavern owners, innkeepers, hawkers, peddlers, petty chapmen,
and fishermen); Act of Sept. 17, 1807, reprinted in Laws of
the Indiana Territory 340–44 (1807) (requiring a license to
practice as an “Attorney or Counsellor at Law”); 1 The General
Laws of Massachusetts, From the Adoption of the Constitution
to February, 1822, at 92, 100–01, 199, 297–304, 348, 417,
473–74, 535 (Theron Metcalf ed., 1823) (licensing tree cutters,
estate executors and administrators, attorneys, innholders,
tavern keepers, victuallers, liquor retailers, vintners,
auctioneers, public good sellers, and carriage drivers); Act of
Mar. 10, 1832, reprinted in 2 The General Public Statutory
Law and Public Local Law of the State of Maryland 1032–34
(Clement Dorsey ed., 1840) (requiring two years of legal study
and evidence of good character to be admitted as an attorney).
By 1935, “architects, barbers, beauticians, chiropractors, civil
engineers, embalmers, registered nurses, optometrists,
osteopaths, real estate brokers and sale personnel, surveyors,
and veterinarians” were licensed in more than half the states.
Larkin, supra note 3, at 213 n.16.

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7
and to fulfill the government’s responsibility “from time
immemorial, to exact in many pursuits a certain degree of skill
and learning upon which the community may confidently
rely.”11 Dent v. West Virginia, 129 U.S. 114, 122 (1889).
While the Court has also policed the constitutional bounds of
such regulations, particularly after the incorporation of the
First Amendment, see Gitlow v. New York, 268 U.S. 652
(1925); Stromberg v. California, 283 U.S. 359 (1931), and as
legislatures in the twentieth century increasingly targeted the
speech of professionals,12 it has continued to recognize that
11 See also Reetz v. Michigan, 188 U.S. 505, 506 (1903)
(observing that “[t]he power of a state to make reasonable
provisions for determining the qualifications of those engaging
in the practice of medicine . . . is not open to question”).
12 See, e.g., Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487
U.S. 781, 795–802 (1988) (applying traditional First
Amendment principles when reviewing disclosure and
licensing requirements of professional fundraisers); In re
Primus, 436 U.S. 412, 432 (1978) (subjecting South Carolina’s
criminal punishment of a lawyer “soliciting a prospective
litigant by mail, on behalf of the ACLU” to “exacting
scrutiny”); Bhd. of R.R. Trainmen v. Virginia ex rel. Va. State
Bar, 377 U.S. 1, 6–8 (1964) (holding that the Virginia Bar’s
ban on labor union’s solicitation of personal injury cases
amongst its members violated the First Amendment, as the
union was not engaging in the practice of law); see also Reed,
576 U.S. at 167 (observing that NAACP v. Button properly
recognized that a state’s interest in “regulation of professional
conduct,” namely “prohibiting ‘improper solicitation’ by
attorneys,” did not exempt the law from normal First
Amendment principles (quoting NAACP v. Button, 371 U.S.

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states “have broad power to establish standards for licensing
practitioners and regulating the practice of professions,”
Goldfarb v. Va. State Bar, 421 U.S. 773, 792 (1975); Fla. Bar
v. Went For It, Inc., 515 U.S. 618, 625 (1995) (same); see also
Gunn v. Minton, 568 U.S. 251, 264 (2013) (recognizing that
states “have ‘a special responsibility for maintaining standards
among members of the licensed professions’” (quoting
Ohralik, 436 U.S. at 460)).
Against the backdrop of this long tradition, it would be
anomalous indeed to read NIFLA as an endorsement of
heightened scrutiny for all professional licensing schemes.
After all, the Supreme Court “does not normally overturn, or []
dramatically limit, earlier authority sub silentio,” Shalala v. Ill.
Council on Long Term Care, Inc., 529 U.S. 1, 18 (2000), and,
as a general rule, we “leav[e] to th[e] [Supreme] Court the
prerogative of overruling its own decisions,” Agostini v.
Felton, 521 U.S. 203, 237 (1997) (quoting Rodriguez de Quijas
v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989)). If
anything, NIFLA confirms that lesser scrutiny applies to
licensing regimes that “regulate[] speech only ‘as part of the
practice of [a profession],’” 585 U.S. at 770 (quoting Casey,
505 U.S. at 884), and by highlighting that strict scrutiny did not
apply to the regulations in Ohralik and Casey, the Court made
clear that some restrictions of speech, though content based,
remain subject to more deferential review as burdens incidental
to the regulation of professional conduct.
415, 438 (1963)); Holder v. Humanitarian L. Project, 561 U.S.
1, 27–28 (2010) (applying strict scrutiny to a law barring
organizations from giving material support to terrorist
organizations in the form of speech).

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9
With its recent grant of certiorari in Chiles v. Salazar,
No. 24-539, 2025 WL 746313, at *1 (U.S. Mar. 10, 2025), the
Court may bring greater clarity, but for now, in the wake of
NIFLA, whether a particular component of a licensing scheme
imposes a content-based regulation on professional speech
subject to strict scrutiny, id. at 767, or “regulate[s] speech only
‘as part of the practice of [a profession], subject to reasonable
licensing and regulation by the State,” id. at 770 (quoting
Casey, 505 U.S. at 884), must be decided on a case-by-case
basis.13
Here, as the majority observes, we have little
information on the workings of New Jersey’s accreditation
scheme for veterans benefits counselors, and the District Court
ruled on a different basis. Maj. Op. 12. We, thus, leave the
application of NIFLA in this case to the District Court in the
first instance.
13 Compare Billups v. City of Charleston, 961 F.3d 673, 683
(4th Cir. 2020) (holding the burden on speech was not merely
incidental because the ordinance “completely prohibit[ed]
unlicensed tour guides from leading visitors on paid tours—an
activity which, by its very nature, depends upon speech or
expressive conduct”), with Cap. Associated Indus., Inc. v.
Stein, 922 F.3d 198, 207–08 (4th Cir. 2019) (upholding “UPL
statutes [that] don’t target the communicative aspects of
practicing law, such as the advice lawyers may give to clients”
but, instead, “focus more broadly on the question of who may
conduct themselves as a lawyer”).

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