Tennessee Auctioneers' Free Speech Rights? Going Once, Going Twice…

Occupational licensing laws are some of the most pernicious restrictions on economic freedom in America. But these barriers to economic opportunity frequently infringe on other constitutional rights, too, including the freedom of speech. That’s the case with Tennessee’s law that requires government permission in order to work as an auctioneer. Our friends at the Beacon Center have challenged the constitutionality of that law in federal court, and we filed a friend-of-the-court brief supporting their argument that auctioneer-licensing violates the First Amendment.

Auctioneering is inherently expressive. In fact, as we detail in the brief, there’s a long tradition of auctioneers engaging in entertaining, exciting, and sophisticated styles of communication as a means of generating interest among potential buyers. In the eighteenth century, James Christie—after whom Christie’s auction house is named—revolutionized auctions with his thrilling performances. He became known as “The King of Epithets” and “The Specious Orator” for the way he would cajole buyers. More recently, auctioneers such as Tobias Meyer of Sotheby’s and Jussi Pylkkänen of Christie’s became major celebrities due to their high-class tone and deep knowledge of the items they sold. Perhaps the most interesting example is North Carolina tobacco auctioneer “Speed” Riggs, who in the 1930s developed a distinctive rapid-fire style—he could chant at more than 460 words per minute—which made him a household name. He even became the official spokesman for Lucky Strike cigarettes.

Performances, of course, are protected by the First Amendment, and people who are hired to perform, or hired to engage in communication, are, too. From tour guides to cake decorators to website designers, the courts have held that professional speakers have free speech rights that the government can’t take away by simply labeling their speech “conduct” and regulating it as if it were no more expressive than an ordinary transaction.

In fact, even ordinary transactions are protected by the First Amendment, sometimes. In the Tennessee auctioneer case, the trial judge dismissed the lawsuit on the grounds that auctioneers are like “cashiers or pharmaceutical wholesalers,” and therefore have negligible free speech rights. But federal courts have repeatedly upheld the free speech rights of both cashiers and pharmaceutical wholesalers! In a 2017 case called Expressions Hair Design v. Schneiderman, the U.S. Supreme Court said that cashiers have a free speech right to state the prices of goods for sale—and in a 2012 case called Caronia, the Second Circuit said the U.S. Food and Drug Administration couldn’t punish a pharmaceutical seller for telling doctors what the medicines he was selling could do.

There’s an old saying among lawyers that “the law is a seamless web.” But the same is true of individual rights: they can’t be separated into hermetically sealed groups, with speech over here and economic freedom over there. Especially in inherently expressive businesses like auctioneering, the Constitution protects the right to engage in economic transactions—and to speak—because rights, too, are a seamless web.

You can read our brief here.

Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute.