「話す職業」ライセンスと表現内容規制 : それは修正１条ロックナー主義か

“Speaking Occupation” Licensing and Content-Based Regulations of Expression: Is It Criticized as First Amendment Lochnerism?

Inoue Yoshihito

廣島法學

The Hiroshima Law Journal

[ISSN] 03865010

[NCID] AN0021395X

Your pet seems to be in pain, and you cannot go to the hospital immediately. After a quick search on the Internet, you discover a site where veterinarians can give you advice online. You quickly explain the situation in detail, and the veterinarian provides you with some tips, advising you to take the pet to your veterinarian as soon as possible. Is this veterinarian's activity a medical procedure or a speech?
"It's nice to travel to places you've never been before." It is boring to just read the information about a famous historic site with a smartphone. So, I hire a tour guide and listen to the stories. I hear a lot of interesting stories that one cannot get from a smartphone. Satisfied, I gave the tour guide five stars. Is this tour guide's activity a professional act or a speech?
If you consider them to have engaged in a medical procedure or professional practice, the constitutionality of regulating that practice will be examined by the rationality-based scrutiny. However, when viewed as speech regulation, stricter examination is required.
If we regard regulations that appear to be economic regulations as expression regulations, they will be subject to the stricter examination of the First Amendment. In that case, the regulation is likely to be unconstitutional, and the economic regulation may be abolished. The litigation trend aimed at this is called First Amendment Lochnerism.
Since most human actions can be expressive, almost all economic regulations can also be expressive regulations. Given that they are all equally guaranteed expressions, nearly all economic regulation may be subject to rigorous scrutiny under the First Amendment and rendered unconstitutional. It would plunge society into chaos and anarchy and harm public health and safety. Thus, the two examples mentioned above should not be regarded as restrictions on expression, the anti-First Amendment Lochnerists argue.
After examining how anti-First Amendment Lochnerism perceives the current situation, this article criticizes the theory of democratic self-government that is its basis. This paper clarifies that what First Amendment Lochnerism is all about is the seriousness of the harm caused by deregulation. Then, assuming that the licensing system for "speaking occupations" – which are occupations that mainly consist of speech – has the character of regulating expression, this paper examines whether it is a type of speech for which content regulation is permitted, and whether the licensing system can be said to be content regulation. Finally, whether the compelling interest in preventing harm to public health and safety is in the face of actual harm, and whether the licensing system is carefully designed to achieve its legislative objectives is examined. This paper argues that the “speaking occupation” licensing system is unconstitutional because market pressures seem to serve the purpose of regulation at least as much as the “speaking occupation” licensing system does.

jpn

広島大学法学会

THE SOCIETY OF LAW OF HIROSHIMA UNIVERSITY

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