Getting lawmakers to do something different can be hard. Years of research, marketing and crafting careful arguments can feel wasted when elected officials ignore them. Perhaps no one knows this more than the people at the Institute for Justice, who work on tough issues that often take years, if not decades, to resolve. I spoke with Bob McNamara, a lawyer and advocate who heads up their work in protecting occupational speech under the First Amendment, about how they stay motivated to work on issues that will take a long time to win.
“When we were founded in 1991, it was literally the case that no federal appellate court anywhere had struck down an economic regulation under the 14th Amendment since the New Deal. There was an unbroken decades long government winning streak in the appellate courts. And so, if you started an organization dedicated to protecting economic liberty in the federal courts, people would have told you [that] you were crazy. And I know that because people did tell our founder Chip Mellor he was crazy. Repeatedly. And to his face,” McNamara said.
His work on occupational speech started a decade ago when he read an article explaining that Philadelphia was going to require tour guides to be licensed, in part because a city councilmember heard mean things about the city’s artwork. And while McNamara thought that would make a good lawsuit, his colleagues got him to review and thoroughly consider both the issue and the strategy he might use.
In doing so, McNamara saw an important conflict on the horizon, and the potential for a better future. “Courts are told two things: They’re told that free speech is very important — and they should be very solicitous of free speech rights — and they’re also told that economic liberty is not seriously protected,” he said.
Having the right argument is essential to the work the Institute for Justice does, but it takes more than that to win legal cases. “I distinctly remember in one of our early cases, I walked into a federal court here in D.C., challenging D.C.’s tour guide license, and the first question the judge had for me was, ‘Okay Mr. McNamara, how about you tell me how this law that’s been on the books for a hundred years is unconstitutional and nobody noticed but you.’” So, he laid out IJ’s argument and some rationale for why nobody had challenged the law before. But to no avail. He lost that case.
McNamara knew the problems that judges had with his argument. Occupational licensing is about conduct, which is subject to different regulations than pure speech. On top of that, there’s a line of cases holding that “professional speech” doesn’t get the same protections as other types of speech.
McNamara knew that it would be a long time before any court would reconsider this default position. That meant that the Institute for Justice would continue to advance the same arguments. McNamara recalls a friend reviewing one of his appellate briefs and remarking that it was a rehash of the argument that had failed to persuade the trial court. “I know,” he says, “That’s the stuff!” That is, that was the best theory, and he thought that it would make sense to someone eventually. He was convinced their view was correct, and that he and his colleagues needed to say it enough times, losing along the way, before courts would agree.
That’s not to say the losses weren’t disheartening — they were. “It feels awful. In the absence of external validation, you do start to doubt yourself, and I think it’s hard to find the balance between having confidence in your position — knowing that you’re working on a plan and you’re going to see it through — and just flat out being a crazy person,” McNamara said.
It took some time, but finally, some courts agreed. “I think it was a solid six years between when we filed that first case in Philadelphia and when any federal judge anywhere in the country said we were anything other than crazy.” He remembers a case, from around a year ago, in a circuit court with a diverse panel of judges who all believed speech should have more protections. That was a long way from the first case. “Over the course of the decade, we have gone from crazy, to dangerous, to just commonsensical,” he said.
He credits his colleagues and the institute’s supporting scholars for giving him confidence to keep at it despite losses. “The reason I knew — six years into that project that we weren’t just being idiots and that I wasn’t just being an idiot — is that I was surrounded by a bunch of well-meaning, very intelligent people who loved me and who would absolutely have told me to my face if I was being an idiot,” he said.
The people at the Institute for Justice can’t do what they do without their supporters, and McNamara credits their sophistication. His colleagues help them understand that what they’re doing is neither easy nor the path to quick victories. “We’ve been extremely fortunate to attract people to us who have the same attitude and the same willingness to think in terms of years and decades,” he said.
“There are three phases in any IJ fight. The first phase is where no one can win a case on this issue. The second phase is where IJ can win cases on this issue. And the third phase is where anyone can win cases on this issue — and in fact, it becomes so easy that the government stops trying.”
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