Federal Court Says First Amendment Protects Engineers Who Offer Expert Testimony Without A License
from the look-who's-(capable-of)-talking-(without-fear-of-being-fined) dept
Regulatory agencies can often be an essential part of day-to-day life, preventing people from engaging in activities they have no expertise in — something that could potentially endanger a lot of people. But they can also be overbearing brutes whose only concern is whether or not they’ve managed to extract as much money as possible from people who are experts in their field but have no desire to pay for the privilege of utilizing their skills.
In Oregon, a sequence of events involving an “unlicensed” engineer who had things to say about traffic light timing resulted in the state licensing board apologizing to Mats Jarlstrom for (expertly) saying things the government didn’t want to hear. Jarlstrom’s ended up with a complete win, with his (unlicensed) research on yellow light timing making it clear cities were putting people in danger by shortening yellow light times for the sole purpose of increasing revenue via traffic citations.
A similar thing is happening in North Carolina. Retired engineer Wayne Nutt was told by the North Carolina Board of Examiners and Surveyors to stop offering his expert opinion on engineering matters, even though he was fully qualified to do so. The only thing he was missing was a permission slip from the state board in the form of a professional engineer’s license.
Nutt refused. He decided to sue instead, represented by the Institute for Justice. He has obtained his first victory, in the form of a federal court decision [PDF] that says his expert opinion is protected by the First Amendment and cannot legally be silenced by the state. (via Volokh Conspiracy)
Here’s Nutt’s background:
Nutt worked as a chemical engineer from 1967 to 2013. He never obtained a professional engineering license because he qualified to practice engineering under the industrial exception of the licensing requirement in North Carolina. A portion of his responsibilities involved overseeing the design, construction, and repair of building trench systems to manage both stormwater and potential chemical spills at his work facility. As a result, he developed expertise in hydraulics, fluid flow, and piping systems.
Since his retirement, he has continued using his expertise to support the efforts of various local interest groups. He has testified to the Wilmington City Council regarding the flaws he identified in a development proposal’s traffic impact study. He has also testified about an error he discovered in a development plan’s calculation of the capacity of a stormwater detention pond. His opinion and recommendations led to meaningful changes in the design of those projects.
A long career followed by an unpaid career in public service. None of this was a problem until Nutt tried to offer his expert testimony in a 2020 lawsuit against the county government over allegedly negligent storm drain design that had contributed to additional flooding during Hurricane Florence.
At that point, the government had had enough of Nutt and his expert interloping. The government’s lawyers said allowing Nutt to testify in this case would “constitute the unauthorized practice of engineering.” It made an attempt to silence him by sending him an email suggesting he would be breaking the law if he chose to offer his testimony, leading off by informing him he was not even legally allowed to refer to himself as an “engineer.”
The Board sent an email, explaining that an unlicensed individual cannot publicly use the term “engineer” in their descriptive title or offer testimony likely to be perceived by the public as “engineering advice.” The Board also provided a position statement–the focus of Nutt’s claim–warning that “testimony impacting the public,” including “expert witness testimony on engineering … matters in the courtroom … or during depositions” and testimony based on “engineering education, training or experience,” requires licensing. The statement also indicated that expert reports are also “evidence of the practice of the profession.” The Board stated that it “has proceeded against unlicensed individuals … for the unlicensed practice of engineering.”
Nutt testified anyway. The irritated board responded with some “per our previous email” saber rattling. Then the expert witness testifying for the government filed a formal complaint against Nutt, accusing him of engaging in unlicensed engineering. A couple of months later — following an “investigation” by the state board, Nutt received another email informing him he had broken the law and that he would likely be fined/cited if he insisted on offering his expert opinion during litigation involving the government.
The court says the emails and the threats they contained are enough to both show standing and demonstrate Nutt has a reasonable fear of prosecution if he continues to offer his expert opinion on engineering matters.
The state tried to moot the lawsuit by claiming the board was no longer pursuing any action against Nutt because the case he testified in had been dismissed. Not good enough, says the court. And stop pretending you didn’t do the things you did while that litigation was still a going concern. (Emphasis in the original.)
At oral argument, the Board argued that Nutt should no longer reasonably expect prosecution for providing engineering testimony as an expert witness because it has not tried, and will not try, to prohibit Nutt from testifying as an expert witness. But the Board has tried to prohibit Nutt’s speech. Moreover, renouncing its pre-filing enforcement position, while denying the true nature of its past practices, does not “make it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.”
In hopes of exiting this lawsuit, the state dug its own hole with a combination of contradictory assertions and concessions to certain arguments made by Nutt. It all adds up to a First Amendment violation.
As mentioned above, Nutt seeks a judgment declaring that the Act, as interpreted and enforced, violates the First Amendment, both on its face and as applied to him and others similarly situated. He also seeks a permanent injunction allowing him and others similarly situated to testify about topics that require engineering knowledge without first obtaining an engineering license. The Board has conceded on paper and at argument that it will not enforce the Act to prohibit Nutt and others similarly situated from testifying on engineering matters.
As explained above, this concession does not render the parties’ dispute moot. It does,however, make clear that the Board does not contest Nutt’s core claim. Namely, the prohibition on unlicensed expert engineering testimony violates the First Amendment. Therefore, in light of the parties’ positions, the court will accept that claim as applied to Nutt. The court will also enjoin the Board from enforcing the Act against Nutt for testifying about topics that require engineering knowledge without first obtaining an engineering license.
The court acknowledges that the licensing program helps protect the public by ensuring those offering engineering services are actually capable of performing that job competently. But telling qualified engineers they’re not allowed to speak publicly about these matters without the permission of the board violates their rights. The government is always free to seek to have testimony from unlicensed engineers thrown out of court or otherwise seek to have this testimony blocked from admission. What it can’t do is pursue criminal proceedings against engineers for speaking.
At its core, this case concerns the extent to which a law-abiding citizen may use his technical expertise to offer a dissenting perspective against the government. Stating that dissent required the speaker to use his expertise in several ways. He had to do some math. He had to apply recognized methodologies. He even had to write a report memorializing his work. Some of that work may plausibly be considered conduct. But it ends up providing him the basis to speak his mind. Thus, although the government may properly exercise its interests in policing the use of technical knowledge for non-expressive purposes, those interests must give way to the nation’s profound national commitment to free speech in this case. At the very least, the government had to show that it seriously considered less restrictive alternatives before targeting pure speech. The government failed to meet its obligations under the First Amendment.
That’s pretty cut and dry. The board is still welcome to regulate the act of engineering. But it has no business regulating their speech.
Filed Under: 1st amendment, engineering license, expert witness, license, north carolina, wayne nutt
Comments on “Federal Court Says First Amendment Protects Engineers Who Offer Expert Testimony Without A License”
So, as a PE, I’m decidedly mixed about this particular case. Further I have some problems with the coverage here, so I’ll start there:
This is just a bad take, though I hope it was a flippant throw away sentence and not an actual belief. A PE is decidedly not a ‘permission slip’ from the state board. Would you say the same thing about an ‘unlicensed doctor’ passing off homeopathy or MMS to the public?
One doesn’t just ask for a PE, and get it. The process includes the verification of the education and/or adequate work experience under the appropriate accreditation and supervision, professional and personal reference (which are checked), an ethics test on the relevant state and professional codes, and a rigorous day of two day test specific to your area of practice. Further, most states (oddly, not mine) require a minimum amount of Professional Development Units every cycle to maintain your license.
Licensing and boards also provides an important avenue for the public to report unethical, unprofessional, or incompetent PEs without requiring an onerous and costly lawsuit. Further, it makes requirements for professional and business insurance, how you can market your services, professional conduct between engineering firms, among many other things to make sure the public is protected…not just the individual hiring the engineer. Imagine discovering your neighbors PE doesn’t have any Errors or Omissions coverage after they miss design a water retaining system and instead it floods your property. Or an ‘unlicensed engineer’ designs a dangerous electrical system for a dock that kills multiple people.
Fundamentally, without a licensing process I’m not sure how one would regulate any service for public consumption. And there’s a surprising amount of a incompetent folks out there passing themselves off as engineers who can have a real, negative, impact on the public.
I’m curious here what part of engineering you think isn’t speech? Professional Engineering requirements are such that they only apply to “Final drawings, specifications, plans and reports” Which is basically the totality of engineering work outputs. Doing it in your head, and giving it to nobody is effectively not engineering for public consumption. They also apply to how marketing done, how you present yourself and your business, etc.
As for the core of this issue, I can see both sides but fundamentally it comes down to the opposing counsel should be able to attack his qualifications as an expert on the stand. A non-PE that has never practiced the work for the public can’t have an ‘expert opinion’ on my work, as they have never operated under those requirements. There’s also parallels between industrial work and public work, but the nuances can be quite stark. contracting processes, codes and regulations, work processes, etc. can be significantly different.
I think it’s also important to know he could take the test and get his PE. Usually you need 4-5 years of work underneath a PE, but industrial folks can run into a problem as there aren’t always engineers to work for or PE if they are engineers. But it looks like NC doesn’t require that, just “progressive engineering experience that is of a grade and character that indicates to the Board that the applicant is competent to practice engineering.” They even exempt the need for the Fundamental of Engineering (usually a pre-requisite for a PE) after 20 years of work.
This seems like it’s pretty low hanging fruit for attack.
I don’t have problems with people calling themselves engineers given their education and background, but I’m also fine with restricting how they offer themselves to the public as a business. If someone wants to go to a public hearing, express their opinion, do math and shit, and call themselves an engineer…I’m not threatened by that(and yes, and several boards have been doing that and it needs to stop) However, if they want to offer their services as an expert on the work of professional engineers, and charge money, that’s a big difference IMHO.
What's this?
Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »
Clearly the state busted a nut trying to bust a Nutt.
I’ll see myself out.
Up next for Mats Jarlstrom?
I hope he does ShotSpotter next.
Two of the biggest scams currently running in software licensed to local governments.
So, as a PE, I’m decidedly mixed about this particular case. Further I have some problems with the coverage here, so I’ll start there:
This is just a bad take, though I hope it was a flippant throw away sentence and not an actual belief. A PE is decidedly not a ‘permission slip’ from the state board. Would you say the same thing about an ‘unlicensed doctor’ passing off homeopathy or MMS to the public?
One doesn’t just ask for a PE, and get it. The process includes the verification of the education and/or adequate work experience under the appropriate accreditation and supervision, professional and personal reference (which are checked), an ethics test on the relevant state and professional codes, and a rigorous day of two day test specific to your area of practice. Further, most states (oddly, not mine) require a minimum amount of Professional Development Units every cycle to maintain your license.
Licensing and boards also provides an important avenue for the public to report unethical, unprofessional, or incompetent PEs without requiring an onerous and costly lawsuit. Further, it makes requirements for professional and business insurance, how you can market your services, professional conduct between engineering firms, among many other things to make sure the public is protected…not just the individual hiring the engineer. Imagine discovering your neighbors PE doesn’t have any Errors or Omissions coverage after they miss design a water retaining system and instead it floods your property. Or an ‘unlicensed engineer’ designs a dangerous electrical system for a dock that kills multiple people.
Fundamentally, without a licensing process I’m not sure how one would regulate any service for public consumption. And there’s a surprising amount of a incompetent folks out there passing themselves off as engineers who can have a real, negative, impact on the public.
I’m curious here what part of engineering you think isn’t speech? Professional Engineering requirements are such that they only apply to “Final drawings, specifications, plans and reports” Which is basically the totality of engineering work outputs. Doing it in your head, and giving it to nobody is effectively not engineering for public consumption. They also apply to how marketing done, how you present yourself and your business, etc.
As for the core of this issue, I can see both sides but fundamentally it comes down to the opposing counsel should be able to attack his qualifications as an expert on the stand. A non-PE that has never practiced the work for the public can’t have an ‘expert opinion’ on my work, as they have never operated under those requirements. There’s also parallels between industrial work and public work, but the nuances can be quite stark. contracting processes, codes and regulations, work processes, etc. can be significantly different.
I think it’s also important to know he could take the test and get his PE. Usually you need 4-5 years of work underneath a PE, but industrial folks can run into a problem as there aren’t always engineers to work for or PE if they are engineers. But it looks like NC doesn’t require that, just “progressive engineering experience that is of a grade and character that indicates to the Board that the applicant is competent to practice engineering.” They even exempt the need for the Fundamental of Engineering (usually a pre-requisite for a PE) after 20 years of work.
This seems like it’s pretty low hanging fruit for attack.
I don’t have problems with people calling themselves engineers given their education and background, but I’m also fine with restricting how they offer themselves to the public as a business. If someone wants to go to a public hearing, express their opinion, do math and shit, and call themselves an engineer…I’m not threatened by that(and yes, and several boards have been doing that and it needs to stop) However, if they want to offer their services as an expert on the work of professional engineers, and charge money, that’s a big difference IMHO.
Re:
Is it though? I’ve met licensed engineers charging exorbitant amounts of money that couldn’t engineer themselves out of a wet paper-bag without the help from a bunch of underlings.
Plus, your take implies that no licensed engineer should ever be criticized or have their work evaluated by a unlicensed engineer if the latter is paid for that work.
I have no problems with needing licensed engineers being the ones who are liable for engineering projects they created and oversaw, but that doesn’t in any way preclude unlicensed engineers from being paid to give their opinions on those works.
Re: Re:
That’s not what I was intending to say, on the contrary I rely on the feedback from technicians, operators, drafters, etc. to make my work better. Truth be told, I’m getting that feedback whether I want it or not. As I tell people, I can put anything on paper…even if it’s impossible.
As well, I regularly delivered engineering products to people that weren’t PEs, or engineers, and they were responsible for evaluating what I provided. That’s not unreasonable.
What I was trying to say is that an Engineer that is out there advertising his services to provide his Professional opinion, he’s getting into protected areas. And this ruling even acknowledges that. It’s a pretty narrow reading by the court that the exemption of the report from protections only applies because this was for a legal matter. If it were him delivering his report to someone else under different circumstances, it probably wouldn’t have gone this way for him.
And this isn’t just protectionism, there are IMHO good reasons for that. For one, as a PE, I’m obligated (at the risk of my license) to notify other engineers if I’ve found an error in their work. This can put an expert witness in a quandary when the council that is paying their bills would rather you not do that, but this is for the public.
The other thing I didn’t connect when I first read it, and something that most people don’t think about: E&O insurance does NOT cover you when working for your family, or your church. Because fraud. lots and lots of fraud. And it was noted that Nutt was working for his son, though I doubt there’s much actual risk, and if he would have gone the route of getting licensed and setting up his business he would have been informed of this by his insurance broker.
I know, it’s a real fine line. As a person, people should be free to express their opinions about anything. But when you start doing business, it is a problem.
Re: Bad takes
Yours is the bad take.
Would you ban people from offering opinions on homeopathy unless they are licensed doctors? Even if they are medical researchers with advanced science degrees? Opinions can be positive or negative.
This case discussed speech and opinions, not the practice of engineering. You want to conflate these, but they are clearly not the same. Drawing up plans and diagrams for something that will be constructed: engineering. Offering a critique of those plans: speech.
Let’s also talk about other fields: what about “Software Engineers”? Some states don’t let them use the term “Engineer” (not explicitly, often, just a veiled threat). Do you think that qualified software experts should be required to get a PE license before they can practice “Software Engineering”?
Re: Re:
Maybe.
Re: Re:
I wouldn’t want someone who says they are a doctor advertising that they can proscribe alternatives to homeopathy, despite not being a licensed medical provider. Anyone can have opinions. Providing services is a very different thing.
This case most certainly discussed the practice of engineer. It’s in the text a bunch of times. It acknowledges that the report is considered an engineering work product. IT discuss the application of free speech to both of those things, the merits, references past court cases, etc. I’d suggest reading it, instead of lying about it.
And yes, my super spicy hot take is that Software Engineers that are offering consulting services or bespoke products (As in not test to standards by an NRTL) should absolutely be required to get a PE. We’re already there with Control Systems, which relies heavily on customer software running in PLCS, HMIS, etc.
The NCEES even had a Software Engineering PE for a few years…but because it wasn’t required anywhere, nobody took it.
To be clear, the NC State Board wildly over-reached, and got their pee-pee thwacked.
Re:
I understand there are reasons for the licensing process. However, licensing doesn’t equal competence. A qualified engineer from another country wouldn’t have a US license but would still be just as qualified to offer an opinion in the US. Similar with an engineer who had a license that lapsed or even someone with the same knowledge that never got a license or worked in the area. An opinion is either right or wrong regardless of whether the person is certified. I studied an undergrad curriculum independently and then went to grad school without a Bachelor’s in that area and found myself more than prepared. Was I less qualified because I didn’t have a degree?
Generally occupational licensing doesn’t in practice lead to better outcomes, but instead makes it harder for people, especially poorer people, to get into fields like hairdressing. The effect is a cartel that commands higher prices. Most jobs don’t require, and shouldn’t require, occupational licensing and most of the ones that do shouldn’t. Perhaps an exception should be made for doctors, lawyers, and engineers because the stakes are so high but your quotation above rings hollow.
Re: Re:
I agree that licensing, much like graduating from an accredited college, doesn’t guarantee competence. But it is a minimum bar that is set for the profession, and while not universal it’s is practiced quite globally. There are avenues to getting your PE in most states without a degree at all, though the boards are generally making that approach tougher. Which I strongly disagree with.
People from other countries regularly get licencees here in the US, quite easily. Most major countries even have comity whereby you use your existing license/certification to support your application for a new one. I’ve personally looked at it when I was seriously considering working abroad. I can get Comity to Texas, from Texas to Albert, from Alberta to Australia, and from Australia to New Zealand.
My wife is a medical professional, so I don’t really have experience with other instances but I’m totally willing to say if a licensing process doesn’t improve the quality then it should be reformed. Again, I look at the licensing effort as a protective measure for the public…and specifically for the public that is impacted but not part of the decisions making process. If you live downstream of a dam, I don’t think the requirement that the design be stamped by an engineer to show at least a modicum of technical competence, as opposed to none.
That said, I’m very confident the PE increase the quality of my profession, despite there are morons that have stamps. The first state to implement a PE/Land-surveyor licensing process was Wyoming(!). They saw an immediate improvement in the quality of submissions. The PE for Civil/Structural is an immensely hard test now, at least in part due to the ethical and professional failures that lead to the https://en.wikipedia.org/wiki/Hyatt_Regency_walkway_collapse
Re:
Mamba, you raise some good thoughts and make it clear that this isn’t a simple, binary, issue.
However, this:
endorses ad hominem arguments. Let the opposing side dispute the quality of Null’s work, not the title on his letterhead. If he’s not qualified to assess the drains, it should be easy enough to highlight the holes in his analysis. And, when a qualified expert makes a mistake, the same method works equally well.
Re: Re:
I think you and I agree, but I’m not doing a great job communicating my point around this. It’s not the PE title persay, its all about qualifications and experience. Because he never practiced as an engineer for the public, I think he lacks the similar work experience to be a credible opposing expert witness. Which clearly his legal team agreed with, as they also had a PE that practiced the profession and was testifying on the overall design. Where Nutt was limited to a very specific area of the design. I’ve been an owners engineer and I’ve also done public works projects, and man are they just different beasts. When you apply your seal to a document, which contains your registration number and issuing, state allowing anyone at anytime to track you down and sue you, it is a very different feeling than when I was doing work under another PE.
Though I will also say attacking the credibility of an expert witness is 100% an approach that will be taken by a legal team. Ad-hominem or not, technical or not, it is very much something that will happen in a court room. Which why we were/are lectured that you (meaning me, as a PE) are the one responsible for making sure I am an expert on the subject mater at hand and can not only defend it robustly, but that I “express an engineering opinion only when it is founded upon adequate knowledge of the facts, upon a background of technical competence, and upon honest conviction.” This is to mean that my opinion is not to be for sale, only my services. Changing an opinion from one case to another would see you potentially in a board investigation.
All of this is why being a good expert witness can be very lucrative. It is not unheard of for these fees to approach $1000 an hour for unique expertise on contentious cases. But man, the whole thing is just fraught with anxiety to me.
Re: Re: Re:
I’d be pissed if I was paying someone $1k/hr and they wrote stuff like “throw away”, “persay” and “owners engineer”. Feel free to disagree.
Re: Re: Re:2
I’m supposed to be getting paid for this?
Re:
Would it help if the quack were licensed, as “doctors” of Chiropractic are in some areas of the world? It seems that most people in North America don’t even know they’re not real medical doctors or that it’s considered “alternative medicine”.
Unlike you, I do have a bit of a problem with people casually calling themselves “engineers”, but also with “real” engineers calling themselves engineers when not acting in that capacity. Software “engineers” are a good example, if they’re not acting rigorously, carrying insurance, etc.; the shit that happens daily with software would easily trigger disciplinary proceedings if it happened in any “real” field of engineering. Some of it, like with self-driving vehicles, has even killed people.
Re: Re:
When someone graduates with an engineering degree, you can’t really stop them from calling themselves that. There’s a distinction between an graduated engineer and a Professional Engineer, but most people don’t know. So we here in North America make the distinction with capitalisation apparently.
You and I fully agree on software engineers in concept, but you need to keep in mind that the vast majority of engineers that work on physical products are not PEs, and will never have one. But they can deliver safe, reliable, excellent products b cause use standards and we require at that products meet NRTL requirements (UL, ect.). Software hasn’t done that so far, I’d like to see that for things like data management, cyber security, etc.
Glad to see that poor Leslie Horwinkle isn’t the only one to suffer this particular penalty.