Gray v. Dep't of Pub. Safety

2021 ME 19

JOSHUA A. GRAY v. DEPARTMENT OF PUBLIC SAFETY

No. Ken-20-168

Supreme Court of Maine

April 6, 2021

Argued: February 10, 2021

Revised: September 2, 2021

Roger L. Hurley, Esq. (orally), Camden, for appellant Joshua A Gray

Aaron M. Frey, Attorney General, and Kent Avery, Asst. Atty. Gen (orally), Office of the Attorney General, Augusta, for cross-appellant Department of Public Safety

Panel: MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.

HUMPHREY, J.

[¶1] In this appeal, we consider whether the First Amendment rights of an applicant for a professional license were abridged by the application of statutory competency standards to his conduct on social media.^[1]

[¶2] Joshua A. Gray appeals from a judgment of the Superior Court (Kennebec County, Murphy, J.) affirming the Department of Public Safety's denial of Gray's application for a professional investigator license based on posts and comments that Gray made on social media, using an account bearing the name of his out-of-state private investigation business, concerning a Maine State Police lieutenant. Gray argues that the court erred in concluding that the Department had not, in denying his application, violated his free speech rights conferred by the First and Fourteenth Amendments of the United States Constitution.^[2] Although Gray challenges the determination that he acted with "actual malice"^[3] in posting and commenting on social media, we conclude that actual malice need not be shown and that we must apply intermediate scrutiny to review the licensing standards as applied to Gray here. Applying that standard, we affirm the judgment.

I. BACKGROUND

[¶3] On January 26, 2018, Gray applied to the Department for a professional investigator license. See 32 M.R.S. § 8107 (2020). The Chief of the Maine State Police issued the decision of the Department denying Gray's application on August 31, 2018. See 32 M.R.S. §§ 8103(1-B), 8113 (2020). The Department found that Gray had made "materially false" statements on social media, including on his private investigation business's Facebook page, which cast into question Gray's "ability to competently investigate and then report investigative findings with accuracy, objectivity, and without bias," and, as a result, that Gray lacked the requisite competency and fitness of character to act as a professional investigator in Maine.

[¶4] Gray appealed to the Superior Court. See 5 M.R.S. § 11001(1) (2020); M.R. Civ. P. 80C. The court held that the Department could not deprive Gray of a license for having expressed himself on social media unless the statements he made fell outside the protection of the First Amendment. The court remanded for the Department to determine whether the limited privilege that applies to even false statements about public figures on matters of public concern was overcome by a finding, by clear and convincing evidence, that Gray made the statements on social media with "actual malice," meaning with knowledge that the statements were false or with reckless disregard of their truth or falsity. N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964); see Pickering v. Bd. of Educ, 391 U.S. 563, 573-75 (1968).

[¶5] On remand, the Department propounded thirty-nine questions to Gray about certain assertions he had made using a social media account identifying himself as a "PI" and including the name of his Massachusetts private investigation business, NSI Surveillance & Investigation. Gray responded to the questions and admitted that he had made on social media posts and comments that stated that a Maine State Police lieutenant was "[p]ossibl[y] drunk" during the time of a police incident that resulted in a woman's death and that the lieutenant had "murdered" the woman. He asserted to the Department that the statements were opinions, not facts, and that when he learned that another officer-not the lieutenant whom he had named-had shot the woman, he provided that information on social media. He also admitted that he had stated on social media that the lieutenant had been the subject of multiple internal affairs investigations, though he again asserted that his statement was an expression of opinion.

[¶6] During its examination of Gray's responses, the Department reviewed affidavits from (1) the lieutenant in question, who swore that he had not consumed alcohol on the day of the incident or at any time during his life, and (2) the commander of the Department's Office of Professional Standards (OPS), formerly the Office of Internal Affairs, who reported that only one complaint had been made against the lieutenant-a complaint initiated by Gray that had resulted in an investigation. The Department also considered hundreds of pages of printouts of Gray's posts and comments on social media and other internet platforms.

[¶7] The Department issued a second decision denying Gray's application, finding that Gray had made certain statements on social media with actual malice-knowing that they were false or with reckless disregard of their truth or falsity-including statements about the lieutenant's intoxication; statements that the lieutenant had "murdered," "executed," or "killed" the woman who died in the incident; and statements that the lieutenant had been subject to multiple complaints filed with the OPS.

[¶8] The decision also stated, however, that the actual malice standard did not apply because even if Gray had the right to say the things he did, he was not entitled to a professional license if he did not meet the competency and character standards for a professional investigator. The Department found that Gray had reported erroneous, uninvestigated conclusions on social media, placing behind those conclusions "the authority of the reputation of [Gray's] business" and of "the private investigator license of the State of Massachusetts." The Department also found that Gray "lacks the basic competency and requisite good moral character" to hold a professional investigator's license and that his "communications have demonstrated a pattern of reckless disregard for the truth."

[¶9] On October 28, 2019, Gray again appealed to the Superior Court by filing a petition for review of the Department's denial of his application for a license. See 5 M.R.S. § 11001(1); M.R. Civ. P. 80C. The court entered a judgment on June 1, 2020, affirming the Department's decision, concluding that the Department's finding of actual malice was supported by the administrative record. Gray timely appealed, and the Department cross-appealed. See 5 M.R.S. § 11008 (2020); M.R. App. P. 2B(c)(1).

II. DISCUSSION

[¶10] We review an administrative agency's decision "directly for errors of law, abuse of discretion, or findings not supported by substantial evidence in the record." Palian v. Dep't of Health & Hum. Servs., 2020 ME 131, ¶ 10, 242 A.3d 164 (quotation marks omitted). To conduct this review here, we will (A) summarize the standards governing the licensing of professional investigators in Maine and (B) review whether the Department, in denying Gray's license application, violated the First Amendment.

A. Standards for Licensing Professional Investigators

[¶11] Licensed professional investigators in Maine are authorized to conduct private investigations, including by accepting consideration to obtain information about a crime committed in violation of the law or "[t]he identity, habits, conduct, movements, whereabouts, affiliations, associations, transactions, reputation or character of any person." 32 M.R.S. § 8103(4-A)(A), (B) (2020). The statutes governing the licensing of professional investigators in Maine establish qualifications for a license, an application process, and standards for denying an application. See 32 M.R.S. §§ 8105, 8107, 8113 (2020).

[¶12] To qualify for a professional investigator license, a person must have "demonstrated good moral character." Id. § 8105(4). The Chief of the Maine State Police may refuse to issue a license if an applicant is incompetent, meaning that the applicant "[e]ngaged in conduct that evidences a lack of ability or fitness to discharge the duty owed by the licensee to the client or the general public" or "[e]ngaged in conduct that evidences a lack of knowledge or an inability to apply principles or skills to carry out the practice" for which the person seeks the license. Id. § 8113(6). A license may also be denied if the applicant has violated "standards of acceptable professional conduct adopted by rule" by the Chief of the Maine State Police. Id. § 8113(11); see 32 M.R.S. § 8103(1-B). No standards of conduct have been adopted by rule, however, ^[4]meaning that the applicable standards are those provided by statute.

B. First Amendment

[¶13] The construction of the First Amendment presents a question of law that we review de novo. See Palian, 2020 ME 131, ¶ 10, 242 A.3d 164; Burr v. Dep't of Corr., 2020 ME 130, ¶ 20, 240 A.3d 371.

[¶14] The First Amendment provides, "Congress shall make no law .. . abridging the freedom of speech" U.S. Const, amend. I. By virtue of the Fourteenth Amendment, the prohibition against governmental abridgement of the freedom of speech applies to state governments. See U.S. Const, amend. XIV, § 1 ("No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States"); Jones v. Sec'y of State, 2020 ME 113, ¶ 19, 238A.3d982.

[¶15] Gray argues that the record does not support a finding of actual malice, but the Department argues in response that the actual malice standard is not applicable. To resolve this dispute, we (1) determine the proper standard for evaluating whether the First Amendment has been violated in these circumstances, and (2) apply that standard in reviewing the...