Amicus Brief: Upsolve v. James

Upsolve, Inc. is a nonprofit that seeks to help New Yorkers understand and respond to the large number of consumer debt collection lawsuits in the state. One quarter of cases filed in the state's courts are for collecting consumer debt. Many of these lawsuits are meritless attempts to collect a debt that isn't even owed. But if a defendant doesn't properly respond to the lawsuit, they will get a default judgment against them.

New York lawmakers recognized the problem and created a simple form to help defendants respond to debt-collection lawsuits. Yet many still need help with the form, and there aren't enough lawyers in the state to provide assistance. Enter Upsolve, which hopes to fill the gap by training nonlawyers to provide free legal advice to low-income New Yorkers who need a little help with the response form. The advice would just concern the form, and it wouldn't entail representing anyone in court or other legal proceedings.

New York, however, has very strict rules governing the "unauthorized practice of law." Even giving unpaid, one-on-one legal advice on filling out a simple form, while providing disclaimers, is a crime. Upsolve sued, arguing that the restrictions violate the First Amendment. Simple, narrow and spoken legal advice is, after all, just speech. The district court agreed with Upsolve, but the Second Circuit overturned, holding that the restrictions were not based on the content of the speech but on the "purpose, focus, and circumstance" of the speech.

Now on petition for Supreme Court review, the Manhattan Institute has filed a brief in support of Upsolve. The Court will soon issue an opinion in Chiles v. Salazar, a First Amendment challenge to a ban on licensed therapists giving so-called "conversion therapy." That case concerns many of the same questions. We argue that the Court should take the case to clarify the meaning of "content-based" restrictions on speech. Many First Amendment challenges rise or fall based on whether the courts conclude that the law is content-based, which means that the law bans or curtails speech based on the content of the speech. The Second Circuit confusingly held that NY's law restricting legal advice was not content-based, even though the law is entirely triggered by the content of the speech (i.e. giving legal advice). That ruling continues a problem in some circuits of getting around Supreme Court precedent on the meaning of a content-based restriction. The Court should review Upsolve's case to clarify that restrictions based on the content of speech should be given strict constitutional review.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

Trevor Burrus is a legal policy fellow at the Manhattan Institute.

With thanks to associate Sam Foer

Photo: FG Trade Latin / E+ via Getty Images