The Mississippi Justice Institute, along with the Cato Institute, and the Pelican Institute have come to the defense of Vizaline LLC, a Mississippi tech startup that the government wants to put out of business.
The three constitutional litigation centers filed an amicus (friend of the court) brief on May 1 that urges the U.S. Fifth Circuit Court of Appeals to reverse a wrongful dismissal of the Mississippi company’s lawsuit against the government. Vizaline utilizes a publicly-available legal description of a bank’s property and then inputs those parameters into a computer program that generates a line drawing of the property description. The program then overlays those drawings onto a satellite photograph and the customer receives the Viza-plat within 48 hours.
Vizaline helps by giving a bank a bird’s eye view of the property that is being used as collateral. This service helps smaller community banks because it allows them to identify and resolve any discrepancies that might require the assistance of a surveyor or an attorney.
The company doesn’t send employees to job sites to conduct surveys or place markers and says on its website that its Viza-plat product is not a legal survey or intended to replace one.
The Mississippi Board of Licensure for Professional Engineers and Surveyors filed a lawsuit in Madison County Chancery Court against Vizaline in September 2017, accusing the company of engaging in the “unlicensed practice of surveying” and seeking the return of all of the fees paid to the company.
With the help of the Institute for Justice, the company filed a counter suit on First Amendment grounds in July 2018, but the counter suit was wrongfully dismissed on December 18.
The amicus brief argues that the December decision by a federal district court contradicts several U.S. Supreme Court decisions that uphold the concept that the dissemination of public information, even done for profit, is protected under the First Amendment.
The brief also argues that the board is another “instance of an unelected state board overreaching its authority for protectionist purposes” and that courts should apply closer scrutiny to overly broad licensing laws are used to shield existing businesses from more innovative competitors.
The District Court held that the licensing restrictions only “incidentally infringed” on Vizaline’s free speech rights and therefore did not violate the First Amendment.
The key Supreme Court decision cited in the brief is NIFLA v. Becerra, which was a landmark decision in 2018 for professional speech and the First Amendment. In that case, California regulators tried to convince the court that they were only regulating professional speech regarding Christian non-profits and state-provided contraception and abortion services.
The court, in a 5-4 decision, held that speech is speech and there is no separation between types, such as so-called “professional speech”. The decision written by Justice Clarence Thomas also held that the consequence of not protecting professional speech would be that states would reduce a group’s First Amendment rights by imposing a licensing requirement.
The Supreme Court came to the same conclusion in two earlier cases cited in the brief — Sorrell v. IMS Health Inc. in 2011 and Riley v. National Federation of the Blind of N.C. Inc. in 1988 — that professional speech was protected by the First Amendment.
Vizaline resulted from the collaboration by Mississippi entrepreneurs Scott Dow and Brent Melton. Melton retired after 42 years in the banking industry. Dow came from the networking, remote sensing and geospatial modeling worlds and started his first company while still in college.
They met at the Mississippi Enterprise for Technology at the Stennis Space Center where Melton presented his idea before a group of tech entrepreneurs. The Viza-plat arrived on the market in April 2014.
The dispute started in 2015, when the Board of Licensure asked Vizaline to place a disclaimer on their website to ensure customers knew the Viza-plat wasn’t a survey. Vizaline complied with the board’s request, but the board sued them anyway.
Download the full amicus brief here.