IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-60053

VIZALINE, L.L.C.; BRENT MELTON, 

 Plaintiffs-Appellants

v.

SARAH TRACY, P.E.; BILL MITCHELL, P.E./P.S.; JOSEPH FRANKLIN 

LAUDERDALE, P.E./P.S.; JOSEPH E. LAUDERDALE, P.E./P.S.; STEVEN 

A. TWEDT, P.E.; DOCTOR DENNIS D. TRUAX, P.E.; RICHARD THOMAS 

TOLBERT, P.S.; JOE W. BYRD, P.S.; SHANNON D. TIDWELL, P.S.,

 Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Mississippi

Before OWEN, Chief Judge, and BARKSDALE and DUNCAN, Circuit Judges.

STUART KYLE DUNCAN, Circuit Judge:

We address a First Amendment challenge to Mississippi’s occupationallicensing regime for surveyors.

Vizaline, L.L.C., converts existing legal descriptions of real property into 

computer-generated drawings and then sells them to community banks as a 

low-cost alternative to formal land surveys. Believing Vizaline’s practice 

constitutes the unlicensed practice of surveying, the Mississippi Board of 

Licensure for Professional Engineers and Surveyors sued Vizaline to enjoin its 

business and disgorge its profits. In turn, Vizaline sued the Board, alleging 

United States Court of Appeals

Fifth Circuit

FILED

February 14, 2020

Lyle W. Cayce

Clerk

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that as applied to its practice, Mississippi’s surveyor-licensing requirements 

violate the First Amendment. See, e.g., Sorrell v. IMS Health, Inc., 564 U.S. 

552, 570 (2011) (explaining the Supreme Court “has held that the creation and 

dissemination of information are speech within the meaning of the First 

Amendment”). The Board moved to dismiss on the ground that occupationallicensing requirements like Mississippi’s are immune from First Amendment 

scrutiny. The district court agreed and dismissed Vizaline’s suit.

The Supreme Court has recently disavowed the notion that occupationallicensing regulations are exempt from First Amendment scrutiny. In 

overturning the “professional speech” doctrine deployed by some circuits, 

including ours,1 the Court rejected any theory of the First Amendment that 

“gives the States unfettered power to reduce a group’s First Amendment rights 

by simply imposing a licensing requirement.” Nat’l Inst. of Family & Life 

Advocates v. Becerra [NIFLA], 138 S. Ct. 2361, 2375 (2018). The district court’s 

ruling in this case—that Mississippi’s licensing requirements for surveyors do 

not trigger any First Amendment scrutiny—was inconsistent with NIFLA. We 

therefore reverse and remand for further proceedings.

I.

According to the complaint, plaintiff-appellant Vizaline, L.L.C.,2

converts existing metes-and-bounds3 descriptions of real property into “simple 

map[s].” It does so through a computer program that overlays lines onto 

1 Our decision in Hines v. Alldredge, 783 F.3d 197, 202 (5th Cir. 2015), adopted the 

professional speech doctrine. As explained below, Hines’ reasoning does not survive NIFLA.

2 Brent Melton, one of Vizaline’s two owners, is also a plaintiff-appellant. We refer to 

Melton and Vizaline collectively as “Vizaline.”

3 As the complaint explains, “[m]etes and bounds descriptions are established by 

surveyors” and “are used as legal descriptions for property in deeds, easements, and other 

legal documents.” Accord Metes and bounds, Black’s Law Dictionary (10th ed. 2014) (defining 

“metes and bounds” as “[t]he territorial limits of real property as measured by distances and 

angles from designated landmarks and in relation to adjoining properties”).

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satellite images. Vizaline sells these maps exclusively to community banks who 

would otherwise have to obtain costly surveys of small, “less-expensive”

properties that serve as loan collateral. Vizaline does not “establish or purport 

to establish metes and bounds descriptions of property,” “locate control 

monuments[,] or measure items that are not defined within the legal 

description.” Nor does it “locate, relocate, establish, reestablish, lay out[,] or 

retrace any property boundary or easement.” The only thing Vizaline does is 

make “simple map[s]” from legal descriptions of real property and sell them to 

community banks. Furthermore, Vizaline “does not market its services as a 

survey or as a substitute for surveys” and alerts its customers that its product 

“is not a Legal Survey” and is not “intended to be or replace a Legal Survey.”

When Vizaline encounters potential discrepancies in a drawing—for instance, 

if the metes-and-bounds descriptions do not form a closed shape—Vizaline 

recommends its customers resolve the issue by hiring licensed surveyors to 

perform a formal survey. Vizaline has six employees and operates in five 

states, serving over thirty community banks.

In May 2015, the Mississippi Board of Licensure for Professional 

Engineers and Surveyors, whose members are the defendant-appellants here,4

took notice of Vizaline’s practice and “called on Vizaline to revise its website, 

not market to the general public, and clarify that Vizaline’s work product is 

not intended to be used as a survey.” Vizaline complied.

Two years later, the Mississippi Attorney General, on behalf of the

Board, sued Vizaline in state court. According to the Board, Vizaline is engaged 

in the practice of surveying without a license, which is a civil and criminal 

offense. See Miss. Code § 73-13-95 (“Any person who shall practice, or offer to 

practice, surveying in this state without being licensed . . . shall be guilty of a 

4 We refer to the Board and its members collectively as “the Board.”

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misdemeanor . . . .”); id. (providing for “criminal penalties” in addition to civil 

penalties). The Board alleges that Vizaline violated Mississippi Code § 73-13-

95(c), which prohibits “receiv[ing] any fee” for performing “any service, work, 

act or thing which is any part of the practice of surveying” without a surveying 

license.5 The Board’s lawsuit, which is ongoing, seeks an injunction against 

Vizaline’s practice and disgorgement of all its compensation.

In addition to defending against the Board’s lawsuit, Vizaline filed this 

action,6 claiming application of § 73-13-95 (the “licensing requirements”) to its 

practice violates the First Amendment. Vizaline argues that its practice—

5 As used in this provision, “the practice of surveying” means

providing professional services such as consultation, investigation, testimony 

evaluation, expert technical testimony, planning, mapping, assembling and 

interpreting reliable scientific measurement and information relative to the 

location, size, shape or physical features of the earth, improvements on the 

earth, the space above the earth, or any part of the earth, utilization and 

development of these facts and interpretation into an orderly survey map, plan 

or report and in particular, the retracement of or the creating of land 

boundaries and descriptions of real property.

Miss. Code § 73-13-71(4). Among other things, the term includes:

(a) Locating, relocating, establishing, reestablishing, laying out or retracing 

any property boundary or easement[,]

(b) Making any survey for the subdivision of any tract of land, including rightsof-way and easements[,]

(c) Determining, by the use of principles of surveying, the position for any 

survey monument or reference point; or setting, resetting or replacing any such 

monument or reference point, commonly known as control surveys[,] [and]

(d) Creating, preparing or modifying electronic or computerized data, including 

land information systems and geographic information systems, relative to the 

performance of the activities in the above-described paragraphs (a) through (c).

Id.

6 Vizaline’s action was initially postured as a third-party complaint against the 

Board’s members. This is because the plaintiff in the Board’s lawsuit is the Board itself, 

which is not a “person” under 42 U.S.C. § 1983. See Will v. Mich. Dep’t of State Police, 491 

U.S. 58, 70 (1989) (state agencies are not persons).

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generating “simple map[s]” using existing legal property descriptions and

selling those “visual depictions” to customers—is dissemination of information, 

which is speech under the First Amendment. See Sorrell, 564 U.S. at 570

(noting “creation and dissemination of information are speech for First 

Amendment purposes” (citing Bartnicki v. Vopper, 532 U.S. 514, 527 (2001)).

Vizaline likens its visual depictions to matter it contends the Supreme Court 

has treated as “speech,” such as information pharmacies gather regarding 

physicians’ prescribing habits. See id. at 558. Vizaline also points out that the 

fact that it sells this speech does not “diminish[]” its First Amendment 

protection. See City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 756 

n.5 (1988). Along the same lines, Vizaline highlights the Supreme Court’s 

recent reaffirmance of the principle that “provid[ing] specialized advice”

qualifies as protected speech. See NIFLA, 138 S. Ct. at 2374 (citing Holder v. 

Humanitarian Law Project, 561 U.S. 1, 27–28 (2010)).7

The Board moved to dismiss Vizaline’s complaint, citing the states’ 

“broad power to establish standards for licensing practitioners and regulating 

the practice of professions.” See Hines v. Alldrege, 783 F.3d 197, 201 (5th Cir. 

2015). The Board argued that under NIFLA, the licensing requirements 

“regulate professional conduct” which “incidentally involves speech.” The 

district court agreed, concluding that regulations that dictate “who is 

permitted to provide certain professional services and who is not . . . do not 

trigger First Amendment scrutiny.” Analyzing Mississippi’s licensing 

requirements as occupational-licensing regulations, the district court 

distinguished NIFLA and held that the requirements merely “incidentally 

7 Because our holding is cabined to reversing the district court’s decision that 

occupational-licensing requirements are immune from First Amendment scrutiny, we do not 

decide whether, or to what extent, Vizaline’s practice involves protected speech.

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infringed upon” Vizaline’s speech because they only “determin[e] who may 

engage in certain speech.” The court therefore granted the Board’s motion to 

dismiss. Vizaline timely appealed.

II.

“We review de novo a district court’s dismissal under Rule 12(b)(6).”

Cicalese v. Univ. of Tex. Med. Branch, 924 F.3d 762, 765 (5th Cir. 2019) 

(citation omitted).

III.

On appeal, Vizaline argues the district court erred in holding that 

occupational-licensing restrictions are categorically exempt from First 

Amendment scrutiny. We agree.

The district court’s holding that occupational-licensing provisions “do not 

trigger First Amendment scrutiny” is contrary to the Supreme Court’s decision 

in NIFLA, 138 S. Ct. 2361. NIFLA makes clear that occupational-licensing 

provisions are entitled to no special exception from otherwise-applicable First 

Amendment protections. Rather, the relevant question is whether, as applied 

to Vizaline’s practice, Mississippi’s licensing requirements regulate only

speech, restrict speech only incidentally to their regulation of non-expressive

professional conduct, or regulate only non-expressive conduct. Id. at 2372–73.

The district court did not perform this analysis, and it should do so in further 

proceedings on remand.

NIFLA involved a First Amendment challenge to the California 

Reproductive Freedom, Accountability, Comprehensive Care, and 

Transparency Act (the “FACT Act”). Id. at 2368. The FACT Act required 

certain clinics that serve pregnant women to notify their patients that 

“California provides free or low-cost services, including abortions, and give 

them a phone number to call.” Id. Several pregnancy centers challenged the 

FACT Act on First Amendment grounds. Id. at 2370. Applying a “lower level 

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of scrutiny” to the notice requirements, the district court and the Ninth Circuit 

rejected the challenge by applying the so-called “professional speech” doctrine. 

Id. (citations omitted; cleaned up).

This doctrine had been deployed by some circuits to “except” from normal 

First Amendment scrutiny regulations of speech by “professionals.” Id. at 2371. 

“Professionals” were “individuals who provide personalized services to clients 

and who are subject to ‘a generally applicable licensing and regulatory 

regime.’” Id. (quoting Moore-King v. Cty. of Chesterfield, 708 F.3d 560, 569 (4th 

Cir. 2013)). “Professional speech” was, in turn, “any speech by these 

individuals that is based on their expert knowledge and judgment,” id. (quoting 

King v. Governor of N.J., 767 F.3d 216, 232 (3d Cir. 2014)) (cleaned up), or that

occurred “within the confines of the professional relationship,” id. (quoting 

Pickup v. Brown, 740 F.3d 1208, 1227–29 (9th Cir. 2014) (cleaned up). The 

upshot of the doctrine was that “a state’s regulation of a profession raises no 

First Amendment problem where it amounts to generally applicable licensing 

provisions affecting those who practice the profession.” Moore-King, 708 F.3d 

at 569 (citations omitted; cleaned up); accord Accountant’s Soc. of Va. v. 

Bowman, 860 F.2d 602, 604 (4th Cir. 1988) (“A statute that governs the 

practice of an occupation is not unconstitutional as an abridgment of the right 

to free speech, so long as any inhibition of that right is merely the incidental 

effect of observing an otherwise legitimate regulation.” (citation omitted; 

cleaned up)).

In NIFLA, the Supreme Court rejected the professional speech doctrine,

holding instead that the FACT Act’s notice requirements were subject to

typical First Amendment scrutiny. NIFLA, 138 S. Ct. at 2370–76. Specifically, 

the Court rejected the Third, Ninth, and Fourth Circuits’ demarcation of 

“‘professional speech’ as a separate category of speech that is subject to 

different rules.” Id. at 2371 (citing King, 767 F.3d at 232; Pickup, 740 F.3d at

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1227–29; and Moore-King, 708 F.3d at 568–70). While it did not “foreclose the 

possibility that some such reason exists” for treating professional speech 

differently, id. at 2375, the Court explained that “[s]peech is not unprotected 

merely because it is uttered by ‘professionals.’” Id. at 2371–72. A professional 

speech exception, it warned, would “give[] the States unfettered power to 

reduce a group’s First Amendment rights by simply imposing a licensing 

requirement.” Id. at 2375.

Instead of recognizing a new category of unprotected speech, the Court 

adhered to the traditional conduct-versus-speech dichotomy. See id. at 2374–

76 (collecting decisions and observing that “this Court’s precedents have long 

drawn” the “line between speech and conduct”). “[P]rofessionals are no 

exception to th[e] rule” that states may enact “regulations of professional 

conduct that incidentally burden speech.” Id. This was merely an application

of the general principle that legislatures may “impos[e] incidental burdens on 

speech” by regulating “commerce or conduct.” Id. (citing Sorrell, 564 U.S. at

567). Applying that analysis, the Court held that the Act’s notice requirements

were a content-based restriction on speech that failed to satisfy even lesser

scrutiny for conduct regulations that incidentally burden speech. See id. at 

2375–76 (applying “intermediate scrutiny” and concluding the Act was “not 

sufficiently drawn to achieve” any substantial state interest).

In dismissing Vizaline’s free speech challenge to Mississippi’s surveyorlicensing requirements, the district court erred in distinguishing NIFLA. The 

court distinguished NIFLA on the ground that it did not involve occupationallicensing restrictions, i.e., “restrictions on who may engage in a profession.” In

the court’s view, occupational-licensing restrictions—like Mississippi’s 

surveyor regulations—restrict only conduct, not speech. The court therefore 

held that Mississippi’s regulations only “incidentally infringed upon” Vizaline’s 

speech because they merely “determin[e] who may engage in certain speech.” 

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The court therefore applied no First Amendment scrutiny to the surveyorlicensing requirements.

This analysis runs afoul of NIFLA. By discarding the professional speech 

doctrine, NIFLA rejected the proposition that First Amendment protection 

turns on whether the challenged regulation is part of an occupational-licensing

scheme. See 138 S. Ct. at 2375. The Court overruled circuit decisions that had 

exempted regulations from First Amendment scrutiny merely because they 

arose from “generally applicable licensing provisions affecting those who 

practice the profession.” Moore-King, 708 F.3d at 569 (citations omitted; 

cleaned up). In other words, application of the now-discarded professional 

speech doctrine often went hand-in-hand with occupational-licensing regimes. 

See, e.g., id. at 569–70 (applying doctrine to a “licensing and regulatory regime 

for fortune tellers”); Bowman, 860 F.2d at 603 (addressing statute governing 

“licensing and regulating the profession of accountancy in Virginia”).

Accordingly, the Court warned that the doctrine gave “the States unfettered 

power to reduce a group’s First Amendment rights by simply imposing a 

licensing requirement.” 138 S. Ct. at 2375 (emphasis added); see also id.

(observing that courts applying the professional speech doctrine had held a 

“profession” means simply that the activity “involves personalized services and 

requires a professional license from the State” (emphasis added)). The Court 

thus made clear that First Amendment scrutiny does not turn on whether 

censored speakers are professionals, licensed or not. Instead, NIFLA

reoriented courts toward the traditional taxonomy that “draw[s] the line 

between speech and conduct.” Id. at 2373; see also, e.g., Sorrell, 564 U.S. at 567 

(explaining that “the First Amendment does not prevent restrictions directed 

at commerce or conduct from imposing incidental burdens on speech” (citing 

Rumsfeld v. Forum for Acad. and Inst. Rights, Inc., 547 U.S. 47, 62 (2006); 

R.A.V. v. St. Paul, 505 U.S. 377, 385 (1992); Giboney v. Empire Storage & Ice 

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Co., 336 U.S. 490, 502 (1949))).8

The district court also relied on our pre-NIFLA decision in Hines v. 

Alldredge for the proposition that “generally applicable licensing provisions 

limiting the class of persons who may practice the profession” are not “subject 

to First Amendment scrutiny.” 783 F.3d at 202 (citation omitted). Vizaline 

argues that NIFLA abrogated Hines to the extent that Hines relied on the 

professional speech doctrine. We agree.

Hines rejected a First Amendment challenge to Texas’s requirement that 

a veterinarian physically examine an animal before treating it. Id. at 198, 202. 

Our court “beg[a]n—and end[ed]—[its] First Amendment analysis” with the 

principle that “States have broad power to establish standards for licensing 

practitioners and regulating the practice of professions.” Id. at 201 (citations 

omitted; cleaned up). It observed that “[i]f the government enacts generally 

applicable licensing provisions limiting the class of persons who may practice 

the profession, it cannot be said to have enacted a limitation on freedom of 

speech or the press subject to First Amendment scrutiny.” Id. at 202 (citation 

omitted). Hines further noted that different treatment for “content-neutral 

regulation of the professional-client relationship . . . has been embraced by 

many circuits.” Id. (citing, inter alia, Moore-King, 708 F.3d at 569–70). Finally,

8 Defending the district court’s opinion, the Board cites the plurality opinion in 

Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) (opinion of 

O’Connor, Kennedy, and Souter, JJ.), for the proposition that “there is no need for 

consideration of” whether the practice is “conduct” or “speech” or whether any burden is 

“incidental” or “non-incidental.” But NIFLA also forecloses that argument. NIFLA 

specifically treated Casey as an example of lesser scrutiny given to “regulations of 

professional conduct that incidentally burden speech.” 138 S. Ct. at 2373 (emphasis added). 

According to NIFLA, Pennsylvania’s requirement that abortion providers provide informed 

consent “regulated speech only as part of” the conduct involved in practicing medicine. Id.

(citing Casey, 505 U.S. at 884) (emphasis in original). It was that characteristic, not special 

treatment for occupational-licensing restrictions, that saved the informed-consent 

requirement.

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Hines analyzed the Texas requirement based not on whether it regulated

conduct or speech, but on whether it was a “state regulation of the practice of 

a profession.” Id. at 201.

Prior to NIFLA, our court suggested that Hines adopted some form of the 

professional speech doctrine. See Serafine v. Branaman, 810 F.3d 354, 359 & 

n.3 (5th Cir. 2016). NIFLA has now rejected that doctrine, making Hines’ 

reasoning unsound. Indeed, Hines relied in part on the Fourth Circuit’s MooreKing decision, a professional speech case NIFLA rejected by name. See Hines, 

783 F.3d at 202 (citing Moore-King, 708 F.3d at 569–70); see also NIFLA, 138 

S. Ct. at 2371 (rejecting Moore-King). We therefore must recognize that, to the 

extent Hines relied on the professional speech doctrine, its reasoning has been

abrogated by NIFLA. Cf. Capital Associated Indus., Inc. v. Stein, 922 F.3d 198, 

207 (4th Cir. 2019) (acknowledging NIFLA’s abrogation of Fourth Circuit’s 

professional speech doctrine).9

* * *

While we hold the district court erred by categorically exempting 

occupational-licensing requirements from First Amendment scrutiny, we 

express no view on what level of scrutiny might be appropriate for applying

Mississippi’s licensing requirements to Vizaline’s practice. We also need not 

decide to what degree Vizaline’s practice constitutes speech or conduct. We 

merely reiterate NIFLA’s insistence on the conduct-speech analysis.

Similarly, we say nothing to suggest that Mississippi has no valid

interests in regulating Vizaline’s practice. Whatever its regulatory interests 

might turn out to be, though, Mississippi’s surveyor requirements are not 

wholly exempt from First Amendment scrutiny simply because they are part 

9 We express no opinion on whether the Texas regulation at issue in Hines would have 

been upheld under the proper conduct-versus-speech analysis.

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of an occupational-licensing regime.

We therefore REVERSE the district court’s judgment dismissing 

Vizaline’s First Amendment claims and REMAND for further proceedings 

consistent with this opinion.

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