Citing First Amendment, Private Investigator Asks Supreme Court to Review License Denial

By Matthew Vadum
Matthew Vadum
Matthew Vadum
contributor
Matthew Vadum is an award-winning investigative journalist and a recognized expert in left-wing activism.
September 15, 2021 Updated: September 16, 2021

A private investigator is asking the U.S. Supreme Court to reverse a decision by the Maine Department of Public Safety denying him a license to practice his profession because he criticized a Maine State Police officer’s conduct in a fatal shooting.

The investigator, Joshua Gray, claims that the denial of the license constitutes a violation of his right to free speech under the First Amendment, according to his attorneys at the Institute for Justice (IJ), a public interest law firm with a special interest in occupational licensing issues.

“When the government retaliates against people because of their speech, it violates the First Amendment,” IJ senior attorney and lead counsel Paul Sherman said in a statement.

“That’s true whether the government is imposing a fine, withholding a parade permit, or denying an occupational license.”

The petition for review in Gray v. Maine Department of Public Safety, court file 21-375 (pdf), was filed with the Supreme Court on Sept. 3. A response from the state is due Oct. 12. The Maine Supreme Judicial Court ruled against Gray on April 6, finding that the license refusal was lawful.

Gray’s problems go back four years to February 2017, when he criticized the behavior of Maine police in the fatal shooting of 25-year-old Kadhar Bailey and 18-year-old Amber Fagre. Gray expressed his opinion on his Facebook page that the shooting could have been avoided but for reckless conduct by the police, and made some statements in the process that the department believed were erroneous, IJ stated in a summary.

According to court documents, Gray, who already had a private investigation business called NSI Surveillance & Investigation in neighboring Massachusetts, applied to the department for a “professional investigator” license in Maine on Jan. 26, 2018. On behalf of the department, the chief of the Maine State Police denied Gray’s application on Aug. 31, 2018, saying Gray had made “materially false” statements on social media, which called into question his “ability to competently investigate and then report investigative findings with accuracy, objectivity, and without bias,” and demonstrated that he lacked the required competency and fitness of character to act as a professional investigator in Maine.

A state appeals court held that the department couldn’t deny Gray the license for having expressed himself on social media unless the statements he made fell outside the protection of the First Amendment. The court asked the department to reconsider the matter and it did so by posing a series of questions to Gray about the police incident he complained about.

Although Gray admitted he alleged on social media that a Maine State Police lieutenant had disciplinary problems and may have been drunk when he had “murdered,” “executed,” or “killed” the female victim, the department determined that the officer had never been investigated by the internal affairs department until Gray complained about him. The lieutenant also swore an affidavit that he has never consumed alcohol in his life.

The department then issued a second decision denying the license, Gray appealed, and the Maine Supreme Judicial Court ruled against Gray this past April, finding that the First Amendment was not implicated in the case.

“Police shootings are one of the most widely debated political issues today,” Gray said in a statement released by IJ. “If I had praised the Maine police for the shooting of Kadhar Bailey and Amber Fagre, they would have had no excuse for denying me a professional investigator’s license. They singled me out because I criticized them. That’s censorship, and it violates my First Amendment rights.”

The office of Maine Attorney General Aaron Frey, a Democrat, didn’t immediately respond to a request by The Epoch Times for comment.

Matthew Vadum
contributor
Matthew Vadum is an award-winning investigative journalist and a recognized expert in left-wing activism.