A private investigator from Massachusetts who was denied a license to practice in Maine over his postings about a fatal police shooting in 2017 is taking his case to the U.S. Supreme Court.
Joshua A. Gray, whose firm NSI Surveillance & Investigation is based in Boston, claims the Maine Department of Public Safety, which licenses private investigators in Maine, violated his right to free speech under the First Amendment when the agency denied him a license.
The state agency claimed Gray’s postings about the shooting deaths of Kadhar Bailey, 25, of Gardiner and Ambroshia “Amber” Fagre, 18, on Feb. 20, 2017, showed he did not have the good character and competency to serve as an investigator in Maine.
In denying Gray’s application, the department found that he made uninvestigated and false claims about a Maine State Police lieutenant involved in the shootings on his business’ Facebook page and said that Fagre had been “murdered,” among other things.
The Maine attorney general’s office found the shootings were justified, but that police were aiming at Bailey when bullets struck Fagre.
Gray is represented by the Virginia-based Institute for Justice. The group is also representing families from Maine who are challenging the state’s ban on public funding for religious schools. The Supreme Court will take up that case in its next term.
“When the government retaliates against people because of their speech, it violates the First Amendment,” Gray’s attorney, Paul Sherman, said Monday. “That’s true whether the government is imposing a fine, withholding a parade permit, or denying an occupational license.”
The Maine attorney general’s office did not immediately reply to a request for comment.
Gray applied for a license in January 2018, and the Maine Department of Public Safety denied it the following August. Gray appealed the denial to Kennebec County Superior Court, then to the Maine Supreme Judicial Court. The Institute for Justice did not represent him in the Maine cases.
Justices heard oral arguments in February of this year and in April unanimously upheld the department’s decision to not issue Gray a license.
“The department denied the license application because, as the record supports, Gray published uninvestigated speculation as fact using his job title and the name of his Massachusetts private investigation business — conduct that demonstrated a lack of capacity to distinguish between fact and opinion, and to investigate and honestly report facts,” Justice Thomas Humphrey said for the court. “The government has a significant interest in maintaining standards of good character and competency for those who investigate and report on the intimate details of others’ lives.”
Gray’s attorneys said Monday that he corrected misinformation that initially appeared on his post. They also said that Gray would have had greater protections under the First Amendment if the state police lieutenant had sued him or if a government employer had fired him because of his Facebook posts.
“But because Gray was instead denied the right to work in the occupation of his choice, the Maine Supreme Judicial Court deferred to the Department of Public Safety’s decision to withhold a license from one of its vocal critics,” attorney John Wrench said. “That’s unconstitutional.”
The U.S. Supreme Court is not expected to decide whether to hear the case until late this year or early next year.