Nicholas v. NH Department of Fish and Game, Executive Director et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Jason B. Nicholas
v. 	Case No. 23-cv-196-LM-AJ
Scott R. Mason and
Kevin A. Jordan
REPORT AND RECOMMENDATION
Plaintiff Jason Nicholas, pro se, filed this 42 U.S.C.
§ 1983 civil rights lawsuit against New Hampshire Fish & Game
Department (the “Department”) Executive Director Scott R. Mason
and Chief of Law Enforcement Keith A. Jordan. 	Mr. Nicholas
alleges that New Hampshire’s statutory and regulatory regime for
licensing fishing guides (the “guide license regime”), Revised
Statutes Annotated (“RSA”) Chapters 207 and 215, and
Administrative Rules Fis Chapter 1300 (“Fis”), violates his
First and Fourteenth Amendment rights because it categorically
disqualifies those convicted of certain felonies. 	Mr. Nicholas
also moves for a preliminary injunction (doc. no. 3) prohibiting
the defendants from enforcing the guide license regime.
Defendants move to dismiss (doc. no. 19) Mr. Nicholas’s
Amended Complaint based on sovereign immunity and for failure to
state a claim upon which relief can be granted. 	They also
object to Mr. Nicholas’s motion for preliminary injunction.
Pursuant to LR 72.1, the motion to dismiss and the motion for
preliminary injunction have been referred to the undersigned
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Magistrate Judge for a report and recommendation. 	For the
reasons that follow, the District Judge should grant in part and
deny in part defendants’ motion to dismiss and deny Mr.
Nicholas’s motion for preliminary injunction.
Background1
In 1991, Mr. Nicholas was convicted of second-degree
manslaughter in New York.2 	He was paroled, for good behavior, in
2003. 	In the 20 years since his parole, Mr. Nicholas has earned
a bachelor’s degree from New York University and engaged in
several different professions, primarily photography and
journalism. 	The New York Times, TIME Magazine, and the New York
Post, among others, have published Mr. Nicholas’s work.
Having been a lifelong outdoors enthusiast, Mr. Nicholas
has spent much of his time since his parole in the outdoors
hiking, camping, and fishing. 	He has, to name a few examples,
1 	The 	court 	draws 	the 	background 	facts 	from 	Mr. 	Nicholas’s
Amended 	Complaint 	(Doc. 	No. 	18) 	and 	attachments 	(Doc. 	No. 	1-1
through 1-30), and it has provided Mr. Nicholas, a pro se litigant,
a liberal construction of his pleadings. 	See Erickson v. Pardus,
551 U.S. 89, 94 (2007).
2 See N.Y. Penal Law § 125.15 (“A person is guilty of
manslaughter in the second degree when . . . [h]e recklessly
causes the death of another person . . . .”). 	Mr. Nicholas did
not relate the facts underlying his criminal conviction in his
Amended Complaint. 	A letter of recommendation attached to his
complaint indicates that, when he was 19 years’ old, Mr.
Nicholas unintentionally shot and killed a person who was
attempting to rob him. 	See Doc. No. 1-28 at 3.
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hiked large parts of the Appalachian Trail; climbed many of the
largest mountains in the northeast; and backpacked across the
Green and White Mountains. 	He also loves fly fishing – having
done so “full-time” for seven months in each of the last three
years. 	Am. Compl. (Doc. No. 18) ¶ 15. 	Mr. Nicholas is
particularly dedicated to catch-and-release fishing; he does not
kill anything he catches.
Mr. Nicholas would like to leverage his outdoors and life
experience to work as a fishing “guide” in New Hampshire. 	As a
fishing guide, Mr. Nicholas states that he would help his
clients discover and enjoy fishing and New Hampshire’s
wilderness. 	He plans to escort “select clients” on “multi-day
immersive trips into the wilderness.” 	Id. ¶ 18. 	“During these
adventures,” he will “speak, share and teach what [he has]
learned from [his] decades of outdoor experience relating to
fishing, camping, hiking, wilderness navigation, gourmet field
cookery, safety, local history and generally living life as free
from fear as possible.” 	Id.
New Hampshire requires anyone who “engages for hire” in the
business of “guiding” to obtain a license from the Department’s
Executive Director. 	RSA 207:1(XII)-(XIII) (defining “guide” and
“guiding”) & 215:1 (“No person shall engage in the business of
guiding, until he has registered with the executive director and
procured from him a license so to do.”). 	Guiding “[i]ncludes
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every act whereby a person for hire directs, aids, assists or
instructs another person in taking wildlife in” New Hampshire.
RSA 207:1(XIII). 	Guiding without a license is a criminal
violation. 	See RSA 215:9 (“Whoever violates any provision of
RSA 215 or any rule or regulation of the executive director made
thereunder, shall be guilty of a violation . . . .”).
The Department has promulgated administrative rules setting
forth the criteria and prerequisites under which it issues guide
licenses. 	See Fis Ch. 1300; RSA 215:2 (“The executive director
shall prescribe rules and regulations under which such licenses
shall be issued.”). 	The Department issues two general types of
guide licenses: hunting and fishing. 	Fis 1301.02(a).3 	The
licenses run year-to-year and expire on December 31.4
A guide license application must include, among other
items, details of the applicant’s age and physical attributes
(e.g., height, weight, hair and eye color); a statement about
whether the applicant will be using boats or canoes when
guiding; a statement explaining the applicant’s experience with
3 	Each 	type 	of 	license 	is 	further 	divided 	into 	licenses 	for
residents, 	residents 	over 	the 	age 	of 	65, 	and 	nonresidents. 	Fis
1301.02(a)(1)-(6).
4 After a license has been issued to a first-time applicant,
it “shall be renewed” unless the renewal applicant fails to submit
the 	renewal 	fee; 	his 	residence 	does 	not 	permit 	renewal 	under 	the
same 	license 	type; 	the 	license 	has 	been 	revoked; 	he 	has 	obtained
a disqualifying criminal conviction; or he does not hold a current
first aid or CPR certification. 	See Fis 1301.04(b).
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handling boats, canoes, motors, and “map and compass”; and a
completed criminal history record information release form. 	Id.
1301.03(a).
In addition, a first-time guide license applicant must pass
both a written and oral practical skills examination. 	See id.
1301.03(e). 	But “[n]o applicant shall be approved to sit for a
practical skills examination” unless he meets several
prerequisites, including a minimum age (18) and completing
certain first-aid courses. 	Id. 1301.02(b).
For Mr. Nicholas, however, the only consequential
examination prerequisite is that the applicant must have “a
personal record free of any conviction for a felony at any time
in any jurisdiction against the person or property of another,
in accordance with RSA 159:3.”5 	Id. 1301.02(b)(3).6 	The
regulations do not provide any exception or waiver procedure for
5 RSA 159:3 creates a felony offense for possession of certain
weapons 	after 	having 	been 	convicted 	of 	“[a] 	felony 	against 	the
person or property of another.”
6 	In 	addition, 	the 	person 	must 	have 	a 	“personal 	record 	free
of convictions in any jurisdiction for” misdemeanors within 5 years
and fishing, hunting, or trapping violations within 2 years. 	Id.
1301.02(b)(4).
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that rule.7 	Mr. Nicholas does not dispute that his 1991 New York
second-degree manslaughter conviction disqualifies him.
Nonetheless, on September 16, 2022, Mr. Nicholas sent an
email to the Department asking to be issued a fishing guide
license. 	Mr. Nicholas appears to have understood at the time
that he was disqualified under Fis 1301.02(b)(3). 	See Am.
Compl. (Doc. No. 18) ¶ 26 (“Notwithstanding Defendants’
regulations that absolutely and forever bar me, because of my
1991 felony conviction, from being licensed as a fishing guide
in New Hampshire, I applied by email . . . .”). 	The same day, a
Department employee replied, confirming that Fis 1301.02(b)(3)
prohibits Mr. Nicholas from obtaining a guide license. 	Mr.
Nicholas inquired about whether he could appeal, but the
employee told Mr. Nicholas that “[a]n appeal process does not
exist for your particular situation.” 	Id. ¶ 27. 	The employee
wrote: “The administrative rule that I sent you is clear and
that is what all decisions are based on.” 	Id.
Mr. Nicholas alleges that, nevertheless, on December 20,
2022, defendant Keith Jordan, who is the Department’s Chief of
7 When the Department denies a guide license application,
the “application and fee” must be returned “without further
action, subject to the right of the applicant to seek an appeal
of the decision under Fis 1305.” 	Fis 1301.03(d)(2). 	Fis 1305,
however, only relates to an appeal process upon the revocation
of an already issued guide license, so it is not relevant to Mr.
Nicholas’s case.
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Law Enforcement, emailed him, asking him to complete the guide
license application and to submit any necessary accompanying
materials. 	Mr. Jordan told Mr. Nicholas that a decision would
be made about his eligibility for the license after he submitted
the application.
The same day, Mr. Nicholas submitted the application
materials, including a criminal history record information
release form, $100 fee, and proof of first aid and CPR training.
A couple months later, in late February 2023, Mr. Nicholas sent
Mr. Jordan testimonials to his rehabilitation.
Mr. Jordan denied Mr. Nicholas’s application in mid-March
2023. 	In an email to Mr. Nicholas informing him about the
decision, Mr. Jordan expressed regret that he could not work
around Mr. Nicholas’s conviction, writing: “I wanted to find a
way to work around this, I just cannot.” 	Id. ¶ 33 . 	Mr. Jordan
indicated that the Department, including Director Mason, had
agreed that the rules could not be waived because of a fear that
they would have to be waived for others, too. 	Mr. Jordan also
noted that the Department had consulted the New Hampshire
“Guide’s Association,” which agreed that “we should not waive
any rules to allow for this under the current situation” and
that “the administrative rules are very clear and waiving those
rules would open the door for other people or issues . . . .”
Id. ¶ 34.
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Mr. Nicholas then brought this lawsuit against Mr. Jordan
and Director Mason.8 	After defendants moved to dismiss the
initial complaint, the court sua sponte granted Mr. Nicholas
leave to file an amended complaint because he appeared to assert
new claims in his opposition to the motion to dismiss. 	Mr.
Nicholas timely filed the Amended Complaint, in which he asserts
the following eight claims:
• 	Count 1: The guide license regime’s
automatic disqualification of applicants
with a felony conviction violates Mr.
Nicholas’s First Amendment rights,
including freedom of speech, association,
and “occupational choice”;
• 	Count 2: The guide license regime’s
automatic disqualification of applicants
with a felony conviction violates Mr.
Nicholas’s substantive due process rights
under the Fourteenth Amendment, including
“freedom from irrational, conscience-
shocking Government decision-making”;
• 	Count 3: The guide license regime lacks
standards and time limits for issuing
licenses, which gives decisionmakers
“unbridled discretion,” in violation of the
First and Fourteenth Amendments;
8 	Mr. 	Nicholas 	also 	sought 	guide 	licenses 	in 	Maine 	and 	New
York. 	Maine 	denied 	Mr. 	Nicholas’s 	application 	under 	a 	similar
provision 	that 	allows 	its 	analogous 	executive 	agency 	to 	deny 	a
license 	if 	a 	person 	“has 	been 	convicted 	of 	committing 	a 	crime 	in
[Maine] 	or 	any 	other 	jurisdiction 	that 	is 	punishable 	by
imprisonment for a term of one year.” 	Nicholas v. Camuso, No. 23-
cv-15-JAW, 2023 WL 3439546, at *1 (D. Me. May 12, 2023) (dismissing
Mr. 	Nicholas’s 	constitutional 	claims). 	New 	York 	appears 	to 	have
granted 	Mr. 	Nicholas’s 	application 	after 	Mr. 	Nicholas 	brought 	a
suit in the Northern District of New York. 	See Doc. No. 23 at 1;
Nicholas 	v. 	Seggos, 	No. 	8:23-cv-463-GTS-CFH 	(N.D.N.Y. 	filed 	Mar.
22, 2023).
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• 	Count 4: The guide license regime “lacks a
meaningful administrative hearing or appeal
process,” in violation of the First
Amendment and the procedural component of
the Fourteenth Amendment’s Due Process
Clause;
• 	Count 5: The Department’s denial of Mr.
Nicholas’s license application based on his
felony conviction “and opposition from the
New Hampshire guides’ association,”
violates Mr. Nicholas’s First Amendment
rights and his substantive due process
rights under the Fourteenth Amendment;
• 	Count 6: The Department’s denial of Mr.
Nicholas’s license application based on his
felony conviction “and opposition from the
New Hampshire guides’ association,”
violates Mr. Nicholas’s Fourteenth
Amendment substantive due process rights;
• 	Count 7: The denial of Mr. Nicholas’s
license application without a fair hearing
or appeal violates Mr. Nicholas’s
Fourteenth Amendment procedural due process
rights.
• 	Count 8: Defendants conspired to deprive
Mr. Nicolas of the above-listed
constitutional rights, in violation of 42
U.S.C. § 1985.
See Am. Compl. (Doc. No. 18) ¶¶ 48-55.9 	Mr. Nicholas asks the
court to declare that New Hampshire’s guide licensing regime is
unconstitutional; to enjoin the defendants from enforcing RSA
215:1 and 215:9; and to compensate him for damages. 	Mr.
9 	In 	his 	initial 	complaint, 	Mr. 	Nicholas 	asserted 	a 	claim
under 	the 	Privileges 	and 	Immunities 	Clause, 	U.S. 	Const. 	Art. 	IV
§ 2, 	cl. 	1. 	Although 	nominally 	referenced 	in 	the 	Amended
Complaint, 	Mr. 	Nicholas 	no 	longer 	asserts 	any 	claim 	based 	on 	the
Privileges and Immunities Clause.
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Nicholas has filed a motion for preliminary injunctive relief,
and defendants move to dismiss.
Discussion
The court addresses defendants’ motion to dismiss first and
Mr. Nicholas’s motion for preliminary injunction second.
I. 	Motion to Dismiss
In their motion to dismiss, defendants contend that the
guide license regime does not violate Mr. Nicholas’s First or
Fourteenth Amendment rights.10 	Mr. Nicholas objects (Doc. No.
20). 	Defendants replied (Doc. No. 21), and Mr. Nicholas filed a
surreply (Doc. No. 22).
A. 	Standard of Review
A motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) challenges whether a complaint contains enough “factual
matter” to show that the plaintiff has a plausible entitlement
to relief under the prevailing law. 	See Burt v. Bd. of Tr. of
10 	Defendants 	also 	argue 	that 	they 	are 	entitled 	to 	sovereign
immunity 	to 	the 	extent 	that 	Mr. 	Nicholas 	seeks 	damages 	from 	them
in their official capacities. 	As Mr. Nicholas does not purport to
seek damages from the defendants in their official capacities, the
court 	does 	not 	address 	this 	argument. 	See 	Am. 	Compl. 	(Doc. 	No.
18) 	¶ 	9 	(“I 	also 	sue 	Defendants 	for 	money 	damages, 	in 	their
individual or personal capacities.”); Pl. Obj. (Doc. No. 20 at 2)
(“Defendants 	are 	correct 	that, 	under 	existing 	Supreme 	Court
precedent, 	Plaintiff 	cannot 	sue 	Defendants 	in 	their 	official
capacities for damages. . . . 	However, Plaintiff sues Defendants
in 	their 	official 	capacities 	for 	declaratory 	and 	injunctive
relief.”).
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Univ. of R.I., 84 F.4th 42, 50 (1st Cir. 2023). 	In evaluating
whether the plaintiff has a plausible entitlement to relief, the
court must accept the complaint’s factual allegations as true,
and it must draw all reasonable inferences in the plaintiff’s
favor. 	Id. (citing Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). 	Generally, the court may consider only the facts
alleged in the complaint, exhibits attached to the complaint,
and other materials that are fairly incorporated in the
complaint or are subject to judicial notice such as matters of
public record. 	Lowe v. Mills, 68 F.4th 706, 713-14 (1st Cir.
2023); see Butler v. Balolia, 736 F.3d 609, 611 (1st Cir. 2013).
B. 	Standing to Challenge Aspects of the Guide License
Regime other than Fis 1301.02(b)(3)
As an initial matter, in Count 3, Mr. Nicholas asserts
challenges to aspects of the guide license regime other than Fis
1301.02(b)(3), which was the basis for defendants’ denial of his
guide license application. 	Specifically, Mr. Nicholas contends
that the guide license regime provides “unbridled discretion” to
the Department to deny (or delay) the issuing of licenses to
individuals who meet all regulatory requirements and that it
lacks standards for determining who passes the practical skills
examinations required for first-time applicants.
“[T]he irreducible constitutional minimum of standing
contains three elements.” Lujan v. Defs. of Wildlife, 504 U.S.
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555, 560 (1992). 	First, a plaintiff must demonstrate an injury
in fact, which is a “concrete and particularized” “invasion of a
legally protected interest.” 	Id. 	Second, a causal connection
must exist between the injury and the conduct complained of,
meaning that the injury must be fairly traceable to the
“challenged action of the defendant.” 	Id. 	Third, “it must be
likely, as opposed to merely speculative, that the injury will
be redressed by a favorable decision.” Id.
As to the aspects of the guide-license regime other than
Fis 1301.02(b)(3), Mr. Nicholas suffered no injury-in-fact
because the Department was required to deny his license
application under Fis 1301.02(b)(3), and Mr. Nicholas’s
allegations show that it did so solely under that provision.
Mr. Nicholas nonetheless argues that he can challenge other
aspects of the guide license regime under City of Lakewood v.
Plain Dealer Publishing Company, 486 U.S. 750, 755-56 (1988),
which relaxed the standard for establishing standing when a
plaintiff is subject to a licensing scheme that burdens his
First Amendment rights, gives an executive “unbridled
discretion” to grant or deny licenses, and poses a “real and
substantial threat of censorship.” 	See Van Wagner Boston, LLC
v. Davey, 770 F.3d 33, 35, 37-38 (1st Cir. 2014) (observing that
courts have regularly “held that when a regulation is alleged to
vest unbridled discretion in a government official to license a
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plaintiff’s expressive activity and to pose a real and
substantial threat of censorship, the plaintiff need only be
subject to that regulation to establish a cognizable injury in
fact.”); see also Forsyth Cty., Ga. v. Nationalist Movement, 505
U.S. 123, 130-31 (1992) (holding that a government licensing
requirement that restricts the time, place, or manner of speech,
but allows for arbitrary application of such restrictions may be
invalid under the First Amendment due to potential for officials
to use executive discretion to suppress a particular point of
view).
Mr. Nicholas, however, does not obtain standing under
Lakewood because he did not allege facts indicating that the
discretion given to the Department under the guide license
regime poses a real and substantial threat of any identified
censorship. 	See Osediacz v. City of Cranston, 414 F.3d 136, 141
(1st Cir. 2005). 	For example, there is no allegation that the
Department has ever denied a license application, or delayed a
decision on any license application, when all regulatory
criteria were met for any reason let alone because of a
disagreement with a prospective guide’s viewpoints. 	Nor does
Mr. Nicholas allege any facts about the practical skills
examinations, including anything that indicates the examinations
go beyond the judgment of practical skills.
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In short, there is nothing alleged in Mr. Nicholas’s
complaint that plausibly suggests the guide license regime
permits any sort of discretion that the Department might use as
a back alley to censor him or other guides. 	See id.; see also
N. Eng. Reg’l Council of Carpenters v. Kinton, 284 F.3d 9, 26
(1st Cir. 2002) (“If and when a pattern of abuse emerges, that
will be the time to deal with infelicitous applications of the
regulations.”). 	As Mr. Nicholas lacks standing to challenge
aspects of the guide license regime which did not result in his
license application’s denial, the District Judge should dismiss
Count 3. 	The court turns next to Mr. Nicholas’s claims that Fis
1301.02(b)(3) violates his constitutional rights.
C. 	First Amendment
Mr. Nicholas references the First Amendment and its
protections for speech, association, and “occupational choice”
in several of the claims in his Amended Complaint, although the
primary vehicle for his First Amendment challenge appears to be
Count 1. 	Defendants move to dismiss any claim Mr. Nicholas
brought under the First Amendment for failure to state a claim
upon which relief can be granted.11 	The court addresses Mr.
11 	Defendants 	also 	contend 	that 	Mr. 	Nicholas 	failed 	to
identify 	what 	parts 	of 	the 	guide 	license 	regime 	he 	challenges.
That 	argument 	lacks 	merit. 	The 	primary 	target 	of 	Mr. 	Nicholas’s
First Amendment arguments – Fis 1301.02(b)(3) – is obvious, since
that is the provision that disqualifies him.
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Nicholas’s arguments based on freedom of speech first, his
arguments based on association second, and “occupational choice”
third.
1. 	Freedom of Speech
In their motion to dismiss, defendants argue that, to the
extent there is some protected speech at issue in this case, the
guide license regime is content neutral and passes intermediate
scrutiny because it supports a substantial government interest
in public safety.
Mr. Nicholas objects. 	He argues that the guide license
regime should be subject to strict scrutiny because it is a
content-based prior restraint on speech. 	He also points to two
recent circuit-level decisions which held license restrictions
on tour guides violated the First Amendment: Billups v. City of
Charleston, 961 F.3d 673 (4th Cir. 2020), and Edwards v.
District of Columbia, 755 F.3d 996 (D.C. Cir. 2014).
“Congress shall make no law . . . abridging the freedom of
speech . . . .” 	U.S. Const., Amend. I.12 	“Above ‘all else, the
First Amendment means that government generally ‘has no power to
restrict expression because of its message, its ideas, its
subject matter, or its content.” 	Barr v. Am. Ass’n of Political
12 	The 	Fourteenth 	Amendment 	makes 	the 	First 	Amendment
applicable 	to 	the 	states. 	Nat’l 	Inst. 	of 	Fam. 	& 	Life 	Advocs. 	v.
Becerra, 585 U.S. ---, 138 S. Ct. 2361, 2371 (2018).
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Consultants, Inc., 591 U.S. ---, 140 S. Ct. 2335, 2346 (2020)
(quoting Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 95
(1972)).
The starting point in examining whether a law violates the
First Amendment is to take stock of the law’s purpose, context,
and effect, which generally determines against what standard the
restriction should be measured. 	See id. 	Content-based
restrictions – meaning rules that restrict expression depending
on its message – are subject to strict scrutiny, the most
exacting level of review, and they are presumed
unconstitutional. 	See, e.g., McGuire v. Reilly, 260 F.3d 36, 43
(1st Cir. 2001); Cutting v. City of Portland, No. 13-cv-359-GZS,
2014 WL 580155, at *8 (D. Me. Feb. 12, 2014).
On the other hand, content-neutral regulations – generally
meaning regulations that do not turn on the speaker’s message
and that were adopted for a reason other than the regulator’s
disagreement with a particular message or speaker’s viewpoint –
usually require less justification and are therefore subject to
lower demands known typically as intermediate scrutiny.
McGuire, 260 F.3d at 43; Globe Newspaper Co. v. Beacon Hill
Architectural Comm’n, 100 F.3d 175, 183 (1st Cir. 1996).
Finally, a law that regulates conduct and does not impose more
than an “incidental burden” on protected speech in doing so is
usually limited to rational basis review. 	See Crownholm v.
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Moore, 647 F. Supp. 3d 842, 856 (E.D. Cal. 2022) (finding that
rational basis review applied to First Amendment challenge to
land-surveyor licensing scheme that regulated “professional
conduct with no more than an incidental burden on speech”).
Fis 1301.02(b)(3) is a content-neutral regulation subject
to, at most, intermediate scrutiny insofar as it imposes a more-
than-incidental burden on protected speech.13 	Fis 1301.02(b)(3)
does not favor or disfavor any message, nor the viewpoint of any
speaker, and there is no indication that it was promulgated for
the purpose of limiting any particular message. 	Rather, where
it limits speech, it does so only based on the existence of
message-agnostic factors: guiding for hire and possessing a
personal record containing a certain type of felony conviction.
Under these circumstances, intermediate scrutiny applies. 	See
City of New Orleans, La. v. Kagan, 753 F.3d 560, 562 (5th Cir.
2014) (upholding licensing regime for city tour guides after
intermediate scrutiny), cert. denied, 135 S. Ct. 1403 (2015);
Nicholas, 2023 WL 3439546, at *5 (finding analogous Maine
regulation was subject to intermediate scrutiny because “the
13 	Defendants 	did 	not 	develop 	an 	argument 	in 	their 	renewed
motion to dismiss that only rational basis review applies, so the
court 	assumes 	that 	the 	regulation 	goes 	beyond 	an 	incidental
limitation 	on 	protected 	speech. 	See 	Billups, 	961 	F.3d 	at 	683-84
(finding 	that 	regulation 	that 	“completely 	prohibits 	unlicensed
tour 	guides 	from 	leading 	visitors 	on 	paid 	tours” 	“cannot 	be
classified as a restriction on economic activity that incidentally
burdens speech”).
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challenged licensing regulations are plainly content-neutral, as
they do not disfavor any particular message and serve purposes
unrelated to the content of expression”); see also Nat’l
Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 736 (1st Cir.
1995) (finding that regulation that limited when expressive
activity could occur without reference to content and applied
only in commercial context was “content neutral” and subject to
intermediate scrutiny). 	And Mr. Nicholas cited no case – and
the court could not find one – that found an analogous
occupational licensing restriction was content based and subject
to strict scrutiny.14
Mr. Nicholas argues that strict scrutiny should apply
because the guide license regime is a “prior restraint.” 	In
this context, a “prior restraint” is “a law, regulation or
judicial order that suppresses speech — or provides for its
suppression at the discretion of government officials — on the
basis of the speech’s content and in advance of its actual
14 	There 	remains 	some 	uncertainty 	among 	circuit 	courts 	about
what 	scrutiny 	applies 	to 	occupational 	licensing 	schemes 	that
burden 	at 	least 	some 	protected 	speech 	alongside 	conduct, 	and 	the
possibility that strict scrutiny may apply, in circumstances that
warrant it, has not been ruled out. 	Compare Billups, 961 F.3d at
684 	(assuming 	intermediate 	scrutiny 	applies 	at 	minimum), 	and
Edwards, 	755 	F.3d 	at 	1001 	(same), 	with 	Kagan, 	753 	F.3d 	at 	561-62
(finding 	that 	intermediate 	scrutiny 	applies 	at 	most, 	but
suggesting 	that 	no 	First 	Amendment 	scrutiny 	should 	apply), 	and
Del 	Castillo 	v. 	Sec’y, 	Fla. 	Dep’t 	of 	Health, 	26 	F.4th 	1214, 	1226
(11th 	Cir. 	2022) 	(finding 	that 	no 	First 	Amendment 	scrutiny
applies).
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19
expression.” 	Citizens United v. Schneiderman, 882 F.3d 374,
386-87 (2d Cir. 2018). 	“Facially content-neutral laws that
require permits or licenses of individuals or entities engaged
in certain forms of expression only constitute prior restraints
when they (1) disallow that expression unless it has previous
permission from a government official and (2) vest that official
with enough discretion that it could be abused.” 	Id. at 387.
Fis 1301.02(b)(3) provides no discretion to officials that could
be abused, as it categorically requires officials to deny
licenses to anyone with a disqualifying felony. 	Therefore, it
is not a prior restraint on speech, and Fis 1301.02(b)(3) is
subject to intermediate scrutiny, at most.
To survive intermediate scrutiny, the challenged regulation
must be narrowly tailored to serve a significant state interest.
E.g., Rideout v. Gardner, 838 F.3d 65, 71-72 (1st Cir. 2016).
“The dismissal of a claim challenging a law that abridges
protected speech ‘will rarely, if ever, be appropriate at the
pleading stage. 	Instead, factual development will likely be
indispensable to the assessment of whether [such a law] is
constitutionally permissible.’” 	Cornelio v. Connecticut, 32
F.4th 160, 172 (2d Cir. 2022) (quoting Bruni v. City of
Pittsburgh, 824 F.3d 357 (3d Cir. 2016)). 	“[T]he norm is to
wait until the summary judgment stage of the litigation to
address the ultimate question of whether the [restriction]
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20
should stand.” 	Id. (quoting Graff v. City of Chicago, 9 F.3d
1309, 1322 (7th Cir. 1993)); Narce v. Mervilus, No. 23-200
(BAH), 2023 WL 7128475, at *9 & n.4 (D.D.C. Oct. 30, 2023).
Mr. Nicholas has alleged sufficient facts for his First
Amendment freedom-of-speech claim to survive defendants’ motion
to dismiss. 	In particular, Mr. Nicholas has plausibly alleged
that the guide license scheme is not narrowly tailored.
Considering only the limited set of facts before the court, Fis
1301.02(b)(3) may be overbroad because the Department could have
crafted a more precise regulation that still furthers its
asserted public safety purpose but does not burden the speech of
those who possess disqualifying convictions and are
rehabilitated and unlikely to pose any more danger to the public
than any other person.
That fact distinguishes this motion to dismiss from the one
addressed in Mr. Nicholas’s Maine lawsuit, which the court
granted given the Maine regulation’s “combination of
permissiveness, individualized determination, and opportunity
for review.” 	See Nicholas, 2023 WL 3439546, at *6-*7,
(observing that Maine’s regulations do “not presumptively or
categorically bar convicted felons from receiving a license”).15
15 Additionally, Mr. Nicholas’s case in the District of Maine
is 	on 	appeal 	with 	the 	First 	Circuit, 	which 	may 	issue 	an 	opinion
that affects the result or applicable analysis in this case.
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21
By contrast, New Hampshire’s guide license regime, with respect
to Fis 1301.02(b)(3), appears to lack those features.
To be sure, defendants offer several reasons for why the
regulation is narrowly tailored, but these arguments rely in
part on facts that are not within the pleadings and that Mr.
Nicholas has not had a chance to explore through discovery.
Accordingly, the District Judge should deny defendants’ motion
to dismiss Mr. Nicholas’s claims to the extent he alleges that
Fis 1301.02(b)(3) violates the First Amendment’s right to free
speech.
2. 	Freedom of Association
Mr. Nicholas also purports to bring claims based on the
First Amendment’s guarantee of free association. 	Defendants
contend that Mr. Nicholas fails to allege any facts indicating
how the guide license scheme violates his First Amendment right
to association. 	Mr. Nicholas did not offer any developed
defense of his freedom-of-association claim in his objection.
“[I]mplicit in the right to engage in activities protected
by the First Amendment” there is “a corresponding right to
associate with others.” 	Ams. for Prosperity Found. v. Bonta,
141 S. Ct. 2373, 2382 (2021) (quoting Roberts v. United States
Jaycees, 468 U.S. 609, 622 (1984)). 	The Supreme Court has held
that freedom of association may be violated if the government
requires a group to add members it does not want; punishes
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22
people for a political affiliation; or denies organization
members benefits based on the organization’s message. 	Id.
Fis 1301.02(b)(3) does not appear to implicate Mr.
Nicholas’s associative rights under the First Amendment, and Mr.
Nicholas did not offer any developed argument in his objection
as to why it would. 	Therefore, Mr. Nicholas’s claims based on
the First Amendment’s guarantee of free association should be
dismissed.
3. 	Occupational Choice or Occupational Liberty
Mr. Nicholas also references a First Amendment right to
“occupational choice” or “occupational liberty.” 	Mr. Nicholas
did not cite any law indicating that the First Amendment
provides any right to occupational choice or liberty outside its
general protections for speech. 	Accordingly, the District Judge
should dismiss Mr. Nicholas’s claims to the extent they are
premised on a First Amendment right to “occupational choice” or
“occupational liberty.” 	The court separately discusses Mr.
Nicholas’s “occupational liberty” claim to the extent it
implicates the Fourteenth Amendment’s Due Process Clause below.
D. 	Substantive Due Process (Fundamental Right to Engage
in an Occupation Without Restriction)
Next, as with Mr. Nicholas’s allegations that defendants
violated the First Amendment, Mr. Nicholas references the
substantive component of the Fourteenth Amendment’s Due Process
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23
Clause in several different claims, including Counts 2, 5, and
6. 	Defendants move to dismiss any claim based on substantive
due process, arguing that Mr. Nicholas’s allegations do not
suffice to show conscience-shocking behavior and that a person
does not have fundamental right to engage in an occupation
without any state-imposed restrictions.16 	Mr. Nicholas argues
that there is a 600-year history and tradition of such a right
and that the denial of his license on public safety grounds
bears no rational connection to the facts given his
rehabilitation.
First, to the extent Mr. Nicholas sought to bring a claim
based on executive government action, defendants’ conduct in
following Fis 1301.02(b)(3), which required defendants to deny
his application to be denied and permits no exception, was not
conscience shocking. 	See County of Sacramento v. Lewis, 523
U.S. 833, 846 (1998); Harron v. Town of Franklin, 660 F.3d 531,
536 (1st Cir. 2011). 	The District Judge should dismiss any
claim Mr. Nicholas alleges on that premise.
16 	Mr. 	Nicholas 	may 	have 	referenced 	substantive 	due 	process
in 	some 	of 	the 	enumerated 	claims 	only 	because 	the 	Due 	Process
Clause 	incorporates 	of 	the 	First 	Amendment. 	See 	Dobbs, 	597 	U.S.
at 237 (distinguishing between substantive due process as to rights
guaranteed by the “first eight Amendments” and those not expressly
asserted 	in 	the 	Constitution). 	Having 	addressed 	the 	First
Amendment 	issue 	above, 	the 	court 	focuses 	in 	this 	section 	on 	Mr.
Nicholas’s claims that the Constitution provides an implicit right
to engage in an occupation without state-imposed restrictions.
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24
Second, Mr. Nicholas’s substantive due process claims can
also be framed as a challenge to the Department’s promulgation
of Fis 1301.02(b)(3) in its legislative capacity. 	In examining
whether a state statute or administratively promulgated rule,
such as Fis 1301.02(b)(3), violates the substantive component of
the Fourteenth Amendment’s Due Process Clause, the court first
asks whether the rule infringes on a fundamental right, meaning
a right that courts have determined, through a historical
analysis, is both “deeply rooted” in the United States’s
“history and tradition” and “implicit in the concept of ordered
liberty.” 	See Dobbs v. Jackson Women’s Health Org., 597 U.S.
215, 231 (2022) (quoting Washington v. Glucksberg, 521 U.S. 702,
720-21 (1997)). 	If the regulation does not infringe on a
fundamental right, it is subject only to rational basis review.
See Mulero-Carrillo v. Roman-Hernandez, 790 F.3d 99, 107 (1st
Cir. 2015) (citing FCC v. Beach Commc’ns, Inc., 508 U.S. 307,
313 (1993)); accord Dobbs, 597 U.S at 300 (“[R]ational-basis
review is the appropriate standard for such challenges.”).
Further, a regulation that does not involve a fundamental right
is entitled to “a strong presumption of validity,” which the
plaintiff must overcome. 	See Beach Commc’ns, Inc., 508 U.S. at
314-15.
Courts do not recognize a fundamental right to engage in a
profession without restriction. 	See Mulero-Carrillo, 790 F.3d
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25
at 107 (rejecting doctors’ claim that license to practice
medicine is a fundamental right); Medeiros v. Vincent, 431 F.3d
25, 32-33 (1st Cir. 2005) (“The right to ‘make a living’ is not
a ‘fundamental right,’ for either equal protection or
substantive due process purposes.”), abrogated in part on other
grounds by, Bond v. United States, 564 U.S. 211, 216 (2011).
Rather, courts, including the Supreme Court, typically subject
occupational licensing schemes that are premised on public
safety and challenged under the Fourteenth Amendment to
rational-basis review. 	See Schware v. Bd. of Bar Exam. of State
of N.M., 353 U.S. 232, 238-39 (1957) (applying rational basis
review to state’s restrictions on license to practice law); Dent
v. State of W. Va., 129 U.S. 114, 121-22 (1889) (“It is
undoubtedly the right of every citizen of the United States to
follow any lawful calling, business, or profession he may choose
. . . 	[b]ut there is no arbitrary deprivation of such right
where its exercise is not permitted because of a failure to
comply with conditions imposed by the state for the protection
of society.”); Mulero-Carrillo, 790 F.3d at 107; Gonzalez-Droz
v. Gonzalez-Colon, 660 F.3d 1, 9 (1st Cir. 2011); see also N.Y.
State Trawlers Ass’n v. Jorling, 16 F.3d 1303, 1311 (2d Cir.
1994) (“Persons engaged in an industry affecting the public
interest may be subject to state regulation, including licensing
schemes” if the terms are “rationally related to a legitimate
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26
state interest such as ‘the public health, safety, morals, or
general welfare.’”). 	Rational-basis review therefore applies to
Fis 1301.02(b)(3). 	See Dobbs, 597 U.S at 300.
Fis 1301.02(b)(3) is supported by a rational basis, which
is public safety. 	On the premise of public safety, governments
have long restricted the ability of those convicted of felonies
to obtain licenses to engage in professions or business, even if
the applicant can prove his rehabilitation. 	See, e.g., Hawker
v. People of New York, 170 U.S. 189, 197 (1898) (“Doubtless, one
who has violated the criminal law may thereafter reform, and
become in fact possessed of a good moral character. 	But the
legislature has power in cases of this kind to make a rule of
universal application, and no inquiry is permissible back of the
rule to ascertain whether the fact of which the rule is made the
absolute test does or does not exist.”); Darks v. City of
Cincinnati, 745 F.2d 1040, 1042-44 (6th Cir. 1984) (finding that
municipality had a rational basis to deny “dance hall licenses”
to convicted felons); Wombles v. City of Mt. Washington, Ky.,
2017 WL 927238, at *7-*8 (W.D. Ky. Mar. 8, 2017) (upholding, on
rational basis review, city ordinance that prohibited granting
business licenses to individuals convicted of a crime of “moral
turpitude”); see also Miriam J. Aukerman, The Somewhat Suspect
Class: Towards a Constitutional Framework for Evaluating
Occupational Restrictions Affecting People with Criminal
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27
Records, 7 J.L. Society 18, 24-25 (2005) (discussing past and
present state and federal prohibitions on convicted felons from
obtaining occupational licenses). 	Further, as the court found
in Mr. Nicholas’s Maine case, the public safety purpose
underlying Fis 1301.02(b)(3) is particularly “salient” given the
nature of the guiding profession. 	See Nicholas, 2023 WL
3439546, at *5. 	That is, the state has a strong public safety
and welfare interest in regulating guiding, which includes
activities like overnight trips in the New Hampshire wilderness
where those who employ guides are likely to be highly vulnerable
to incompetence and malfeasance.
Mr. Nicholas contends that this public safety purpose of
Fis 1301.02(b)(3) nonetheless lacks strength because an
unlicensed person may still take people into the wilderness if
he does not do so “for hire.” 	Likewise, he asserts that Fis
1301.02(b)(3) is overinclusive because it categorically
precludes from guiding people like himself, who may pose no more
a risk of future wrongdoing than anyone else. 	While these over-
and under-inclusiveness arguments may be more relevant for
purposes of an intermediate scrutiny First Amendment analysis,
they do not aid Mr. Nicholas on rational basis review. 	Under
rational basis review the court must defer to the state’s
judgments on those points so long as they are rational. 	See
Heller v. Doe ex rel. Doe, 509 U.S. 312, 320 (1993) (“[C]ourts
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28
are compelled under rational-basis review to accept a
legislature’s generalizations even when there is an imperfect
fit between means and ends. 	A classification does not fail
rational-basis review because it ‘is not made with mathematical
nicety or because in practice it results in some inequality.’”);
Wombles, 2017 WL 927238, at *7 (“[E]ven if Plaintiffs are
correct that the Ordinance is, in some respects, overinclusive,
this does not defeat rational basis scrutiny.”).17
The District Judge should grant defendants’ motion to
dismiss Mr. Nicholas’s substantive due process claims based on
the alleged fundamental right to engage in an occupation without
state-imposed restrictions, including Counts 2, 5, and 6.
E. 	Procedural Due Process
Next, as to Mr. Nicholas’s claims that the guide license
regime violates his procedural due process rights, which are
Counts 4 and 7, defendants contend that even if they had
provided a hearing or appeal opportunity to Mr. Nicholas, it
would not have affected the result of Mr. Nicholas’s license
application. 	Mr. Nicholas responds that the guide license
17 Heller and Wombles involved challenges under the Fourteenth
Amendment’s 	Equal 	Protection 	Clause 	rather 	than 	the 	Due 	Process
Clause, but the First Circuit has observed that when the challenged
law does not infringe on a fundamental right (or involve a suspect
class) the rational-basis analysis for either type of claim is the
same. 	Mulero-Carrillo, 790 F.3d at 107.
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29
regime violates the procedural component of the Due Process
Clause because it does not provide fair hearings with procedural
and substantive safeguards.
Generally, the Fourteenth Amendment’s Due Process Clause
requires a state to provide due process of law – meaning a
certain set of procedural protections – before it deprives a
person of a protected interest. 	See Gonzalez-Fuentes v. Molina,
607 F.3d 864, 886 (1st Cir. 2010). 	At the same time, the Due
Process Clause does not entitle a person to procedure for the
sake of procedure; rather, to state a claim a plaintiff must
identify some cognizable interest that he could realistically
obtain with the demanded process. 	See Connecticut Dep’t of
Public Safety v. Doe, 538 U.S. 1, 7 (2003) (holding that Due
Process Clause did not require state to provide a hearing where
its law required “all sex offenders—currently dangerous or not”
to provide information to sex-offender registry); Gilbert v.
Homar, 520 U.S. 924, 933 (1997) (observing that if a rule
“automatically” requires a particular outcome when an
“independently verifiable fact” exists, then there is no need
for the state to provide any process); Black v. Snow, 272 F.
Supp. 2d 21, 34 (D.D.C. 2003) (“[W]here the fact to be proven at
the hearing is not relevant to the legal scheme responsible for
the deprivation (that is, where it is clear that the government
would strip the individual of his liberty even if he were able
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30
to prove or disprove the particular the fact or set of facts),
such a hearing would be an exercise in futility, which is not
required by procedural due process.”).
Under Fis 1301.02(b)(3), the Department must deny a guide
license application made by anyone whose “personal record” is
not “free of any conviction for a felony . . . against the
person or property of another . . . .” 	The regulations do not
give the Department any authority to waive or vary from that
rule. 	And the New Hampshire Administrative Procedure Act
prohibits the Department from making ad hoc exceptions in the
absence of a rule-based waiver or variance procedure. 	See RSA
541-A:22, IV (“No agency shall grant waivers of, or variances
from, any provisions of its rules without either amending the
rules, or providing by rule for a waiver or variance
procedure.”).
Mr. Nicholas does not dispute that, at the time of his
application, his personal record was not free from a
disqualifying conviction. 	Therefore, no matter what procedures,
hearings, or interviews defendants provided as to Mr. Nicholas’s
application or what Mr. Nicholas can prove as to his
rehabilitation, Fis 1301.02(b)(3) required his application’s
denial. 	For this reason, Mr. Nicholas’s procedural due process
claims, Counts 4 and 7, should be dismissed. 	See Connecticut
Dep’t of Safety, 538 U.S. at 7.
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31
F. 	Civil Rights Conspiracy, 42 U.S.C. § 1985(3)
Lastly, in Count 8, Mr. Nicholas asserts a claim that
defendants conspired to violate his civil rights, in violation
of 42 U.S.C. § 1985(3). 	Defendants move to dismiss, arguing
that the facts do not show any conspiracy to violate Mr.
Nicholas’s rights, particularly where defendants had no choice
but to deny Mr. Nicholas’s application under Fis 1301.02(b)(3).
Mr. Nicholas did not respond.
“Section 1985(3) prohibits two or more persons in any State
or Territory from conspiring to deprive any person or class of
persons of the equal protection of the laws.” 	Perez-Sanchez v.
Public Bldg. Auth., 531 F.3d 104, 107 (1st Cir. 2008). 	For a
claim under § 1985(3) to survive a motion to dismiss, the
plaintiff must allege facts demonstrating the existence of the
following four elements: (1) a conspiracy; (2) a “conspiratorial
purpose to deprive the plaintiff of the equal protection of the
laws”; (3) “an overt act in furtherance of the conspiracy”; and
(4) “either injury to person or property, or a deprivation of a
constitutionally protected right.” 	Id. 	Further, § 1985(3)
requires the plaintiff to allege that the defendants had “some
racial, or perhaps otherwise class-based, invidiously
discriminatory animus” for their actions. 	Parker v. Landry, 935
F.3d 9, 18 (1st Cir. 2019) (quoting Griffin v. Breckenridge, 403
U.S. 88, 102 (1971)).
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32
Mr. Nicholas alleges no facts that show defendants had any
conspiratorial purpose to deprive him of equal protection of the
laws. 	Rather, the only relevant allegations relate to a series
of emails indicating that the defendants discussed Mr.
Nicholas’s guide license application among themselves and a
third-party organization. 	These emails are, at most, suggestive
that defendants gave Mr. Nicholas’s guide license application
more consideration than was required, as the administrative
rules demanded that the defendants reject Mr. Nicholas’s guide
license application in all events. 	Furthermore, discriminating
against convicted felons for public safety reasons is not
considered “invidious.” 	See Hill v. City of Chester, No. CIV.
A. 92-4357, 1993 WL 77249, at *6 (E.D. Pa. Mar. 18, 1993) (“The
Supreme Court has never held that animus based on prior felony
convictions satisfied the class-based invidious discriminatory
practice necessary to state a cause of action.”). 	Mr.
Nicholas’s civil-rights conspiracy claim under § 1985 should be
dismissed.
G. 	Summary of Conclusions
In summary, the District Judge should dismiss all of Mr.
Nicholas’s claims except for Count 1 of the Amended Complaint to
the extent Mr. Nicholas alleges that Fis 1301.02(b)(3), on its
face or as applied to him, violates the First Amendment’s right
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33
to freedom of speech. 	To the extent that Mr. Nicholas sought to
challenge any aspect of the guide license regime other than Fis
1301.02(b)(3), which formed the basis for the Department’s
denial of his application, the District Judge should dismiss
such claim without prejudice for lack of standing.
The court turns next to Mr. Nicholas’s motion for
preliminary injunction.
II. 	Motion for Preliminary Injunction
Mr. Nicholas moves for a preliminary injunction prohibiting
defendants from enforcing the guide license scheme. 	Defendants
object, arguing that Mr. Nicholas has not shown a likelihood of
success, irreparable harm, that the balance of equities favors
him, or that the requested relief will not harm the public
interest.
A. 	Standard of Review
A litigant is never entitled to preliminary injunctive
relief as of right, and the relief is extraordinary in nature.
Voice of the Arab World, Inc. v. MDTV Med. News Now, Inc., 645
F.3d 26, 32 (1st Cir. 2011). 	To obtain a preliminary
injunction, the movant must show that (1) he is likely to
succeed on the merits of the claim for which injunctive relief
is available; (2) he is likely to suffer irreparable harm absent
interim relief; (3) the balance of equities favors him; and (4)
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34
providing the requested relief will not harm the public
interest. Norris ex rel. A.M. v. Cape Elizabeth Sch. Dist., 969
F.3d 12, 22 (1st Cir. 2020); Arborjet, Inc. v. Rainbow Treecare
Sci. Advancements, Inc., 794 F.3d 168, 171 (1st Cir. 2015). 	The
movant bears the burden of establishing the factors in his
favor. Nat’l Org. for Marriage v. Daluz, 654 F.3d 115, 117, 119-
20 (1st Cir. 2011).
A common refrain from the First Circuit is that likelihood
of success on the merits is the “sine qua non” – i.e.,
indispensable – element such that “if the moving party cannot
demonstrate that he is likely to succeed in his quest, the
remaining factors become matters of idle curiosity.” 	E.g.,
Sindicato v. Puertorriqueño de Trabajadores v. Furtuño, 699 F.3d
1, 7, 10 (1st Cir. 2012); New Comm Wireless Servs. v. SprintCom,
Inc., 287 F.3d 1, 9 (1st Cir. 2002). 	Further, the plaintiff
must show not that it is merely theoretically possible that he
prevails, but that there is a “strong likelihood” he does so.
E.g., Respect Maine PAC v. McKee, 622 F.3d 13, 15 (1st Cir.
2010).
B. 	Strong Likelihood of Success
In short, Mr. Nicholas has not demonstrated the “strong
likelihood” of success sufficient to justify entry of a sweeping
preliminary injunction prohibiting defendants from enforcing the
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35
guide license regime or Fis 1301.02(b)(3). 	While the court has
found that Mr. Nicholas’s First Amendment freedom-of-speech
claim is sufficient to proceed beyond the motion to dismiss
stage, it does not inevitably follow that a claim which survives
dismissal has a strong likelihood of success. 	See Billups v.
City of Charleston, 194 F. Supp. 3d 452, 478 (D.S.C. 2016)
(denying defendants’ motion to dismiss First Amendment challenge
to city ordinance requiring licensing of tour guides and
plaintiff’s motion for preliminary injunction prohibiting its
enforcement).
Mr. Nicholas’s primary argument as to likelihood of success
as to his First Amendment claim is that Fis 1301.02(b)(3) is
subject to strict scrutiny and is, therefore, presumptively
unconstitutional. 	As discussed above, on the present record Fis
1301.02(b)(3) is, at most, subject to intermediate scrutiny.
Although it is possible for Mr. Nicholas to prevail if the
intermediate scrutiny test applies because he may be able to
show that Fis 1301.02(b)(3) is not narrowly tailored, Mr.
Nicholas has not submitted evidence or persuasive arguments
demonstrating that there is a strong likelihood he will do so.
Furthermore, although the arguments on the issue have not been
well developed, the regulations may not impose anything more
than an incidental burden on speech, and the government’s public
safety interest in this context is strong. 	Under these
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36
circumstances, occupational licensing regulations that limit
when a professional can supply individualized advice (as opposed
to publication of generalized advice) usually survive First
Amendment scrutiny. 	See Lowe v. SEC, 472 U.S. 181, 228 (1985)
(White, J., concurring in the result) (“The power of government
to regulate the professions is not lost whenever the practice of
a profession entails speech. . . . [I]t has never been deemed an
abridgment of freedom of speech or press to make a course of
conduct illegal merely because the conduct was in part
initiated, evidenced, or carried out by means of language,
either spoken, written, or printed.”); Crownholm, 647 F. Supp.
3d at 855-56 (discussing distinction between regulations aimed
at speech versus conduct).
Lastly, in similar circumstances, the District of South
Carolina declined to enjoin a tour-guide licensing scheme
challenged under the First Amendment. 	As with the tour-guide
licensing scheme at issue there, Mr. Nicholas is free to engage
in any expression covered by the guide license regime except
when doing so for hire, so the licensing scheme “does not impose
an especially sizable burden on speech,” and there is good
reason to believe the public interests the licensing scheme
seeks to protect (public safety) are legitimately at risk. 	See
Billups, 194 F. Supp. 3d at 477-78. 	And the state’s interest in
safety at issue in this case is stronger than the interests in
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37
promoting tourism that were involved in the cases most favorable
to Mr. Nicholas’s position, where courts struck down tour-guide
licensing schemes. 	Compare Edwards, 755 F.3d at 1009, and
Billups, 961 F.3d at 682-84, with Nicholas, 2023 WL 3439546, at
*5 (distinguishing Edwards and Billups on this ground).
Because likelihood of success is the most important factor
in the preliminary injunction analysis, the court need not
further explore whether Mr. Nicholas has demonstrated
irreparable harm, whether the balance of equities favor him, or
whether a preliminary injunction is in the public’s interest.
The District Judge should deny Mr. Nicholas’s motion for
preliminary injunction without prejudice.
Conclusion
For the foregoing reasons the District Judge should grant
in part and deny in part defendants’ motion to dismiss (doc. no.
19). 	Specifically, the District Judge should dismiss all claims
except for Count 1 of the Amended Complaint insofar as Mr.
Nicholas alleges that Fis 1301.02(b)(3) violates his right to
speech under the First Amendment. 	To the extent that Mr.
Nicholas raises claims that other aspects of the guide license
regime violate his constitutional rights, the District Judge
should dismiss those claims without prejudice, including the
claims asserted in Count 3. 	The District Judge should deny Mr.
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38
Nicholas’s motion for preliminary injunction (doc. no. 3)
without prejudice.
Any objections to this report and recommendation must be
filed within fourteen days of receipt of this notice. 	See Fed.
R. Civ. P. 72(b)(2). 	The fourteen-day period may be extended
upon motion. 	Only those issues raised in the objection(s) to
this report and recommendation are subject to review in the
district court. 	See Sch. Union No. 37 v. United Nat’l Ins. Co.,
617 F.3d 554, 564 (1st Cir. 2010). 	Any issues not preserved by
such objection(s) are precluded on appeal. 	See id. 	Failure to
file specific written objections to the report and
recommendation within the specified time waives the right to
appeal the district court’s order. 	See Santos-Santos v. Torres-
Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
December 28, 2023
cc: 	Jason B. Nicholas, pro se
Counsel of Record
Case 1:23-cv-00196-LM-AJ Document 24 Filed 12/28/23 Page 38 of 38