Link to Mo. Sup. Ct. Opinion
Kansas City Premier Apartments, Inc., a corporation offering advertising and other services through its website, challenged Revised Statutes of Missouri §§ 339.010.1 and 339.010.7, which require a real estate license to perform certain activities. It contended that not only was it exempt from the statutes but also that the statutes violated numerous provisions of the United States and Missouri Constitutions. The free speech challenge is the issue of primary interest. The majority determined the relevant subsections under § 339.010 were permissible regulations of commercial speech. Meanwhile, the dissent unleashed an attack on the entire occupational licensing statutory scheme, and ultimately concluded that under a very recent U.S. Supreme Court ruling, the statute was unconstitutional as a violation of the First Amendment.
I. Facts and Holding
The Missouri Real Estate Commission, the agency responsible for enforcing the statutes and regulations relating to the real estate profession, received a complaint against Kansas City Premier Apartments, Inc. ("KCPA"), an unlicensed company. After conducting an investigation of the complaint, the Commission determined that KCPA was engaging in activities requiring a real estate license. Accordingly, the Commission sent a letter to KCPA informing it that its activities required that it obtain a license and that it must cease such activities until it obtained a valid license.
In the most basic sense, KCPA assists property owners in locating prospective tenants. To do this, KCPA operates a website geared towards individuals searching for apartments to rent. KCPA entered into non-exclusive contracts with property owners, whereby the property owner paid a fee to KCPA for each new tenant who told the property owner he or she was referred by KCPA. KCPA then advertised the property on its website. Prospective tenants could also contact "rental advisors" through KCPA, who were independent contractors that would answer questions, recommend properties, and contact property owners on behalf of the prospective tenants. If a new tenant informed a property owner that he or she was referred by KCPA, and KCPA was consequently paid by the property owner pursuant to the contract, the tenant would receive a $100 gift card.
KCPA responded to the Commission's letter, arguing that its activities did not violate Missouri law. The Commission's counsel responded with a cease and desist letter. KCPA then filed suit against the Commission, seeking a declaration that the statutes requiring real estate licensure did not apply to its activities; that if the statutes did apply, it was exempt under § 339.010.7; and that the Commission's interpretation of the statutes violated various provisions of the United States and Missouri Constitutions. Two years later, when this action remained pending, the Commission filed suit against KCPA seeking an injunction. The two cases were consolidated, and the trial court issued an injunction against KCPA prohibiting it from "[c]ontracting with property owners to receive compensation in return for referring prospective tenants" and otherwise engaging in "any act requiring real estate licensure."
On appeal to the Supreme Court of Missouri, KCPA argued the trial court erred by misapplying § 339.010 and by not declaring §§ 339.010.1 and 339.010.7 unconstitutional. The court rejected KCPA's first argument that it was exempt from obtaining a license under § 339.010.7, which exempts individuals employed or retained by a property owner to manage the owner's property so long as the person is limited to expressly specified activities. The court, strictly construing the exemption, determined that KCPA's activities were not limited enough to qualify; therefore, KCPA was required to obtain a license to conduct its activities.
KCPA's constitutional challenges took a number of forms. It argued § 339.010.1(3), (4), (7), (8), and (10), and § 339.010.7 violated freedom of speech provided by the U.S. and Missouri Constitutions. It also argued that § 339.010.7 violated the equal protection clauses of both Constitutions and violated the special law provision of the Missouri Constitution. Lastly, KCPA made a due process argument by contending that § 339.010.1(3), (4), (7), (8), and (10), as well as § 339.010.7 were unconstitutionally vague. The court quickly disposed of the latter two arguments. It held that because the exemptions under § 339.010.7 are open-ended, rather than fixed, in that any person can take some action to become qualified for the exemption, it was not a special law. It also held that the words used in the relevant subsections were of common usage and understandable by persons of ordinary intelligence; therefore, the statutes were not vague.
For its equal protection challenge, KCPA claimed that the exemptions under § 339.010.7 were discriminatory because they were not based on differences reasonably related to the purposes of the statute. The court first determined that rational basis review applied versus strict scrutiny, holding that there was no fundamental right to engage in the real estate profession. Thereafter, the court sorted the exemptions in § 339.010.7 into four categories and, employing the rational basis test, determined plausible reasons existed for each one. The first category exempted persons acting on their own behalf. The court held that the plausible reason is to allow such individuals to "handle their own affairs." The second category included attorneys, which the court found justified because each attorney is licensed professionally and regulated by the court. The third category exempted persons with the authority of law to deal in land transactions, such as trustees, guardians, government employees, and others, because such individuals already act in an official capacity under the authority of law. Lastly, the fourth category encompassed newspapers and media sources, under the idea that such sources should be able to post classified advertisements of real estate, as they have traditionally done. Because all exemptions had a rational basis, the equal protection challenge failed.
The majority and dissent focused its attention on the free speech argument. KCPA asserted that the laws at hand were unconstitutional because they essentially prohibited unlicensed persons from sharing information about real estate, thereby limiting the ability of consumers to receive such information. The majority understood this argument to be that the State could not license and regulate people who wish to engage in real estate activities. Given that states have always been capable of regulating professional conduct, even if that conduct takes the form of speech, the court rejected this argument. However, the court recognized that states do not have unlimited power, and any professional conduct regulation restricting speech must meet strict or intermediate scrutiny. Because commercial speech was involved in this case, the court determined intermediate scrutiny applied and went on to find the regulation satisfied the applicable test because, although the speech being regulated was lawful and not misleading, there was a substantial government interest in protecting the public from fraud and incompetence. The statute advanced this government interest as its "requirements of licensure directly relate to…honesty and competency." Lastly, the court determined the statutes do not go beyond the State's interest.
In addition, KCPA argued that Article I, § 8 of the Missouri Constitution provided broader protection for speech. Although the court did not directly answer this question, it noted that it had "traditionally given due deference" to U.S. Supreme Court precedents when the provisions involved were parallel to the Missouri Constitution. KCPA contended the broader protection required the Commission demonstrate KCPA abused its freedom of speech. Relying on precedent, the court simply stated that the right to free speech is subject to the state's police power, and it had already been determined that the relevant statutes were proper exercises of said power.
In dissent, Judge Wolff took great issue with the fact that the lower court’s injunction prohibited the conveyance of truthful information. He also believed the majority was violating its duty to apply U.S. Supreme Court precedent by failing to apply a higher level of scrutiny as was done in a recent U.S. Supreme Court case. He believed this precedent to be "directly parallel" to the case at hand in that the Missouri statutes are content- and speaker-based. He argued that under the higher level of review, the statute would fail because it suppresses speech that is neither harmful nor untruthful. He contended that the State had no valid justification for even regulating the real estate profession as a whole, referring to it as a "state-created cartel for marketing real estate services." Because the Constitution does not explicitly protect economic liberty, Judge Wolff believed this was all the more reason to protect commercial speech, which is directly related to free enterprise.
Citing the same intermediate scrutiny test as the majority, the dissent first confirmed that the case involved commercial speech. It then addressed the State's argument that any suppression of speech was incidental to its statutes that primarily governed conduct. Looking to the injunction, the dissent determined that it was not KCPA's conduct that was at issue, but its communications about rental housing to the public, thereby distinguishing this case from situations where occupational regulations incidentally restrict speech. Further, he pointed out, there was no personal nexus between the "professional and client," which is a method of distinguishing between an occupational regulation and speech restriction.
Judge Wolff then concluded that the state interests of preventing fraud and incompetence by those who market real estate did not justify the speech suppression. He believed the Commission failed to show a connection between forbidding unlicensed real estate agents from advertising and truthful advertising. Further, he pointed out that the current laws are too extensive – a less restrictive option would be to simply ban false or deceptive advertising. Although the Commission argued that licensing was necessary to provide education concerning agency, conflicts, fiduciary duties, fair housing laws, discrimination issues, and other areas, Judge Wolff could not see where a fiduciary relationship existed in this case. He finished by stating that if the rental advisors provided by KCPA were advocating false, deceptive, or misleading speech, as was pointed out by the Commission, the solution was not to limit all speech, as previously discussed.
II. Legal Background
A. Chapter 339
Every state has statutes regulating the real estate profession. During the first part of the 20th century, a national association of real estate professionals began to press local governments to adopt license laws regulating its profession in hopes of increasing professionalism and to protect the public from "unscrupulous or incompetent practitioners." In 1917, California became the first state to enact a license law, although this initial law was immediately struck down by the Supreme Court of California. In 1919, the California legislature passed another license law which withstood constitutional challenge. Michigan, Oregon, and Tennessee passed similar license laws that same year, and by 1930 over sixty percent of all states in the U.S. had such laws. The Missouri legislature enacted its laws regulating the real estate profession in 1941. It was in 1950 that all states had real estate licensing laws.
Section 339.020 makes it unlawful for any person or company to act as a real estate broker or salesperson without having a license issued by the Missouri Real Estate Commission. A real estate broker is defined in § 339.010.1 as any person or company who, for another, and for compensation or valuable consideration: sells or leases real estate; offers to do the same; negotiates or offers to negotiate such transactions; lists or offers to list real estate for sale or lease; assists in the procuring of prospects calculated to result in the sale, rental, or lease of real estate; assists in negotiation of a transaction calculated to result in the sale, rental, or lease of real estate; charges a property owner an advanced fee in exchange for promoting the property in a publication circulated to the general public; or performs any of the foregoing acts on behalf of a property owner. A real estate salesperson is defined as any person who for compensation or valuable consideration is associated with a real estate broker to do any of the things listed in § 339.010.1. There are a number of exemptions from licensure provided by the legislature. For instance, property owners, people employed by property owners to manage their property, attorneys, and newspapers need not obtain a license.
The Supreme Court of Missouri has approved the real estate licensing statutes as a proper exercise of the state's police power. In Miller Nationwide Real Estate Corp. v. Sikeston Motel Corp., the court noted that the intention of the legislature in passing the real estate licensing laws was to protect the public from fraud and incompetency. Given this purpose, any exemptions under the law are strictly construed against the person claiming the exemption and in favor of the public; therefore, the person must present a clear case, free from all doubt, that he or she falls under the exemption. The court relied heavily upon the Missouri Court of Appeals case Gilbert v. Edwards.
In Gilbert, the Court of Appeals took into consideration that laws regulating the real estate profession, existing in most states at that time, had uniformly been held to be "regulatory in nature and not revenue acts." The Court of Appeals cited to Justice Cardozo, who, during his tenure as a New York Court of Appeals judge, provided an explanation for such regulatory measures. In Roman v. Lobe, Justice Cardozo recognized the legislature had great discretion to determine when the dishonest or incompetent shall be barred from an occupation, but that certain callings are so "inveterate and basic, so elementary and innocent," that they must be open to all. He then stated that brokers are not one of such callings. Cardozo reasoned that "[t]he intrinsic nature of the business combines with practice and tradition to attest the need of regulation. The real estate broker is brought by his calling into a relation of trust and confidence. Constant are the opportunities for concealment and collusion to extract illicit gains."[81
B. Occupational Licensing Laws & Free Speech
The U.S. Supreme Court case Ohralik v. Ohio State Bar Ass'n discussed a number of issues involving professional regulations and free speech.  Ohralik involved the Ohio Code of Professional Responsibility as applied to an attorney who made an in-person solicitation of an accident victim. The attorney argued that his conduct was protected by the First and Fourteenth Amendments of the Constitution. Prior to this case, the Court had decided that blanket prohibitions of truthful advertising of routine legal services was protected by the First Amendment. The rationale for that ruling was that the justifications for the restraint were insufficient to override society's interest in the free flow of commercial information. However, in Ohralik, the Court determined that in-person solicitation regulations were permissible.
First, the Court recognized that commercial speech is not afforded the same protection as other forms of speech because it occurs in an area traditionally subject to regulation. The court justified the differing treatment based on fear that affording commercial speech the same level of protection as all speech would dilute the force of the First Amendment. Next, the Court acknowledged that a First Amendment violation had never been found where the state made conduct illegal and such conduct was, in part, a form of communication. Essentially, states may exercise their police power to regulate conduct deemed harmful to the public even where speech is incidentally involved. Lastly, the court held that it was unnecessary that actual harm be shown for the rule to be constitutionally applied. Given that the State's belief in the potential for harm was well-founded, the State was authorized to enact prophylactic measures to prevent the harm before it occurred. Further, the State's efforts to effectively prevent harm would be substantially diminished if it were required to prove actual injury.
Although professional regulations may incidentally affect speech, states do not have unlimited power to directly restrict speech through regulations. For regulations directly restricting commercial speech, a four-part test is employed, as set forth in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York. First, it must be determined whether the speech is even protected by the First Amendment. Accordingly, the speech must at least be lawful and not misleading. Second, it must be determined whether the state interests are substantial. If so, the next inquiry is whether the regulation advances the state interest. The last step is to determine whether the regulation is more extensive than necessary to serve the state interest.
The U.S. Supreme Court has recently brought the Central Hudson test into question. In Sorrell v. IMS Health Inc., a case involving a state statute restricting the sale or use of physician-prescriber information for marketing by pharmaceutical companies, the Court declared "heightened scrutiny" applied. The reason for the heightened scrutiny was based on the Court's belief that the state law was both content- and speaker-based. Presumably, this test is much more strenuous than the Central Hudson test. The dissent in this case was quite concerned. It believed application of a heightened First Amendment standard to a regulatory program anytime speech was burdened would "transfer from legislatures to judges the primary power to weigh ends and to choose means, threatening to distort or undermine legitimate legislative objectives." However, the majority appeared to apply Central Hudson, stating that "the outcome is the same whether a special commercial speech inquiry or a stricter form of judicial scrutiny is applied." The Court then looked to see if the statute advanced substantial state interests and whether there was a fit between the legislature's ends and the means chosen. It ultimately held that the state did not advance sufficient justifications for its law.
The Supreme Court of Missouri never lost sight of the most important part of this case: KCPA was receiving a fee from property owners for its advertising and services. By receiving a fee in exchange for the advertising and services, KCPA fell within Chapter 339. Had KCPA simply been advertising, without receipt of a fee, a license would not have been required, and this case would have never existed, as the majority pointed out. Judge Wolff seems to have disregarded this fact in his dissent, stating only once that "this fee does not justify the state's suppression of KCPA's distribution of this information." However, the fee created a fiduciary relationship between KCPA and the property owners, and the legislature has determined that such fiduciary relationships should be reserved and entered only by those who are educated in real estate matters.
Any burden to speech in this case was incidental to the professional conduct being regulated – the procuring of tenants on behalf of property owners for a fee. As pointed out in Ohralik, "it has never been deemed an abridgement 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." The court even recognized in Sorrell that "the First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech." Even if there is a direct restriction on speech in this case, the statute satisfies the Central Hudson test, as determined by the court. On the other hand, the dissent, arguing that heightened scrutiny applied under Sorrell, although later applying Central Hudson, contended that the statute was too extensive. However, the statute is not content- or speaker-based warranting the application of Sorrell.
Perhaps the dissenting opinion's result is explained by Judge Wolff's manifest abhorrence with occupational licensing laws, referring to them as "state-created cartel[s]." His apparent belief is that occupational licensing laws have only a tangential relation to the protection of the public. Considering that every state in the U.S. has had such laws since the first half of the 20th century, this position seems weak. Further, imagining a world without such laws somewhat confirms the flimsiness of the position. To buy or rent a house, consumers would be limited to Craigslist-type transactions, with little recourse when the transaction goes awry. Individual consumers would have to conduct their own background checks to ensure the real estate agents they meet or hire to show property are not convicted burglars or otherwise untrustworthy. Even though the real estate profession would likely self-govern without state statutes, this does not ensure fairness within the profession or protection of consumers. Lastly, Judge Wolff's statement that these statutes restrict access to the occupation is baseless. Essentially anyone over the age of eighteen may obtain a real estate license, with the exception of felons convicted of certain dangerous crimes.
When KCPA contracted with property owners to receive a performance-based fee, an incentive was created to "close the deal." The threat of fraud or incompetence in such a situation is obvious, giving the state the authority to exercise its police power to ensure that those involved in such agreements are honest and competent. The harm was present in this case. One of the KCPA rental advisors told a prospective tenant that she preferred one property owner's apartments over another's, and another advisor told a prospective tenant to lie to a property owner concerning the prospect's pet so the individual would not be restricted from renting. I highly doubt the property owners agreed to pay KCPA a fee to have their trust betrayed in such a manner. Without the fee, no expectation of trust on the part of property owners would have existed, no free speech restriction would have occurred, and KCPA would have contributed to the free flow of commercial information that society needs.
- Emily M. Park
 No. SC91125 (Mo. July 19, 2011) (en banc), available at http://www.courts.mo.gov/file.jsp?id=47892. The West Reporter citation is Kansas City Premier Apartments, Inc. v. Mo. Real Estate Comm’n, 344 S.W.3d 160 (Mo. 2011) (en banc).
 No. SC91125, slip op. at 2.
 Id. The website is http://www.kcpremierapts.com. Id.
 Brief of Defendant-Respondent at 5, Kansas City Premier Apts., Inc. v. Missouri Real Estate Comm'n, 344 S.W.3d 160 (Mo. July 19, 2011) (No. SC91125), 2011 WL 1573766.
 Kansas City Premier Apartments, No. SC91125, slip op. at 3. KCPA argued that it was exempt under § 339.010.7(5), which exempts property managers limited to certain activities, because it was retained by property owners to list and assist them in marketing their properties. Id. at 4-5.
 Id. (internal quotations omitted).
 Id. at 1.
 Id. at 4.
 Id. at 6.
 Id. at 7, 12-13, 15-16.
 Id. 7, 12.
 Id. at 13, 15. "Special law" is defined in Black's Law Dictionary as a law that "affects a particular case, person, place, or thing, as opposed to the general public." Black's Law Dictionary (9th ed. 2009). This particular constitutional provision prohibits the passage of a special law where a general law could be used. Mo. Const. art. III, § 40(30).
 Kansas City Premier Apartments, No. SC91125, slip op. at 16.
 Id. at 15-17.
 Id. at 15-16. See supra note 21.
 Kansas City Premier Apartments, No. SC91125, slip op. at 16.
 Id. at 13.
 Id. at 13-15.
 Id. at 14.
 Id. at 14-15.
 Id. at 15
 Id. at 7-13; Id. at 5-13 (Wolff, J., dissenting).
 Id. at 7.
 Id. at 8.
 Id. at 9.
 Id. at 10-12.
 Id. at 12.
 Id. at 12 n.4.
 Id. at 12.
 Id. at 13.
 Id. at 1 (Wolff, J., dissenting).
 Id. at 2 (citing Sorrell v. IMS Health, 131 S.Ct. 2653 (2011)).
 Id. at 2-3.
 Id. at 3.
 Id. at 5.
 Id. at 6.
 Id. at 8.
 Id. at 11 (citing Sorrell v. IMS Health, 131 S.Ct. 2653 (2011)).
 Id. at 11-12.
 Id. at 12.
 See, generally, Westlaw 50 State Statutory Surveys, Licensing Requirements for Agents and Brokers (March 2011) (a list of state statutes which regulate real estate brokers and agents).
 ARELLO, ARELLO's Organizational History 1 (2010), https://www.arello.org/about/ARELLO_History.pdf.
 Id. (citing Frank Blankenship & Robert W. Semenow, Semenow's Questions and Answers on Real Estate (10th ed. 1993)); Ex parte Raleigh, 171 P. 950, 952 (Cal. 1918) (declaring the law to be unconstitutional under the state constitutional provision prohibiting special laws).
 ARELLO, supra note 62, at 1; Riley v. Chambers, 185 P. 855, 856-59 (Cal. 1919) (declaring the law constitutional because, although the state could not take the right to engage in a lawful and useful occupation through regulation, such regulation is permissible where made in the public interest).
 ARELLO, supra note 62, at 1-2.
 Real Estate Commission, About the Commission, http://pr.mo.gov/realestate-about-the-commission2.asp (last visited Sept. 16, 2011).
 ARELLO, supra note 62, at 1-2.
 Mo. Rev. Stat. § 339.020 (Supp. 2010).
 § 339.010.1.
 § 339.010.2 (there are also "broker-salespersons," defined in § 339.010.3).
 § 339.010.7.
 Miller Nationwide Real Estate Corp. v. Sikeston Motel Corp., 418 S.W.2d 173, 176-77 (Mo. 1967) (citing Gilbert v. Edwards, 276 S.W.2d 611, 616-17 (Mo. App. E.D. 1955)).
 Id. at 177.
 276 S.W.2d 611, 616-17 (Mo. App. E.D. 1955).
 Id. at 616.
 Id. at 616-17 (citing Roman v. Lobe, 152 N.E. 461, 462 (N.Y. 1926)).
 Lobe, 152 N.E. at 462.
 436 U.S. 447, 456 (1978).
 Id. at 450.
 Id. at 453.
 Id. at 448-49 (citing Bates v. State Bar of Ariz., 433 U.S. 350 (1977)).
 Bates, 433 U.S. at 432. Some of the justifications offered included maintaining professionalism, preventing an increase in overhead costs, and preventing the deterioration of quality of services. Id. at 368-79.
 Ohralik, 436 U.S. at 468.
 Id. at 455-56 (citing Va. State Bd. of Pharm. v. Va. Citizens Consumer Council, 425 U.S. 748, 761, 771 n.24 (1976)).
 Id. at 456 (examples provided by the Court included exchange of securities information, corporate proxy statements, and exchange of price and product information among competitors).
 Id. at 464-67.
 Id. at 464-65.
 Id. at 466-67.
 Central Hudson Gas & Elec. Corp. v. Public Service Comm'n of New York, 447 U.S. 557, 561-62.
 Id. at 566.
 Sorrell v. IMS Health Inc., 131 S.Ct. 2653, 2667 (2011).
 Id. at 2664.
 Id. at 2663.
 Id. at 2667 (the Court cited to R.A.V. v. St. Paul, 505 U.S. 377 (1992), a case in which it was held that content-based regulations are presumptively invalid).
 Id. at 2675 (Breyer, J., dissenting).
 Id. at 2667.
 Id. at 2667-68.
 Id. at 2668, 2672 (stating that the state's two categories of justifications did not "withstand scrutiny," and "Vermont has not shown that its law has a neutral justification.").
 Kansas City Premier Apts., Inc. v. Mo. Real Estate Comm'n, No. SC91125, slip op. at 8, 11 n.3 (Mo. July 19, 2011).
 Id. at 1 (Wolff, J., dissenting).
 Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 456 (1978) (citing Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949)) (internal quotation omitted).
 Sorrell v. IMS Health Inc., 131 S.Ct. 2653, 2664 (2011).
 Kansas City Premier Apartments, No. SC91125, slip op. at 11 (Wolff, J., dissenting). He contended that the statute was too extensive to protect the public from fraud and incompetence because it reached truthful advertising, and the state should have instead made false and misleading advertisements illegal. Id. at 11. However, the state has made false and misleading advertisements unlawful. See Mo. Rev. Stat. §§ 407.010 and 407.020. This demonstrates that this case was not merely about advertisement; it was about the other activities of KCPA.
 Kansas City Premier Apts., No. SC91125, slip op. at 11 n.3.
 Id. at 3 (Wolff, J., dissenting).
 Id. at 4.
 Mo. Rev. Stat. § 339.040 (Supp. 2010); 20 C.S.R. 2250-3.010 (2010). All that is required to become a salesperson is to show proof of satisfactory completion of a 48-hour pre-examination course, a 24-hour practice course, and the salesperson examination. Id. To become a broker, a 48-hour course, broker examination, and two-years salesperson experience is required. Id. Instead of bringing a lawsuit, KCPA could have simply taken the necessary courses and exams for nominal fees. At the time of the Commission's first letter, it was not required that brokers have two-years experience; therefore, KCPA could have obtained a broker license in less than a couple of months. H.B. 1339, 93rd Gen. Assem., 2d Reg. Sess. (Mo. 2006).
 Kansas City Premier Apartments, No. SC91125, slip op. at 6 (Wolff, J., dissenting) (using Judge Wolff's language, which he used to describe licensees, rather than unlicensed individuals).
 Id. at 12.