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Auctioneers have argued in Tennessee that online auctions cannot require a license (be burdened by a government license) because the auctioneer’s speech is protected — essentially saying that hosting an online auction cannot be encumbered.

In this light, how could any state or jurisdiction require an auctioneer’s license of any kind? We noted this interesting argument in our prior article about freedom of speech: https://mikebrandlyauctioneer.wordpress.com/2020/04/22/auctioneers-and-freedom-of-speech/.

Similarly, we could ask if bidding at an auction is protected free speech? If the auctioneer asking for a bid is free speech to be protected, why wouldn’t the actual bid (offer) be protected as well? At live auctions, some bidders literally yell out their bids …

Further, we could ask if having your bid accepted by the auctioneer is protected free speech? What good is a protected right to bid if that bid (right) can be legally ignored and/or qualified?

Auctioneers — not unlike a lot of people — tend to say that certain speech (expressions) should be banned when they disagree with those words or actions, but other speech or expressions are to be protected when they agree with the expression.

Yet, auctioneers generally say that bidders do not have a right to bid unless they meet or exceed certain criteria and that auctioneers can even ban bidders (ban free speech?) if bidders misbehave. I suppose it follows that preferred speech is okay, and undesirable speech can be banned?

The “Tennessee” argument of course says the government (the state) cannot restrict free speech … which is the essence of the First Amendment’s guarantee:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Otherwise, it is held that private companies can indeed restrict free speech and as such, auctioneers can and do refuse bids, not accept bids, and the like, if we are considering them speech or not. But, some auctioneers say nobody can (or should) restrict free speech, so I trust those auctioneers are allowing everyone to bid?

The First Amendment and The Constitution generally are widely misunderstood. I have a right to free speech — I have a right to keep and bear arms — I have the right to life, liberty, and pursuit of happiness …? Actually, all of your rights can be (and are) burdened or restricted such as yelling “fire” in a crowded theatre with no such blaze thus inciting harm to others.

If you as an auctioneer believe nobody should restrict any speech, then it seems to us you better allow any and all bidders to speak (express) their bids at your auction. In fact, aren’t the bidders entitled to life, liberty, and pursuit of happiness just like you?

Further, if you think your rights can’t be restricted or burdened, even by private entities, then you would almost have to hold any and all speech is acceptable whether you liked it or not; such might include a bidder speaking and/or placing (expressing) his bid — even if he’s behaved badly?

Mike Brandly, Auctioneer, CAI, CAS, AARE has been an auctioneer and certified appraiser for over 30 years. His company’s auctions are located at: Mike Brandly, Auctioneer, RES Auction Services, and Goodwill Columbus Car Auction. He serves as Distinguished Faculty at Hondros College, Executive Director of The Ohio Auction School, and an Instructor at the National Auctioneers Association’s Designation Academy and Western College of Auctioneering. He is faculty at the Certified Auctioneers Institute held at Indiana University and is approved by The Supreme Court of Ohio for attorney education.