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As far as we know, we could have "Professional Murderer" printed on our business cards, and we'll have committed no crime.
An investment professional advertising him- or herself as specializing in retirement planning, however, can suffer a $10,000 fine and license revocation for advertising that service.
Indiana Secretary of State Todd Rokita boasted in a July 29 news release of strengthening the Indiana Uniform Securities Act to criminalize the pairing of words such as "senior," "retirement" and "elder" with terms such as "specialist," "adviser" or "consultant." Rokita's stated intent - to protect senior citizens who are frequently targets for fraud - is honorable. His method for addressing the problem is misguided and ineffectual.
We hope it will be seen for what it is.
We urge that it be abandoned.
A few media outlets published variations on Rokita's release, but none we found noted the historic occasion it proclaimed: a criminalization of everyday language.
Our fictional "confessional" business card describes a horrible practice. As objectionable as it is, however, we enjoy, under the First Amendment to the Constitution of the United States of America, the freedom to say and write objectionable words and phrases. While our business card may invite police investigation, such an inquiry would end with a declaration such as "they said it; we can't prove it; case closed."
Were we to commit the acts described, criminal prosecution would be proper. There's a difference, however, between simply saying we commit a crime and actually committing it. The great majority of people who claim to have expertise in providing financial advice conducive to enjoyable retirements aren't even suggesting criminal activity.
People intent on luring victims into their scams will always use words. Making the use of those words criminal violates of one of the most basic freedoms we enjoy. A few examples of speech are prosecutable, but they are limited to those which "create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent," according to Supreme Court justices deciding a 1919 case. Examples include falsely shouting "fire!" in a crowded theater.
Our imaginations don't stretch far enough to envision "I am a retirement consultant" qualifying for that category.
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