October 6, 2015

The First Amendment trumps occupational licensing laws

By Caleb R. Trotter Attorney

Last week a federal court in Kentucky held the attempt of the Kentucky Board of Examiners of Psychology to stop a North Carolina psychologist from publishing a newspaper column on parenting, something he has done for nearly forty years, to be unconstitutional.

According to the Kentucky bureaucrats, John Rosemond’s column placed the public at risk by offering parenting advice and mislead the public. How could a simple advice column be so problematic? The Board claimed that the advice was akin to practicing psychology, and the tagline to the column noted that Mr. Rosemond was a “family psychologist” when he was only licensed in North Carolina, not Kentucky. In response to the Board’s attempt to silence Mr. Rosemond, he sued, claiming his First Amendment free speech rights were violated.

Fortunately, the judge agreed with Mr. Rosemond. Delivering two important victories for free speech and economic liberty, the court held: 1) the restrictions on parenting advice and the tagline to be a content-based speech restriction warranting strict scrutiny; and 2) the restrictions do not survive strict scrutiny. Even more remarkable is that the court went on to say that because the Board failed to show that its claimed interests of protecting the public from receiving unlicensed advice and preventing people in Kentucky from thinking Mr. Rosemond was licensed in Kentucky were anything more than conjectural, the restrictions wouldn’t even survive intermediate scrutiny.

In the words of Judge Van Tatenhove:

Rosemond is entitled to express his views and the fact that he is not a Kentucky-licensed psychologist does not change that fact. If the facts were different, had Rosemond represented himself to be a Kentucky-licensed psychologist or had he actually entered into a client-patient relationship in Kentucky, the outcome might be different. In the case at hand, he did not. All he did was write a column providing parenting advice to an audience of newspaper subscribers. To permit the state to halt this lawful expression would result in a harm far more concrete and damaging to society than the speculative harm which the State purportedly seeks to avoid, and perhaps that is the “wake up” call best drawn from the facts of this case.

This case is an important victory for economic liberty because many professions consist primarily, if not entirely, of speech. Court recognition that occupational licensing laws cannot serve as an end-run around the First Amendment provides much needed protection for professionals and entrepreneurs who merely seek to engage in an honest profession.

In contrast, recall the current Pacific Legal Foundation case, Young v. Ricketts. Seeing an opportunity to assist people selling their homes without a real estate agent, Leslie Young began uploading the sales info into various websites to provide advertising for the homes. Ms. Young does not provide the typical services of a real estate agent, such as negotiating contracts, taking commissions, or providing advice. Instead, she merely provides a service akin to newspaper classified ads, just on a larger scale. Interpreting state law very broadly, the Nebraska Real Estate Commission served Ms. Young a cease and desist letter, claiming that her advertising service amounted to her working as an unlicensed real estate broker in the state of Nebraska. In other words, only licensed brokers may advertise property for homeowners in Nebraska.

Unfortunately, the court in Nebraska agreed with the Real Estate Commission. The court discounted Nebraska’s restrictions on Ms. Young’s speech, and viewed the case as being merely “about regulating brokers of real estate transactions.” Currently, the case is on appeal to the Eight Circuit Court of Appeals.

Finally, PLF has also filed an amicus brief urging the United States Supreme Court to take up the appeal of Hines v. Alldredge from the Fifth Circuit Court of Appeals. Timothy Sandefur’s blog post provides a thorough explanation of that case, but in short, the case involves the state of Texas prohibiting a licensed veterinarian, Dr. Hines, from providing advice over the phone without first physically examining the animal. Amazingly, the Fifth Circuit held that the restriction was not a speech restriction at all, since the advice Dr. Hines sought to provide was an “activity,” not speech.

While the Nebraska and Texas cases differ in certain respects from Mr. Rosemond’s victory in Kentucky last week, it is still good news to see a federal court seriously recognizing that the Constitution protects speech when given by a person engaging in an honest profession.

Congrats to our friends at IJ for their victory!

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