Banning Advice Columnists in the Name of Occupational Licensing

Kentucky takes First Amendment violations to the extreme.

(Page 2 of 2)

But this Rosemond case is the purest example of a blow to the First Amendment you can get—one of the most hallowed forms, the advice column, of our most hallowed arena of expression, the daily paper, shut down in the name of occupational licensing.

American government at all levels is occupational licensing crazy, enforcing licensing requirements on occupations such as tax preparers, tour guides, interior design, florists, stage dancers, hair braiding, and moving companies (where your competitor gets to decide if you can compete). One in three American workers likely have their jobs impacted by these regulations.

How did government officials—beyond pure idiotic officiousness—get the idea that they can ignore the First Amendment so blithely in the name of such a petty regulatory function as occupational licensing?

Paul Sherman, a litigator for IJ working on the Rosemond case, said the extent to which occupational licensing can be a legitimate excuse to squash speech “is definitely something lower courts are confused about. We’ve seen bad decisions [for speech] out of the 4th Circuit [Accountant’s Society v. Bowman, 1988], 11th Circuit [Locke v. Shore, 2011, involving interior designers], and 9th Circuit [National Association for the Advancement of Psychoanalysis v. California Board of Psychology].”

Many of the bad decisions for speech rely on a concurrence in a Supreme Court case from 1985, Lowe v. SEC, in which Justice Byron White (joined by two other justices) suggested, as put in an IJ backgrounder on the Rosemond case:

that the First Amendment applies to people who publish general opinions directed to the public at large (“Buy more oil stocks”), but that the First Amendment may not apply to certain experts who offer individualized advice to a specific person (“Mr. Smith, you should buy more oil stocks”).

Justice White’s concurring opinion did not command a majority of the Supreme Court, and thus has no binding effect on other courts.  Moreover, in the nearly 30 years since that case was decided, the Supreme Court has never cited the three-Justice Lowe opinion, and has grown significantly more protective of a wide variety of speech.  In fact, in 2010, the Supreme Court held that the First Amendment applies even to expert legal advice to designated terrorist groups in Humanitarian Law Project

Some lower courts, however, have interpreted the Lowe concurrence to mean that occupational-licensing laws do not implicate the First Amendment, even when they are applied to silence pure speech like John [Rosemond]’s.

IJ has won some lower court victories in similar cases of occupational licensing or regulation used to squash speech, including in 2000 for online publishers of financial analysis that the Commodity Futures Trading Commission wanted to license, and 2004 for online real estate listers in California.

But there has been no authoritative doctrine laid down by the Supreme Court in recent times defining the parameters of when and where licensing laws can trump free speech. “This is one of the most important unanswered questions in First Amendment law, and the Supreme Court is going to have to resolve it sooner or later,” says IJ's Sherman. (A 1944 Supreme Court case, Thomas v. Collins, in which the court overthrew on First Amendment grounds a conviction under a Texas law requiring union recruiters to be registered with the state, is encouraging.)

The Supreme Court should authoritatively reconsider how and when states can restrict speech and publication in the name of occupational licensing. But in this case the violation of the First Amendment is so blatant that the state of Kentucky should just give up after what ought to be a swift and sure victory for Rosemond’s side.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • ||

    Sadly my home state is not as forceful in preventing the holocaust of the preborn as they are about making sure some advice-giving hack has the proper credentials. Priorities and all.

  • Swiss Servator - past LTC(ret)||

    Impostor?!

  • SugarFree||

    I'm hard to imitate. It's pretty difficult to say something stupider than what I manage on my own.

  • ||

    Remember, imitation is the sincerest form of flattery. So your stalker should really go and get full-blown diabetes.

  • SugarFree||

    I suggest Hostess Lemon Pies. If the curd doesn't get you, the fried lard will.

  • ||

    I suggest you leave our great state and move somewhere that accepts your perverted version of "morality" where it's open-season on the preborn, and human children have no right to life. Perhaps you'll find New York or California to be more to your cultural tastes.

    I stand with our senator Rand Paul on limited gov't, and an absolute guarantee to the right to life from the moment of conception.

  • Swiss Servator - past LTC(ret)||

    Gah, now its boring.

  • ||

    When wasn't it?

  • SugarFree||

    When all you have is hammer, everything looks like a fetus.

  • Citizen Nothing||

    Mmmmm. Ham. Mmmmm. Fetus.

  • Robert||

    You can't get hammer than 100% ham.

  • Tonio||

    That you, Mary?

  • General Butt Naked||

    it's open-season on the preborn

    I thought it was open-season on black teenagers now. Hunting rules have gone really lax in the past few years.

    I'm gonna need more ammo.

  • Daily Beatings||

    You have ammo?

  • plusafdotcom||

    Then you should have no trouble creating an adoption agency for any and all babies born to mothers who wanted abortions and couldn't get one or afford one, right?

    What's the name, address and link to it?

    Oh, and funding for food, clothing, shelter and education for the "born fetus" until they've gotten a job that can support them in the manner to which they'd like to become accustomed...

    Fool.

  • Lord Humungus||

    It's definitely lacking that intangible quality of a real SugarFree post. For example I haven't thrown up.

  • SugarFree||

    It's certainly boring enough to be me.

  • ||

    It succeeded in being so boring, that it surpassed you. Once again, an imitation fail of the highest order.

  • sarcasmic||

    I'm thinking someone is going to disappear down the memory hole, and my comment will be orphaned.

  • SugarFree||

    Here, in case that happens:

    Hargle bargle pre-born Rand Paul blah blah.

  • robc||

    Ive already disappeared him, so I wont notice the difference.

  • SugarFree||

    Kentucky: Watch out, Florida!

  • Swiss Servator - past LTC(ret)||

    Fuck off, Kentucky slavers. Who is next? Miss Manners? Ask a Bee? http://www.theonion.com/articles/ask-a-bee,12241/

  • James Anderson Merritt||

    I think "Ask a Mexican" will be next, as the writer may be a registered Mexican in California, but not in other States.

  • Sevo||

    "The state of Kentucky believes that writing a newspaper column is not protected by the First Amendment."

    The problem is the lack of lead, moveable type. That's what it takes to be "press".

  • A Serious Man||

    The Press Corps is a lot like the Green Lantern Corps: they have special rings and their own creed they recite before they start typing.

  • CE||

    In darkest day, in blackest night, no celebrity gossip shall escape my sight? Let those who worship evil's might send me their press releases for widespread circulation?

  • sarcasmic||

    How did government officials—beyond pure idiotic officiousness—get the idea that they can ignore the First Amendment so blithely in the name of such a petty regulatory function as occupational licensing?

    How are they ignoring the 1A? He can still publish. He just has to get a license first.

    Freedom means asking permission and taking orders.

  • WTF||

    Reasonable, common-sense restrictions. Just like the second Amendment.

  • sarcasmic||

    Congress shall make no unreasonable law.

    shall not be unreasonably infringed

    I know you can't see those words when you read the Constitution, but they can. That's why their judges. They can see things that mere mortals without black robes cannot.

  • SugarFree||

    They were written in lemon juice!

  • sarcasmic||

    No, no, no! You use lemon juice and heat to show the invisible ink! Can't you get anything right?

  • SugarFree||

    Lemon juice can be used on its own as ink, and revealed with a heat source.

  • SugarFree||

    You just got ENCYCLOPEDIA BROWN'D!

  • ||

    Why don't you make like a drum and beat it?

  • CE||

    With of course, the public safety exception.

  • A Serious Man||

    Dear Prudence: Help! The Commonwealth of Kentucky wants to shut down my advice column!

  • Archduke Trousersenthusiast||

    Now you fat lazy Americans can enjoy the view from the top of the Eiffel tower without climbing the 1710 steps (that's 1 heart attack saved/75 steps climbed). Look at me, I'm saving lives!

  • Swiss Servator - past LTC(ret)||

    Saving fat lives.

  • sarcasmic||

    I can see the wafting body odor.

  • Lord Humungus||

    the city of lights smelly Frenchmen.

  • Sevo||

    They called it steak, but now that I think about it, no one said 'beuf'.

  • Eduard van Haalen||

    What happened to the hot chick who likes to photograph herself dangling from high places? Does anyone know?

  • Agammamon||

    Doesn't the Eiffel Tower have an elevator? Or did a James Bond movie lie to me, again?

  • ||

    And Superman II.

    If it turns out the Alamo really has a basement I'll never believe Tim Burton / Pee Wee again :(

  • Daily Beatings||

    What's the monolith in the background?

  • Swiss Servator - past LTC(ret)||

    OT: Has Matt Drudge gone off the deep end? Its like he is trying to portray the country in rage filled flames...stick to reality on this one, Matt.

  • Fluffy||

    I get what you're saying, but I think this is a useful counterbalance to the mainstream press' steadfast refusal to publish any information about black on white crime whatsoever in the modern era.

  • Swiss Servator - past LTC(ret)||

    When I looked at his page yesterday, I thought the country was burning...riots, etc. I looked everywhere else and saw a bit of Oakland trouble and...naught else. But he is still at it now.

  • Fluffy||

    The problem here is that the psychiatric and psychologic professions decided to make the (entirely specious and unfounded) claim that they're practicing medicine.

    The only time anyone practicing psychiatry or psychology practice medicine is when they write a prescription.

    Everything else they do boils down to "listening to people complain" and "offering people advice". Both of those activities are not medicine.

  • sarcasmic||

    But they do say "Uh huh" a lot. Kinda like me when my wife talks about her day at work. That's got to count for something.

  • Night Elf Mohawk||

    You'd better not be doing that in Kentucky.

  • Rasilio||

    "The only time anyone practicing psychiatry or psychology practice medicine is when they write a prescription."

    I gotta say that Shrinks must be some of the dumbest assholes on the planet, they spend all that practicing medicine and never actually get any better at it

  • Ornithorhynchus||

    Actually, only the psychiatrists can write prescriptions, so the psychologists have no claim to practicing medicine at all.

  • Knarf Yenrab (prev. An0nB0t)||

    Psychologists don't pretend that they're practicing medicine. Most use the "mental health" nomenclature for the same reason everyone else does: they are unaware of/don't take seriously Szasz's claims that semantics influence behavior, and "mental health" is a convenient way of reminding people that counselling is helpful and isn't merely for crazy people. There are plenty who agree privately with Szasz, though these tend to be the more philosophically curious population of therapists.

    Psychiatrists are generally bad psychologists (the medical school experience being approximately as useful as law school or basic training in cultivating the skills needed to be a helps psychologist) who can write scripts and charge the usual rent-seekingly exorbitant rates.

  • Tonio||

    Barney Frank? Really? Anonbot was a better handle.

  • gaoxiaen||

    If you don't get any pills, why bother? Just read a book.

  • Mickey Rat||

    L. Ron, is that you?

  • robc||

    The KY Attorney General is Jack Conway, who was last heard in 2010 getting his ass handed to him by Rand Paul in the Senate election.

  • Raston Bot||

    If this were Jeopardy!, then the question to your answer would be...

    How did government officials—beyond pure idiotic officiousness—get the idea that they can ignore the First Amendment so blithely in the name of such a petty regulatory function as occupational licensing?

  • 2Sirius||

    In one of his January 2013 columns, a parent asks for help with her son (a kindergartner) who is getting into trouble for...acting like a five-year-old boy. The columnist suggests: ...find another school for him before he’s expelled from this one or they make his continued enrollment contingent upon him seeing a mental health professional of one sort or another.
    Get the sneaking suspicion THAT was what the State Board of Examiners of Psychology didn't like?

  • CE||

    Better yet, stop sending your kid to the government.

  • Banjos||

    This article would have been better with a picture of Lucy at her psychiatric help booth with a caption that says "Has Lucy been sent a cease and desist yet?"

  • ||

    That would require Doherty understanding the fine art of the pic and alt-text.

  • Jordan||

    Don't talk about Lucy! Oh wait, wrong Lucy.

  • SugarFree||

    They would just sic OSHA on Lucy for unsafe working conditions. That stand is hella rickety.

  • Emil Kiehne||

    The New Mexico Court of Appeals recently rejected an attempt to use an engineering licensing statute to stifle criticism of a public agency by a guy who was not a licensed engineer. I wrote about it on my own law blog, in case anyone is interested: http://nmappellatelaw.com/abus.....f-appeals/

  • Jon Lester||

    Will Kentucky television stations black out Dr. Phil?

  • James Anderson Merritt||

    So now must Dr. Phil and Dr. Laura stop "practicing" on the airwaves? McGraw was once a licensed psychologist, but not for many years. (CA says he doesn't need a license because his TV program is "entertainment," even though he advises individuals directly.) Schlessinger is a licensed therapist in California but I doubt in Kentucky, too.

    If giving advice is not your trade but your hobby -- you help people gratis, asking nothing in return -- do you need a license for that? If so, why? If not, then can someone pay you to record and broadcast your sessions, or to publish your written advice, with the approval of the person being helped, or after removing personally identifying information, as long as it is for entertainment purposes only?

    Perhaps this particular case is easily resolved, even if KY licensing NEVER changes: Rosemond works from home, where he is licensed, yes? If he gets a letter from a reader and responds, he is within his rights and State-granted privilege to do so, yes? Then, if he and the reader jointly elect to publish this record of Rosemond's practice of his profession in a State where he is licensed, what authority do other States have over that? Maybe his own State board spanks him for rendering opinions without enough personal observation. But that's their call, not KY's.

    I hope that IJ can carve out a huge personal liberty space via this lawsuit. Occupational licensure is pernicious. It needs to be minimized -- ideally, eliminated whenever possible.

  • Tonio||

    And Ms. Schlessinger's PhD is in physiology (the anatomy and functioning of the human body); nothing remotely related to the diagnosis and treatment of mental illness.

  • James Anderson Merritt||

    Well, Dr. Laura is licensed as a therapist in CA, regardless of the subject area of her PhD.

  • James Anderson Merritt||

    I would just like to point out that I took the Dr. Phil/Dr. Laura angle independently, before reading Jon Lester's comment above, but as I had more to say than just that, I was prevented from posting here, due to the length limit. It took quite a while to whittle down my original remarks to fit in the allowed space for a single posting. While I was vying with the squirrels, other people came up with much the same idea and at least one posted it. Making a real contribution to a forum like this involves introducing worthwhile points, or developing someone else's points in a significant and interesting way. "Me too" posts are never as valuable, and I am disappointed that arbitrary limitations imposed on this forum's users caused my posting to appear superficially as a "me too." I'll get over it, of course, but this is just one more example -- of many! -- to illustrate why Reason should lift the 1500 character posting limit.

  • SIV||

    tl;dr

  • ||

    You do know you can just spread it out over 2 (or more) posts, right? It's easy enough to just cut at 1500 characters and put (Continued in next post)

  • triclops||

    The question is, if this was also used to silence "China" Tom Friedman, would that make it a net gain for liberty?

  • Wesley Mouch||

    Paul Krugman gives economic advice that individual idiots in the administration are actually using to destroy the economy. Should he have to be a licensed Marxist to continue doing that?

  • SQRLSY One||

    Jeez-um, dudes and dudettes, when are freedom-seekers FINALLY going to listen to the wisdom of the Church of Scienfoology? ALL you need to do, if you want to freely practice the “science” of psychology, is to turn it into the RELIGION of pseudo-psychology! Just like Scientology, take a hint! Have your customers write in about the behavioral and thinking problems that their RELIGIOUS EFFIGIES have, and give advice to their RELIGIOUS EFFIGIES!!! If readers write in their questions wrong, just re-phrase the question and answer it! Well, ***IF*** you had asked me about your RELIGIOUS EFFIGY bed-wetting all the time, here is what I would say! Dang it, I hate to sound like a broken record player, but WHEN are people FINALLY going to realize that RELIGIOUS FREEDOM can trump all! Follow in the footsteps of Scientology, what am I going to have to do to wake people up?!?!?

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online

  • Video Game Nation: How gaming is making America freer – and more fun.
  • Matt Welch: How the left turned against free speech.
  • Nothing Left to Cut? Congress can’t live within their means.
  • And much more.

SUBSCRIBE

advertisement