Occupational Licensing

Banning Advice Columnists in the Name of Occupational Licensing

Kentucky takes First Amendment violations to the extreme.


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

On May 7, Kentucky's office of attorney general sent a letter to newspaper advice columnist John Rosemond. The letter ordered him to sign a consent decree that he would stop practicing psychology without a license in their state, and stop calling himself a psychologist in Kentucky as well, since he was not licensed by the state's Board of Examiners of Psychology.

The kicker is that Kentucky claims that writing an advice column that appears in a newspaper in the state—in the specific case of their complaint, the Lexington Herald-Leader, though it appears in others as well—is not an act of freedom of the press, but rather practicing psychology without the required license.

Rosemond has written an advice column since 1976, which is currently syndicated by McClatchy-Tribune (and by Rosemond himself to a different set of publications). It appears in around 200 papers. He's also the author of many books of parenting and family advice, including five best-sellers. He generally advocates tough discipline as the best means to raise a happy and successful child.

Rosemond's advice in his column as it appeared on February 12 in the Lexington Herald-Leader struck retired Kentucky psychologist Thomas Kerby Neill the wrong way. Rosemond has advised parents worried about a sullen and underachieving teen to take away privileges until he improved, and not to give in to any counterpressure from the kid. Neill wrote a letter of complaint the very next day to the Kentucky Board of Examiners of Psychology.

Neill admitted in the letter that while Rosemond's advice "might work very well," he felt that since Rosemond had met neither child nor parents, and couldn't personally follow up on how the advice was working out, his advice was "both unprofessional and unethical." Rosemond, Neill insisted, "would be on much safer ground to recommend that the family seek direct professional help."

To Neill's credit, while he explicitly said that "the Board certainly has no jurisdiction with respect to the advice anyone might give in a syndicated column," the Board itself seemed to disagree. (Neill just wanted them to prevent Rosemond or Kentucky newspapers in which his column appeared from calling him a "psychologist.")  The attorney general's office wouldn't comment this week on why they decided to impose their officious demand on Rosemond. An attorney general's office spokesperson said their office was merely acting as an agent of the state Board of Examiners of Psychology. But the letter came formally not just from the Board, but from the attorney general's office, over the names of both Attorney General Jack Conway and Assistant Attorney General Brian T. Judy, in his capacity as counsel for the Board.

That the letter from the state described the same column as Neill complained about indicates his complaint likely triggered the unconstitutional demand. The letter demanded that Rosemond agree to stop publishing his column in Kentucky papers by May 30. He has not, and two letters Rosemond sent to the state seeking an extension and trying to clarify the matter have received no formal reply.

"I was incredulous" when the letter from the attorney general's office arrived, Rosemond says. "I could not possibly imagine such a blatant attempt to restrict my First Amendment rights. I wasn't upset by it, as much as just unbelieving."

Rosemond was already inclined to be appalled by Kentucky's demand. "One of my heroes is Milton Friedman," Rosemond says. "I'm completely in line with him about professional licensing [Friedman roughly argued that the practice was an illegitimate extension of ancient guild privilege that generally harmed rather than helped consumers, while propping up income for the protected profession] and I do not believe there's any legitimate justification for regulating the practice of psychology, no good evidence that people with Ph.Ds provide better advice on matters of living than people with high school diplomas." (Rosemond has a master's degree and is licensed in his home state of North Carolina as a psychologist.)

Rosemond had a personal attorney who worked in the same firm as lawyers who were fighting against the libertarian public interest law firm the Institute for Justice (IJ) in a case, and they advised Rosemond to approach IJ.

Rosemond did, and on Wednesday IJ will be filing a suit in U.S. District Court for the Eastern District of Kentucky (Rosemond v. Conway et al.) seeking to enjoin the state from enforcing any restrictions on Rosemond's ability to publish his column and call himself a psychologist.

Each act of publishing the column in the state identifying himself as a psychologist could, if the state's assertions hold up, leave Rosemond open to a year in jail and a $1,000 fine. The suit points out that the same logic in Kentucky's complaint could lead them to ban Rosemond's books, since they also are sold in Kentucky and call him a psychologist.

The suit claims that Rosemond's column "is pure speech and does not fall within any historically recognized exception to the First Amendment" and that "the application by Defendants of the Psychology Practice Act, as well as the attendant regulations and policies of the Psychology Board, to ban Plaintiff Rosemond's advice column from Kentucky is a content-based restriction on his speech" and that Kentucky has no "compelling state interest in banning advice columns from newspapers of general circulation."

IJ is already fighting two similar legal challenges to governments who think occupational licensing laws trump the First Amendment. In May 2012, IJ sued to challenge the state of South Carolina's belief that Steve Cooksey could not blog about his thoughts and experiences regarding the "paleo diet" without being duly licensed by its Board of Dietetics/Nutrition. That suit was initially thrown out in October 2012 by a federal district court on the grounds that Cooksey lacked standing to sue because he had not actually been punished by the state, but merely ordered what to do. In June of this year, the U.S. Court of Appeals for the 4th Circuit reinstated the case and sent it back for consideration by the district court. The Institute is also embroiled in suing the state of Texas over its insistence that it is illegal to give veterinary advice over the Internet.

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.

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  1. 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.

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

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

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

            1. 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.

                1. When wasn’t it?

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

                  1. Mmmmm. Ham. Mmmmm. Fetus.

                  2. You can’t get hammer than 100% ham.

              1. That you, Mary?

              2. 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.

                1. You have ammo?

              3. 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…


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

          1. It’s certainly boring enough to be me.

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

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

      1. Here, in case that happens:

        Hargle bargle pre-born Rand Paul blah blah.

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

  2. Kentucky: Watch out, Florida!

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

  3. “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”.

    1. 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.

      1. 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?

  4. 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.

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

      1. 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.

        1. They were written in lemon juice!

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

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

              1. You just got ENCYCLOPEDIA BROWN’D!

                1. Why don’t you make like a drum and beat it?

      2. With of course, the public safety exception.

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

  6. 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!

    1. I can see the wafting body odor.

    2. the city of lights smelly Frenchmen.

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

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

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

      1. And Superman II.

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

    5. What’s the monolith in the background?

  7. 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.

    1. 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.

      1. 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.

  8. 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.

    1. 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.

      1. You’d better not be doing that in Kentucky.

    2. “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

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

    4. 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.

      1. Barney Frank? Really? Anonbot was a better handle.

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

    5. L. Ron, is that you?

  9. 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.

    1. 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?

  10. 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?

    1. Better yet, stop sending your kid to the government.

  11. 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?”

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

    2. Don’t talk about Lucy! Oh wait, wrong Lucy.

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

  12. 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/

  13. Will Kentucky television stations black out Dr. Phil?

  14. 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.

    1. 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.

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

    2. 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.

      1. 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)

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

  16. 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?

  17. 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?!?!?

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