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.