The Volokh Conspiracy

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Free Speech

Licensing of Speaking Professions Doesn't Violate First Amendment

So holds the Eleventh Circuit, as to dieticians, viewing itself as bound by an earlier decision involving interior designers.


From Del Castillo v. Secretary, decided Friday in an opinion by Judge Robert Luck, joined by Judges Elizabeth Branch and Ed Carnes (see the bottom of the post for my thoughts on the subject):

Heather Kokesch Del Castillo, an unlicensed dietician and nutritionist, claims that Florida's Dietetics and Nutrition Practice Act, which requires a license to practice as a dietician or nutritionist, violates her First Amendment free speech rights to communicate her opinions and advice on diet and nutrition to her clients. {Del Castillo owned and operated a health-coaching business called Constitution Nutrition. She started her business in California, which did not require her to have a license to operate it. After moving to Florida in 2015, Del Castillo continued to run her business—meeting online with most of her clients and meeting in person with two clients who lived in Florida. She described herself as a "holistic health coach" and not as a dietician. Del Castillo tailored her health coaching to each client, which included dietary advice.} …

[O]ur decision in Locke v. Shore (11th Cir. 2011) … held that a similar state licensing scheme for commercial interior designers did not violate the free speech rights of unlicensed interior designers. [And we conclude that Locke was not] abrogated by the Supreme Court's decision in National Institute of Family & Life Advocates v. Becerra (2018)….

[In Locke,] "[w]e conclude[d] that Florida's license requirement [was] constitutional under the First Amendment[.]" … The first reason we gave was that a "statute that governs the practice of an occupation is not unconstitutional as an abridgement of the right to free speech, so long as any inhibition of that right is merely the incidental effect of observing an otherwise legitimate regulation." … The second reason we gave for concluding that the interior designer licensing scheme did not violate the First Amendment was that, if "the government enact[ed] generally applicable licensing provisions limiting the class of persons who may practice the profession, it cannot be said to have enacted a limitation on freedom of speech … subject to First Amendment scrutiny." There was "a difference," we reasoned, "for First Amendment purposes, between regulating professionals' speech to the public at large versus their direct, personalized speech with clients." The interior designer "license requirement regulate[d] solely the latter," we said. This second reason, derived from Justice White's concurring opinion in Lowe v. SEC (1985), is the professional speech doctrine….

Del Castillo argues that … NIFLA rejected the "professional speech doctrine[,]" [s]o the prop supporting Locke's holding has been taken away, and Locke has been abrogated. For three reasons, we disagree.

First, Locke's First Amendment holding relied on more than the "professional speech doctrine." The Locke court also concluded that the interior designer licensing requirement did not violate the First Amendment because it was "a professional regulation with a merely incidental effect on protected speech." "A statute that governs the practice of an occupation is not unconstitutional as an abridgment of the right to free speech, so long as any inhibition of that right is merely the incidental effect of observing an otherwise legitimate regulation."

Second, while the NIFLA Court "refused to recognize professional speech as a new speech category deserving less protection," it also reaffirmed that "[s]tates may regulate professional conduct, even though that conduct incidentally involves speech." The NIFLA Court explained that "regulations of professional conduct that incidentally burden speech" have been "upheld," and the "First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech."

Third, NIFLA did not undermine Locke to the point of abrogation. "We are bound to follow a prior panel or en banc holding, except where that holding has been overruled or undermined to the point of abrogation by a subsequent en banc or Supreme Court decision." A prior panel precedent is "undermined," we explained in United States v. Petite, where the "Supreme Court's subsequent decision … so fully undermined our prior panel's decision … as to abrogate its holding." To "fully undermine[]" a prior panel decision, the later Supreme Court decision must "demolish[]" and "eviscerate[]" each of its "fundamental props." Because Locke's holding relied on more than the "professional speech doctrine"—and the only thing NIFLA refused to recognize was the "professional speech doctrine"—both of Locke's props have not been demolished; its holding is still standing.

The NIFLA Court spoke with unmistakable clarity about the line of precedents upholding regulations of professional conduct that incidentally burden speech and another line of precedents (upholding laws compelling the disclosure of information in certain contexts): "neither line of precedents is implicated here." Reasoning based on a line of Supreme Court precedents that the Court itself emphasizes in a later decision is not implicated by that later decision cannot have been rejected, overruled, or abrogated by the later decision.

So what we have here is a prior panel precedent—the holding in Locke—that rests on two bases, only one of which has been rejected by the Supreme Court while the other basis has not been. If anything, that surviving basis or rationale has been endorsed by the Supreme Court. And it takes only one valid basis or rationale for a prior holding to make it binding precedent….

Applying Locke to this case, we conclude that the Act's licensing scheme for dieticians and nutritionists regulated professional conduct and only incidentally burdened Del Castillo's speech. Because the burden on her speech rights was only incidental, the Act's licensing scheme did not violate her First Amendment free speech rights.

The Act regulates "dietetics and nutrition practice," which involves

assessing nutrition needs and status using appropriate data; recommending appropriate dietary regimens, nutrition support, and nutrient intake; ordering therapeutic diets; improving health status through nutrition research, counseling, and education; and developing, implementing, and managing nutrition care systems, which includes, but is not limited to, evaluating, modifying, and maintaining appropriate standards of high quality in food and nutrition care services.

And the Act regulates "nutrition counseling," which entails "advising and assisting individuals or groups on appropriate nutrition intake by integrating information from the nutrition assessment." In enacting this regulation, the Florida legislature specifically found that "the practice of dietetics and nutrition or nutrition counseling by unskilled and incompetent practitioners presents a danger to the public health and safety."

Assessing a client's nutrition needs, conducting nutrition research, developing a nutrition care system, and integrating information from a nutrition assessment are not speech. They are "occupational conduct"; they're what a dietician or nutritionist does as part of her professional services.

The profession also involves some speech—a dietician or nutritionist must get information from her clients and convey her advice and recommendations. But, to the extent the Act burdens speech, the burden is an incidental part of regulating the profession's conduct.

The Act's effect on speech for dieticians and nutritionists is as incidental as was the licensing scheme in Locke's effect on speech for interior designers. The interior designer licensing scheme in Locke defined "interior design" as "designs, consultations, studies, drawings, specifications, and administration of design construction contracts relating to nonstructural interior elements of a building or structure." Interior design included "reflected ceiling plans, space planning, furnishings, and the fabrication of nonstructural elements within and surrounding interior spaces of buildings."

But interior design also involved some speech. An interior designer not only creates designs and drawings of nonstructural interior elements of a building; she also has to talk to her clients about their preferences and communicate the final designs and drawings to the clients. Even so, the fact that the profession involved speech did not mean that the licensing scheme for interior designers violated the First Amendment. Rather, because "the [interior designer] license requirement [was] a professional regulation with a merely incidental effect on protected speech," we held that it was "constitutional under the First Amendment."

We're bound by Locke to reach the same conclusion here. Like the interior designer licensing scheme in Locke, the Act regulated the professional conduct of dieticians and nutritionists and only incidentally burdened Del Castillo's free speech rights. Because the Act "is a professional regulation with a merely incidental effect on protected speech," it is "constitutional under the First Amendment." …

Here's my view (cf. pp. 1043-49 of this article): Regulation of (say) surgery or the distribution of pharmaceuticals is regulation of conduct, and the speech between surgeon and patient might well be incidental to that conduct. Likewise, regulation of the filing of documents in court on behalf of clients might be labeled as regulation of conduct, or at least of speech in a nonpublic forum.

But the regulation of people who give advice about diet (or who give psychotherapeutic advice, without prescribing drugs) is all about regulating speech. To be sure, giving such advice requires "[a]ssessing" the facts, "conducting … research," "developing" a plan of action, and integrating information into that plan. That, though, could equally be said about journalists or historians or political activists, who also assess facts, conduct research, develop a plan for their own writing and perhaps for the conduct of people who pay attention to them, and integrate information into the plan. Surely that can't be enough to justify regulating such speakers, on the theory that they are actually "professionals" engaged in "conduct."

And the government is regulating the dietary coach's speech precisely because it communicates information to people—information on which the people might act in ways the government might think is harmful to themselves (or perhaps, as to some professions, to others). The government is thus regulating the speech, and the assessments and research involved in producing the speech, precisely because of what the speech communicates.

This is a speech restriction, and relabeling it a conduct restriction strikes me as just obscuring the matter. As the Eleventh Circuit held en banc in Wollschlaeger v. Governor, "the enterprise of labeling certain verbal or written communications 'speech' and others 'conduct' is unprincipled and susceptible to manipulation," even when that speech happens within the practice of a profession (there, medicine). "[C]haracterizing speech as conduct is a dubious constitutional enterprise."

This having been said, perhaps there is room, even after NIFLA, at greater restrictions of professional-client speech. (NIFLA expressed some skepticism about such restrictions, but expressly declined to "foreclose the possibility that" there is "a persuasive reason for treating professional speech as a unique category that is exempt from ordinary First Amendment principles.") Perhaps, just as concrete solicitation of specific illegal behavior involving specific items or targets is more regulable than abstract advocacy of illegal behavior, so concrete urging of specific legal but potentially harmful dietary changes by the particular client should be more regulable than abstract advocacy. Or perhaps that's especially so when combined with the client's having deliberately sought out the professional for individualized advice, and often having paid the professional handsomely for such advice. Certainly American law has long allowed the licensing of speaking professions (such as the giving of legal advice, even without filing documents in court, or such as psychotherapy); perhaps the Supreme Court will ultimately recognize that this tradition is constitutionally permissible.

But I think courts should recognize that this does indeed require recognizing a zone of special regulation for professional-client speech, rather than pretending that it's "conduct."