Victory for Advice Columnist

Federal Court Halts Psychology-Board Censorship; Psychology Board’s “Regulatory Zeal” Prompts Judge to Issue “‘Wake Up’ Call”

Arlington, Va.—In a major victory for First Amendment rights, yesterday evening a federal court in Kentucky found an effort by the Kentucky Board of Examiners of Psychology to censor the parenting advice of nationally syndicated newspaper columnist John Rosemond to be unconstitutional.

Judge Gregory F. Van Tatenhove in his ruling criticized the Board’s “regulatory zeal” and described his ruling as a “‘wake up’ call” to other would-be censors. This is one of the strongest decisions a federal court has ever issued in defense of speech that the government tries to restrict with an occupational-licensing law.

“This decision vindicates the right of every American to share opinions and advice on the common problems of life,” said Paul Sherman, a senior attorney at the Institute for Justice, who argued the case on behalf of John Rosemond. “The judge’s careful analysis is a triumph for free speech and a textbook example of proper judicial engagement.”

The lawsuit was prompted in February of 2013, when John Rosemond wrote a column responding to a question posed by the parents of an underachieving teenager. His response—that the child needed a serious “wake up” call and urging the parents to suspend the child’s privileges until his behavior and schoolwork improved—caught the attention of the Kentucky Board of Examiners of Psychology, which sent Rosemond a cease-and-desist letter. The letter stated that Rosemond’s column—which is syndicated in more than 200 papers nationwide and has run for nearly four decades—was the unlicensed practice of psychology because he was giving individualized advice in his column. The letter also stated that because Rosemond is only licensed to practice psychology in North Carolina, he may not call himself a “family psychologist” in the tagline of a newspaper column published in Kentucky, even though his statement was literally true.

Rather than back down, Rosemond joined with the Institute for Justice to fight back, and on July 16, 2013, filed a federal lawsuit challenging the Board’s unprecedented censorship. Yesterday’s ruling granted him a complete victory, holding that “Rosemond’s speech deserves the highest level of constitutional protection.” The opinion concluded, “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.”

Rosemond said, “If the government could censor a nationally syndicated columnist like me, there would be no limit on the sources of parenting advice it could outlaw. Thankfully, this ruling ensures that parents have the right to decide for themselves where they want to get parenting advice.”

The decision comes at a time when courts across the country are examining occupational-licensing laws that burden speech, especially medical and psychological advice. The federal courts of appeals disagree over whether individualized medical advice should be treated as speech within the First Amendment or the equivalent of conduct, such as giving an injection or performing surgery. Other courts have reached similar disagreements about whether and how the First Amendment applies to speech as varied as dietary advice and historical tours.

The U.S. Supreme Court is presently considering whether to take up the question, and yesterday’s decision in the Rosemond case adds yet another view—the best view—on how courts should analyze speech subject to occupational licensure. The case before the Supreme Court is another Institute case in which, in April of this year, the 5th U.S. Circuit Court of Appeals upheld a Texas law that prohibits veterinarians from giving advice over the Internet unless they have first physically examined the animal to which the advice pertains. The 5th Circuit concluded that veterinary-medical advice is conduct, not speech, which deepened the disagreement among the federal courts, disagreement that encompasses cases involving medical and psychological advice on topics such as medical marijuana, guns, and sexual orientation change efforts.

IJ Senior Attorney Jeff Rowes said, “Judge Van Tatenhove’s ‘wake up’ call will echo across the country and all the way to the Supreme Court as it decides whether to take the case of the Texas veterinarian to resolve one of the most important constitutional questions in the country: Is occupational speech protected by the First Amendment? Judge Van Tatenhove got the answer exactly right when he said yes, and the Supreme Court should make that answer the law of the land.”

IJ President and General Counsel Chip Mellor said, “Judge Van Tatenhove’s decision reflects judicial engagement. Unlike other federal courts across the country, he recognized that the government does not get a free pass when it attempts to restrict speech using occupational-licensing laws. That dedication to evaluating each case with a careful eye is something that all courts should emulate.”

For more on this lawsuit, visit www.ij.org/KYPsychSpeech Founded in 1991, the Virginia-based Institute for Justice is the national law firm for liberty.

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