Introduction: Free Speech and Internet Freedom

John Rosemond is a North Carolina-licensed family psychologist and the author of more than a dozen books on parenting.  Since 1976, he has also written a popular advice column on parenting that is syndicated in more than 200 newspapers across the country.

But now, John is facing something that writers throughout history have dreaded, but very few in America have ever experienced:  Censorship of their writing.  The Kentucky attorney general and Kentucky’s psychologist-licensing board have concluded that providing one-on-one advice in a newspaper column constitutes the “practice of psychology.”  Because John is not a Kentucky-licensed psychologist, the board and attorney general told him to stop running his column in Kentucky.  They also told John that he could not call himself a “family psychologist” in the tagline of his column, even though that is true, because the state of Kentucky does not recognize his North Carolina license.

Occupational licensing boards are the new censors. Are Dear Abby and Dr. Phil next? Will Kentucky seek hard labor for Dr. Oz?

The government’s conclusion carries frightening consequences for John because the unlicensed practice of psychology is a crime.  The attorney general and psychologist board threatened John with fines and jail if he does not sign a paper confessing the crime of writing an advice column and promise never to do it again.

Are Dear Abby and Dr. Phil next?  Will Kentucky seek hard labor for Dr. Oz?

John’s situation is not an isolated incident.  Occupational licensing boards are the new censors. They do not believe that the First Amendment applies to them, and they are aggressive.  Kentucky’s censorship of John is part of a larger national pattern in which out-of-control occupational licensing boards have punished people for giving advice.  Within the last year, the Institute has filed lawsuits on behalf of a North Carolina diet blogger and a Texas veterinarian, both of whom were targeted by government officials for giving advice over the Internet. ¹   The Institute for Justice has also filed suit on behalf of tour guides, publishers of online real-estate listings, and teachers of African hairbraiding, makeup artistry and yoga instruction, all of whom faced similar attempts by the government to silence their speech.

These government attacks on advice are rooted in a belief by authorities that one-on-one advice is not protected speech, but is instead occupational conduct like filling cavities or installing plumbing.  The censorship of an opinion column in a major newspaper is the logical conclusion of this pernicious idea.

But now, John is fighting to stop this attack on freedom of speech and freedom of the press.  On July 17, 2013, John joined the Institute for Justice to file a major free-speech lawsuit in the U.S. District Court for the Eastern District of Kentucky to protect free speech and the right of Americans to seek advice from knowledgeable people wherever they may be found.

John Rosemond:  America’s Longest-Running Advice Columnist

John Rosemond has devoted his professional life to helping parents cope with the challenges of raising children.  John holds a master’s degree in psychology and is a licensed psychologist in North Carolina. ²   He has written more than a dozen books on parenting, books that have sold more than a million copies.  Since 1976, he has also written a syndicated newspaper column in which he often answers reader questions about parenting.  That makes his column, which runs in over 200 papers nationwide, the longest-running advice column written by a single author (the long-running “Dear Abby” column has had two authors).

When John first started his column, he would solicit questions from parents whom he met at seminars that he teaches around the country.  Later, with the advent of the Internet, he began soliciting questions at his website, www.rosemond.com.

John advocates what he calls a “commonsense” approach to parenting, and believes that parents need to provide their children with clear boundaries and discipline.  A typical example of John’s advice can be found in a column he wrote in February 2013, in which he responded to parents who were concerned about the behavior of their 17-year-old son, whom they described as a “highly spoiled underachiever.” ³  John wrote that their son was in “dire need of a major wake-up call” and advised that they take away his electronic devices and suspend his privileges until he shaped up.  He advised that they be firm and avoid negotiating with their son, warning that, if they did, “[i]n no time you will be right back where you started from, but he will know that he can beat you at your own game.” ⁴

John knows that not everyone agrees with his advice, but he never expected that this February column would lead to a complaint to a state licensing board.  But that’s exactly what happened:  The day after his column ran in the Lexington Herald-Leader, a retired Kentucky psychologist contacted the Kentucky Board of Examiners of Psychology to complain. ⁵   What happened next was even more surprising.

Kentucky’s Censorship and the National Free Speech Crisis

The United States is renowned for having the strongest protections for the press in the world.  But America’s First Amendment tradition of respect for the freedoms of speech and the press did not deter Kentucky from targeting John for government censorship.  On May 7, 2013, the Kentucky attorney general sent John a letter telling him that it is a crime in Kentucky to give one-on-one advice about parenting without being a Kentucky-licensed psychologist. ⁶  The letter also told John that calling himself a “psychologist” in the tagline of his column is a crime unless he is a Kentucky-licensed psychologist. ⁷

The letter threatens John with the statutory penalties for the unlicensed practice of psychology and the unlicensed use of the term “psychologist” to describe himself.  Both are punishable by up to six months in jail or $500 in fines per offense. ⁸   To avoid enforcement, the attorney general and psychologist board demanded that John sign a “voluntary” agreement not to publish his advice column in Kentucky.

John felt as though he had stumbled into Alice’s Wonderland, a place where it is a crime to say things that are 100 percent true (“I am a family psychologist”) and a crime to express an opinion in a newspaper without government permission.  As someone who travels to Kentucky to give parenting seminars, John had to take the government’s threats seriously.

Perhaps the most frightening aspect of Kentucky’s censorship is the sheer casualness of it.  Kentucky does not care if John is writing about Kentuckians, if its actions result in John not being able to publish his column anywhere in the United States, or if thousands of Kentuckians and potentially millions of Americans will no longer be able to benefit from reading his popular column.  Kentucky is oblivious to the personal and constitutional consequences of ordering a North Carolina writer to stop publishing his opinions.

Kentucky’s cavalier attitude toward censoring advice is yet another example of government licensing boards abusing their authority by restricting protected speech in the form of advice.  In January 2012, the North Carolina Board of Dietetics/Nutrition sent blogger Steve Cooksey—who wrote an online advice column advocating the low-carbohydrate “Paleo” diet—a 19-page copy of his writings indicating in red pen what Steve is, and is not, allowed to say without a government-issued dietician’s license.  In March 2013, the Texas State Board of Veterinary Medical Examiners punished Dr. Ron Hines, a Texas-licensed veterinarian, for providing online advice to pet owners across the country and around the world without first performing an in-person physical examination.  The Institute for Justice represents Steve and Ron in separate First Amendment challenges. ⁹

The common thread in all three cases is the government’s position that individualized advice—in other words, advice to a specific person that is tailored to that person’s circumstances—is not actually speech, but is instead occupational conduct such as filling cavities or installing plumbing.  Kentucky’s belief that it can censor a newspaper column based on the content of the expressed opinion is the logical extension of this notion that advice is not speech. As far as Kentucky is concerned, ordering John to stop running his advice column is like giving him a ticket for speeding—something that just does not implicate the First Amendment.

The First Amendment Protects John’s Speech

But the advice John offers in his newspaper column is pure speech—words written in black and white.  And the First Amendment protects that advice just like it protects virtually all speech.  The U.S. Supreme Court made this clear in a 2010 case, Holder v. Humanitarian Law Project, holding that individualized advice like John’s falls squarely within the protection of the First Amendment. ¹⁰

Under Humanitarian Law Project—and, indeed, under decades of Supreme Court precedent—Kentucky’s censorship of John’s column is the worst sort of First Amendment violation because Kentucky objects to the content of what John wrote.  The board took action against John because his column contained advice, and the board’s interest was triggered by a complaint from a Kentucky-licensed psychologist who disagreed with the viewpoint that John expressed.  The Supreme Court has repeatedly ruled that the First Amendment does not allow the government to suppress speech based on disapproval of the message it conveys.

John’s truthful use of the title “psychologist” is also protected by the First Amendment.  Nevertheless, in addition to censoring John’s column, the Kentucky board has also ordered John to stop using the term “family psychologist” to describe himself in his column.  According to the board, this description is off limits because John is not licensed as a psychologist in Kentucky.

The board is dead wrong because John is a family psychologist—he is licensed as a psychology associate in the state of North Carolina.  The Supreme Court has long recognized that the truthful publication of one’s actual credentials is protected by the First Amendment. ¹¹  Simply put, the government can no more prohibit John from using the truthful label “psychologist” in his newspaper column than it could prohibit Dr. Phil from identifying himself as a psychologist in books offered for sale in Kentucky or ban the Dr. Phil show from being broadcast in Kentucky.

Occupational Licensing Laws:  No Exception to the First Amendment

Although the case for protecting John’s speech seems clear-cut, there has long been confusion in constitutional law about whether occupational licensing laws—like Kentucky’s psychology-licensing statutes—can trump the First Amendment.  Much of this confusion can be traced back to the U.S. Supreme Court’s 1985 case Lowe v. SEC. ¹²   That case involved a man named Christopher Lowe who was charged with acting as an unlicensed investment advisor after he published a general investment newsletter.  Although the Court held that the law did not apply to Lowe’s newsletter, Justice Byron White—joined by two other justices—disagreed and felt the need to address the First Amendment question in a concurrence.  His opinion suggested 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”).

Under the First Amendment, the general rule is that if the government imposes burdens on speech based on its content—that is, the message it conveys—those burdens are presumptively unconstitutional. That protection cannot be trumped by occupational licensing laws.

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. ¹³   If that legal advice is covered by the First Amendment, then so is John’s parenting advice, and so too is the advice that countless other people share every day.

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’s.  In 2011, the 11th U.S. Circuit Court of Appeals ruled that the aesthetic advice of a paid interior designer was not protected speech and could be regulated by interior designer licensing laws. ¹⁴   In another example, the federal court dismissed Steve Cooksey’s First Amendment challenge to restrictions on his Dear Abby-style advice column about diet on his blog because that court did not consider dietary advice to be speech. ¹⁵   As noted earlier, these lower courts treat personal advice as outside the First Amendment because they regard advice not as speech, but as a form of conduct that is subject to ordinary occupational regulation.  In other words, without any grounds based on the words or the tradition of the U.S. Constitution, these courts have carved out an exception to the First Amendment for advice that allows the government to limit free speech and freedom of the press—exactly what the First Amendment was written to prevent.

These rulings cannot be squared with Supreme Court precedent.  Under the First Amendment, the general rule is that if the government imposes burdens on speech based on its content—that is, the message it conveys—those burdens are presumptively unconstitutional.  The only exceptions to this rule are a handful of categories of speech that are considered to fall entirely outside the scope of the First Amendment, categories like defamation and child pornography. ¹⁶   In recent years, the Supreme Court has repeatedly refused to add to this narrow list of exceptions, making clear that such exceptions may only be recognized based on historical evidence that the category of speech has long been considered to be unprotected. ¹⁷

Obviously, there is no such historical evidence regarding parenting advice like John’s.  Parenting advice is ubiquitous (as any parent will tell you).  Such advice—dispensed by grandparents and other relatives, community elders, ministers, neighbors, friends, and a host of other “unlicensed” persons—has undoubtedly been common for as long as language has existed.  Thus there is no basis for affording John’s speech anything less than full First Amendment protection.

That protection cannot be trumped by occupational licensing laws.  Indeed, doing so would set an extraordinarily dangerous precedent, one that will only grow as more and more occupations become subject to government licensure.  Today, one in three American workers needs a license from the government to work in their chosen occupation, up from just one in 20 in the 1950s. ¹⁸   And in our knowledge-driven economy, these licensed occupations will increasingly consist mainly, if not entirely, of speech.  Government power to license this speech—and to silence unlicensed speakers—would lead to widespread censorship and deprive millions of Americans of their ability to use newspapers, blogs, social media, and other online venues to seek advice about topics such as parenting, pregnancy, marriage and other serious issues.  Thus, a victory for John will ensure not only that he may continue to publish his widely read newspaper column, it will also provide broader protection for all Americans to seek advice from knowledgeable people wherever they may be found.

The Plaintiff

John Rosemond is a North Carolina-licensed psychology associate and a resident of Gastonia, N.C.

The Defendants

The Defendants are the Kentucky Attorney General and the members of the Kentucky Board of Examiners of Psychology, ¹⁹ all of whom are sued in their official capacities.

The Claims

John has brought four First Amendment claims:  (1) Kentucky cannot prohibit him from giving individualized advice in his syndicated newspaper column; (2) Kentucky cannot prohibit him from truthfully describing his credentials as a family psychologist; (3) Kentucky cannot prohibit him from distributing individualized advice in books that reprint his newspaper column; and (4) Kentucky’s definition of “the practice of psychology” is so broad, and the government’s enforcement of it so reckless, that that definition is unconstitutional.

The Litigation Team

The litigation team consists of Institute for Justice Senior Attorney Jeff Rowes ²⁰ and Institute for Justice Attorney Paul Sherman. ²¹

About the Institute for Justice

The Institute for Justice is the national law firm for liberty, and the nation’s leading legal advocate for First Amendment rights and economic liberty.  The Institute has challenged efforts to use occupational licensing laws to silence speech by a retired Texas veterinarian ²² ; a North Carolina blogger ²³ ; For Sale By Owner websites in California ²⁴ and New Hampshire ²⁵ ; interior designers in Connecticut, ²⁶ Florida, ²⁷ New Mexico ²⁸ and Texas ²⁹ ; and tour guides in New Orleans ³⁰ , Philadelphia ³¹ and Washington, D.C. ³²