November 17, 2015

A federal court in Kentucky gave the state psychology board some useful advice in September: Respect the First Amendment. That advice was part of an outstanding free-speech victory for IJ client John Rosemond, a nationally syndicated parenting columnist whose February 2013 column caught the attention of Kentucky psychology regulators.

That column, which ran in the Lexington Herald-Leader—as well as hundreds of other newspapers across the country—contained John’s answer to a frustrated parent about her “slacker” teenage son. Using the common sense approach that is his trademark, John suggested that it was time to deliver the boy a “wake-up call” by taking away his privileges.

A Kentucky-licensed psychologist who thought that John’s advice was too glib filed a complaint with the state psychology board, which ordered John, who is a resident of North Carolina, to stop publishing his column in Kentucky. The board decided that it could censor a newspaper column because the “Dear Abby”–style format of John’s column involved a specific question from a specific person, which the board deemed to be the equivalent of practicing psychology in Kentucky without a license. The board also objected to the tagline of John’s column, which called him a psychologist, because he is not a Kentucky-licensed psychologist (he is licensed in North Carolina).

IJ swung into action to defend John in 2013, making his case part of our strategic First Amendment initiative to establish that individual advice is a form of speech protected by the U.S. Constitution. Over the past few years, we have litigated a number of cases involving state boards that use occupational licensing laws to prevent people from giving each other advice on the theory that giving advice is the practice of a profession.

Senior Attorney Paul Sherman delivered a masterful oral argument in August 2015, explaining to the judge that occupational licensing laws cannot be used to suppress advice on the common topics of life. Importantly, Paul framed the case as an abuse of occupational licensing laws and not simply a case of newspaper censorship. Both our client and IJ wanted a judicial ruling that would protect the free-speech rights of everyone, not just professional newspaper columnists.

The judge declared the board’s action unconstitutional, stating that “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.”

In pushing back against the board’s “regulatory zeal,” the judge came down on one side of an important disagreement among the federal courts about the constitutional status of advice. Some courts treat it as speech, whereas others treat it as the equivalent of occupational conduct and hence outside the protections of the First Amendment. The U.S. Supreme Court is presently considering whether to hear another IJ case involving the individualized advice of a Texas veterinarian. We hope to use that case to settle the question in favor of freedom, once and for all.

In the meantime, we will continue giving overreaching governments the IJ wake-up calls they so often need.

Jeff Rowes is an IJ senior attorney.

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