Andrew Wimer
Andrew Wimer · August 11, 2022

ARLINGTON, Va.—Is talking with other adults about what to buy at the grocery store a crime that can be punished with jail time? Or does the First Amendment protect speech even when a customer pays to listen? These are the questions the Institute for Justice (IJ) is asking the U.S. Supreme Court on behalf of health coach Heather Kokesch Del Castillo.

When Heather’s husband was transferred by the U.S. Air Force to Florida, she thought she would be able to maintain the business she started in California: providing one-on-one health coaching for paying clients. For years she operated without a customer complaint, routinely receiving glowing reviews on websites like Yelp. But after a competitor reported her to the state, she was ordered to stop and fined hundreds of dollars for the unlicensed practice of dietetics. Continuing to practice could have even landed Heather in jail for a year with thousands of dollars in criminal and civil penalties.

In 2017, Heather and IJ sued the state for violating her First Amendment rights. A Florida district court sided with the state, and the 11th U.S. Circuit Court of Appeals upheld the decision earlier this year. Now, Heather is asking the U.S. Supreme Court to hear her case. People share diet advice all the time and Heather shouldn’t be censored just because she is being paid for that advice.

“This case illustrates that occupational-licensing boards are America’s newest censors,” said IJ Senior Attorney Paul Sherman. “In cases across the country, boards charged with regulating everything from engineers to psychologists to dieticians have decided that the power to license an occupation gives them the right to tell ordinary Americans to shut up. It is time for the Supreme Court to make clear that it gives them no such thing.”

“All I wanted to do was give people advice on how to eat healthier,” said Heather. “I served customers for years in California and Florida and the only person who had a problem was someone who saw me as their competition. It doesn’t make sense that I could write a book with the same advice, but not speak with people individually.”

The Supreme Court has never held that the First Amendment affords fewer protections to people who use their speech to earn an honest living. In the 2018 decision in NIFLA v. Becerra, Justice Clarence Thomas wrote that, “Speech is not unprotected merely because it is uttered by ‘professionals.’”

Despite this clear precedent, the 11th Circuit still relied on the so-called “professional speech doctrine” to uphold the state’s restrictions on Heather’s advice. Courts across the country, though, have gone the other way in deciding cases about the intersection between free speech and licensing. In 2020, the 5th U.S. Circuit Court of Appeals ruled in Vizaline v. Tracy—an IJ case challenging Mississippi’s surveying laws—that NIFLA “abrogated” earlier circuit precedent holding that occupational licensing laws were immune from First Amendment review.

The 9th U.S. Circuit Court of Appeals reached a similar conclusion in another IJ case, Pacific Coast Horseshoeing School, Inc. v. Kirchmeyer, affirming the right to teach job skills to students who had not passed a state-required exam. Other courts have followed suit: A trial court in D.C. recently upheld IJ client Elizabeth Brokamp’s First Amendment right to provide talk therapy across state lines, while a different judge held that New York’s rules against the unlicensed practice of law violated the First Amendment insofar as they outlawed basic, one-on-one advice about the law.

“The upshot of the Eleventh Circuit’s ruling is that it would violate the law to publish a book that offered customized diet advice to Floridians if you were not licensed by the state,” said IJ Attorney Ari Bargil. “That’s wrong: The First Amendment gives Floridians—and all of us—the right to decide who we want to listen to. It doesn’t give the government the power to decide who’s going to be allowed to speak.”

“Americans do not lose the right to free speech because the government decides it wants to license their occupation,” said Scott Bullock, IJ’s president and general counsel. “Millions of Americans—from tour guides to psychologists—earn a living by selling their speech and advice. The First Amendment protects their right to do so, and IJ will continue fighting until every regulator in the country gets that message.”