Dear Abby, need advice on censorship

Do licensing laws trump the First Amendment?
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Photo provided by Steve Cooksey

N.C. blogger Steve Cooksey was “under investigation” by the state Board of Dietetics and Nutrition for giving advice on his blog about diabetes.

“I am still a Diabetic, but my blood sugar is NORMAL!!!” Cooksey wrote in a 2010 post. “I WANT TO SHOUT IT FROM THE MOUTAINTOPS EVERY DAY!!! But...since I don’t live near a mountaintop...I post stuff on the Internet.”

But the same passion for promoting the diet to other diabetic patients (low carbs, lots of veggies) soon slammed him against the North Carolina Board of Dietetics/Nutrition. Cooksey received a call from the board’s executive director, who warned that his blog was “under investigation” because he was committing a criminal act for practicing dietetics without a license in North Carolina. The one-on-one mentorship with readers, the sale of his “Diabetes-Support Life-Coaching” packages, and even the Dear Abby-style advice columns on his site were all problematic, according to the board.

The executive director also mailed him a 19-page printout of his blog with areas of concern marked in red. At first, Cooksey complied. Then he became angry and sued. The media soon picked up his story.

“My guess is the board thought that I would ‘roll over’ after an official reprimand,” Cooksey said of the board. “I don’t think in their wildest dreams they thought that this shit storm would occur.”

Photo provided by Ronald S. Hines

The Texas veterinary board shut down Ronald S. Hines’ paid pet care advice website.

But the North Carolina Board’s move to fix Cooksey’s actions isn’t automatically oppressive, said Marcia McCormick, a constitutional law professor at Saint Louis University in Missouri. The government’s goal when it polices certain fields is to protect the consumer.

“There are often good reasons that states do regulate these professions, especially in areas that are potentially dangerous to the public and . . . especially if you accept money,” said McCormick. “Bad things can happen,” such as plumbers installing faulty pipes, or surgical malpractice.

“But once boards start regulating what members of the profession can and can’t say, then there are problems,” McCormick added.

Jeff Rowes, who represents Cooksey, said the lawsuit is one in a series of cases that could squarely determine whether, and to what extent, the First Amendment protects individualized advice. The legal tango that ensues between a censored plaintiff and a government licensing board is actually common, and almost expected. Comparing the match to “schoolyard bullying,” Rowes said government agencies expect compliance when reprimanding ordinary citizens without legal recourse.

Cooksey’s case is one of three lawsuits in three separate judicial districts currently before the courts. In the last two years, a psychologist, veterinarian and diabetic blogger have all sued their respective states after government licensing boards requested or ordered each to stop publishing.

Together, the cases could force courts to decide if and how much government agencies can regulate advice. Does a licensing board have the right to censor advice spoken or written to a reader, friend, neighbor if the giver is not licensed by the state?

And if state agencies are censoring writers like Steve Cooksey, Ron Hines and John Rosemond, then are national columnists like Dear Abby and TV personalities like Dr. Phil and Dr. Oz breaking the law as well because they are not licensed in a particular state?

According to media lawyers, those questions involve two constitutional issues. First, the courts must decide if advice is speech protected by the Constitution, or whether it is conduct completely regulable by licensing boards. And then if it is speech, they must decide if all advice is protected or if the state has an interest in regulating its profession to protect consumers from fraud.

“We’ve reached a tipping point,” said Paul Sherman, an attorney for the Virginia-based Institute for Justice representing Cooksey and Rosemond. “And we want to be certain that courts have the guidance they need to reach a resolution that is consistent with the First Amendment and protects the rights of Americans.”

Is advice speech or conduct?

Herein lies one of the “cutting-edge” issues that courts have left largely unexplored: are the words published by Cooksey, or Ronald S. Hines who shares advice on pet care to international readers, or John Rosemond who writes a parenting column syndicated in over 200 newspapers across the country considered speech or occupational conduct?

In other words, Sherman said, should the courts even consider free speech arguments in these cases? Whether the cases touch on First Amendment issues is important in determining the standard of review — known as the level of scrutiny — courts must apply in judging the constitutionality of a government law that censors individualized advice.

If the courts find that advice is conduct and not speech, then state boards will not need to jump as high to prove there is a legitimate governmental reason for a licensing law. The court will apply the lowest, default level of scrutiny.

But, if the courts find that the cases do in fact involve First Amendment issues, then it must apply the most stringent level of protection known as strict scrutiny. Under that standard, the government must prove there is a “compelling government interest” in limiting speech. Those types of restrictions are historically rarely upheld.

According to the boards, advice can be likened to personal assessments or counseling that could steer people into danger if the advice is wrong. In its brief to the U.S. Court of Appeals (4th Cir.), the North Carolina dietetics board said Cooksey’s efforts to steer the court’s review into “the deep waters of unrelated First Amendment principles” was unfounded.

“Professional regulations are not subject to First Amendment scrutiny simply because they regulate activities that include communications,” the board said.

Like the Texas State Board of Veterinary Medical Examiners and the Kentucky Board of Examiners of Psychology, the North Carolina board cited a concurrence written by Justice Byron White in the Supreme Court case Lowe v. SEC. White wrote that regulations on professions necessarily involve communication and therefore cannot be defeated solely on a free speech argument.

But some media attorneys disagree completely, and say that advice provided through a blog, through speaking, or through a column where no conduct follows is inherently speech.

“There’s a difference between saying, ‘I think you should have your appendix removed’ and actually removing it,” said Rowes.

At the same time, Rowes said the Lowe case that is often cited by the boards is “bad law” because it has no precedential value. Concurring opinions are not binding, and later cases contradict the Supreme Court’s decision.

“The conduct speech argument is routinely made by a defendant in First Amendment cases as almost a knee-jerk reaction to try to get out of a First Amendment analysis,” said Lawrence Walters, at attorney at the Florida-based Walters Law Group focusing on free speech rights.

In Cooksey’s case, the only lawsuit that has moved past the district courts, the U.S. Court of Appeals (4th Cir.) agreed with the blogger that not only is advice speech, but the state dietetics board “chilled” Cooksey’s speech when the board warned that his site was under investigation and sent the red pen review of his site.

The appeals court reversed and returned the case to the district court for a retrial that would include consideration of the First Amendment.

Advice and the First Amendment

If the courts decide that advice is speech and protected from licensure laws, the next big question is how far that protection reaches.

Rosemond was asked by the Kentucky psychology board in May to terminate his columns and stop calling himself a psychologist in the end tag of his columns. While Rosemond was licensed in North Carolina, he was not licensed in Kentucky where his column is syndicated, and therefore he violated Kentucky’s licensing laws, according to the board.

His case, media lawyers say, is the most egregious of the three.

“It is the extreme example of the government using occupational licensing laws to ban free speech,” said Rowes. “He’s writing a garden-variety advice column . . . and the advice column has been a staple of Anglo-American journalism for hundreds of years.”

Combined with a case in Texas where the state veterinary board shut down Hines’ website because it allegedly provided illegal paid advice to pet owners located around the world, media lawyers say the courts have split the fact patterns into three different types of advice.

First, a practitioner’s self-labeling as a licensed professional when they are not licensed in that state; second, advice provided for free; and third, advice that is obtained for a fee.

In all of its briefs, the Institute for Justice cited Holder v. Humanitarian Law Project, a 2010 Supreme Court case that held by a 6-3 vote that legal advice to a government-designated foreign terrorist is afforded full First Amendment protection and held to a strict scrutiny standard. If counseling for terrorists is protected, Sherman argued, then surely advice to change a person’s diet or fix a child’s temper tantrum is too, regardless of whether advisers are paid.

However, the North Carolina board argued, if the court ruled in favor of publishers, then licensing laws could be simply be circumvented by an expression argument because licensing laws don’t apply to speech.

“I produce cars, and that’s my expression,” said William Marshall, a law professor at the University of North Carolina.”If the federal government wants to regulate, too bad.”

The Institute has countered by clarifying that the plaintiffs aren’t pressing the courts for all laws that restrict spoken or written advice to be ruled unconstitutional. Rather, in all cases involving advice, the government should be required to meet a necessarily high bar in justifying its regulations.

“It is the duty of an engaged judiciary to ensure that the government has met that burden,” said Sherman. “The government has to meet a high burden of showing that its laws are necessary.”

The key, First Amendment Center President Ken Paulson said, is creating a balancing test that courts can use to weigh the government’s interest with First Amendment rights. It’s a sliding bar. If advice is paid for, then the government interest of protecting consumers will hold more weight against First Amendment protections. The more specific the advice, the greater the weight of government interests.

Walters agreed, saying each state law must be considered on a case-by-case basis.

“It’s really a matter of looking at any particular law,” said Walters, “and evaluating whether or not there are less speech-restrictive alternatives that can be applied.”

In regards to the third type of speech where Rosemond named himself a psychologist in his end tag, even though he was not licensed in Kentucky, Rowes said it was the easiest issue to argue and cited the recent Supreme Court case United States v. Alvarez, also known as the Stolen Valor case.

“The Supreme Court said the government cannot have a monopoly on truth, which means you have a First Amendment right to lie about yourself,” said Rowes. “Not that the Supreme Court approved of lying about yourself, but it just said that we’re not going to begin the process of allowing the government to monopolize the truth.”

However, a number of media lawyers agree that it is still too early to tell what the courts will rule. But the strong precedents that favor free speech protections will ensure that publishers are not strangled by the government.

“In a worst case scenario you’ll see more efforts to prosecute bloggers who share opinions about health and medicine and law,” said Paulson. “I don’t see it happening.”

Regulating in the Internet age

The Internet, Walter said, has created a boundless platform for bloggers and columnists to reach a patient or questioner in another state, country or continent. The same regulations that previously monitored brick-and-mortar doctors, lawyers, vets, and psychologists can’t be sustained.

As state licensing boards try to keep up, they end up building higher walls to contain a system that is spilling over. In Hines’ case, the Texas Veterinary Licensing Act at the center of the board’s defense was amended in 2005 to forbid veterinarians from establishing a doctor-patient relationship solely by electronic means. In 2006, the North Carolina dietetics board adopted an administrative rule that made practicing dietetics via electronic communication illegal for those without a license.

But the exhaustive restrictions boards are advocating for is not the solution, Walters said. And even if courts find that boards can regulate individualized advice, the practicality of government agencies monitoring the sites of all citizens unlicensed by their state is impossible.

“We need to adjust as a society,” he said. “The First Amendment requires breathing space to survive.”

Whether online advice will be included under the Constitution remains to be seen. For now, Rowes and Sherman are fighting for an audience before the U.S. Supreme Court.

“I think there is a chance,” said Walters. “We are as a society wrestling with this issue of everyone becoming a publisher. The Supreme Court always takes a few First Amendment cases each year and I think it has what it takes to make it to the Supreme Court.”