Kentucky to delay enforcing law against advice columnist pending First Amendment lawsuit

Amy Zhang | Content Regulation | News | July 24, 2013

Enforcement of a Kentucky law forbidding out-of-state psychologists from practicing in the state will be delayed after a Friday meeting between the Kentucky Board of Examiners of Psychology and advice columnist John Rosemond.

The meeting came after Rosemond, 65, sued the psychology board in U.S. District Court in Frankfort on July 16, claiming the board attempted to censor his work in violation of his First Amendment rights. The Attorney General's office sent Rosemond a cease-and-desist letter on behalf of the psychology board in February, asking him to stop all publication of his column in the state of Kentucky.

According to the board, Rosemond's February 12 column was "unlicensed practice of psychology" under Kentucky law because it provided specific advice to a question from a parent about how to handle her teenager. The board also asked Rosemond to stop identifying himself as a "psychologist" at the end of the column because he is not a licensed psychologist in Kentucky.

In the motion filed on July 16, Rosemond's lawyers argued for a preliminary injunction against any enforcement of the law during the lawsuit because it opens Rosemond up to a possible $1000 fine and a year in jail per column published.

Rosemond's parenting advice column began in 1976 and is syndicated in more than 200 newspapers. In it, he regularly replies to reader questions.

After a closed meeting last week, the board said its primary problem was Rosemond identifying himself as a psychologist despite not being licensed as one by Kentucky. Eva Markham, who chairs the Kentucky psychology board, told the Associated Press on Tuesday that Rosemond's master's degree and North Carolina psychology license would be insufficient to make him a psychologist in Kentucky.

Senior Attorney Paul Sherman at the Arlington-based Institute of Justice, a group that has filed in many occupational-licensing censorship cases and is currently representing Rosemond, said his client has a First Amendment right to refer to himself as a psychologist, just as Sherman and his colleagues can publish an op-ed in the Wall Street Journal that identifies them as lawyers.

That column "is available to readers all over the country and all over the world in lots of jurisdictions where he and I aren't licensed to practice law," said Sherman. "That doesn't mean we're breaking the law."

In his motion, Rosemond's lawyers argued that the U.S. Supreme Court has held that "individualized advice is protected speech entitled to the highest level of First Amendment protection." They cited a case where the court allowed several individuals to provide advice to terrorist groups.

"If individualized technical and legal advice to designated foreign terrorists is fully protected speech, then Plaintiff Rosemond’s individualized parenting advice — such as 'your son is in dire need of a major wake-up call' — must be protected speech too," the motion said.

The motion argued that the board's censorship was subject to strict judicial scrutiny because it was content-based.

According to Gene Policinski, the Senior Vice President of the First Amendment Center, the board's move to regulate any incoming information that fails to come from a licensed professional is a very slippery slope.

"Kentucky is going to have to erect an electronic barrier against everyone who isn't certified by a board in Kentucky. Would they keep them off the internet?" said Policinski. "Are they going to snip out advice columns in the New York Times and publications that come into the state? There wouldn't be an end."

For now, Sherman said, Rosemond awaits a response from the Board or a motion to dismiss, due August 7.