Court Tells State Psychology Board It Can't Use Its Powers To Regulate Protected Speech
from the derailing-a-power-trip dept
A Kentucky psychiatry board cannot censor the nation’s longest-running newspaper columnist for providing advice as a “family psychologist,” a federal judge ruled.
John Rosemond, whose Dear Abby-style parenting column is syndicated in more than 200 newspapers, claims he received a threatening cease-and-desist letter from the Kentucky Board of Examiners of Psychology on May 7, 2013.
Rosemond, dubbed a family psychologist in his byline, holds a master’s degree in psychology and is licensed to practice North Carolina, but is not qualified to provide psychological services to Kentucky residents, according to the board.
The letter, signed by Assistant Attorney General Brian Judy, further alleged Rosemond’s advice that parents of a deadbeat teen confiscate their son’s cell phone as a “wake-up call,” amounted to professional services rendered.
DEAR GOD. The horror. It’s like something Ann Landers would say but without wandering off to briefly consider the social destruction wrought by cellphone use at the dinner table.
Yes, the Kentucky psychiatry board concern-trolled a syndicated advice columnist, presumably because it felt general advice dispensed across multiple states somehow threatened its rent-seeking regulatory apparatus. But it’s finding no comfort from the court, which has told it to stop using its powers to throttle protected speech.
The Board tried to argue that Rosemond’s column was unprotected “professional speech,” due to his byline as a psychologist. The court finds all kinds of problems with this argument.
This theory is both consistent with how the doctrine has been applied in the aforementioned cases addressing the professional speech doctrine, and is also sensible in light of the doctrine’s aims. Pursuant to this doctrine, the government is permitted to regulate speech in limited circumstances so as to protect the individual receiving advice— the client. As articulated by Justice White, without this professional-client relationship, the doctrine’s vices outweigh its virtues.
In this case, that “personal nexus between professional and client” does not exist. Neither party suggests that Rosemond has any idea who the teenager in his column is. In fact, nobody knows the individual who Rosemond was writing about or whether that person lives in Kentucky. Nobody knows if the teenager’s parents read the article or took the advice, much less if anyone was harmed. For all the Board knows, the “wakeup call” worked and, instead of harming the teenager, it served its purpose. Furthermore, Rosemond receives no compensation from any person in exchange for the advice offered in his columns. Put plainly, the question and answer format used by Rosemond is nothing more than a literary device. The relationship that is necessary between a professional and a client to trigger application of the professional speech doctrine just did not exist. This should not come as much of a surprise to the Board, who conceded in oral argument that it knew of no case that defined professional speech in the way the Board sought to apply the doctrine.
Once again, legal arguments best described as “novel” fail to score any points. An argument without precedent rarely holds up in court. Comparing the Board’s assertions to the actual facts of the case, the court calls the entity out for its transparent attempt at regulating protected speech.
Rosemond’s speech is neither commercial, nor professional. Instead, the Board used K.R.S. § 319.005 to restrict Rosemond’s speech because it took issue with the message he was conveying. Such government regulation is content-based, and only constitutional if it survives strict scrutiny.
The court also takes the time to criticize the board for its attempt to scuttle Rosemond’s tagline.
The Board also argues that the tagline at the bottom of Rosemond’s column is commercial speech, and further that Rosemond’s “unqualified use” of the term family psychologist is “potentially misleading, to the public’s detriment.” For the same reasons that the Board’s attempted regulation of the body of Rosemond’s column is content-based, so too is its regulation of his tagline. If Rosemond described himself as something other than a “family psychologist,” or qualified his statement, then the Board would not have pursued him. As discussed, supra, this is the hallmark of a content-based restriction.
The decision then goes on to point out that the Board’s actions seem particularly meritless and perhaps even a bit vindictive.
If the State’s interest is really in preventing persons unlicensed in the Commonwealth of Kentucky from holding themselves out as licensed professionals, it is difficult to understand how Dr. Phil, Dr. Oz, and countless other self-help gurus would not also be in the Government’s crosshairs. The Board has never investigated another newspaper columnist, nor book author for holding themselves out to be a “psychologist” without proper licensure in Kentucky. When asked how the Board would respond to a complaint if one were levied against Dr. Phil, the Board did not know. While there is no evidence in the record demonstrating that other public personalities similarly hold themselves out to be “psychologists” in Kentucky, it is hard to believe that others do not.
Finding in favor of the columnist, the court has ordered a permanent injunction against the Board’s use of its power to regulate protected speech. But why did it even get to this point?
Well, certain regulatory agencies have tried to expand their reach by regulating speech under the guise of public safety. A few years back, North Carolina tried to shut down a blogger extolling the virtues of the “paleolithic diet” by claiming he was dispensing dietary advice without a license. Some government agencies just want to have control. Others dislike outsiders who don’t “buy in” to the special “club.” (Licensing for psychologists in Kentucky runs $300 initially and $100 per year after that.)
In Rosemond’s case, a retired psychologist filed a complaint with the Board after reading one of Rosemond’s columns. This resulted in the Board’s serving of an affidavit demanding Rosemond pull his column. Rosemond refused and filed a suit against the Board instead, seeking declaratory judgment that the Board’s conduct violated his First Amendment rights. He won. And all of this can be traced back to a retired professional who disagreed with Rosemond’s advice, and an agency only too eager to flex its regulatory muscle. A complaint that should have been greeted with a shrug has resulted in a judicial smackdown that will prevent the Board from acting so stupidly in the future.