Do you’ve gotten a constitutional right under the First Amendment to offer people weight-reduction plan advice? The state of Florida says residents cannot receives a commission for it unless they’ve the right occupational license, and a lady threatened with fines for breaking state regulations is asking the Supreme Court to uphold her freedom to suggest healthy meals.
Heather Kokesch Del Castillo is a health coach in Fort Walton Beach, Florida. She got in trouble with the state in 2017 because she was providing food advice to paying customers but is just not a licensed dietitian (and doesn’t claim to be). She was threatened with fines and misdemeanor charges if she didn’t stop offering her services for money unless she becomes a licensed dietitian, which in Florida requires an undergraduate degree, 900 hours of supervised practice, testing, and charges.
As a substitute, she sued, represented by lawyers with the Institute for Justice. She argued that the First Amendment protected her right to be paid to offer weight-reduction plan advice to willing customers. If she were to write down a book providing weight-reduction plan advice, the state couldn’t demand she be licensed as a dietician in Florida with the intention to sell the book in stores. That will be a transparent First Amendment violation. Why would giving advice person-to-person be any different?
Unfortunately, to date the courts haven’t agreed together with her or the Institute for Justice. In 2019, judges for the federal eleventh Circuit upheld Florida’s broad regulations and determined that Del Castillo’s free speech rights weren’t unconstitutionally abridged.
The Institute for Justice believes that this decision runs counter to a Supreme Court ruling from 2018, NIFLA v. Becerra, where the Supreme Court determined that a law in California requiring pregnancy centers post notices informing women of the provision of free or low-cost services, including abortions, was unconstitutional. The 2 cases don’t appear at first to be closely related, but in the bulk ruling, Justice Clarence Thomas wrote, “Speech is just not unprotected merely since it is uttered by ‘professionals.’ This Court has ‘been reluctant to mark off latest categories of speech for diminished constitutional protection.'”
Judges on the eleventh Circuit concluded that the Supreme Court case the Institute for Justice referenced didn’t apply to Del Castillo’s situation. So last week, the Institute for Justice submitted a petition to the Supreme Court to have the case considered there.
“The recommendation she wants to offer (recommendations on what to eat or not eat) is the type of advice that tens of millions of Americans routinely give and receive without government intervention,” the petition notes. “If that advice may be faraway from the ambit of the First Amendment just by adopting a licensing law, then any advice could possibly be.”
And heaven knows occupational licensing regulators have tried as much. The Institute for Justice has represented people in occupations as varied as engineering to tour-guiding who’ve needed to take care of local governments attempting to forcefully shut their mouths.
“This case illustrates that occupational-licensing boards are America’s newest censors,” said Institute for Justice Senior Attorney Paul Sherman in a prepared statement. “In cases across the country, boards charged with regulating all the things from engineers to psychologists to dieticians have decided that the ability to license an occupation gives them the best to inform bizarre Americans to shut up. It’s time for the Supreme Court to clarify that it gives them no such thing.”