Speech & Professional Licensing Weighed at 11th Circuit

(CN) — The 11th Circuit on Thursday took up the appeal of a nutrition counselor who claims Florida’s shutdown of her business due to her lack of a dietitian’s license violated her First Amendment rights. 

Heather Kokesch Del Castillo’s health coaching business Constitution Nutrition came to an abrupt halt in 2017 after the Florida Department of Health found that she was giving dietary advice without a license, in violation of state law. ​The department carried out a sting operation on her, fined her more than $750 and sent her a cease-and-desist demand, she said. 

The Elbert P. Tuttle U.S. Courthouse in Atlanta, home of the 11th Circuit Court of Appeals. (Photo via Eoghanacht/Wikipedia Commons)

Del Castillo in response sued the department in federal court, eventually losing the case in July 2019. The court kept the licensing law, known as the Florida Dietetics and Nutrition Practice Act, intact.  ​

On appeal Thursday, a three-judge 11th Circuit panel heard arguments on whether the Act is a legal regulation of professional conduct or an unconstitutional restriction of speech. ​

Representing the Florida Department of Health, Timothy Newhall said the Act has no bearing on Del Castillo’s free speech rights outside the realm of commercial enterprise.  ​

“The way the Act is written, it allows Ms. Del Castillo and anyone similarly situated to discuss dietetics with anyone she would like, at any time she’d like, in almost any manner she would like — as long as she doesn’t accept pay for it,” Newhall said. ​

The statute “regulates professional conduct” and “any implication on speech rights is merely incidental,” Newhall said. ​

Del Castillo’s attorney Paul Sherman fought tooth-and-nail during the hearing to frame the law as a content-based restriction on speech. He claimed that his client’s business was centered on talking to clients, so the distinction between professional conduct regulation and speech regulation is merely semantic with respect to her.

“It’s a distinction without a difference, because the only conduct in this case is Ms. Del Castillo talking to people and giving them advice about diet,” Sherman said. ​

Chief 11th Circuit Judge Edward Carnes, appeared skeptical, noting that the state’s crackdown on Del Castillo’s counseling business was “really not based on the content of the advice.”​

The issue was that “she hasn’t been licensed and hasn’t met the criteria before she formulates a [diet] plan and conveys it by speech” to her clients, said Carnes, a George H.W. Bush appointee.​

Sherman held firm. He argued that similar forms of professional speech such as lifestyle counseling or exercise counseling do not require licenses in Florida, and that the dietician regulation thus can be seen as a content-based restriction. 

The parties’ briefs focused largely on how the case should be handled in the wake of the U.S. Supreme Court 2018 ruling in National Institute of Family and Life Advocates v. Becerra, which provided courts with a revised framework for how to assess the constitutionality of regulation on speech in professional settings.​

In Becerra, the Supreme Court nixed a California law that required that pregnancy counseling centers, including ones with anti-abortion stances, give patients notice that the state has public programs providing free or low-cost abortion. The majority decision found that the law restricted how the centers communicated with patients, to a First Amendment violation.​

Justice Clarence Thomas wrote that “speech is not unprotected merely because it is uttered by professionals.” The decision made clear, however, that “states may regulate professional conduct even though that conduct incidentally involves speech.”

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