By: Prakash Kadiri <\/p>\n\n\n\n
Is giving nutritional advice protected by the First Amendment? Absolutely. Now, what if you\u2019re not licensed by the state but compensated for that advice\u2014is your speech still protected by the First Amendment? A Florida District Court recently said no<\/a>. <\/p>\n\n\n\n In deciding cases like this,\ncourts try to distinguish whether the licensing laws\u2014 regulations requiring\nprofessionals receive approval from the state\u2014affect professional speech or\nprofessional conduct. Professional speech is any speech based<\/a> on an individual\u2019s expert knowledge\nor judgment who is typically under a state\u2019s licensing and regulatory regime, like\na lawyer advising his client. Professional conduct, on the other hand, is daily\nactions performed on the job, like a doctor performing surgery; this is not\nprotected from regulations by the U.S. Constitution. Now what if someone is a\ntherapist whose conduct is exclusively speech, is her speech protected by the\nFirst Amendment? <\/p>\n\n\n\n Courts have agreed such speech\u2014speech that is part of one\u2019s profession\u2014is not as highly protected by the First Amendment as other types of speech; therefore, state laws regulating such speech are held under less scrutiny<\/a>. Recently however, the Supreme Court changed its position in National Institute of Family and Life Advocates v. Becerra <\/em>(2018), or \u201cNIFLA.\u201d A crisis pregnancy center sued California over a law that mandated disclosures of other state-sponsored options relating to pregnancies, such as abortion. The law was challenged as violative of First Amendment rights for compelling speech. In response, the government argued the mandated speech was a regulation of professional speech and therefore constitutional. The Court disagreed and made clear that under the First Amendment, the Court does not differentiate professional speech from other types of speech<\/a>. Furthermore, the Court clarified that states have the authority to regulate professional conduct but cannot reduce a person\u2019s First Amendment rights through licensing requirements. Yet the Court acknowledged the trickiness in differentiating between professional speech and professional conduct. <\/p>\n\n\n\n Often, state attorneys, defending\ntheir state\u2019s licensing laws, argue that if the speech-based conduct is\ncompensated, it\u2019s no longer professional speech but professional conduct. Therefore,\nthey argue compensated speech-based conduct is not protected by the First\nAmendment. Since 2018, federal courts have wrestled with applying NIFLA to\nstate regulations on speech-based professional conduct. It\u2019s still unclear what\nstandard of review courts should adopt.<\/p>\n\n\n\n For example, in the Capital Associated Industries\nInc. v. Stein <\/em>(2019)<\/a>, the Fourth Circuit heard a case\nin which an employee trade association wanted to give legal advice to its\nmembers. The association brought a First Amendment challenge against a North Carolina law<\/a> forbidding corporations from\npracticing law unless the company is owned by a lawyer, is a public interest\nlaw firm, or has in-house counsel representing their employers. This law\nprevented the human resource center of the trade association from giving any\nsort of legal advice to association members. Following NIFLA, the court applied\nan intermediate scrutiny test and found the NC law does not violate the trade\nassociation\u2019s First Amendment rights because the law is regulating\nprofessional conduct, not professional speech<\/a>. <\/p>\n\n\n\n Similarly, the Sixth Circuit\nheard a case, in EMW Women\u2019s Surgical Center,\nP.S.C. v. Beshear<\/em>\n(2019),<\/a> where a surgical\ncenter challenged a Kentucky<\/a> law<\/a> that compelled a doctor to\nperform an ultrasound and make the child\u2019s heartbeat audible to the expecting\nmother before performing the subsequent abortion. The plaintiffs argued the law\nwas in violation of their First Amendment rights. However, the court disagreed\nand held that because the law in question required only the disclosure of\ntruthful, non-misleading, and relevant information about an abortion, the\ncompelled speech did not violate a doctor\u2019s First Amendment rights. <\/p>\n\n\n\n Essentially, the circuit courts\ncategorized the compelled speech of the doctors in Beshear<\/em> and forbidden\nspeech of human resource employees in Stein<\/em> as professional conduct that\ndid not require strict scrutiny analysis against the respective laws. Of\ncourse, because both medicine and law are\ngenerally highly regulated professions<\/a>,\nthe court\u2019s decisions in these two cases are unsurprising. <\/p>\n\n\n\n NIFLA\u2019s effects are more\ninteresting in contexts with speech-based professional conduct that are not universally\nheld to a highly regulated standard. Currently, the Institute for Justice, a\nnon-profit litigation firm, represents different clients in lawsuits against\nstate laws that regulate professional conduct that is entirely speech.<\/p>\n\n\n\n In Hines v. Quillivan <\/em>(2019)<\/a>, a Texas veterinarian offers\nveterinary advice over the internet, essentially practicing telemedicine for\nanimals. A Texas law<\/a> prohibits a veterinarian from communicating\nindividualized advice unless he or she has first physically examined the animal.\nThe Fifth Circuit, before NIFLA, stated the First Amendment was not\nimplicated in his initial challenge in 2014<\/a>. After NIFLA, the fully licensed veterinarian\nrenewed his constitutional challenge, yet the district court upheld the law<\/a> and sidestepped the issue. As of\npublication of this post, the decision is being appealed to the Fifth Circuit<\/a>.<\/p>\n\n\n\n In a Mississippi case, a tech\ncompany that helps local banks evaluate collateral when creating loans came under\nthreat of the state\u2019s surveyor board<\/a>.\nThe tech company, Vizaline, communicated existing and established property\nboundaries using Google Maps-like technology<\/a>. The company sought to challenge\nthe surveyor board to protect their right to collect and disseminate\ninformation (property boundaries) to the bank clients. The district court,\nhowever, dismissed the claim<\/a> because it found that the state\ncould regulate surveyors and was unable to distinguish Vizaline\u2019s business\nmodel from actual surveying. This decision was appealed to the Fifth Circuit;\nas of publication of this post, Vizaline awaits a new decision. <\/p>\n\n\n\n Finally, a Florida district court found that a Florida law<\/a>, allowing only licensed people to be compensated for giving dietary advice, did not violate the First Amendment<\/a> even though the entire practice of giving diet advice is speech-based. A Florida diet coach, who recently moved to the state, came under fire for giving individualized nutrition and diet coaching to her clients while unlicensed by Florida. The court relied on Eleventh Circuit precedents and applied rational basis review to deny the First Amendment claim. <\/p>\n\n\n\n None of these courts really allowed the First Amendment claims to be fully decided on the merits. Instead, the cases sidestepped these issues or used low standards of review to dismiss the claims and uphold the state\u2019s regulation of professional speech. These cases will likely continue to be appealed and potentially create circuit splits in differing the standards of review, eventually forcing the issue to rise to the Supreme Court to create a uniform standard of review for speech regulations on professions. Until then, courts will likely remain unsure of the distinction between professional speech and professional conduct that is entirely speech. <\/p>\n","protected":false},"excerpt":{"rendered":" By: Prakash Kadiri Is giving nutritional advice protected by the First Amendment? Absolutely. Now, what if you\u2019re not licensed by the state but compensated for that advice\u2014is your speech still protected by the First Amendment? A Florida District Court recently said no. In deciding cases like this, courts try to distinguish whether the licensing laws\u2014 …<\/a><\/p>\n","protected":false},"author":10,"featured_media":2734,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[7],"tags":[215,239,280,281],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts\/2733"}],"collection":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/users\/10"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/comments?post=2733"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts\/2733\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/media\/2734"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/media?parent=2733"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/categories?post=2733"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/tags?post=2733"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}