Advice columnist not “practicing without a license”

A federal district court in Kentucky threw out a case brought by the state’s Board of Examiners of Psychology against an advice columnist who the board claimed was practicing psychology without a license by offering his advice through columns printed in the state’s newspapers (Rosemond v. Markham). The September 30 decision was issued by the U.S. District Court for the Eastern District of Kentucky.

John Rosemond, a licensed North Carolina psychological associate who has been dispensing parenting advice for 40 years through a nationally-syndicated newspaper column, ran afoul of the Kentucky Board of Examiners of Psychology after he published a column in which he responded to a letter from the parents of a teenager with a discipline problem.

Rosemond, who bills himself as a “family psychologist” in his column, caught the attention of a former Kentucky psychologist, who, after reading the column in a Lexington newspaper and objecting to the quality of Rosemond’s advice, filed a complaint with the board.

The complaint charged that the columnist was holding himself out to be a licensed Kentucky psychologist, in violation of state law.

After the board sent a cease-and-desist letter to Rosemond, he brought a pre-emptive suit to challenge, on First Amendment freedom-of-speech grounds, the application of Kentucky law to his column. The case went before Judge Gregory Van Tatenhove.

Judge Van Tatenhove granted summary judgment in favor of Rosemond, rejecting the board’s argument that it was only attempting to regulate Rosemond’s professional and commercial speech, lesser categories of speech which would subject the board’s actions to a lower standard of scrutiny.

However, because the complaint was brought in regard to Rosemond’s response to a specific question from a parent about how to handle their child—the board conceded that generalized parental advice does not constitute the practice of psychology, andJudge Van Tatenhove held the board’s action was an attempt to restrict the content of Rosemond’s speech.

Content-based restrictions are strictly controlled by Supreme Court precedent. “Only because Rosemond provided individualized advice was he subject to the Board’s action,” wrote Van Tatenhove. “This is, by definition, content-based.”

The judge applied the same logic to Rosemond’s use of the term “family psychologist” to describe himself in his column, noting that the board would not have pursued the case if Rosemond described himself “as something other than a ‘family psychologist’ . . . or qualified his statement.”

Although speech directed by licensed professionals to their clients is subject to more restrictions that most content-based speech, Judge Van Tatenhove held that these limits applied only where a professional-client relationship actually exists.

Despite the fact that Rosemond was dispensing advice to a specific person about a specific problem, the judge said, “The question and answer format used by Rosemond is nothing more than a literary device. He also stated: “The relationship that is necessary between a professional and a client to trigger application of the professional speech doctrine just did not exist.”

And, despite the fact that Rosemond received financial compensation for authoring his column, the judge nevertheless held that his speech was not “commercial,” in the sense meant by judicial precedent in First Amendment cases, and therefore not subject to increased regulation.

Because Rosemond’s speech was not commercial speech, Judge Van Tatenhove stated, “the Board’s restriction is subject to strict scrutiny even if what Rosemond said were false or misleading.”

Under the strict scrutiny applied to government attempts to restrict content-based speech, Van Tatenhove held that the law, as applied to Rosemond’s advice column, weighed too heavily in favor of restriction.

The interest asserted by the board—that Rosemond might confuse readers into thinking that he was a licensed Kentucky psychologist—“did not fall into one of the few categories where the law allows content-based regulation of speech.” Moreover, the judge said, the board was unable to show that its proposed restrictions would further that interest.

“In the case at hand,” wrote Judge Van Tatenhove, “the board has not demonstrated that any actual harm has occurred.” Restrictions on speech cannot rely, alone, on the prospective harm that could be done by that speech.

“If the facts were different,” Van Tatenhove concluded, “had Rosemond represented himself to be a Kentucky-licensed psychologist or had he actually entered into a client-patient relationship in Kentucky, the outcome might be different. In the case at hand, he did not. All he did was write a column providing parenting advice to an audience of newspaper subscribers.”

“To permit the state to halt this lawful expression would result in a harm far more concrete and damaging to society than the speculative harm which the State purportedly seeks to avoid, and perhaps that is the ‘wake up’ call best drawn from the facts of this case.”