The U.S. Court of Appeals, Eleventh Circuit, in a February decision, upheld the dismissal of a suit challenging the state’s licensing scheme for dieticians on First Amendment grounds, holding that any effect that the requirement for dieticians to be licensed has on a practitioner’s speech is incidental to legitimate regulation of the profession.
Heather Del Castillo started a business called Constitution Nutrition in California, a jurisdiction where she was not required to have a license to give dietary advice. In 2015, she moved to Florida, where she continued. By all accounts, Castillo never strayed from offering only dietary and general wellness advice, and did not hold herself out as a health professional to her clients.
Unfortunately for Del Castillo, Florida requires licensure for dieticians. In 2017, another dietician, who was licensed, filed a complaint and, after a visit by an undercover investigator, the state’s Department of Health sent Del Castillo a cease-and-desist order.
In response, Del Castillo brought a federal suit against the department, claiming that the state’s Dietetics and Nutrition Practice Act violated her constitutional rights to free speech by requiring her to have a license in order to give dietary advice. After a district court dismissed the suit, she appealed to the Eleventh Circuit, which issued a panel decision upholding the lower court on February 18 and dismissing Del Castillo’s suit.
Before the circuit court, Del Castillo argued that a 2018 U.S. Supreme Court decision, National Institute of Family & Life Advocates v. Becerra, abrogated an earlier Eleventh Circuit case, Locke v. Shore, in which that court upheld Florida’s licensing scheme for interior designers under similar circumstances to her own.
In Locke, the Eleventh Circuit held that a law requiring licensure for interior designers did not impinge on their right to free speech because “any inhibition of that right is merely the incidental effect of observing an otherwise legitimate regulation.” It additionally upheld the law on the grounds that general protected speech by professionals was different than “their direct, personalized speech with clients,” a doctrine of law termed the “professional speech doctrine.”
In National Institute of Family & Life Advocates, a case involving anti-abortion pregnancy clinics in California, the Supreme Court held that the professional speech doctrine was invalid. Thus, Del Castillo challenged the state’s licensing scheme on the grounds that the professional speech doctrine used by the Eleventh Circuit to uphold Florida’s interior design licensing scheme—and theoretically the regulations governing her own profession—was bad law and Locke was invalidated.
The court did not agree. Engaging in a lengthy analysis of National Institute of Family & Life Advocate’s effect on Locke, it concluded that, because Locke had relied on two separate bases in upholding the state’s interior design licensing scheme—the professional speech doctrine being just one of them—the high court’s decision did not make the final decision in Locke invalid. “It takes only one valid basis or rationale for a prior holding to make it binding precedent,” Judge Robert Luck wrote for the court. In fact, he continued, the Supreme Court stated in National Institute that “States may regulate professional conduct, even though that conduct incidentally involves speech.”
Returning to the situation at hand, the court held that, because Florida’s “licensing scheme for dieticians and nutritionists regulated professional conduct and only incidentally burdened Del Castillo’s speech . . . the Act’s licensing scheme did not violate her First Amendment rights.”
“Assessing a client’s nutrition needs, conducting nutrition research, developing a nutrition care system, and integrating information from a nutrition assessment are not speech. They are ‘occupational conduct;’ they’re what a dietician or nutritionist does as part of her professional services.”
“. . .The profession also involves some speech—a dietician or nutritionist must get information from her clients and convey her advice and recommendations. But, to the extent the Act burdens speech, the burden is an incidental part of regulating the profession’s conduct.”