Talking about kale, spinach or broccoli could cost you your livelihood in Florida. Health coach Heather Kokesch Del Castillo experienced just that when the language police caught her promoting nutritious food.
Trouble started when Del Castillo left California with her small business and resettled in Fort Walton Beach, Fla. As a privately certified health coach, Del Castillo earns income by giving nutritional advice and encouragement to clients. Things went well at the new location until 2017, when a state-licensed dietitian filed a complaint with the Florida Department of Health.
The anonymous informant alleged that Del Castillo was engaged in the unlicensed practice of nutrition and dietetics — a criminal offense in Florida. Parents can tell their children to finish their vegetables, and friends can share opinions on weight-loss fads. But regulators get involved when they catch anyone providing individualized dietary advice for compensation.
Although Del Castillo had been truthful about her qualifications — never representing herself as a state-licensed nutritionist or dietitian — Florida slapped her with a cease-and-desist order and demanded she pay more than $750 in fines and fees. Essentially, the state ordered her to stay silent.
“All I wanted to do was give people advice on how to eat healthier,” she says. “If I had written a book giving the exact same dietary advice, my speech would have been totally protected. But because I talked with clients directly and they paid me for it, Florida claims that my speech is a crime because I’m unlicensed.”
Florida’s crackdown on Del Castillo is curious. The law that requires her to be licensed also carves out numerous exemptions for others. Acupuncturists, podiatrists, naturopaths, optometrists, dentists and cooperative extension home economists all can give dietary advice without having the background and education that the state demands of Del Castillo.
Rather than accept the censorship, Del Castillo fought back with a First Amendment lawsuit in federal court. After losing at the trial court level and again in front of a three-judge panel at the 11th U.S. Circuit Court of Appeals, she petitioned the entire 11th Circuit to reconsider her case on March 10. Our public interest law firm, the Institute for Justice, represents her.
The case hinges on the supposed distinction between speech and conduct. Del Castillo does not provide medical care, massage therapy, beauty services, meal preparation or anything similar. She literally talks for a living. The fact that her clients pay for the information does not alter the message.
Unfortunately, the 11th Circuit panel saw things differently. The court ruled that speech between a buyer and seller of information is a form of “professional conduct” that can be licensed without offending the First Amendment. The opinion has implications for millions of workers, who might find themselves needing government permission to speak.
The list includes artists, photographers, tutors, personal trainers, motivational speakers, buyers, sellers, recruiters and nearly anyone who has a job with “adviser,” “consultant” or “coach” in the description. As other Institute for Justice cases show, even North Carolina drone operators and Mississippi mapmakers who sell technical information are engaged in speech. So are Virginia teletherapy providers, South Carolina tour guides and California vocational school instructors.
If the government can circumvent the First Amendment merely by imposing occupational licensing requirements, then almost anyone who works with words and ideas could face arbitrary restrictions. People like Del Castillo would have to go back to college and earn specific degrees to comply. Others would have to complete apprenticeship programs, pass licensing exams, pay registration fees and clear other hurdles — all to be able to talk for a living.
Their shield is the First Amendment. Crisis pregnancy counselors relied on the protection in 2018, when the U.S. Supreme Court affirmed that states do not have “unfettered power to reduce a group’s First Amendment rights by simply imposing a licensing requirement.”
Other courts have fallen in line with the landmark ruling. Now the 11th Circuit has a chance to correct its error.
Occupational oversight boards have authority to regulate conduct when traditional public health and safety considerations are implicated. But nobody in the United States should need a license to speak.
