Institute for Justice
The State of Florida is threatening a woman with jail unless she stops telling people what to eat.
To clarify: Heather Kokesch Del Castillo of Fort Walton Beach is not wandering around the supermarket in giving unsolicited advice. People have been asking her—and paying her—for dietary and nutritional advice. Though all she is doing is talking to people as a health coach, the state has declared her an unlicensed dietitian and fined her more than $750. She faces misdemeanor charges if she doesn't shut her mouth, with further fines of up to $1,000 for each incident and possibly even a year in prison.
She has turned for help to the lawyers at the Institute for Justice, who have been fighting overreaching occupational licensing schemes for years.
In this case, according to the institute's lawsuit, a licensed dietician looking to eliminate some competition snitched to the state. An investigator with Florida's Department of Health then posed as a potential customer and asked Kokesch Del Castillo for information about a potential weight-loss program. According the the lawsuit, she responded with information about her coaching services but at no point claimed to be a licensed dietitian.
Absurdly, the Department of Health held that by giving someone advice on how to lose weight, she was behaving like a licensed dietitian anyway. And as long as she didn't have the appropriate license, the government said, she'd have to stop. Becoming a licensed dietician in Florida requires a bachelor's degree in the appropriate field, completing 900 hours of supervised practice, taking a test, and paying fees. This would take years and cost thousands of dollars.
Yet if Kokesch Del Castillo put all her advice in a book, she could sell it to whomever she wanted. That's what makes the licensing law so absurd. It's obviously censorship, but they're disguising it as a public safety need in an attempt to bypass the First Amendment.
The Institute for Justice isn't having it:
The advice Heather offers is pure speech, no different from the constitutionally protected speech of the cookbook authors whose philosophies and recipes she recommends to her clients. In fact, under Florida law, it would be perfectly legal if Heather published her advice in a book. And under binding Supreme Court precedent, laws that restrict speech based on its subject matter are subject to the most rigorous level of constitutional scrutiny. Moreover, the Supreme Court has repeatedly held that the mere fact that a person is paid for their speech has no effect on its level of constitutional protection.
Florida is not the first or only state trying to censor diet tips as a form of occupational licensing. The Institute for Justice previously assisted a North Carolina blogger who the state tried to shut down for giving paleo-centered diet advice. The blogger won his fight, and the state issued new guidelines that didn't attempt to suppress free speech.
Nutritional guidance isn't the only sort of speech that has been censored via occupational regulation. The Institute for Justice also intervened when Kentucky's Board of Examiners of Psychology tried to treat a syndicated parenting advice column as an "unlicensed practice of psychology." Most recently, city officials have tried to use occupational licensing to control who is allowed to give paid tours of their communities.
Watch an Institute for Justice video below highlighting the absurdity of Kokesch Del Castillo's case:
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