Rosemond v. Conway et al
Filing
48
MEMORANDUM OPINION & ORDER: (1) Rosemond's Motion for Summary Judgment 25 is GRANTED; (2) The Board's Motion for Summary Judgment 26 is DENIED; (3) Kentucky's Psychology Practice Act, Ky. Rev. Stat. §§ 319.005 et seq., a nd its Associated regulations were UNCONSTITUTIONALY APPLIED to Rosemond's advice column and also as to Rosemond's description of himself as a family psychologist; (4) The Board is PERMANENTLY ENJOINED from enforcing these laws in an unconstitutional manner against Rosemond or others similarly situated; and, (5) The Court will enter an appropriate judgment contemporaneously herewith. Signed by Judge Gregory F. VanTatenhove on 9/30/2015. (CBD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
FRANKFORT
JOHN ROSEMOND,
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Plaintiffs,
V.
EVA MARKHAM, et. al.,
Defendants.
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Civ. No: 13-42-GFVT
MEMORANDUM OPINION
&
ORDER
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For nearly forty years, John Rosemond has written a newspaper column on parenting. No
other newspaper column written by a single author has run longer.
Now, in an exercise of regulatory zeal, the Kentucky Board of Examiners of Psychology
seeks to prohibit Rosemond from publishing his column in Kentucky while referring to himself
as a “family psychologist.” In an effort to avoid the State’s enforcement of K.R.S. § 319.005,
the State’s statute regulating the practice of psychology, Rosemond protectively filed this action
in which he asks that the Board be permanently enjoined from interfering with the publication of
his column. Resolution of the case requires balancing the State’s interest in regulating the
practice of psychology with constitutional protections of speech. As Rosemond’s speech
deserves the highest level of constitutional protection, and because the State has failed to
articulate compelling reasons for regulating that speech, the Board will be enjoined from further
interfering with the publication of Rosemond’s column.
I
Mr. Rosemond’s newspaper column offers advice on parenting techniques and appears in
over 200 newspapers across the country, including the Lexington Herald-Leader. [R. 25-3 at ¶ 6
(Rosemond Declaration).] Rosemond’s column is often presented in a question-answer format,
which he refers to as a “Dear Abby-style advice column[].” [Id. at ¶ 10.] The questions he
answers are selected from “a variety of sources, including people who email [him] directly,
people who attend [his] parenting seminars, and people who submit questions to [him] via [his]
website.” [Id. at ¶ 7.] Rosemond has explained his process for choosing questions and also his
lack of contact with the person who submits the question as follows:
I select questions for my column based on my judgment that they present common
problems relevant to many of my readers. I usually do not know the names of people
who send me questions, or any other identifying information, such as where they
live. To the extent that a reader’s question reveals personal information that may
identify that reader, I omit such details from my column. After answering a question
in my column, I do not provide any follow up, and I have no way of knowing
whether the parents whose question I used read my column or followed my advice.
I do not pay people for questions and they do not pay me to answer questions in my
column.
[Id. at ¶ 8.] Rosemond is not a licensed psychologist in Kentucky, but holds a master’s degree in
psychology and is a licensed “psychological associate” in North Carolina. [Id. at ¶ 2-3.]
On February 12, 2013, the Herald-Leader ran one of Rosemond’s columns entitled
“Living with Children.” [R. 1-5 at 2.] In the piece, Rosemond advised that the teenager in
question, who he referred to as a “highly spoiled underachiever,” was “in dire need of a major
wake-up call.” [Id.] He proceeded to describe what actions might be taken to inspire this
“wake-up call,” including taking away electronics and suspending him of privileges until he
improved his grades. [Id.] The article bore the tagline: “Family psychologist John Rosemond
answers parents’ questions on his website at www.rosemond.com.” [Id.] This is typical of the
2
taglines affixed to Rosemond’s articles. [R. 25-3 at ¶ 9 (Rosemond Declaration).] After
Rosemond’s February 12 article ran, a complaint was filed with the Kentucky Board of
Examiners of Psychology (“the Board”). [R. 25-2 at 4.] The complainant, a formerly licensed
Kentucky psychologist, took issue with Rosemond’s advice, characterizing it as “unprofessional
and unethical.” [Id.] He further expressed concern that Rosemond was holding himself out to be
a psychologist in Kentucky when he was not so licensed. [Id.]
As in many states, the Commonwealth has developed a statutory framework for
regulating the practice of psychology. The crux of that framework is K.R.S. § 319.005:
No person shall engage in the practice of psychology as defined in KRS 319.010 or
hold himself or herself out by any title or description of services which incorporates
the words “psychological,” “psychologist,” or “psychology”, unless licensed by the
board. No person shall engage in the practice of psychology in a manner that
implies or would reasonably be deemed to imply that he or she is licensed, unless
he or she holds a valid license issued by the board.
K.R.S. § 319.005. The statute further defines the “practice of psychology” as:
rendering to individuals, groups, organizations, or the public any psychological
service involving the application of principles, methods, and procedures of
understanding, predicting, and influencing behavior, such as the principles
pertaining to learning, perception, motivation, thinking, emotions, and
interpersonal relationships; the methods and procedures of interviewing,
counseling, and psychotherapy; and psychological testing in constructing,
administering, and interpreting tests of mental abilities, aptitudes, interests,
attitudes, personality characteristics, emotion, and motivation. The application of
said principles in testing, evaluation, treatment, use of psychotherapeutic
techniques, and other methods includes, but is not limited to: diagnosis, prevention,
and amelioration of adjustment problems and emotional, mental, nervous, and
addictive disorders and mental health conditions of individuals and groups;
educational and vocational counseling; the evaluation and planning for effective
work and learning situations; and the resolution of interpersonal and social
conflicts;
K.R.S. § 319.010(7). Finally, the statute defines a “psychologist” as:
any person who holds himself or herself out by any title or description of services
incorporating the words “psychologic,” “psychological,” “psychologist,”
“psychology,” “psychopractice,” or any other term or terms that imply he or she is
trained, experienced, or an expert in the field of psychology.
3
K.R.S. § 319.010(9). In the Commonwealth, if an unlicensed person engages in the practice of
psychology or uses the word “psychologist” to describe themselves, then they are subject to
punishment of up to six months imprisonment and/or a $500 fine. K.R.S. §§ 319.005; 319.990.
The Board also has the authority to bring separate civil proceedings pursuant to the Psychology
Practice Act, K.R.S. § 319.118(2).
On May 7, 2013, the Board and Kentucky’s Attorney General jointly issued a “Cease and
Desist Affidavit and Assurance of Voluntary Compliance” to Rosemond, hoping that he would
agree to cease publishing his advice column in Kentucky as they alleged that he was engaged in
the unlawful practice of psychology. [R. 1-4.] Rosemond refused to sign. Instead, on July 16,
Rosemond sued, alleging the threat to end the publication of his column violated his First
Amendment Rights to free speech. 1 [R. 1.] Soon thereafter, the Board and the Attorney General
agreed not to exercise their statutory powers against Rosemond during the pendency of this suit.
[R. 11. at 2.] Since that time, and also by agreed order, the Attorney General has been dismissed
from the suit. [R. 17 at 2.]
The facts are not in dispute. The parties have submitted cross-motions for summary
judgment, and the Court has heard the parties’ arguments, making the matter ripe for
resolution. 2
1
As stated in his complaint, Rosemond seeks declaratory and injunctive relief, asserting that (1)
banning his newspaper advice column violates the First Amendment, (2) prohibiting him from referring to
himself as a “psychologist” violates the First Amendment, (3) banning his books would violate the First
Amendment, and (4) Kentucky’s definition of the “Practice of Psychology” is overbroad. [R. 1.] Since filing
his complaint, Rosemond has abandoned his fourth claim—that the statutory definition of the “practice of
psychology” is facially overbroad. [See R. 29 at FN 10.] Furthermore, the Court will not consider
Rosemond’s arguments regarding his books. While the arguments defending the sale of his books are very
similar, if not identical to the arguments addressed herein, the Court need not reach that issue as nobody has
moved to remove his books from the shelves. Any opinion issued on this topic would be advisory.
2
The Board’s motion is titled as a Motion to Dismiss, or in the alternative, a Motion for Summary
Judgment. [R. 26.] As the parties both cite to matters outside the pleadings in their briefing, the Court
4
II
Rosemond originally sought to challenge Kentucky’s regulations both facially and asapplied. [R. 1 at 27.] Since that time he has abandoned his facial challenge and now he only
argues that the Board’s actions are unconstitutional as-applied to him. [R. 32 at 5.] To be clear,
Rosemond does not challenge whether Kentucky may regulate the practice of psychology.
Furthermore, the Board does not deny that its cease and desist order would have the effect of
restricting Rosemond’s speech. What the parties disagree about is the nature of the restriction.
Rosemond argues that the Board’s regulation of his column is a content-based restriction on his
speech. The Board argues that its regulation is not content-based, but rather is a professional
regulation barring conduct (i.e. practicing psychology without a Kentucky license) and that any
stifling of speech that results from the enforcement of K.R.S. § 319.005 is merely incidental to
the state’s legitimate aim of regulating the profession. [R. 30 at 6-8.] The Board argues that
because Rosemond’s speech is either commercial or professional, its regulation of that speech
should only be subject to intermediate scrutiny. Despite the aforementioned differences of
opinion as to what framework applies, the parties agree that this dispute is governed by the First
Amendment. [R. 47 at 2 (Hrg. Tr.)]
A
The cease and desist letter issued by the Board addressed both Rosemond’s unauthorized
practice of psychology and his use of the title “psychologist” even though he is not credentialed
by the Kentucky Board. [R. 1-4.] The parties analyze the restrictions separately in their briefing
considers these motions solely as cross-motions for summary judgment. The Board appears to concede this
point as the last line of their reply brief states that “Summary Judgement in favor [of] the Defendants is
warranted.” [R. 33 at 9.]
5
and, because these restrictions potentially implicate separate constitutional questions, the Court
will similarly divide the inquiry.
1
Rosemond argues the Board’s regulation of the advice he provides in his column amounts
to a content-based restriction that warrants strict scrutiny. [R. 25-1 at 14-17.] The Board
contends the restriction is not content-based, and is only a restriction on either commercial or
professional speech. Rosemond is right.
In Reed v. Town of Gilbert, Arizona, 135 S. Ct. 2218, 2227 (2015), the Supreme Court
very recently discussed the test for determining whether a restriction on speech is content-based:
Government regulation of speech is content based if a law applies to particular
speech because of the topic discussed or the idea or message expressed. E.g., Sorrell
v. IMS Health, Inc., 564 U.S. ––––, –––– – ––––, 131 S.Ct. 2653, 2663–2664, 180
L.Ed.2d 544 (2011); Carey v. Brown, 447 U.S. 455, 462, 100 S.Ct. 2286, 65
L.Ed.2d 263 (1980); [Police Dep't of City of Chicago v. Mosley, 408 U.S. 92, 95
(1972)]. This commonsense meaning of the phrase “content based” requires a court
to consider whether a regulation of speech “on its face” draws distinctions based
on the message a speaker conveys. Sorrell, supra, at ––––, 131 S.Ct., at 2664. Some
facial distinctions based on a message are obvious, defining regulated speech by
particular subject matter, and others are more subtle, defining regulated speech by
its function or purpose. Both are distinctions drawn based on the message a speaker
conveys, and, therefore, are subject to strict scrutiny.
Reed, 135 S. Ct. at 2227.
Rosemond was asked to cease publishing his column because he responded “to a specific
question from a parent about handling a teenager,” an action which the Board deemed a
“psychological service.” [R. 1-4.] As was conceded in the hearing on this matter, the Board
would not have intervened if Rosemond was providing generalized advice about child rearing as
it would then fall “outside the practice of psychology.” [R. 47 at 24 (Hrg. Tr.)] The Board is
adamant that it “takes no issue with the quality of the psychological services or the applicable
6
standard of care,” [R. 1-4] but this protestation does not change the fact that the Board sought to
silence Rosemond because of the content of his speech. Only because Rosemond provided
individualized advice was he subject to the Board’s action. This is, by definition, content-based.
Although the factual predicate is very different, the Supreme Court’s opinion in Holder v.
Humanitarian Law Project, 561 U.S. 1, 28 (2010) is instructive. In that case, the Court
considered whether 18 U.S.C. § 2339B(a)(1), which criminalizes “knowingly provid[ing]
material support or resources to a foreign terrorist organization,” was applied in such a way as to
violate the First Amendment rights of American citizens who wished to “provide material
support to [Terrorist Organizations] in the form of speech.” Id. at 28. As here, the Government
argued that what was at issue was conduct, not speech. The Court dismissed this argument,
finding that the restriction was content-based:
Plaintiffs want to speak to the [Terrorist Organizations], and whether they may do
so under [the material support statute] depends on what they say. If plaintiffs'
speech to those groups imparts a “specific skill” or communicates advice derived
from “specialized knowledge”—for example, training on the use of international
law or advice on petitioning the United Nations—then it is barred. . . . On the other
hand, plaintiffs' speech is not barred if it imparts only general or unspecialized
knowledge.
Id. (internal citations omitted). As in Holder, Rosemond wants to write a newspaper column and
whether the Board will permit him to do so depends on what he says in that column.
When the Court in Holder was confronted with the Government’s argument, which is
similar to the Board’s herein, that the material support statute should only receive intermediate
scrutiny since it “generally functions as a regulation of conduct,” the Court refused to adopt this
position, explaining that a law may be “described as directed at conduct . . . , but as applied to
plaintiffs the conduct triggering coverage under the statute consists of communicating a
message.” 561 U.S. 1, 28 (2010); see also United States v. Baumgartner, 581 F. App'x 522, 530
7
(6th Cir. 2014) (quoting Holder, 561 U.S. at 28) (“The Supreme Court has held that, where a
statute ‘may be described as directed at conduct ... but as applied to plaintiffs the conduct
triggering coverage under the statute consists of communicating a message,’ the application of
the statute is subject to strict scrutiny for compliance with the First Amendment.”). There is no
question that what drew the Board’s attention in this case was Rosemond’s communicating of a
message. The letter of complaint which spurred the Board’s action specifically criticizes his
advice, and the cease and desist letter addresses the Board’s concern that he was responding to a
specific, individualized question. [R. 1-4; R. 25-2 at 4.]
As further evidence of the fact that the restriction is content-based, Rosemond points out
that there is “no content-neutral justification—i.e., no rationale unrelated to the topics discussed
in his column—for regulating what he writes.” [R. 25-1 at 16.] The Board confirms as much in
its answers to interrogatories where, despite stating that it “[does] not take a position on the
content of the article,” it explains that “[b]y describing himself as a family psychologist,
[Rosemond] is misleading and deceitful to the Kentucky readers who could infer that he is a
qualified credential holder of the Board. . . which could result in [their] acting upon the
printed advice and harm.” [R. 25-2 at 78 (emphasis added).] In other words, the Board acted
out of a concern that the content of Rosemond’s advice column might harm Kentucky readers.
The Board disagrees, arguing that Rosemond’s advice column was either commercial or
professional speech, and that their restriction was content-neutral. [R. 26-1 at 9- 12 (arguing
Rosemond’s speech is commercial); R. 30 at 5-9 (arguing Rosemond’s speech is either
commercial or professional); R. 33 at 4 (arguing that Rosemond’s advice column is professional
speech).] The advice rendered in Rosemond’s column falls into neither category.
8
Commercial speech does “no more than propose a commercial transaction,” Virginia
State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 762 (1976) or
is an “expression related solely to the economic interests of the speaker and its audience.” Cent.
Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of New York, 447 U.S. 557, 561 (1980). The
Board provides only one argument in support of its belief that Rosemond engages in commercial
speech when he publishes his column: Rosemond’s tagline refers readers to his website, which
contains “revenue generating activities.” [R. 26-1 at 10.] This is unpersuasive. “Rosemond
[does] not pay people for questions and they do not pay [him] to answer questions in [his]
column.” [R. 25-3.] While Rosemond was undoubtedly paid for his syndicated column, and
might have indirectly received some income from his website, it cannot be said that Rosemond’s
column either “propos[ed] a commercial transaction” or was “related solely to the economic
interests of the speaker and its audience.” Virginia State Bd. of Pharmacy, 425 U.S. at 762;
Cent. Hudson, 447 U.S. at 561.
The Board also argues that Rosemond’s speech is deserving of a lesser constitutional
protection because he was engaging in professional speech. Citing no case in support of this
specific proposition, the Board pronounces the rule that “[a] professional in a regulated
profession does not enjoy the full protection of the First Amendment when speaking as part of
the practice of his profession.” [R. 33 at 3 (emphasis added).] If there is a rule to be taken from
the cases addressing the “professional speech” doctrine, it is far more nuanced than this.
The Board correctly notes that “[t]he “professional speech doctrine” aims to reconcile the
“collision between the power of government to license and regulate those who would pursue a
profession ... and the rights of freedom of speech.”” [R. 33 at 3 (citing Lowe v. S.E.C., 472 U.S.
181, 228 (1985) (White, J., concurring).] It is not surprising that the Board has difficulty citing
9
to a case that lays the theory out in a coherent way, because cases addressing the intersection
between professional speech and the first amendment are few and far between. See Daniel
Halberstam, Commercial Speech, Professional Speech, and the Constitutional Status of Social
Institutions, 147 U. Pa. L. Rev. 771, 834 (1999) (Courts have “rarely addressed the First
Amendment contours of a professional's freedom to speak to a client.”) According to
Halberstam’s Article, the Supreme Court has only once “expressly confront[ed] the First
Amendment protection of professional speech” and, in only three cases have they reviewed
professional restrictions in light of First Amendment challenges. Id. at 773, 834. In Planned
Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), the Supreme Court
upheld a Pennsylvania law that required physicians provide information to clients seeking an
abortion. While not naming it, the Court addressed the professional speech doctrine as follows:
To be sure, the physician's First Amendment rights not to speak are implicated, see
Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977), but only
as part of the practice of medicine, subject to reasonable licensing and regulation
by the State, cf. Whalen v. Roe, 429 U.S. 589, 603, 97 S.Ct. 869, 878, 51 L.Ed.2d
64 (1977). We see no constitutional infirmity in the requirement that the physician
provide the information mandated by the State here.
Id. at 884. The second case that Halberstam refers to is Rust v. Sullivan, 500 U.S. 173 (1991),
where the Court did not discuss professional speech, but did uphold a rule preventing
government-funded clinics from advising patients of services related to “abortion as a method of
family planning.” Id. at 193. Finally, in Lowe v. S.E.C., 472 U.S. 181 (1985), the Supreme
Court considered whether an SEC order prohibiting a former investment adviser from publishing
an SEC newsletter was an abridgment of the former adviser’s freedom of speech.
Admittedly, at what point professional regulation becomes an unconstitutional restriction
on speech is a difficult question to answer. It has long been held that “[s]tates have a compelling
interest in the practice of professions within their boundaries, and that as part of their power to
10
protect the public health, safety, and other valid interests they have broad power to establish
standards for licensing practitioners and regulating the practice of professions.” Goldfarb v.
Virginia State Bar, 421 U.S. 773, 792 (1975). This principle is unassailable. But, also
undeniable is the fact that, “[a]t some point, a measure is no longer a regulation of a profession
but a regulation of speech or of the press; beyond that point, the statute must survive the level of
scrutiny demanded by the First Amendment.” Lowe, 472 U.S. at 229-30. Again, where to draw
this line is not an exact science. In his concurring opinion in Lowe, Justice White provided some
insight on this question:
Where the personal nexus between professional and client does not exist, and a
speaker does not purport to be exercising judgment on behalf of any particular
individual with whose circumstances he is directly acquainted, government
regulation ceases to function as legitimate regulation of professional practice with
only incidental impact on speech; it becomes regulation of speaking or publishing
as such, subject to the First Amendment's command that “Congress shall make no
law ... abridging the freedom of speech, or of the press.”
Id. at 232. This theory is both consistent with how the doctrine has been applied in the
aforementioned cases addressing the professional speech doctrine, and is also sensible in light of
the doctrine’s aims. Pursuant to this doctrine, the government is permitted to regulate speech in
limited circumstances so as to protect the individual receiving advice— the client. As articulated
by Justice White, without this professional-client relationship, the doctrine’s vices outweigh its
virtues.
In this case, that “personal nexus between professional and client” does not exist. Id.
Neither party suggests that Rosemond has any idea who the teenager in his column is. In fact,
nobody knows the individual who Rosemond was writing about or whether that person lives in
Kentucky. [R. 26-3 at 21 (Markham Depo.)] Nobody knows if the teenager’s parents read the
article or took the advice, much less if anyone was harmed. For all the Board knows, the “wakeup call” worked and, instead of harming the teenager, it served its purpose. Furthermore,
11
Rosemond receives no compensation from any person in exchange for the advice offered in his
columns. [R. 25-3 at 2 (“I do not pay people for questions and they do not pay me to answer
questions in my column.”)] Put plainly, the question and answer format used by Rosemond is
nothing more than a literary device. The relationship that is necessary between a professional
and a client to trigger application of the professional speech doctrine just did not exist. This
should not come as much of a surprise to the Board, who conceded in oral argument that it knew
of no case that defined professional speech in the way the Board sought to apply the doctrine.
[R. 47 at 5 (Hrg. Tr.)]
The Board cites to a number of cases where professionals have been regulated in the
interest of protecting the public, and Courts have upheld the restrictions as they had only
incidental effects on the free speech rights. [See R. 33 at 5-6.] These cases are all
distinguishable from the one before the Court. For example, in Ohralik v. Ohio State Bar
Association, the Supreme Court considered whether an attorney could be disciplined for
personally soliciting automobile victims, or whether this conduct constituted protected speech.
436 U.S. 447 (1978). The Court found that the conduct “f[ell] within the State's proper sphere of
economic and professional regulation,” because “[a] lawyer's procurement of remunerative
employment is a subject only marginally affected with First Amendment concerns.” Id. at 459.
Because Rosemond’s column is not commercial, it is not fairly compared to Ohio’s regulation of
an attorney’s practices in soliciting clients. Two cases that the Board cites actually support
Rosemond’s position by endorsing Justice White’s concurring opinion in Lowe that there must
be a nexus between a professional and a client to legitimate professional regulations with such an
impact on speech. See Accountant's Soc'y of Virginia v. Bowman, 860 F.2d 602 (4th Cir. 1988)
(Regulations affecting accountants are constitutional as they “restrict[] only accountants’
12
communications with and on behalf of their clients.”); Locke v. Shore, 634 F.3d 1185 (11th Cir.
2011) (“There is a difference, for First Amendment purposes, between regulating professionals'
speech to the public at large versus their direct, personalized speech with clients.”)
For the reasons explained above, Rosemond’s speech is neither commercial, nor
professional. Instead, the Board used K.R.S. § 319.005 to restrict Rosemond’s speech because it
took issue with the message he was conveying. Such government regulation is content-based,
and only constitutional if it survives strict scrutiny.
2
The Board also argues that the tagline at the bottom of Rosemond’s column is
commercial speech, and further that Rosemond’s “unqualified use” of the term family
psychologist is “potentially misleading, to the public’s detriment.” 3 [R. 30 at 10.] For the same
reasons that the Board’s attempted regulation of the body of Rosemond’s column is contentbased, so too is its regulation of his tagline. If Rosemond described himself as something other
than a “family psychologist,” or qualified his statement, then the Board would not have pursued
him. [See R. 47 at 6 (Hrg. Tr.) (Board stating “[i]f he called himself a family therapist, we would
not be here.”)] As discussed, supra, this is the hallmark of a content-based restriction. See Reed,
135 S. Ct. at 2227 (“Government regulation of speech is content based if a law applies to
particular speech because of the topic discussed or the idea or message expressed.”)
The fact that the Board seeks to regulate the way that Rosemond describes himself as
opposed to what he says in the column, does not change the fact that it is content-based. In
McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 348 (1995), the Supreme Court considered
whether an Ohio law that prohibited anonymous campaign literature was an unconstitutional
3
Rosemond’s tagline states: “Family psychologist John Rosemond answers parent’s questions on his
website at www.rosemond.com.” [R. 1-5 at 2]
13
abridgment of free speech. Ohio argued that the regulation was justified because it provided the
electorate with valuable information about the speaker, but the Court disagreed:
Insofar as the interest in informing the electorate means nothing more than the
provision of additional information that may either buttress or undermine the
argument in a document, we think the identity of the speaker is no different from
other components of the document's content that the author is free to include or
exclude.[ ] . . . . The simple interest in providing voters with additional relevant
information does not justify a state requirement that a writer make statements or
disclosures she would otherwise omit.
Id. at 348-49. If the state wants to regulate what facts are to be included about the identity of a
speaker, then that regulation is content-based and must withstand strict scrutiny. Id.
Even if, as the Board claims, Rosemond is potentially misleading readers by holding
himself out as a psychologist, he retains the First Amendment right to make those statements in a
non-commercial setting. K.R.S. § 319.005 bans individuals from using the term “psychologist”
in a way that is deceptive. According to the Board, “[t]he evidence in this case supports the ban
that the unqualified use of those terms as potentially misleading, to the public’s detriment.” [R.
30 at 10.] While not a licensed psychologist in Kentucky, Rosemond does hold a master’s
degree in psychology and is a licensed “psychological associate” in North Carolina. [R. 25-3 at ¶
2-3 (Rosemond Declaration).] With this title, also comes authorization under North Carolina law
to describe himself as a “psychologist.” [Id. at ¶ 3; R. 1 at ¶ 10.] Ultimately, however, the
Board’s restriction is subject to strict scrutiny even if what Rosemond said were false or
misleading. [R. 25-1 at 15.] In United States v. Alvarez, 132 S. Ct. 2537 (2012), Xavier Alvarez
lied when he announced at a public meeting that he held the Congressional Medal of Honor, an
act which the Court referred to as a “pathetic attempt to gain respect that eluded him.” Id. at
2542. In holding that The Stolen Valor Act, which criminalized making false claims about the
receipt of military medals, was an unconstitutional content-based restriction, the Court
reaffirmed its conviction that even false statements deserve First Amendment protection:
14
The Nation well knows that one of the costs of the First Amendment is that it
protects the speech we detest as well as the speech we embrace. Though few might
find respondent's statements anything but contemptible, his right to make those
statements is protected by the Constitution's guarantee of freedom of speech and
expression.
Id. at 2551. The Board’s restrictions imposed on his tagline, like the content of his column, must
also survive strict scrutiny if they are to be permitted.
B
As the Board has imposed “content-based restrictions on speech, those provisions can
stand only if they survive strict scrutiny, which requires the Government to prove that the
restriction furthers a compelling interest and is narrowly tailored to achieve that interest.” Reed,
135 S. Ct. at 2231 (internal quotation marks and citations omitted); see also Greater New
Orleans Broad. Association, Inc. v. United States, 527 U.S. 173, 183 (1999) (When considering
restrictions on “commercial” speech, “the Government bears the burden of identifying a
substantial interest and justifying the challenged restriction.”); see also Ohio Citizen Action v.
City of Englewood, 671 F.3d 564, 571 (6th Cir. 2012) (“The governmental entity that enacts the
regulation bears the burden of establishing each element of the analysis, and ‘the Court
ordinarily does not supply reasons the legislative body has not given.’ ”). This means that the
burden is on the Board to demonstrate that the restrictions imposed on Rosemond’s speech
“furthers a compelling governmental interest and [are] narrowly tailored to that end.” Reed, 135
S. Ct. at 2231 (internal quotation marks and citations omitted). “In light of the substantial and
expansive threats to free expression posed by content-based restrictions,” Alvarez, 132 S. Ct. at
2544, the Supreme Court has only rarely found content-based restrictions to withstand
constitutional muster. Id. (collecting cases). The Board cannot carry this heavy burden here.
15
1
First, the Board argues that Kentucky has a compelling interest in “protect[ing] the public
health and safety and other interests by establishing standards for licensing professionals and by
regulating the practice of professions within their borders.” [R. 30 at 9.] They assert that the
regulatory scheme “protect[s] the mental health of its citizens and prevent harm from the
unlawful and incompetent practice of psychology.” [R. 33 at 6.] The Board asserts that
Rosemond might potentially confuse readers into believing that he is a Kentucky-licensed
psychologist and that protecting these readers from potential confusion is a compelling interest.
[R. 33 at 8.]
This interest does not fall into one of the few categories where the law allows contentbased regulation of speech. See Alvarez, 132 S. Ct. at 2544. Furthermore, while protecting the
public is an enviable goal, the Board cannot demonstrate that its restrictions achieve the goal.
Even under the lesser intermediate scrutiny standard, the Board has the burden of demonstrating
that its restriction “directly advance the state interest involved; the regulation may not be
sustained if it provides only ineffective or remote support for the government's purpose.” Central
Hudson Gas & Electric Corp., 447 U.S., at 564. As explained in Edenfield v. Fane, “[t]his
burden is not satisfied by mere speculation or conjecture; rather, a governmental body seeking to
sustain a restriction on [ ] speech must demonstrate that the harms it recites are real and that its
restriction will in fact alleviate them to a material degree.” 507 U.S. 761, 770-71 (1993); Pagan
v. Fruchey, 492 F.3d 766, 771 (6th Cir. 2007) (citing Edenfield, 507 U.S. at 770–72) (“[T]he
government must come forward with some quantum of evidence, beyond its own belief in the
necessity for regulation, that the harms it seeks to remedy are concrete and that its regulatory
regime advances the stated goals.”); Nixon v. Shrink Missouri Gov't PAC, 528 U.S. 377, 392
16
(2000) (The Supreme Court has “never accepted mere conjecture as adequate to carry a First
Amendment burden.”).
In the case at hand, the Board has not demonstrated that any actual harm has occurred. In
fact, the Board conceded it is not aware of any situation where a citizen was actually harmed by
Rosemond’s speech. [R. 47 at 16 (Hrg Tr.)] When asked in her deposition whether the Board
was “aware of any evidence that anyone has been harmed by Mr. Rosemond’s column in the
more than forty years that it has run in Kentucky newspapers,” Dr. Eva Markham (Chair of the
Kentucky Board of Examiners of Psychology) answered “not to my knowledge.” [R. 26-3 at 26
(Markham Depo.)] When asked whether the Board was aware of anyone being misled by his
tagline, the answer was again “No.” [R. 26-3 at 26 (Markham Depo.)] Instead, the Board only
speculates that citizens might be harmed if they were to depend on Rosemond’s advice under the
mistaken belief that he is a Kentucky-licensed psychologist. [R. 47 at 15 (Hrg. Tr.); R. 26-3 at
22-23 (Markham Depo.)]
The Board’s argument that no proof of actual harm is necessary, and that speculative
harm is enough is unpersuasive. [R. 33 at 4.] Citing Turner Broad. Sys., Inc. v. F.C.C., 512 U.S.
622, 664 (1994), the Board argues that the state can act to regulate “anticipated harms.” [R. 33 at
4, Footnote 16.] A more complete reading of Turner Broadcasting reveals, however, that the
Government must still do “more than simply ‘posit the existence of the disease sought to be
cured.’ ” Turner Broad. Sys., 512 U.S. at 664 (1994) (quotation omitted). The Government
“must demonstrate that the recited harms are real, not merely conjectural, and that the regulation
will in fact alleviate these harms in a direct and material way.” Id. (citing Edenfield, 507 U.S. at
770–771 (1993)); see also United States v. Nat'l Treasury Employees Union, 513 U.S. 454, 475
(1995) (quoting Turner Broad. Sys., 512 U.S. at 664).
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2
Second, even if the Board’s interest were compelling, its restrictions are not narrowly
tailored to achieve its purpose.
[R. 25-1 at 23.] The Board argues that its restrictions are
narrowly tailored because Rosemond could easily and without much effort choose to describe
himself as something other than a “family psychologist,” or he could simply qualify his tagline
by noting that he is not licensed in Kentucky. [R. 33 at 9 (“The Statute is not excessive. It does
not prevent the Plaintiff from using any other myriad of terms to describe himself or his
background until he is licensed by the Board.”); R. 47 at 39 (Hrg. Tr.) (“He can hold himself out
as a family therapist, family counselor, or anything else along those lines, but he just can’t hold
himself out as a family psychologist…”)] The Court is sympathetic to the Board’s position; if
Rosemond chose to make subtle changes in the way that he refers to himself, this litigation
would not be necessary. [See R. 47 at 6 (Hrg. Tr.) (Board stating “[i]f he called himself a family
therapist, we would not be here.”)] This does not make the Board’s restriction “narrowly
tailored.” Ultimately, whether or not Rosemond could choose to describe himself differently or
in a way that the Board believes to be more precise is irrelevant because, as explained supra,
Rosemond’s use of the title “family psychologist” is protected by the first amendment. See
McIntyre, 514 U.S. at 348. As Rosemond argued in his motion, there are other ways to achieve
the same purpose. For example, the Board could publish a list of names of psychologists
licensed by the Commonwealth. [R. 32 at FN4.]
In this case, it would additionally seem that the Board’s enforcement is underinclusive.
Laws that are underinclusive cannot be narrowly tailored “[b]ecause a law cannot be regarded as
protecting an interest of the highest order, and thus as justifying a restriction on truthful speech,
when it leaves appreciable damage to that supposedly vital interest unprohibited.” Reed, 135 S.
18
Ct. 2232 (quoting Republican Party of Minn. v. White, 536 U.S. 765, 780 (2002) (internal
quotation marks omitted). As articulated by Rosemond:
[T]here is no legitimate neutral justification for the fact that Kentucky prohibits
Plaintiff Rosemond’s parenting advice while leaving vast amounts of materially
identical speech—in the form of newspapers, books, television shows, and Internet
discussion forums— totally unregulated. Kentucky’s newspapers and airwaves—
not to mention the Internet—are filled with advice personalities answering
questions on every facet of interpersonal relationships, most of which seemingly
fall within the broad scope of Kentucky’s definition of the “practice of
psychology.”
[R. 25-1 at 23-24.] If the State’s interest is really in preventing persons unlicensed in the
Commonwealth of Kentucky from holding themselves out as licensed professionals, it is difficult
to understand how Dr. Phil, Dr. Oz, and countless other self-help gurus would not also be in the
Government’s crosshairs. The Board has never investigated another newspaper columnist, nor
book author for holding themselves out to be a “psychologist” without proper licensure in
Kentucky. [R. 26-3 at 23-24 (Markham Depo.)] When asked how the Board would respond to a
complaint if one were levied against Dr. Phil, the Board did not know. [Id. at 35.] While there is
no evidence in the record demonstrating that other public personalities similarly hold themselves
out to be “psychologists” in Kentucky, it is hard to believe that others do not.
C
As explained supra, Rosemond’s speech is neither commercial, nor professional because
it neither proposes a commercial transaction, nor is there any nexus between Rosemond and the
person to whom his advice is allegedly directed. Nevertheless, even if the Court were to find
that Rosemond was engaging in either commercial or professional speech, the restriction would
still fail because the Board’s regulatory authority is not without limits. As explained supra, “a
governmental body seeking to sustain a restriction on commercial speech must demonstrate that
the harms it recites are real and that its restriction will in fact alleviate them to a material
19
degree.” Edenfield, 507 U.S. at 770-71 (additional citations omitted). The same burden attaches
to the Board’s regulation of Rosemond’s tagline. Even if the tagline constituted potentially
misleading commercial speech, without more it cannot survive intermediate scrutiny:
If the “protections afforded commercial speech are to retain their force,” Zauderer,
471 U.S., at 648–649, 105 S.Ct., at 2280–2281, we cannot allow rote invocation of
the words “potentially misleading” to supplant the Board's burden to “demonstrate
that the harms it recites are real and that its restriction will in fact alleviate them to
a material degree.” Edenfield, 507 U.S., at 771, 113 S.Ct., at 1800.
Ibanez v. Florida Dep't of Bus. & Professional Regulation, Bd. of Accountancy, 512 U.S. 136,
146 (1994). As has been demonstrated, the Board has failed to show that any actual harm
resulted from Rosemond’s behavior or that any anticipated harm was more than conjectural. As
such, the Board could not even meet the lesser burden imposed by an intermediate scrutiny
analysis.
III
The Court does not herein seek to restrain the Board’s ability to regulate the practice of
psychology. Furthermore, the Court does not question the Board’s motives, but “[t]he vice of
content-based legislation ... is not that it is always used for invidious, thought-control purposes,
but that it lends itself to use for those purposes.” Reed, 135 S. Ct. at 2229 (quoting Hill v.
Colorado, 530 U.S. 703, 743 (2000) (Scalia, J., dissenting)) (internal quotation marks omitted).
In this instance the Board went too far.
Rosemond is entitled to express his views and the fact that he is not a Kentucky-licensed
psychologist does not change that fact. If the facts were different, 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
20
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.
Accordingly, and the Court being sufficiently advised, it is hereby ORDERED as
follows:
(1)
Rosemond’s Motion for Summary Judgment [R. 25] is GRANTED;
(2)
The Board’s Motion for Summary Judgment [R. 26] is DENIED;
(3)
Kentucky’s Psychology Practice Act, Ky. Rev. Stat. §§ 319.005 et seq., and its
Associated regulations were UNCONSTITUTIONALY APPLIED to Rosemond’s advice
column and also as to Rosemond’s description of himself as a family psychologist;
(4)
The Board is PERMANENTLY ENJOINED from enforcing these laws in an
unconstitutional manner against Rosemond or others similarly situated; and,
(5)
The Court will enter an appropriate judgment contemporaneously herewith.
This 30th day of September, 2015.
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