Is speech that offers advice on how to lose weight or eat healthier protected by the First Amendment? That is the question raised by a federal lawsuit brought by health coach Heather Kokesch Del Castillo against the Florida Department of Health that is currently before the 11th U.S. Circuit Court of Appeals. On February 18, a three-judge panel of the Eleventh Circuit ruled that one-on-one dietary advice is not protected speech, but rather an unprotected form of conduct: the practice of dietetics. Today, Heather, represented by the Institute for Justice (IJ), asked the entire Eleventh Circuit to reconsider her case.

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Heather’s case began in 2017, two years after she founded her health-coaching business, Constitution Nutrition. Through her business, Heather, a privately certified health coach, offered individual advice and encouragement to clients who were looking to improve their diets. But soon the Florida Department of Health came knocking at her door, ordering her to stop providing dietary advice unless she got a license and fining her over $750.

“All I wanted to do was give people advice on how to eat healthier,” said Heather. “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, Florida claims that my speech is a crime because I’m unlicensed.”

To challenge the state’s censorship, Heather teamed up with IJ to file a First Amendment lawsuit defending her right to give dietary advice. But in its February 2022 ruling the Eleventh Circuit rejected her arguments, holding that individualized dietary advice is not protected speech, but is instead a form of unprotected “conduct” that can be regulated regardless of the First Amendment.

“The Eleventh Circuit panel’s position is that advising someone on how to lose weight by eating better is, for First Amendment purposes, no different from performing bariatric surgery or liposuction,” said IJ Senior Attorney Paul Sherman. “That’s wrong, and the entire Eleventh Circuit should rehear Heather’s case to correct it.”

The three-judge panel held that it was bound by an earlier Eleventh Circuit ruling in Locke v. Shore, a 2010 decision upholding Florida’s unusual licensing requirement for interior designers against a First Amendment challenge. In that case—also litigated by IJ—the court ruled that speech that occurs in a professional/client relationship is a form of “professional conduct” that can be licensed without offending the First Amendment. But in a 2018 decision, NIFLA v. Becerra, the U.S. Supreme Court rejected that position, holding that states do not have “unfettered power to reduce a group’s First Amendment rights by simply imposing a licensing requirement.”

“The Supreme Court has made clear that there is no ‘professional licensing’ exception to the First Amendment,” said IJ Attorney Ari Bargil. “Heather wants to speak with her clients and the only reason she’s prohibited from doing so is because of what she wants to say. That’s a textbook First Amendment violation.”

In the wake of the Supreme Court’s ruling in NIFLA, other circuits have recognized that earlier rulings rejecting protection for individualized advice are no longer good law. In 2020, the 5th U.S. Circuit Court of Appeals ruled in Vizaline v. Tracy—a First Amendment challenge to Mississippi surveying laws—that NIFLA “abrogated” earlier circuit precedent holding that occupational licensing laws were immune from First Amendment review. The 9th U.S. Circuit Court of Appeals reached a similar conclusion in Pacific Coast Horseshoeing School, Inc. v. Kirschmeyer, affirming the right to teach job skills to students who had not passed a state-required exam. And just this week, a Washington, D.C., federal district court held that Virginia counselor Elizabeth Brokamp had a valid First Amendment challenge to D.C.’s prohibition on unlicensed counseling. The Institute for Justice represented the plaintiffs in all three cases.

“At a time when more people than ever earn their living by speaking, it is vitally important that courts recognize the importance of—and protect—the right to occupational speech,” said IJ Senior Attorney Robert McNamara. “Other courts are already catching up to that fact. But if the Eleventh Circuit isn’t willing to do so, Heather is fully prepared to take her case all the way to the U.S. Supreme Court if that’s what it takes to defend her First Amendment rights.”

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