Florida health coach fights for his right to speak

Talking about kale, spinach or broccoli could cost you your livelihood in Florida. Health coach Heather Kokesch Del Castillo experienced this when the language police caught her promoting nutritious foods.

The problems started when Del Castillo left California with her small business and relocated to Fort Walton Beach. As a private certified health coach, Del Castillo earns an income providing 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 tip alleged that Del Castillo engaged in the unauthorized practice of nutrition and dietetics – a criminal offense in Florida. Parents can tell their kids to finish their vegetables, and friends can share their opinions on weight loss fads. But regulators get involved when they catch anyone providing individualized dietary advice for a fee.

Although Del Castillo told the truth about her qualifications — never presenting herself as a state-licensed nutritionist or dietitian — Florida slapped her with a cease-and-desist order and demanded she pay more. $750 in fines and costs. Essentially, the state ordered him to remain silent.

“All I wanted to do was give advice to people on how to eat healthier,” she says. “If I had written a book giving exactly the same dietary advice, my word would have been totally protected. But because I spoke directly with clients and they paid me for it, Florida claims my speech is a crime because I don’t have a license.

Florida’s crackdown on Del Castillo is curious. The law that requires him to be licensed also provides many exemptions for others. Acupuncturists, podiatrists, naturopaths, optometrists, dentists, and cooperative extension home economists can all give dietary advice without having the background and education that the state requires of Del Castillo.

Rather than accept the censorship, Del Castillo retaliated with a First Amendment lawsuit in federal court. After losing at the trial court level and again before a three-judge panel at the U.S. 11th Circuit Court of Appeals, she asked 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 alleged distinction between speech and conduct. Del Castillo does not provide medical care, massage therapy, beauty services, meal preparation, or anything similar. She literally speaks for a living. The fact that its customers pay for the information does not change the message.

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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 permitted without violating the First Amendment. The opinion has implications for millions of workers, who may need government permission to speak out.

The list includes artists, photographers, tutors, personal trainers, motivational speakers, marketers, salespeople, recruiters and almost anyone who has a job as an “advisor”, “consultant” or “coach” in the description. As other cases from the Institute for Justice show, even drone operators in North Carolina and mappers in Mississippi who sell technical information are engaged in speaking out. The same goes for teletherapy providers in Virginia, tour guides in South Carolina, and vocational school instructors in California.

If the government can circumvent the First Amendment simply by imposing professional 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 get specific degrees to comply. Others would have to complete apprenticeship programs, pass licensing exams, pay tuition fees and overcome other hurdles – all to be able to speak for a living.

Their shield is the First Amendment. Crisis pregnancy counselors leaned on protection in 2018, when the U.S. Supreme Court held that states do not have “absolute authority to curtail a group’s First Amendment rights by simply imposing a license requirement.

Other courts have complied with the landmark ruling. Now the 11th Circuit has a chance to correct its mistake.

Workplace supervisory boards have the power to regulate conduct where traditional considerations of public health and safety are involved. But no one in the United States should need a license to speak.

Ari Bargil is an Institute for Justice lawyer and Daryl James is an Institute for Justice writer. They wrote this for InsideSources.com.

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