Today, nearly everyone has turned to the internet or social media for advice or to learn a new skill. On these platforms, content creators are eager to share their experiences in ways that could improve their audiences’ lives. Utilizing the advice from others online allows individuals to enhance themselves through anything from learning a new workout routine to gaining valuable knowledge about financial literacy.
However, the legality of this valuable everyday practice is now in question, especially if the individual is charging for the advice and doesn’t have the necessary professional license.
Heather Kokesch Del Castillo founded Constitution Nutrition, a health coaching business, in 2014 while living in California. As a health coach, she offered dietary advice through both online health coaching programs and in-person sessions.
After moving to Florida, Heather continued operating her holistic business — but problems began to arise. In May 2017, she received a cease and desist from the State of Florida, requiring her to shut down her business completely and pay upwards of $750 in fines. The state took such actions because Heather is not a licensed dietician.
The state’s threats came despite Ms. Castillo never claiming to be, pretending to be, or alluding to being a licensed dietician. Her customers came to her simply because they trusted her and understood that she has the ability to perform the service they are paying for at a high level.
In order to become a licensed dietician, the state of Florida requires one to obtain an undergraduate degree, acquire 900 hours of supervised practice, complete testing, and pay additional fees. These educational and monetary requirements would mean that Ms.Castillo would have to postpone her work for potentially years while obtaining necessary requirements. The result could be that she loses her income stream and she and her family suffer financial hardship
In this case, instead of allowing the state to impede her life with this arbitrary form of regulation, Ms. Castillo sued the state of Florida. Ms. Castillo is using the First Amendment to bolster her case. She is arguing that the First Amendment grants her the right to give paid diet advice to customers.
There clearly seems to be merit to Ms. Castillo’s argument. After all, if an individual were to write a book helping individuals with their plumbing needs, states would not insist on the author being a plumber, as it would be ludicrous to do so and run counter to the First Amendment.
Ms. Castillo’s lawyers have highlighted the case of NIFLA v. Becerra to provide legal merit to their claim. In this case, the Supreme Court wrote that “speech is not unprotected merely because it is uttered by ‘professionals.’ This Court has ‘been reluctant to mark off new categories of speech for diminished constitutional protection.'”
With this case potentially headed to the Supreme Court, Libertas Institute urges that state licensing boards are not handed the power to persecute and censor individuals simply for offering their advice to others, despite not holding an often arbitrary occupational license.
Paid advice that millions of Americans rely on and that serves no threat to public well-being must be free of government intervention. Individuals should not be subjected to government silencing or lose their livelihoods simply because they are not licensed professionals.
Policy Associate
Ben was a Policy Associate at Libertas Institute.