For years, Rowes has taken on clients like Hines in the hope that the U.S. Supreme Court would one day answer one central question: Is it constitutional for states to pass laws for no other reason than to protect politically-connected industries from competition? How the federal courts answer this question could have profound implications for those who, like Hines, seek to give medical advice over the internet.
Occupational licensing laws have proliferated in the past several decades. According to a report produced by the Institute for Justice last year, only one in 20 workers in the 1950s needed a license to work. Now it's one in three. In many cases, the report found, license requirements were applied to relatively low-paying professions, like shampooers and florists. The requirements are also inconsistent from one state to another. Why do 10 states require at least four months of training to become a manicurist while Iowa only requires nine days?
"Do manicurists in, say, Alabama and Oregon really need so much more training?" the Institute for Justice's Dick Carpenter asks rhetorically in a video promoting the report.
In instances in which a client is merely attempting to practice a profession, the Institute for Justice argues against the law by invoking the due process and equal protection clauses of the 14th Amendment. But cases like Hines's, where a person is being prosecuted for giving advice are ripe for First Amendment challenges.
Last January, North Carolina blogger Steve Cooksey received a call from the executive director of the North Carolina Board of Dietetics/Nutrition, which told him he was breaking the law for giving nutrition advice without a license. Cooksey, who had been diagnosed in 2009 with Type 2 diabetes, claims to have cured himself of the disease by adopting the paleolithic diet—also often referred to as the caveman diet—and used his blog to proselytize such methods to other diabetics. A lawsuit filed in Federal District Court on behalf of Cooksey states that his advice "ultimately amounts to recommendations about what to buy at the grocery store—more steaks and avocados and less pasta, for example."
Cooksey, who still blogs regularly but is more careful in how he words his posts, believes he's being targeted because his diet advice threatens the various industries that profit from treating diabetics, from "Big Pharma" to professional nutritionists. "You'd be naive to assume that nutritionists do not want to protect their situation," he says. "In my opinion it's essentially a union situation where they want to keep the rates high for their members, and for me or someone else to simply tell diabetics to eat some vegetables and to keep your carbs at 30 or below—you don't need to study 10 hours to learn that, much less go to a four-year school."
In a response posted on its website, the North Carolina Board of Dietetics/Nutrition states that it reached out to Cooksey after a complaint was submitted and "no legal action has ever been threatened or taken." It also argues that "unless a person is otherwise exempt, a license is required to provide nutrition care services."
Whether these types of licensing laws are a violation of the First Amendment is a question largely unexplored by the courts. In the Supreme Court case Lowe v. SEC, the court sought to determine whether a person who writes an investment newsletter would be considered an investment adviser and therefore subject to regulation by the SEC. In a concurring opinion, Justice Byron White wrote that "the power of government to regulate the professions is not lost whenever the practice of a profession entails speech." But he ultimately concluded that "at 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." For this particular case, White found that the investment newsletter fell under this second category and was therefore protected as free speech.