CLEAR

Florida: circuit court case on dieticians and free speech

A decision in a case before the 11th Circuit Court in Florida holds that the state licensing scheme for dieticians does not violate free speech rights of unlicensed dieticians. "A statute that governs the practice of an occupation is not unconstitutional as an abridgement of the right to free speech, so long as any inhibition of that right is merely the incidental effect of observing an otherwise legitimate regulation."  The case alleged that requiring a license to practice as a dietician violated an individual's free speech rights to communicate advice on diet and nutrition to her clients. The ruling held that the Act regulates professional conduct of dieticians and only incidentally burdens free speech rights.

The article author's analysis concludes that "courts should recognize that this does indeed require recognizing a zone of special regulation for professional-client speech, rather than pretending that it's 'conduct'."

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Challenges of disciplinary action for COVID misinformation

This article by Health Affairs Forefront discusses the challenges licensing boards may encounter when revoking a licenses for professional misconduct on the basis of spreading COVID-19 misinformation or disinformation. Prior Supreme Court decisions in the US has established that boards have considerable discretion to discipline healthcare licensees for speech made in connection with medical procedures (professional conduct), but disciplinary actions based on public statements not connected with a medical procedure would be subject to First Amendment rights of free speech. The article notes that boards would be able to establish that they have a compelling interest in minimizing the dissemination of medical misinformation by licensed physicians. The challenge the article identifies is in convincing that courts that revocation of the license is the least restrictive means to further that interest. The article concludes that boards may be able to successfully argue cases where physicians "disseminate misinformation with knowledge that it is false or with reckless disregard of whether it is true" and "there is a substantial body of evidence that unambiguously refutes the physician's position."

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Maine: license denial case appealed to Supreme Court

An individual whose application for licensure as a private investigator in Maine was denied on grounds of not having good moral character has appealed the decision to the Supreme Court of the United States. The Maine Department of Public Safety denied the license due to factual inaccuracies in a social media post by the applicant criticizing a police shooting.  The posts identified the individual as a private investigator in Massachusetts; the Maine agency claimed that the inaccurate statements violate standards of conduct for a private investigator, such as accurate communication of facts.

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Update: Florida court case on contractor advertising law

The Florida Department of Business and Professional Regulation has responded to a lawsuit that claims that a new law restricting roofing contractor advertising is a violation of First Amendment rights. DBPR has responded by denying any allegations inconsistent with the text of the act, which is a "narrowly tailored tool to protect consumers."

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UK social worker awarded damages for unfair proceedings

The European Court of Human Rights has awarded damages to a UK social worker due to findings from a proceeding that violated fairness requirements under Article 8 of the European Convention on Human Rights. The Court of Appeal found that adverse findings were made without the opportunity for the applicant to meet the allegations during the course of the trial. The findings were then shared with other local authorities and professional bodies, with adverse impact on the applicant's employment prospects and he right to respect for her private life.

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Arkansas judge blocks law banning gender-affirming healthcare

A U.S. District judge issued an injunction to temporarily block a law that would ban healthcare practitioners from providing gender-affirming healthcare for transgender youth. The law, passed in April despite the governor's veto, had been set to take effect next week. Supporters of the law claim it protects minors who are too young to make decisions about gender transition medical care. The ACLU filled a challenge to the law on behalf of four families and two medical doctors, saying that banning therapy and treatments such as puberty blockers and hormone replacements would have detrimental effects on the mental, emotional and physical health of transgender people. Concerns have also been raised that the law's limit on scope of practice will discourage medical professionals from working in Arkansas.

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Florida judge says contractor advertising law violates free speech

A Florida judge has enjoined enforcement of a section of a new law that would have prohibited "written or electronic communication that encourages, induces, or instructs someone to contact a contractor or public adjuster for the purpose of filing an insurance claim for roof damage." The judge found that this section of the law violates the First Amendment free speech rights of contractors, even though the Department of Business and Professional Regulation argued that the restriction was intended to combat consumer exploitation and fraud.

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North Carolina: case related to unlicensed practice of engineering

The North Carolina Board of Examiners for Surveyors and Engineers was made aware of a situation in which an individual formerly employed as an engineer by a manufacturer (and thus with an "industrial exemption" from engineering licensure requirements) has given free public testimony on technical matters in a lawsuit. The Board responded that "the definition of engineering includes testimony if engineering education, training or experience is required to render the testimony," and such testimony would require a license. The Board initiated an investigation of unlicensed practice. The individual has now filed a federal lawsuit against the Board, claiming a violation of First Amendment free speech rights.

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Florida: local governments request reconsideration of conversion therapy decision

Local governments in Florida have filed requests for a re-hearing after a US Circuit Court of Appeals ruling calling local ordinances banning conversion therapy unconstitutional. The Court of Appeals ruled that such ordinances violated the First Amendment rights of therapists who want to provide conversion therapy treatment or counseling. Local governments had enacted ordinances banning health care providers from performing conversion therapy, as it is "widely recognized as harmful to the health of minor patients."

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UK: High Court overturns ruling on solicitor's private life activity

The High Court in the UK has overturned a misconduct finding against a solicitor. The Solicitors Disciplinary Tribunal had fined the solicitor for "inappropriate sexual activity" that breached professional integrity rules. The High Court's ruling warned regulators against being "dogmatic" and responding to "popular outcry" and emphasized that "a failure of integrity and harm to public trust in the profession must be measured only by reference to the rest of the SRA's rules."

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