Kentucky psychology board targets advice columnist. Free speech violation?

Lawyers for the syndicated advice columnist say his federal lawsuit against Kentucky gets to the heart of free speech rights and whether they can be trumped by occupational licensing laws.

When John Rosemond answered some parents’ query about how to handle their “highly spoiled underachiever” son in his syndicated parenting advice column, he thought it was fairly routine.

But the column – in which he advised the parents to strip the boy’s room down to essentials, take away electronic devices, and suspend privileges until he could start improving his grades – caused a small firestorm in Kentucky that he didn’t anticipate.

The issue, according to the Kentucky Board of Examiners of Psychology, is that by offering such one-on-one advice, Mr. Rosemond is engaging in the “practice of psychology” – something he is not entitled to do in the state since he lacks a Kentucky license. The board also objected to the newspaper identifying Rosemond as a family psychologist, since his North Carolina credentials don’t apply in Kentucky.

Now Rosemond has filed a lawsuit in federal court to bar Kentucky from taking such action against him. The case, says his lawyers, has implications far beyond Rosemond’s parenting column, but gets to the heart of free speech rights and whether they can be trumped by occupational licensing laws.

“This case is about censorship. If one thing is clear under the US Constitution, it’s that the government can’t censor opinions in a newspaper,” says Jeff Rowes, a lawyer at the Institute for Justice, which has taken on Rosemond’s case and several related ones. “Occupational licensing laws are the new censors. They’re aggressive, and they don’t think the First Amendment applies to them.”

Mr. Rowes cites several other cases that the Institute for Justice is also handling, including a North Carolina blogger who advised people to follow a “paleo” diet and was ordered to stop by a state board because he lacked a dietician license, and a Texas veterinarian who was ordered to stop offering online advice to people in areas without access to good vets, because he hadn’t performed an in-person examination of the animals.

It’s an area of the law, says Rowes, that isn’t well developed, and that’s becoming more important in the Internet age, when advice is offered – often at a distance – to an unprecedented degree.

Kerby Neill, a retired child psychologist in Kentucky and editor of the book “Helping Others Help Children,” sees the issue differently. Dr. Neill was the person who initially objected to the column and brought his concerns to the state board – though his issue, he says, wasn’t with Rosemond offering advice, but with doing so while wearing the hat of “psychologist,” without knowing much at all about the family he was giving the advice to.

“If I was a physician, and I got a letter from someone I didn’t know, asking me to help them with an issue they described in cursory fashion in a letter, and I sent them a prescription for a medicine that had disastrous results, I would be hard-pressed to use free speech to justify what I’ve done,” says Neill. “He does not know if this child is on drugs, if the child is clinically depressed, if the child will respond to this advice by becoming suicidal.… If he writes that advice and calls himself a bar of soap I’ve got no problem. But if he writes that advice and calls himself a psychologist, that’s different.”

The chair of the state board that wrote the cease-and-desist letter now says that, in fact, that’s all they object to. “His use of the title of psychologist is a violation of the title act, that’s all this is about,” says Eva Markham, chair of the Kentucky Board of Examiners of Psychology, noting that Rosemond, as a licensed psychological associate, would only be able to practice with supervision, even in North Carolina.

But Rosemond and his lawyers say that’s “backpedaling,” noting that the cease-and-desist letter goes far beyond asking him not to identify himself as a psychologist, but also says that dispensing any such individual advice without a credential is illegally practicing psychology.

Rosemond and his lawyers acknowledge that under Kentucky licensing law, and its extremely broad definition of the “practice of psychology,” he is, in fact, practicing psychology. But so, they say, is any grandmother in the state who offers her daughter parenting advice. And, they say, the law is so broad as to be unconstitutional.

Rosemond has been writing his parenting column, which tends to favor tough-love approaches and firmer discipline, for 37 years, making him one of the longest-running columnists in America. He’s also written 11 parenting books. And he’s no stranger to controversy, though he says this response from Kentucky caught him completely by surprise.

In 1988, he was criticized for a column in which he advised parents whose six-year-old son had been seeing a psychologist about nighttime fears for six months, and hadn’t seen any progress, to stop the therapy. He was reprimanded by the North Carolina licensing board for interfering in a therapeutic relationship – which he agrees may have been the case, though he still stands by his advice.

And in 1995, he took heat for a column in which he said that an 18-month-old baby was unlikely to have any memory of an instance of sexual abuse. In that case, he says, many researchers on human memory stepped up to his defense, but he entered an agreement with the licensing board in which a supervisor reviewed his column for three years.

“I am non-psychological in my column, and I think this bothers many psychologists,” says Rosemond. “What I’m trying to do is help people not have to see psychologists – to help people solve problems before they become so big that professional help is needed.”

He notes that he voluntarily has a PhD-level psychologist, a behavioral developmental pediatrician, and a retired minister review all of his columns before publication. He’s asked the psychologist, in particular, to raise any red flags he sees over potential “clinical issues” – in other words, to tell Rosemond if he sees him giving parenting advice when he should be telling people to get professional help. He saw no problem with this column, Rosemond says, or any other in recent memory.

“Emotional people, even professional people, have accused me of being reckless, dangerous, mischievous, being a loose cannon,” says Rosemond. “But I have voluntarily, without pressure from my board, accepted accountability, and I submit my column for peer review…. My columns have drawn controversy, but no one has ever proven I was wrong, and no one has ever demonstrated that any column of mine has caused harm.”

Rowes, Rosemond’s lawyer, is hoping that one of these cases gets to the Supreme Court so that it can clarify the law when it comes to free speech and occupational licensure.

A 2010 Supreme Court decision, Holder v. Humanitarian Law Project, looked tangentially at the issue, saying that technical advice to terrorists was still protected by free speech laws, says Rowes, who hopes the court will take up the issue more directly.

“If the First Amendment protects advice to foreign terrorists, then it must protect the ordinary parenting advice from someone like John Rosemond,” he says.

Advice columns, he notes, have been a staple of American journalism for hundreds of years.

“If John Rosemond is a criminal, than Dear Abby was on a 50-year crime spree,” Rowe says. “And Dr. Phil can be banned by the air waves, and Dr. Oz should be sentenced to hard labor.”