Occupational licensing has a First Amendment problem

In late March, the Supreme Court decided Chiles v. Salazar, 8-1. The case involved Colorado’s ban on conversion therapy for minors, but most discussion will gloss over the ruling’s other consequential effects, which have little to nothing to do with conversion therapy.

Chiles is an occupational licensing decision, and it is going to create serious problems for a set of licensing statutes that most people have never heard of.

The court held that speech does not become unprotected “conduct” just because a state calls it a treatment, practice or therapeutic modality. When a licensing law’s only real effect is to restrict what a professional may say to a willing adult client, the First Amendment applies. State laws have to satisfy strict scrutiny, not just the deferential rational-basis review that courts have extended to professional licensing schemes for decades.

That deferential standard was a load-bearing wall of occupational licensing law. Professional associations in dozens of fields used it to push statutes well beyond title protection or minimum qualifications. They obtained exclusive scope-of-practice laws, statutes making it illegal to give certain kinds of advice for money without a government license, regardless of whether anyone was harmed. Courts upheld these laws routinely, on the theory that professional advice is “conduct” the state may regulate.

Justice Neil Gorsuch’s opinion, backed by eight justics, says no — that is just a labeling game. The 11th Circuit used exactly this rationale to uphold Florida’s dietetics licensing law in 2020. Under Chiles, that analysis no longer holds.

The professions with the most exposure share three things: Their licensing laws restrict purely verbal and paid advice, the clients are willing adults and the historical tradition supporting the restriction is thin.

In such cases, courts can no longer simply defer to state legislatures. They have to find a genuine historical pedigree for content-based restrictions on professional speech, and recent legislative history assembled through years of association lobbying does not qualify.

Nutrition and dietetics licensing sit near the top of that list. Many of the exclusive scope-of-practice laws now on the books in states like Illinois are products of the last several decades. In Illinois, giving a paying client an individualized meal plan without a dietetics license could be a Class 4 felony.

A profession that young cannot establish the kind of deep historical tradition Chiles requires. And calling a nutrition conversation “medical nutrition therapy” does not change what it is, which is exactly the point the court made in Chiles about Colorado calling talk therapy a “therapeutic modality.”

Supporters of these regimes will argue that professional speech restrictions protect consumers from bad advice. Justice Ketanji Brown Jackson’s lone dissent makes this case directly and forcefully. States have traditionally regulated licensed professions, medical consensus is real and courts should not second-guess legislatures on public health. It is a legitimate argument, and formerly a winning argument.

The problem is that Chiles does not turn on whether the advice is good or bad. It turns on whether the state can point to a genuine historical tradition of restricting that specific category of speech — not a recent one, and not one assembled by aggregating other traditions.

In the nutrition space, that tradition does not exist. The licensing laws in that field are largely products of recent decades, and the legislative record in state after state reflects that competitive market protection was a substantial part of the motivation, alongside whatever consumer safety rationale the associations offered.

That does not mean every one of these laws will fall. Statutes that tie licensure to genuine clinical intervention — such as nutrition therapy directed at a diagnosed medical condition under physician supervision — have a more defensible safety rationale and a better historical analogy. The laws that will struggle are the ones that go further, restricting ordinary paid conversation between willing adults because a professional association wanted to limit competition.

The Institute for Justice had three cert petitions held pending Chiles. Those cases will move quickly. State legislatures will follow.

The associations that built these exclusive scope-of-practice laws now hold a narrower legal franchise than they did last month. The ones that recognize it early enough to narrow their statutes proactively will be in a far better position than those that wait for the litigation to find them.

Brett Ewer is a public policy and government relations consultant. As Head of Government Relations for CrossFit, he has lobbied on occupational licensing legislation in more than a dozen states on the allied health professions, including dietetics, nutrition, and athletic training.

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