From this decision, it is clear the ARDC has no jurisdiction to regulate my blog. All I have done is blog. There are no client complaints and this blog does not lie.
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October 8, 2015
RE: ARDC v. JMD 13 PR 001 – Rosemont v. Kentucky
note my comments are in blue, the rest are case quotes
Please read the attached decision which was recently render by a Federal District Court Judge in Kentucky. Read below excerpts:
For nearly forty years, John Rosemond has written a newspaper column on parenting. No other newspaper column written by a single author has run longer.
Now, in an exercise of regulatory zeal, the Kentucky Board of Examiners of Psychology seeks to prohibit Rosemond from publishing his column in Kentucky while referring to himself as a “family psychologist.” In an effort to avoid the State’s enforcement of K.R.S. § 319.005, the State’s statute regulating the practice of psychology, Rosemond protectively filed this action in which he asks that the Board be permanently enjoined from interfering with the publication of his column. Resolution of the case requires balancing the State’s interest in regulating the practice of psychology with constitutional protections of speech. As Rosemond’s speech deserves the highest level of constitutional protection, and because the State has failed to articulate compelling reasons for regulating that speech, the Board will be enjoined from further interfering with the publication of Rosemond’s column.
On May 7, 2013, the Board and Kentucky’s Attorney General jointly issued a “Cease and Desist Affidavit and Assurance of Voluntary Compliance” to Rosemond, hoping that he would agree to cease publishing his advice column in Kentucky as they alleged that he was engaged in the unlawful practice of psychology. [R. 1-4.] Rosemond refused to sign.
Rosemond does not challenge whether Kentucky may regulate the practice of psychology. Furthermore, the Board does not deny that its cease and desist order would have the effect of restricting Rosemond’s speech. What the parties disagree about is the nature of the restriction. Rosemond argues that the Board’s regulation of his column is a content-based restriction on his speech. The Board argues that its regulation is not content-based, but rather is a professional regulation barring conduct (i.e. practicing psychology without a Kentucky license) and that any stifling of speech that results from the enforcement of K.R.S. § 319.005 is merely incidental to the state’s legitimate aim of regulating the profession. [R. 30 at 6-8.] The Board argues that because Rosemond’s speech is either commercial or professional, its regulation of that speech should only be subject to intermediate scrutiny. Despite the aforementioned differences of opinion as to what framework applies, the parties agree that this dispute is governed by the First Amendment. [R. 47 at 2 (Hrg. Tr.)]
There is no question that what drew the Board’s attention in this case was Rosemond’s communicating of a message. The letter of complaint which spurred the Board’s action specifically criticizes his advice, and the cease and desist letter addresses the Board’s concern that he was responding to a specific, individualized question. [R. 1-4; R. 25-2 at 4.]
Commercial speech does “no more than propose a commercial transaction,” Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 762 (1976) or is an “expression related solely to the economic interests of the speaker and its audience.” Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 557, 561 (1980).
It is not surprising that the Board has difficulty citing
to a case that lays the theory out in a coherent way, because cases addressing the intersection between professional speech and the first amendment are few and far between. See Daniel Halberstam, Commercial Speech, Professional Speech, and the Constitutional Status of Social Institutions, 147 U. Pa. L. Rev. 771, 834 (1999) (Courts have “rarely addressed the First Amendment contours of a professional’s freedom to speak to a client.”)
It has long been held that “[s]tates have a compelling interest in the practice of professions within their boundaries, and that as part of their power to
protect the public health, safety, and other valid interests they have broad power to establish standards for licensing practitioners and regulating the practice of professions.” Goldfarb v. Virginia State Bar, 421 U.S. 773, 792 (1975). This principle is unassailable.
But, also undeniable is the fact that, “[a]t 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.” Lowe, 472 U.S. at 229-30.
Pursuant to this doctrine, the government is permitted to regulate speech in limited circumstances so as to protect the individual receiving advice— the client. As articulated by Justice White, without this professional-client relationship, the doctrine’s vices outweigh its virtues.
Comment: and what client exactly has the ARDC protected in its decision? Gloria Sykes and Mary’s niece Kathy Bakken and her elderly sister Yolanda all testified they thought there were things wrong with the guardianization of Mary, a person appearing to be competent but possessing considerable wealth in her advanced age–a home worth more than $1 million which was to be sold for $213k to a real estate corporation, the disappearance of up to $1 million in valuable coins where both the probate court and the ARDC repeatedly quash subpoenas to find out where the coins went–who stole them or embezzled them.
Just how did the ARDC protect the “client” and what “client” testified against me? Absolutely none.
Nobody knows if the teenager’s parents read the article or took the advice, much less if anyone was harmed. For all the Board knows, the “wake-up call” worked and, instead of harming the teenager, it served its purpose.
The relationship that is necessary between a professional and a client to trigger application of the professional speech doctrine just did not exist.
Two cases that the Board cites actually support Rosemond’s position by endorsing Justice White’s concurring opinion in Lowe that there must be a nexus between a professional and a client to legitimate professional regulations with such an impact on speech. See Accountant’s Soc’y of Virginia v. Bowman, 860 F.2d 602 (4th Cir. 1988) (Regulations affecting accountants are constitutional as they “restrict only accountants’
communications with and on behalf of their clients.”); Locke v. Shore, 634 F.3d 1185 (11th Cir. 2011) (“There is a difference, for First Amendment purposes, between regulating professionals’ speech to the public at large versus their direct, personalized speech with clients.”)
Even if, as the Board claims, Rosemond is potentially misleading readers by holding himself out as a psychologist, he retains the First Amendment right to make those statements in a non-commercial setting. K.R.S. § 319.005 bans individuals from using the term “psychologist” in a way that is deceptive.
In United States v. Alvarez, 132 S. Ct. 2537 (2012), Xavier Alvarez lied when he announced at a public meeting that he held the Congressional Medal of Honor, an act which the Court referred to as a “pathetic attempt to gain respect that eluded him.” Id. at 2542. In holding that The Stolen Valor Act, which criminalized making false claims about the receipt of military medals, was an unconstitutional content-based restriction, the Court reaffirmed its conviction that even false statements deserve First Amendment protection: The Nation well knows that one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace. Though few might find respondent’s statements anything but contemptible, his right to make those statements is protected by the Constitution’s guarantee of freedom of speech and expression.
Id. at 2551. The Board’s restrictions imposed on his tagline, like the content of his column, must also survive strict scrutiny if they are to be permitted.
As the Board has imposed “content-based restrictions on speech, those provisions can stand only if they survive strict scrutiny, which requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.” Reed, 135 S. Ct. at 2231 (internal quotation marks and citations omitted); see also Greater New Orleans Broad. Association, Inc. v. United States, 527 U.S. 173, 183 (1999) (When considering restrictions on “commercial” speech, “the Government bears the burden of identifying a substantial interest and justifying the challenged restriction.”); see also Ohio Citizen Action v. City of Englewood, 671 F.3d 564, 571 (6th Cir. 2012) (“The governmental entity that enacts the regulation bears the burden of establishing each element of the analysis, and ‘the Court ordinarily does not supply reasons the legislative body has not given.’ ”).
This interest does not fall into one of the few categories where the law allows content-based regulation of speech. See Alvarez, 132 S. Ct. at 2544. Furthermore, while protecting the public is an enviable goal, the Board cannot demonstrate that its restrictions achieve the goal.
As explained in Edenfield v. Fane, “[t]his burden is not satisfied by mere speculation or conjecture; rather, a governmental body seeking to sustain a restriction on [ ] speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree.” 507 U.S. 761, 770-71 (1993); Pagan v. Fruchey, 492 F.3d 766, 771 (6th Cir. 2007) (citing Edenfield, 507 U.S. at 770–72) (“[T]he government must come forward with some quantum of evidence, beyond its own belief in the necessity for regulation, that the harms it seeks to remedy are concrete and that its regulatory regime advances the stated goals.”); Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 392
(2000) (The Supreme Court has “never accepted mere conjecture as adequate to carry a First Amendment burden.”).
In the case at hand, the Board has not demonstrated that any actual harm has occurred
The Board’s argument that no proof of actual harm is necessary, and that speculative harm is enough is unpersuasive. [R. 33 at 4.] Citing Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 664 (1994), the Board argues that the state can act to regulate “anticipated harms.” [R. 33 at 4, Footnote 16.] A more complete reading of Turner Broadcasting reveals, however, that the Government must still do “more than simply ‘posit the existence of the disease sought to be cured.’ ” Turner Broad. Sys., 512 U.S. at 664 (1994) (quotation omitted). The Government “must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.” Id.
Laws that are underinclusive cannot be narrowly tailored “[b]ecause a law cannot be regarded as protecting an interest of the highest order, and thus as justifying a restriction on truthful speech, when it leaves appreciable damage to that supposedly vital interest unprohibited.” Reed, 135 S.
Ct. 2232 (quoting Republican Party of Minn. v. White, 536 U.S. 765, 780 (2002) (internal quotation marks omitted).
[T]here is no legitimate neutral justification for the fact that Kentucky prohibits Plaintiff Rosemond’s parenting advice while leaving vast amounts of materially identical speech—in the form of newspapers, books, television shows, and Internet discussion forums— totally unregulated. Kentucky’s newspapers and airwaves—not to mention the Internet—are filled with advice personalities answering questions on every facet of interpersonal relationships, most of which seemingly fall within the broad scope of Kentucky’s definition of the “practice of psychology.”
Comment: Likewise the internet is rift wtih perhaps hundreds of thousands of “legal advice columns and blogs providing law advice to the general public. Why this blog and why now is the real question to ask?
it is difficult to understand how Dr. Phil, Dr. Oz, and countless other self-help gurus would not also be in the Government’s crosshairs. …
Comment: And likewise, dozens of blogs and youtube shows purport to provide advise on all types of legal based affairs from selling one’s home to making one’s own will or trust document and funding a trust, preparing and filing income tax forms and taking proper tax deductions, there are also dozens of nonlawyer probate blogs allowing posts, articles and commentary on legal issues from the general public. There are websites for pro se litigants and Legal Zoom and other websites prepare and advise on legal forms–without ever talking to a licensed lawyer and the client pays the robo-online-not licensed-computer lawyer.
If the “protections afforded commercial speech are to retain their force,” Zauderer, 471 U.S., at 648–649, 105 S.Ct., at 2280–2281, we cannot allow rote invocation of the words “potentially misleading” to supplant the Board’s burden to “demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree.” Edenfield, 507 U.S., at 771, 113 S.Ct., at 1800.
In the Denison case 13 PR 001, no harm to the public or any of her paying clients was ever alleged. The harm to blogging clients was purely speculative. The harm to other attorneys was completely vacuous, and the testimony of these attorneys accused of being clouted and taking advantage of the Sykes family was akin to sour grapes and the typical losing attorney trying to make his client feel better. Judge Stuart changed her testimony on the stand and the transcript was changed–fraud on the court. She proved the point of the entire proceeding, a concept which somehow escaped a conveniently “ignorant” Tribunal.
Rosemond is entitled to express his views and the fact that he is not a Kentucky-licensed psychologist does not change that fact. If the facts were different, had Rosemond represented himself to be a Kentucky-licensed psychologist or had he actually entered into a client-patient relationship in Kentucky, the outcome might be different. In the case at hand, he did not. All he did was write a column providing parenting advice to an audience of newspaper subscribers. To permit the state to halt this lawful expression would result in a harm far more concrete and
damaging to society than the speculative harm which the State purportedly seeks to avoid,
Kentucky’s Psychology Practice Act, Ky. Rev. Stat. §§ 319.005 et seq., and its Associated regulations were UNCONSTITUTIONALY APPLIED to Rosemond’s advice column and also as to Rosemond’s description of himself as a family psychologist;
(4) The Board is PERMANENTLY ENJOINED from enforcing these laws in an unconstitutional manner against Rosemond or others similarly situated.
And it goes without saying, that while Melissa Smart started her opening with the blog is “like yelling fire in a crowded theater”, it’s a ridiculous statement no one believes and it’s not even the law. In fact, it never even was the law, it was only “dicta” or an offhand statement the judge makes that is relevant to, but not part of the actual decision.
From dozens of articles on the internet regarding the quote:
From the Atlantic and the ACLU:
Ninety-three years ago, Justice Oliver Wendell Holmes wrote what is perhaps the most well-known — yet misquoted and misused — phrase in Supreme Court history: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”
But those who quote Holmes might want to actually read the case where the phrase originated before using it as their main defense. If they did, they’d realize it was never binding law, and the underlying case, U.S. v. Schenck, is not only one of the most odious free speech decisions in the Court’s history, but was overturned over 40 years ago.
First, it’s important to note U.S. v. Schenck had nothing to do with fires or theaters or false statements. Instead, the Court was deciding whether Charles Schenck, the Secretary of the Socialist Party of America, could be convicted under the Espionage Act for writing and distributing a pamphlet that expressed his opposition to the draft during World War I. As the ACLU’s Gabe Rottman explains, “It did not call for violence. It did not even call for civil disobedience.”
The crowded theater remark that everyone remembers was an analogy Holmes made before issuing the court’s holding. He was explaining that the First Amendment is not absolute. It is what lawyers call dictum, a justice’s ancillary opinion that doesn’t directly involve the facts of the case and has no binding authority. The actual ruling, that the pamphlet posed a “clear and present danger” to a nation at war, landed Schenk in prison and continued to haunt the court for years to come.
In 1969, the Supreme Court’s decision in Brandenburg v. Ohio effectively overturned Schenck and any authority the case still carried. There, the Court held that inflammatory speech–and even speech advocating violence by members of the Ku Klux Klan–is protected under the First Amendment, unless the speech “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action”.
As Rottman wrote, for this reason, it’s “worse than useless in defining the boundaries of constitutional speech. When used metaphorically, it can be deployed against any unpopular speech.” Worse, its advocates are tacitly endorsing one of the broadest censorship decisions ever brought down by the Court. It is quite simply, as Ken White calls it, “the most famous and pervasive lazy cheat in American dialogue about free speech.”
I think the ACLU and the Atlantic just called what Melissa Smart said and the ARDC approved of for an opening argument, a really bad and inaccurate “lazy cheat.”
I am herewith instructing you to file a Motion to Dismiss all charges against me with the Illinois Supreme Court (since you created this mess and it’s your karma) and to immediately reinstate my license to practice law and publicly apologize to myself and all my clients and I want that put on YOUR blog–right where you defamed my blogs and my probate victims and their cases.
Very Truly Yours,
DENISON & ASSOCS, PC
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Joanne M. Denison
cc: http://www.marygsykes.com blog