So we know what a Circuit split is, right? Like where one circuit decides an important legal issue one way, and another circuit decides it in a contrary way?
But what do you call it when a Circuit splits with itself, without even calling it out? Because we’ve got that now in the 11th Circuit, where a panel just decided, in Del Castillo v. Florida Dept. of Health, that occupational licensing restrictions are only incidental effects on speech.
Del Castillo involves the selling of dietary advice without a license. And if it seems strange that the 11th Circuit would find that restricting dietary advice doesn’t offend the First Amendment, it’s probably because just a little over a year ago, the 11th Circuit said, in Otto v. City of Boca Raton (a case striking down bans on “sexual orientation change effort” therapy for minors), that “speech is speech, and must be analyzed as such for purposes of the First Amendment.”
So what gives? It’s not that the Del Castillo panel somehow overlooked Otto; its opinion cites to the case twice, but in a very deceptive way that manifestly ignores its central point. From the first mention of Otto in the Del Castillo opinion:
While the NIFLA Court “refused to recognize professional speech as a new speech category deserving less protection,” Otto v. City of Boca Raton, 981 F.3d 854, 867 (11th Cir. 2020), it also reaffirmed that “states may regulate professional conduct, even though that conduct incidentally involves speech.”
But here’s what the Otto opinion says immediately after the language quoted above:
[In NIFLA], the Court refused to give governments “unfettered power to reduce a group’s First Amendment rights by simply imposing a licensing requirement.” NIFLA, 138 S. Ct. at 2375. The First Amendment’s core speech protections could not very well withstand that sort of restriction-via-professionalization.
Seems like something you’d want to distinguish if you’re in the same Circuit, a year later, holding that licensing requirements are peachy-keen with the First Amendment, no?
Here’s the second cite to Otto in the Del Castillo opinion:
In NIFLA, the Supreme Court refused to recognize the “professional speech” doctrine. See Otto, 981 F.3d at 861 (explaining that the Supreme Court in NIFLA “rejected an attempt to regulate speech by recharacterizing it as professional conduct”)
Uh, right – and the latter part probably should have been addressed. As should what appears right before this quote in the Otto opinion:
Our Court, though, has already rejected the practice of relabeling controversial speech as conduct. In a case quite similar to this one, we laid down an important marker: “the enterprise of labeling certain verbal or written communications ‘speech’ and others ‘conduct’ is unprincipled and susceptible to manipulation.”
Alrighty! And then that’s exactly what the Del Castillo panel proceeds to do, finding that dietary advice isn’t really expression:
Assessing a client’s nutrition needs, conducting nutrition research, developing a nutrition care system, and integrating information from a nutrition assessment are not speech. They are “occupational conduct”; they’re what a dietician or nutritionist does as part of her professional services. The profession also involves some speech—a dietician or nutritionist must get information from her clients and convey her advice and recommendations. But, to the extent the Act burdens speech, the burden is an incidental part of regulating the profession’s conduct.”
That’s nonsense, of course. It doesn’t pass the straight-face test. “Incidental burdens on speech” are things like informed consent requirements, disclosures, or the need to submit paperwork in a prescribed form. Here, the court takes all of the preparation and research that goes into expression as the “core” and then classifies all of the expression itself as “incidental.”
Imagine this quote applied to the regulation of journalists:
Assessing a community’s news needs, conducting research, outlining a story, and integrating information from witnesses are not speech. They are “occupational conduct”; they’re what a journalist does as part of her professional services. The profession also involves some speech—a journalist must get information from interview subjects and convey her findings to the public. But, to the extent the Act burdens speech, the burden is an incidental part of regulating the profession’s conduct.”
Ridiculous, right? But that’s where the 11th Circuit seems to be on this case — anything goes as long as the government licenses it. Given the obvious conflict with Otto — and the Del Castillo panel’s abject failure to grapple with it forthrightly — let’s hope for en banc review and a reversal.