Rosemond v. Markham, 135 F. Supp. 3d 574

Background

John Rosemond, a long‑time syndicated parenting columnist (appearing in Kentucky), holds a master’s in psychology and is licensed as a “psychological associate” in North Carolina but is not a Kentucky‑licensed psychologist.
His column uses a Q&A format answering reader questions; he does not form ongoing client relationships, does not know most questioners’ identities, and receives no payment from questioners.
A complaint to the Kentucky Board of Examiners of Psychology alleged Rosemond practiced psychology and misrepresented himself by using the tagline “Family psychologist John Rosemond…”; the Board issued a cease‑and‑desist and sought to stop his Kentucky publication.
Rosemond filed suit claiming the Board’s actions violated his First Amendment rights; parties filed cross‑motions for summary judgment on as‑applied challenges.
The Board relied on Kentucky’s Psychology Practice Act (prohibiting unlicensed practice and use of titles incorporating “psychologist”), arguing regulation targeted professional or commercial conduct/speech to protect public health.
The Court concluded facts are undisputed, treated the motions as cross‑motions for summary judgment, and found the Board’s enforcement as applied to Rosemond unconstitutional.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Board’s attempt to stop Rosemond’s column is a content‑based speech restriction	Rosemond: enforcement targeted his answering of specific questions (content) and use of “family psychologist,” so strict scrutiny applies	Board: regulation targets professional or commercial conduct (unauthorized practice), not speech; intermediate scrutiny should apply	Court: content‑based (applied because of message/topic); strict scrutiny applies; Board failed to meet burden
Whether Rosemond’s column is commercial speech	Rosemond: column is not proposing a commercial transaction or primarily economic speech	Board: tagline links to revenue‑generating website, so speech is commercial	Court: not commercial; indirect revenue does not transform general advice column into commercial speech
Whether the “professional speech” doctrine permits regulation	Rosemond: no professional‑client nexus here (no individualized client relationship), so doctrine doesn’t apply	Board: as a regulated profession, speech by professionals can be limited when part of practice	Court: professional‑speech exception requires a personal nexus to a client; absent that nexus, regulation is regulation of speech and not exempted
Whether restricting the tagline (use of "psychologist") is permissible	Rosemond: label is protected speech; even false/misleading statements receive First Amendment protection; restriction is content‑based	Board: unqualified use of “psychologist” is potentially misleading and protects public from deception	Court: restriction is content‑based and under strict or intermediate review (as applicable) fails—Board produced no evidence of actual harm and enforcement was underinclusive and not narrowly tailored

Key Cases Cited

Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) (content‑based speech restrictions trigger strict scrutiny)
Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) (statute aimed at conduct may be subject to strict scrutiny where coverage depends on the message conveyed)
United States v. Alvarez, 132 S. Ct. 2537 (2012) (false statements can nonetheless receive First Amendment protection; content‑based bans subject to strict scrutiny)
Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976) (definition of commercial speech: proposing commercial transactions)
Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557 (1980) (intermediate scrutiny test for commercial speech and state burden to show regulation directly advances interest)
Edenfield v. Fane, 507 U.S. 761 (1993) (government must show harms are real and regulation will materially alleviate them)
McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995) (regulation of speaker identity is content regulation implicating strict scrutiny)
Lowe v. SEC, 472 U.S. 181 (1985) (tension between professional regulation and free speech; regulation of professional practice may be permissible but has limits)
Ibanez v. Florida Dep’t of Business & Professional Regulation, Bd. of Accountancy, 512 U.S. 136 (1994) (state cannot suppress potentially misleading speech absent adequate justification)
Planned Parenthood v. Casey, 505 U.S. 833 (1992) (recognized permissible regulation of certain professional speech within medical context)
Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447 (1978) (upheld regulation of in‑person solicitation by attorneys as professional regulation)