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An Uncommon Restraint On Common-Sense Advice

When asked about her qualifications to dispense advice, the late Pauline Phillips, better known as “Dear Abby,” told questioners that her expertise was limited to common sense. Over the course of four decades, she used that common sense to counsel letter writers nationwide.

In Kentucky, however, common sense may no longer be good enough.

The state’s attorney general and its Board of Examiners of Psychology have issued a cease-and-desist order to syndicated parenting advice columnist John Rosemond on the grounds that he lacks the proper credentials to give advice in print. His column, the board says, amounts to the unauthorized practice of psychology.

Part of the board’s complaint is based on Rosemond’s use of the word “psychologist” in the biographical note that appears at the end of his column. Rosemond is licensed in North Carolina, where he lives. His column, which he presumably writes in North Carolina, appears in more than 200 papers in various states, including the Lexington Herald-Leader in Kentucky. It typically identifies Rosemond as a “family psychologist.”

Eva Markham, chair of the Kentucky Board of Examiners of Psychology, recently said the board would drop its complaints if Rosemond would simply qualify his title, replacing “psychologist” with “North Carolina psychologist.” Before its complaint drew national attention, however, the board had indicated it might still object to Rosemond’s column in court even if he removed the word “psychologist” completely. Simply giving advice on parenting topics in a public forum could constitute the practice of psychology and therefore require a license, the board claimed. It expressed particular concern over columns in which Rosemond answered questions from readers.

If the board’s original argument were accepted, I too would likely be guilty of the unlicensed practice of psychology in Kentucky, since I have written about parenting here, in a place that could potentially be read by Kentucky residents. So would nearly every well-known advice columnist, along with scores of other self-proclaimed experts and practicing psychological professionals licensed in states other than Kentucky, who give advice in print or on the Internet.

The specific article that gained the board’s attention was a Feb. 12 piece in which Rosemond told the parents of a 17-year-old “underachiever” to “start by stripping his room to bare essentials, taking away any and all electronic devices, and suspending all of his privileges, including driving.” Kentucky Assistant Attorney General Brian T. Judy wrote in a letter to Rosemond that this “response to a specific question from a parent about handling a teenager was a psychological service to the general public, which constituted the practice of psychology.” There is no public indication that the boy or his parents live in, or have even visited, Kentucky.

Rosemond has drawn the ire of the psychological community for his authoritarian approach on several past occasions.

The board’s action treads dangerously close to prior restraint. Prior restraint refers to a government attempt to block the publication of certain material in advance, rather than punishing offenders after the fact. In the United States, situations in which prior restraint can be used legally are few and far between.

The protection against prior restraint was first established in the 1931 case of Near v. Minnesota. The Supreme Court ruled that Minnesota could not preemptively prevent the publication of “malicious, scandalous and defamatory” newspapers. Instead, it had to wait for potentially offending content to be published and then determine, in court, whether the authors or publishers were in fact guilty of libel. In a later case, Nebraska Press Association v. Stuart, the court limited further the circumstances under which the government can exercise prior restraint, ruling that, even in criminal cases, press coverage cannot be legally restricted in advance to preserve the neutrality of potential jurors.

There are still cases in which prior restraint can be exercised - notably when national security is concerned. While some might claim that poorly parented teens constitute a long-term threat to national security, I doubt the Supreme Court would agree.

The psychology board’s argument, however, is that it is not trying to prevent Rosemond from publishing anything, per se; it is trying to stop him from practicing psychology. The problem is that, by its definition, practicing psychology appears to include writing anything about human beings.

Kentucky is not alone in trying to use licensing requirements to justify censorship. In North Carolina, a blogger who wrote about the Paleo Diet faced a similar action because he was not a licensed dietician. A Texas veterinarian, who was licensed in that state, had his license suspended when the Texas State Board of Veterinary Medical Examiners claimed that some advice he had given online had constituted veterinary practice, which was conducted improperly because he failed to form a relationship with the patient first.

I don’t buy it. If Rosemond’s columns, even in Q-and-A format, represent the unauthorized practice of psychology, then giving chicken soup to a sick child is the unauthorized practice of medicine.

Rosemond has filed a federal lawsuit, seeking to retain his right to call himself a “psychologist” and to offer advice in his columns. His lawsuit prompted Markham to suggest the “North Carolina psychologist” compromise. Rosemond, however, has said he is no longer interested in compromise. I suspect that Kentucky will eventually back down completely, now that Rosemond has shown he is prepared to defend his rights.

While Kentucky may be proud of its stringent licensing requirements, it could use fewer litigious psychologists and more people with good, old-fashioned common sense.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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