
Unlicensed “health coach” claims health advice is free speech–court disagrees - tech-historian
https://arstechnica.com/science/2019/07/unlicensed-health-coach-claims-health-advice-is-free-speech-court-disagrees/
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ilamont
So how would the law work if she were based in California but dispensing
advice to someone in Florida via Skype? Or email? Or over the phone?

What if the advice was obtained from a book that someone wrote, and that
author lives in another state or country? Would it be treated differently if
the author happened to reside in Florida?

It's cases like this that really shine a light on the inadequacy of local laws
to deal with the new digital reality. Not only are a lot of the laws outdated,
but I think many senior bureaucrats and elected officials drawing up the laws
don't understand how people use technology (and abuse it), or where the
technology is going.

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ravenstine
I find it ironic that the government that still promotes a high carb, low fat
diet composed of mostly grains, fruit, and dairy, thinks it's in the moral
position to dictate who should be giving health advice. I'll support the
court's decision the day choosemyplate.gov is shut down.

Thought experiment: Why doesn't the government regulate all forms of advice
for profit?

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hn_throwaway_99
> thinks it's in the moral position to dictate who should be giving health
> advice.

But that's not really the issue at hand. As the judge said, she's free to give
out advice without chatging.

The fundamental issue is whether states have the right to set standards for
professional services. And while there have been a number of exposés recently
about how many states require ridiculous levels of certifications for low-
level jobs (usually to the benefit of for-profit colleges and training
programs), the law is clear that states do have this right, and I think most
people would agree this is overall a good thing if excesses can be reined in.

IMO, I'd rather have laws that state that if you are in any of the licensed
"advice professions", that if you _aren 't_ licensed you have to clearly and
loudly proclaim your lack of certification in any marketing materials.

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pgeorgi
> IMO, I'd rather have laws that state that if you are in any of the licensed
> "advice professions", that if you aren't licensed you have to clearly and
> loudly proclaim your lack of certification in any marketing materials.

They'll wear it as a badge of pride: "I'm not one of those
Government/Illuminati/... controlled certified advisors that must only sell
you what Big Pharma tells them". And they'll find fools that glee over it.

On the other hand, their customers would get exactly what they're looking for,
including non-certification.

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ccleve
I love the Institute for Justice and the types of cases they take on. This
one, unfortunately, is weak. If we say that paid health advice is protected
speech, then we can no longer have licensing requirements for doctors who
merely give advice.

I like doctors to be licensed. I'm normally anti-regulation, but this is an
exception.

The real issue here is the onerous occupational licensing requirements in
Florida. To be a nutritionist in Florida, you need a degree and 900 hours of
work. That's far too much.

Occupational licensing has become a way for an industry to form a cartel. It's
a major public policy problem, and the IJ is right to take it on. They've
fought against it in a great many cases and had some success.

Unfortunately, though, the First Amendment is a blunt tool and doesn't work
very well in this particular case. I wish they had a better tool.

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AnthonyMouse
> I like doctors to be licensed.

I think this is a category error. People want doctors to be licensed _because_
they perform medical services. A surgeon or anesthesiologist who screws up can
easily kill you. Doctors have the authority to prescribe certain controlled
substances that are addictive or fatal in the wrong dosages.

The damage "doctors who merely give advice" can do is coterminous with the
damage random bloggers can do.

~~~
md2be
You are conflating the right to carry out a business with the right to free
speech. There are many reasons for licensing a business - sufficient liability
insurance - self dealing etc.

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AnthonyMouse
None of which has anything specifically to do with doctors, nor are they to my
knowledge typically even required of a business that sells e.g. fashion
advice.

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sligor
$95 per session is definitely non-free :D

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nqzero
if this case holds, it gives the govt the right to regulate every worker in
every field (including software) so long as it declares that the intent of the
regulation is for a good reason

no need to prove that the regulation actually helps, no need to prove that the
worker caused harm

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dymk
That’s always been the case. Bad medicine is way more likely to directly kill
you than bad software. And yes, that includes software written for medicine,
which is subject to licensing and regulation.

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donarb
Interesting that her lawyer makes the argument that occupational licensing
boards act as though the First Amendment doesn't apply to them. Wonder what
his response would be if someone wanted to dispense lawyerly advice without a
license.

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md2be
Exactly

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throwaway8879
This is judgement I happen to agree with. However, I would like more
consistency across every other field as well. Should it be legal for someone
fraudulent like Stephen Greer to take people out to the desert to have
alien/UFO experiences? Or psychics providing non-free services?

I suppose health services being in a category of their own is quite sensible.
Losing one's savings to a psychic doesn't have the same mortal consequences as
health-coach advice that could kill you.

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b_tterc_p
I believe New York requires all psychics to have signage disclosing that they
are purely entertainment. But frankly I don’t understand how psychics stay in
business. E.g. Davis square is a pretty trendy area in Somerville outside of
Boston (supposedly reddit started there). Decently popular restaurants seem to
get kicked out frequently from what I imagine is just hard competition. Yet
somehow this small area houses TWO psychics, neither of which seem to ever
have customers going in or out. I don’t get how they pay rent, unless they’re
just money laundering fronts.

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0_gravitas
I live on Long Island and I see an obscene amount of Psychics' "practices" on
the day to day, they're everywhere! And they've been around for a time now, I
always think that theres no way they can be getting business, but it would
seem that they do. A lot more people seem to buy into this nonsense than you'd
think, for instance: if I go to meetup.com and restrict the search to groups
that are within a 20 mile radius of me, there is not one, not two, but _three_
entire meetup groups dedicated to "harnessing/practicing psychic ability"

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Bostonian
If the health advice given by a health coach is bad, people are harmed
regardless of whether they paying for the advice. So if the state can paid
unlicensed health advice, why not unpaid unlicensed health advice, including
advice given over the Internet? I can see, for example, how a health coach who
told people not to vaccinate their children could do a lot of harm, but I
don't think books and web sites advocating this should be banned.

~~~
extra88
> why not unpaid unlicensed health advice

Because then the First Amendment does take precedence.

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AnthonyMouse
This is where it all falls apart.

On the one hand we have courts upholding copyright against First Amendment
challenges because copyright enables that speech since it might otherwise not
be funded, and "money is speech" in campaign finance, and striking down Son of
Sam Laws.

On the other hand we have that commercial speech is less protected. But the
central example of that is _advertising_. You can't use somebody's likeness
without their permission in your advertising, even if you can in your
criticism of them, because it's commercial speech.

But paying somebody to give you information/advice is much more like the first
category of cases than the second, isn't it?

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zzzeek
So far the comments seem to come down on the side of "the government shouldn't
be interfering with what people want to do".

How would Hacker News respond if instead this health consultant was primarily
giving out advice that vaccinations cause autism, and that her nutritional
advice was in fact how to avoid the need for vaccines ?

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SllX
It’s a strange thing, but it turns out people have the right to be wrong in
what they say. If it makes Americans uncomfortable that the court is taking
this opinion, it’s because they are taking the position that this is an
infringement on our rights as people.

Remember, the Bill or Rights isn’t a granting of rights, it’s a restriction on
the government to not infringe on the rights we are born with and which are
inalienable.

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ackfoo
The real issue here goes far beyond freedom of speech; the real issue is about
the nature of knowledge.

Human nutrition is not a science for the simple reason that it is not possible
to subject it to the scientific method. It is unethical and impractical to
divide humans up randomly and feed them different diets to observe the
outcome. The NAZIs tried stuff like this, but we have tended to discount their
results because the data was obtained under deplorable circumstances.

The result is that we don't really know definitively what should compose the
human diet. State governments and academic institutions cover up this fact
with an avalanche of highly-suspect papers and degrees and training and
certification.

Unfortunately, most of the research and regulation of human nutrition is
subject to interference by economic lobby groups like the dairy industry and
the wheat producers.

Influence and bias tend to inform the licensing process for nutritionists.
Science has little to do with it.

Even worse, the state licences a lot of so-called health professionals whose
disciplines have even less to do with science than nutritionists:
chiropractors, naturopaths, and homeopaths.

Just because we dress something up with training and a license does not mean
that it is valid.

Anyone who wishes to challenge these unfounded and biased, but deeply
ingrained, systems will have a hard time.

In a just world, only disciplines with a sound scientific basis would be
regulated by the state because it is impossible for the state to know whether
a licensed, but unscientific, nutritionist is creating more or less harm than
this unlicensed, but probably well-meaning, woman.

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shadhawk22
Bring common sense back. Research what people are pedaling to ya. Just because
they are licensed doesn't mean they aren't pedaling crap as well.

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dymk
I’d like to be able to trust that my doctor has had training, and can provide
proof. That’s the case 100% of the time. Licensing boards accomplishes this.

There is literally no case in which I’m willing to accept some self taught
doctor, so why wouldn’t we want licensing?

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shadhawk22
I am not saying we don't need licensing. I was saying second opinions can be
helpful in making an informed decision. I have gotten bad advice from licensed
people before as well.

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Overtonwindow
I’m still hoping someone can prove me wrong: the unlicensed providing of
nutrition advice has never caused actual harm to anyone anywhere ever.

~~~
pgeorgi
[https://www.heraldsun.com.au/archive/news/swiss-woman-
starve...](https://www.heraldsun.com.au/archive/news/swiss-woman-starved-to-
death-on-daylight-diet/news-story/d5037b92889834df50634e0f4cc300fb)

"This was the fourth known death linked to breatharianism and Jasmuheen's
books since the practice emerged in the early 90s."

Unlicensed nutrition advice ("eat and drink nothing") causing actual harm
("death") to anyone anywhere ever ("fourth known death")

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makomk
Of course, she got that advice from a book and documentary. Should the
government have the power to ban the sale of unapproved books and
documentaries containing medical advice - maybe even the description of unsafe
health and nutritional practices full stop?

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pgeorgi
That wasn't what the OP was asking. Instead there was some hand-wavy assertion
that can be generated within seconds but takes minutes to disprove.

That's a popular tactic to bind resources while at some point getting
something that went "undisproven". I'm not interested in playing that game in
general, but this particular instance was just too amusing to not react to it.

