Heather Kokesch Del Castillo v. Secretary, Florida Department of Health ( 2022 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-13070
____________________
HEATHER KOKESCH DEL CASTILLO,
Plaintiff-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF HEALTH,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 3:17-cv-00722-MCR-HTC
____________________
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2 Opinion of the Court 19-13070
Before BRANCH, LUCK, and ED CARNES, Circuit Judges.
LUCK, Circuit Judge:
Heather Kokesch Del Castillo, an unlicensed dietician and
nutritionist, claims that Florida’s Dietetics and Nutrition Practice
Act, which requires a license to practice as a dietician or nutrition-
ist, violates her First Amendment free speech rights to communi-
cate her opinions and advice on diet and nutrition to her clients.
The district court granted summary judgment for the Florida De-
partment of Health, which enforces the Act, on Del Castillo’s First
Amendment free speech claim because, the district court con-
cluded, it was bound by our decision in Locke v. Shore, 634 F.3d
1185 (11th Cir. 2011). Locke held that a similar state licensing
scheme for commercial interior designers did not violate the free
speech rights of unlicensed interior designers.
Del Castillo argues that the district court erred, and we are
not bound by Locke, because Locke was abrogated by the Supreme
Court’s decision in National Institute of Family & Life Advocates
v. Becerra, 138 S. Ct. 2361 (2018). So the narrow question for us is
whether Locke is still good law after NIFLA. After reviewing what
we said in Locke, what the Supreme Court said in NIFLA, and our
prior panel precedent rule, we hold that it is. And because Locke
is still good law, we conclude that we are bound to affirm the dis-
trict court’s summary judgment for the department.
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FACTUAL BACKGROUND
Del Castillo owned and operated a health-coaching business
called Constitution Nutrition. She started her business in Califor-
nia, which did not require her to have a license to operate it. After
moving to Florida in 2015, Del Castillo continued to run her busi-
ness—meeting online with most of her clients and meeting in per-
son with two clients who lived in Florida. She described herself as
a “holistic health coach” and not as a dietician. Del Castillo tailored
her health coaching to each client, which included dietary advice.
She advertised her business in a local health magazine, on Face-
book, and on flyers at a local gym.
Del Castillo’s business focused on “[o]ne-on-one health
coaching,” which she described as “meeting with clients and dis-
cussing overall health and wellness, as well as goal setting.” She
gave them tailored advice on dietary choices, exercise habits, and
general lifestyle strategies. For example, Del Castillo recom-
mended vitamin supplements to some clients with low energy and
told them to consult with their physicians before taking the supple-
ments. For another client with food intolerances, Del Castillo rec-
ommended health goals that fit within a list of foods to avoid pro-
vided by the client’s doctor.
Before her initial consultation with a new client, Del Castillo
would ask them to fill out a “health history form.” The health his-
tory form sought general background information about the client,
like his or her age and occupation, as well as particulars about the
client’s dietary health, including past serious illness or recent
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4 Opinion of the Court 19-13070
weight change. Del Castillo used this form to get an overall picture
of her client’s health but did not make medical conclusions. In-
stead, she would recommend that a client consult a doctor if the
client had experienced something unusual like drastic weight loss.
Del Castillo never held herself out to her clients as a health care
professional, never gave a diagnosis or provided medical treat-
ment, and never gave advice contrary to physician advice.
Del Castillo had a certificate in holistic health coaching that
she received from an online school. But she did not have a Florida
dietician or nutritionist license. Del Castillo was not qualified to
receive a license because she lacked the necessary education and
professional experience.
Del Castillo’s lack of a license eventually became a problem
for her business. Florida regulates dietetics and nutrition counsel-
ing through the Dietetics and Nutrition Practice Act. Fla. Stat. §§
468.501–.518. The Act defines “[d]ietetics” as “the integration and
application of the principles derived from the sciences of nutrition,
biochemistry, food, physiology, and management and from the be-
havioral and social sciences to achieve and maintain a person’s
health throughout the person’s life.” Id. § 468.503(4). It defines
“[n]utrition counseling” as “advising and assisting individuals or
groups on appropriate nutrition intake by integrating information
from the nutrition assessment.” Id. § 468.503(10). The Act provides
that “[d]ietetics and nutrition practice” “include[s] assessing nutri-
tion needs and status using appropriate data; recommending ap-
propriate dietary regimens, nutrition support, and nutrient intake;
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19-13070 Opinion of the Court 5
ordering therapeutic diets; improving health status through nutri-
tion research, counseling, and education; and developing, imple-
menting, and managing nutrition care systems.” Id. § 468.503(5).
And, relevant to this appeal, the Act provides that “[n]o person may
engage for remuneration in dietetics and nutrition practice or nu-
trition counseling or hold himself or herself out as a practitioner of
dietetics and nutrition practice or nutrition counseling unless the
person is licensed in accordance with the provisions of this part.”
Id. § 468.504. Under the Act, a person who knowingly engages in
unlicensed “dietetics and nutrition practice or nutrition counseling
for remuneration” commits “a misdemeanor of the first degree.”
Id. § 468.517(1), (2).
In March 2017, a licensed dietician filed a complaint against
Del Castillo with the Florida Department of Health, alleging that
Del Castillo was violating the Act by providing nutritionist services
without a license. The department’s practice was to investigate
every complaint, so it opened an investigation into Del Castillo. A
department investigator posed as a client and contacted Del Cas-
tillo about her services. In response, Del Castillo described her ser-
vices and provided the investigator with a health history form to
fill out. The department concluded that Del Castillo was violating
the Act and, in May 2017, sent her a citation and a cease-and-desist
order. Del Castillo paid the department $500.00 in fines and
$254.09 in investigatory fees for “providing individualized dietary
advice in exchange for compensation in Florida.”
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PROCEDURAL HISTORY
Del Castillo brought a 42 U.S.C. section 1983 action against
the department, claiming that the Act, as applied to her, violated
her First Amendment free speech rights. She sought a declaratory
judgment that the Act is “unconstitutional to the extent that [it]
prohibit[s] [her] and others similarly situated from offering individ-
ualized advice about diet and nutrition.” She also requested injunc-
tive relief and attorneys’ fees and costs.
After discovery, both parties moved for summary judgment.
The department argued that the Act was a lawful regulation of the
dietetics and nutritionist profession. Because any restriction of Del
Castillo’s speech was merely incidental to the regulation of profes-
sional conduct, the department maintained, the Act was not sub-
ject to First Amendment scrutiny and did not violate Del Castillo’s
free speech rights. The department relied on our decision in Locke,
which upheld Florida’s licensing scheme for interior designers
against a free speech challenge similar to Del Castillo’s challenge in
this case because that regulation governed occupational conduct
with only an incidental effect on speech.
Del Castillo argued in her motion for summary judgment
that her dietary advice to her clients was pure speech rather than
conduct. Del Castillo argued that the Act was a content-based reg-
ulation of her speech and was, therefore, subject to strict scrutiny.
The Act couldn’t survive strict scrutiny, Del Castillo maintained,
because it wasn’t narrowly tailored to address a compelling gov-
ernment interest. Finally, Del Castillo argued that Locke had been
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19-13070 Opinion of the Court 7
abrogated by the Supreme Court’s recent decision in NIFLA be-
cause Locke relied on the “professional speech doctrine” and the
NIFLA Court “expressly rejected the professional speech doctrine.”
The district court granted the department’s motion for sum-
mary judgment and denied Del Castillo’s. It concluded that our
“binding” decision in Locke “controls the outcome of this case.”
The district court explained that in Locke, we rejected a challenge
to Florida’s licensing scheme for commercial interior designers be-
cause a statute that governs “the practice of an occupation is not
unconstitutional as an abridgement of the right to free speech, so
long as any inhibition of that right is merely the incidental effect of
observing an otherwise legitimate regulation.” The district court
said that Locke also relied on the principle that “generally applica-
ble licensing provisions limiting the class of persons who may prac-
tice the profession” are not subject to First Amendment scrutiny.
The district court concluded that the Act’s dietician and nu-
trition licensing scheme was like the licensing scheme we upheld
in Locke. This was because, the district court said, the licensing
scheme that Del Castillo challenged had an “impact on speech” that
was “merely incidental to the regulation of the profession” of die-
ticians and nutritionists. The district court concluded that, under
Locke, the Act was “not subject to heightened scrutiny because it
is a generally applicable professional licensing statute with a merely
incidental impact on speech.”
The district court rejected Del Castillo’s argument that the
Supreme Court’s decision in NIFLA had abrogated Locke. The
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8 Opinion of the Court 19-13070
district court reasoned that although the NIFLA Court had de-
clined to recognize “professional speech” as a unique category of
speech exempt from ordinary First Amendment principles, the sec-
ond reason for Locke’s holding, it had reaffirmed that states “may
regulate professional conduct, even though that conduct inci-
dentally involves speech,” consistent with the first reason for
Locke’s holding. Thus, the district court applied rational basis re-
view to Del Castillo’s First Amendment claim and concluded that
the Act was rationally related to a legitimate state interest: the pro-
motion of public health and safety.
Del Castillo appeals the district court’s summary judgment
for the department. 1
1
After we heard oral argument in this case, the department filed a motion to
dismiss the appeal as moot. In 2020, Florida amended the Act to exempt from
the state’s licensing requirement certain persons providing nutritional advice.
The new exception applies to:
Any person who provides information, wellness recommenda-
tions, or advice concerning nutrition, or who markets food,
food materials, or dietary supplements for remuneration, if
such person does not provide such services to a person under
the direct care and supervision of a medical doctor for a disease
or medical condition requiring nutrition intervention, not in-
cluding obesity or weight loss, and does not represent himself
or herself as a dietitian, licensed dietitian, registered dietitian,
nutritionist, licensed nutritionist, nutrition counselor, or li-
censed nutrition counselor, or use any word, letter, symbol, or
insignia indicating or implying that he or she is a dietitian, nu-
tritionist, or nutrition counselor.
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STANDARD OF REVIEW
We review de novo the district court’s grant of summary
judgment. Buending v. Town of Redington Beach, 10 F.4th 1125,
1130 (11th Cir. 2021). Summary judgment is appropriate when
“there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
In ruling on a motion for summary judgment, a court must “re-
solve all ambiguities and draw reasonable factual inferences from
the evidence in the non-movant’s favor.” Buending, 10 F.4th at
1130 (quotation marks omitted).
Fla. Stat. § 468.505(1)(n) (2020). The department argues that this amendment
exempts Del Castillo’s business and moots her appeal. Del Castillo responds
that her business is not covered by the new exception because she has had,
and in the future wants to be free to have, clients who are “under the direct
care and supervision of a medical doctor for a disease or medical condition
requiring nutrition intervention.”
“Generally, when an ordinance is repealed any challenges to the con-
stitutionality of that ordinance become moot.” Coal. for the Abolition of Ma-
rijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1310 (11th Cir. 2000).
But, “when an ordinance is repealed by the enactment of a superseding stat-
ute, then the superseding statute or regulation moots a case only to the extent
that it removes challenged features of the prior law.” Id. (quotation marks
omitted). Here, the amendment to the Act did not remove all of the Act’s
features that Del Castillo challenged. Del Castillo still challenges the part of
the Act prohibiting her from giving dietetic and nutritional advice to paying
clients who are under the supervision of a doctor for a disease or medical con-
dition requiring nutrition intervention. Thus, her First Amendment challenge
to the Act is not moot.
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DISCUSSION
Del Castillo argues that the Act, as applied to her and her
business of giving clients individualized dietary and nutrition ad-
vice, is a content-based regulation of speech that is subject to strict
scrutiny. She contends that the district court erred in relying on
Locke because NIFLA abrogated Locke. And regardless of what
level of scrutiny we apply to the Act, Del Castillo argues, the de-
partment failed to justify the burden on her First Amendment free
speech rights.
We conclude that Locke is still good law and controls the
outcome of this case. We break up our discussion into four parts.
First, we discuss Locke and the two reasons the Locke court gave
for why Florida’s interior designer licensing scheme did not violate
the First Amendment: the professional speech doctrine; and the
licensing scheme regulated professional conduct with only an inci-
dental effect on speech. Second, we review NIFLA, its refusal to
recognize the professional speech doctrine, and its reaffirmation
that the regulation of professional conduct that has only an inci-
dental effect on speech does not violate the First Amendment.
Third, we apply our prior panel precedent rule and discuss how
one of the two independent reasons for our decision in Locke—
that the regulation of professional conduct with an incidental effect
on speech does not violate the First Amendment—was not abro-
gated by, but instead survived, NIFLA. And finally, we apply Locke
to this case and conclude that the Act’s dietician and nutritionist
licensing scheme did not violate Del Castillo’s free speech rights
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19-13070 Opinion of the Court 11
because, like the interior designer licensing scheme in Locke, the
Act regulated her professional conduct and had only an incidental
effect on her speech.
Our decision in Locke v. Shore
Locke involved a First Amendment free speech challenge to
a Florida law “requir[ing] interior designers practicing in nonresi-
dential, commercial settings within the state to obtain a state li-
cense.” 634 F.3d at 1189. The statute defined “‘interior design’ as
‘designs, consultations, studies, drawings, specifications, and ad-
ministration of design construction contracts relat[ed] to nonstruc-
tural interior elements of a building or structure.” Id. (quoting
what is now Fla. Stat. § 481.203(10)). To get a license, a designer
had to “complete a combined total of six years of interior design
education and internship experience with a licensed interior de-
signer” and “pass an examination administered by the National
Council of Interior Design Qualifications.” Id. “Practicing interior
design in commercial settings in Florida without a license” could
result in a misdemeanor charge and an administrative penalty. Id.at 1189–90.
The plaintiffs were educated and trained in interior design
and practiced in residential settings in Florida. Id. at 1190. They
“wish[ed] to expand their practice to commercial settings,” but
they were not licensed as interior designers by the state. Id. The
plaintiffs “argue[d] that the license requirement unconstitutionally
burden[ed] protected speech under the First Amendment.” Id. at
1191. “We conclude[d] that Florida’s license requirement [was]
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constitutional under the First Amendment,” id. at 1192, and gave
two distinct reasons for our holding.
The first reason we gave was that a “statute that governs the
practice of an occupation is not unconstitutional as an abridgement
of the right to free speech, so long as any inhibition of that right is
merely the incidental effect of observing an otherwise legitimate
regulation.” Id. at 1191 (quotation marks omitted). We relied, in
part, on Wilson v. State Bar of Georgia, 132 F.3d 1422, 1430 (11th
Cir. 1998), which recognized that “regulations that ‘govern occu-
pational conduct’ with only an ‘incidental effect’ on speech with-
stand First Amendment scrutiny.” Locke, 634 F.3d at 1191 (paren-
thetically quoting from Wilson). “Because the [interior designer]
license requirement govern[ed] ‘occupational conduct, and not a
substantial amount of protected speech,’” Locke said, it did “not
implicate constitutionally protected activity under the First
Amendment.” Id. (quoting Wilson, 132 F.3d at 1429).
This first reason was an independently adequate reason for
our holding in Locke. It was not only the first reason we gave but
also the reason we reiterated in the concluding paragraph of our
discussion. Id. at 1192 (concluding “that Florida’s license require-
ment is constitutional under the First Amendment” “[b]ecause the
license requirement is a professional regulation with a merely inci-
dental effect on protected speech”). In case there was any doubt
about the matter, in her separate concurring opinion in the Locke
case, Judge Black nailed down our holding and the reason for it. Id.
at 1197 (Black, J., concurring in the result) (“As I understand the
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majority opinion, it holds that Florida’s licensing scheme does not
violate the First Amendment because it is a regulation of occupa-
tional conduct with only an incidental impact on protected
speech.”).
As courts sometimes do, the Locke court also gave an addi-
tional reason for its holding. The second reason we gave for con-
cluding that the interior designer licensing scheme did not violate
the First Amendment was that, if “the government enact[ed] gen-
erally applicable licensing provisions limiting the class of persons
who may practice the profession, it cannot be said to have enacted
a limitation on freedom of speech . . . subject to First Amendment
scrutiny.” Id. at 1191 (majority opinion) (omission in original)
(quoting Lowe v. SEC, 472 U.S. 181, 232 (1985) (White, J., concur-
ring)). There was “a difference,” we reasoned, “for First Amend-
ment purposes, between regulating professionals’ speech to the
public at large versus their direct, personalized speech with cli-
ents.” Id. The interior designer “license requirement regulate[d]
solely the latter,” we said. Id. This second reason, derived from
Justice White’s concurring opinion in Lowe, is the professional
speech doctrine.
Both reasons supported our conclusion that the interior de-
signer licensing statute did not violate the plaintiffs’ First Amend-
ment free speech rights.
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The Supreme Court’s decision in NIFLA v. Becerra
NIFLA involved California’s regulation of crisis pregnancy
centers—“pro-life (largely Christian belief-based) organizations
that offer a limited range of free pregnancy options, counseling,
and other services to individuals that visit a center.” 138 S. Ct. at
2368 (quoting report). The state’s regulation required centers that
qualified as licensed covered facilities to “disseminate a govern-
ment-drafted notice on site,” which read: “California has public
programs that provide immediate free or low-cost access to com-
prehensive family planning services (including all FDA-approved
methods of contraception), prenatal care, and abortion for eligible
women.” Id. at 2369 (quotation marks omitted). 2
A licensed pregnancy center sued, alleging that the notice
requirement “abridge[d] the freedom of speech protected by the
First Amendment.” Id. at 2370. The district court denied the cen-
ter’s motion for a preliminary injunction, and the Ninth Circuit af-
firmed because the notice requirement “survive[d] the lower level
of scrutiny that applie[d] to regulations of professional speech.” Id.(quotation marks omitted)
The Supreme Court reversed. Id. The Court began by ex-
plaining that when it enforces the First Amendment prohibition on
the abridgment of the freedom of speech, it distinguishes “between
2
California’s regulation had a separate notice requirement for unlicensed
pregnancy centers, NIFLA, 138 S. Ct. at 2369–70, but the notice requirement
for unlicensed centers isn’t relevant to whether Locke has been abrogated.
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content-based and content-neutral regulations of speech.” Id. at
2371. Content-based regulations “target speech based on its com-
municative content,” and generally they “are presumptively un-
constitutional and may be justified only if” they survive strict scru-
tiny—“the government proves that they are narrowly tailored to
serve compelling state interests.” Id. (quotation marks omitted).
The notice requirement for licensed pregnancy centers was a con-
tent-based regulation because it compelled the center to speak a
particular message. Id.But, the NIFLA Court explained, some courts of appeals,
like the Ninth Circuit, had “recognized ‘professional speech’ as a
separate category of speech that is subject to different rules.” Id.(citing cases from the Third, Fourth, and Ninth Circuits). These
courts defined professional speech as speech that is based on expert
knowledge and judgment by individuals who provided personal-
ized services to clients and who are subject to a generally applicable
licensing and regulatory regime. Id. “[T]hese courts except[ed]
professional speech from the rule that content-based regulations of
speech are subject to strict scrutiny.” Id.The NIFLA Court refused to recognize “‘professional
speech’ as a separate category of speech.” Id. “Speech is not un-
protected merely because it is uttered by ‘professionals.’” Id. at
2371–72. A government cannot impose content-based restrictions
on speech, the Court explained, “without persuasive evidence of a
long (if heretofore unrecognized) tradition to that effect.” Id. at
2372 (cleaned up). While the Court had never recognized “a
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16 Opinion of the Court 19-13070
tradition for a category called ‘professional speech,’” it has tradi-
tionally “afforded less protection for professional speech in two cir-
cumstances.” Id.First, the Court has “applied more deferential review to
some laws that require professionals to disclose factual, noncontro-
versial information in their ‘commercial speech.’” Id. And second,
the Court has said that “[s]tates may regulate professional conduct,
even though that conduct incidentally involves speech.” Id. The
Supreme Court “has upheld regulations of professional conduct
that incidentally burden speech” because the “First Amendment
does not prevent restrictions directed at commerce or conduct
from imposing incidental burdens on speech.” Id. at 2373 (quota-
tion marks omitted).
Neither traditional circumstance applied to California’s no-
tice requirement for licensed pregnancy centers. Id. at 2372–74.
And the NIFLA Court found no “persuasive reason for treating pro-
fessional speech as a unique category that is exempt from ordinary
First Amendment principles.” Id. at 2375. Even applying the eas-
ier-to-meet standard of intermediate scrutiny, the Court concluded
that California’s notice requirement couldn’t meet it because the
notice requirement wasn’t sufficiently drawn to achieve the state’s
claimed substantial interest. Id. at 2375–76.
NIFLA did not abrogate Locke
Del Castillo argues that NIFLA abrogated Locke. And her
argument goes something like this. Locke’s holding relied on the
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“professional speech doctrine” to conclude that Florida’s interior
designer licensing scheme did not violate the plaintiffs’ First
Amendment free speech rights. But NIFLA rejected the “profes-
sional speech doctrine.” So the prop supporting Locke’s holding
has been taken away, and Locke has been abrogated. For three
reasons, we disagree.
First, Locke’s First Amendment holding relied on more than
the “professional speech doctrine.” The Locke court also con-
cluded that the interior designer licensing requirement did not vi-
olate the First Amendment because it was “a professional regula-
tion with a merely incidental effect on protected speech.” 634 F.3d
at 1192; see also id. at 1197 (Black, J., concurring in the result) (“As
I understand the majority opinion, it holds that Florida’s licensing
scheme does not violate the First Amendment because it is a regu-
lation of occupational conduct with only an incidental impact on
protected speech.”). “A statute that governs the practice of an oc-
cupation is not unconstitutional as an abridgment of the right to
free speech, so long as any inhibition of that right is merely the in-
cidental effect of observing an otherwise legitimate regulation.” Id.
at 1191 (majority opinion).
Second, while the NIFLA Court “refused to recognize pro-
fessional speech as a new speech category deserving less protec-
tion,” Otto v. City of Boca Raton, 981 F.3d 854, 867 (11th Cir. 2020),
it also reaffirmed that “[s]tates may regulate professional conduct,
even though that conduct incidentally involves speech,” NIFLA,
138 S. Ct. at 2372. The NIFLA Court explained that “regulations of
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professional conduct that incidentally burden speech” have been
“upheld,” and the “First Amendment does not prevent restrictions
directed at commerce or conduct from imposing incidental bur-
dens on speech.” Id. at 2373 (quotation marks omitted).
Third, NIFLA did not undermine Locke to the point of ab-
rogation. “We are bound to follow a prior panel or en banc hold-
ing, except where that holding has been overruled or undermined
to the point of abrogation by a subsequent en banc or Supreme
Court decision.” Chambers v. Thompson, 150 F.3d 1324, 1326
(11th Cir. 1998). A prior panel precedent is “undermined,” we ex-
plained in United States v. Petite, where the “Supreme Court’s sub-
sequent decision . . . so fully undermined our prior panel’s decision
. . . as to abrogate its holding.” 703 F.3d 1290, 1297 (11th Cir. 2013)
(emphasis added). To “fully undermine[]” a prior panel decision,
the later Supreme Court decision must “demolish[]” and “eviscer-
ate[]” each of its “fundamental props.” See id. at 1297–98. Because
Locke’s holding relied on more than the “professional speech doc-
trine”—and the only thing NIFLA refused to recognize was the
“professional speech doctrine”—both of Locke’s props have not
been demolished; its holding is still standing.
The NIFLA Court spoke with unmistakable clarity about the
line of precedents upholding regulations of professional conduct
that incidentally burden speech and another line of precedents (up-
holding laws compelling the disclosure of information in certain
contexts): “neither line of precedents is implicated here.” 138
S. Ct. at 2372. Reasoning based on a line of Supreme Court
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precedents that the Court itself emphasizes in a later decision is not
implicated by that later decision cannot have been rejected, over-
ruled, or abrogated by the later decision.
So what we have here is a prior panel precedent—the hold-
ing in Locke—that rests on two bases, only one of which has been
rejected by the Supreme Court while the other basis has not been.
If anything, that surviving basis or rationale has been endorsed by
the Supreme Court. And it takes only one valid basis or rationale
for a prior holding to make it binding precedent. See McLellan v.
Miss. Power & Light Co., 545 F.2d 919, 925 n.21 (5th Cir. 1977) (en
banc) (“It has long been settled that all alternative rationales for a
given result have precedential value.”); see also Massachusetts v.
United States, 333 U.S. 611, 623 (1948) (explaining that where a case
has “been decided on either of two independent grounds” and
“rested as much upon the one determination as the other,” the “ad-
judication is effective for both”).
Two of our decisions illustrate this point. The first is an ex-
ample of a dual-rationale prior precedent that was abrogated by a
supervening Supreme Court decision because the supervening Su-
preme Court decision was inconsistent with both rationales of the
prior precedent. In the Petite case, “we ha[d] a prior panel opinion
on all fours with the case before us.” 703 F.3d at 1297. That prior
panel decision was United States v. Harrison, 558 F.3d 1280 (11th
Cir. 2009). Petite, 703 F.3d at 1297. “In Harrison”—the prior panel
opinion—we had “held that the offense of simple vehicle flight . . .
—the same offense at issue [in Petite]—was not a violent felony for
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20 Opinion of the Court 19-13070
purposes of the Armed Career Criminal Act.” Id. “Harrison,” we
said, “rested on two fundamental props.” Id. “The first founda-
tional prop was the panel’s conclusion that Florida’s simple vehicle
flight offense, as ordinarily committed, was not ‘roughly similar’ to
the ACCA’s enumerated offenses in ‘degree of risk posed.’” Id.
(quoting Harrison, 558 F.3d at 1294). “The second prop on which
the panel’s holding in Harrison rested was that, even assuming a
serious potential risk of physical injury exists . . . Florida’s simple
vehicle flight offense was not roughly similar in kind to the ACCA’s
enumerated offenses.” Id. (cleaned up).
But both of those two “foundations of Harrison were demol-
ished by the Supreme Court’s subsequent decision in Sykes [v.
United States, 564 U.S. 1 (2011)].” 3 Petite, 703 F.3d at 1298. “As for
the degree of risk posed by vehicle flight”—the first prop—“the Su-
preme Court rejected our prior panel’s risk calculus, which had
suggested that the confrontational act of vehicle flight does not
necessarily translate into a serious potential risk of physical injury
in the absence of high speed or reckless driving on the part of the
offender.” Id. (quotation marks omitted). And “[t]he Supreme
Court in Sykes also eviscerated the second of Harrison’s props—
that, even assuming a serious risk of injury, simple vehicle flight
was not a violent felony for ACCA purposes because it was not
3
Sykes and Petite both involved an analysis under the ACCA’s residual clause,
a provision which has since been declared unconstitutionally vague. See John-
son v. United States, 576 U.S. 591 (2015).
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19-13070 Opinion of the Court 21
similar in kind to the ACCA’s enumerated crimes.” Id. Because
Sykes demolished both of the two foundations supporting Harri-
son’s holding, we concluded in Petite that Harrison had been so
fully undermined that it had been abrogated by Sykes. Id. at 1299.
This is what it takes for a Supreme Court decision to demolish or
eviscerate a prior precedent.
The other example of a dual-rationale prior precedent illus-
trates what happens when only one of two rationales is rejected by
a later Supreme Court decision. See DeLong Equip. Co. v. Wash.
Mills Electro Mins. Corp., 997 F.2d 1340 (11th Cir. 1993). We held
in DeLong Equipment that postjudgment interest would be
awarded from the date of the original judgment, rather than from
the date of the judgment on remand. Id. at 1341. That holding was
consistent with Woods Exploration & Producing Co. v. Aluminum
Co. of America, 509 F.2d 784 (5th Cir. 1975), which was binding
“prior precedent” from the former Fifth Circuit. DeLong Equip.
Co., 997 F.2d at 1342.
We acknowledged in DeLong Equipment that the Supreme
Court had since “rejected the narrow holding of” our Woods Ex-
ploration decision. Id. at 1342 n.1 (citing Kaiser Aluminum &
Chem. Corp. v. Bonjorno, 494 U.S. 827 (1990)). As a result, one
rationale or point on which our earlier decision had rested was
gone. But we explained that the supervening Supreme Court deci-
sion “did not cast doubt on the Woods case’s larger point that the
earlier date is the one from which equity normally requires the ac-
crual of postjudgment interest to run.” Id. Thus, we held that the
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22 Opinion of the Court 19-13070
Supreme Court’s rejection of one basis or rationale of our prior de-
cision did not change the precedential force of the rationale that
was unaddressed and unabrogated by the Supreme Court. See id.The situation in Locke is like the situation in DeLong Equipment.
The point we made in Locke about the regulation of professional
conduct that incidentally burdened speech remains undisturbed
and binding.
Here, unlike in Petite, the Supreme Court has not “demol-
ished” or “fully undermined” both props making up Locke’s foun-
dation. Locke, like our prior panel decision in Harrison, relied on
two props to hold that Florida’s interior designer licensing scheme
did not violate the plaintiffs’ First Amendment free speech rights:
(1) “the license requirement [was] a professional regulation with a
merely incidental effect on protected speech”; and (2) the profes-
sional speech doctrine. Locke, 634 F.3d at 1191–92. In NIFLA, the
Supreme Court refused to recognize the “professional speech” doc-
trine. See Otto, 981 F.3d at 861 (explaining that the Supreme Court
in NIFLA “rejected an attempt to regulate speech by recharacteriz-
ing it as professional conduct”). But the NIFLA Court reaffirmed
that “[s]tates may regulate professional conduct, even though that
conduct incidentally involves speech.” 138 S. Ct. at 2372; see also
id. at 2373 (“[T]his Court has upheld regulations of professional
conduct that incidentally burden speech.”).
After NIFLA, one of the two props supporting Locke’s foun-
dation still stands. It has not been eviscerated. It has not been de-
molished. And it is has not been undermined. “[W]e are not at
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19-13070 Opinion of the Court 23
liberty to disregard binding case law that is so closely on point and
has been only weakened, rather than directly overruled, by the Su-
preme Court.” Fla. League of Pro. Lobbyists, Inc. v. Meggs, 87 F.3d
457, 462 (11th Cir. 1996); see also United States v. Kaley, 579 F.3d
1246, 1255 (11th Cir. 2009) (“[T]he doctrine of adherence to prior
precedent also mandates that the intervening Supreme Court case
actually abrogate or directly conflict with, as opposed to merely
weaken, the holding of the prior panel.” (quotation marks omit-
ted)). Unlike in Petite, because only one—but not both—of
Locke’s independently adequate props has been taken away, we
are not compelled to conclude that Locke has been so fully under-
mined as to be abrogated by NIFLA.
Rather, under our prior precedent rule, Locke’s first ra-
tionale is still good law: “A statute that governs the practice of an
occupation is not unconstitutional as an abridgement of the right
to free speech, so long as any inhibition of that right is merely the
incidental effect of observing an otherwise legitimate regulation.”
634 F.3d at 1191. We must follow this part of Locke to the extent
it applies to Del Castillo and the Act’s licensing scheme for dieti-
cians and nutritionists. And, as we explain below, it does apply.
Locke controls the First Amendment question here
Applying Locke to this case, we conclude that the Act’s li-
censing scheme for dieticians and nutritionists regulated profes-
sional conduct and only incidentally burdened Del Castillo’s
speech. Because the burden on her speech rights was only
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24 Opinion of the Court 19-13070
incidental, the Act’s licensing scheme did not violate her First
Amendment free speech rights. See Locke, 634 F.3d at 1192.
The Act regulates “dietetics and nutrition practice,” Fla. Stat.
§ 468.504, which involves
assessing nutrition needs and status using appropriate
data; recommending appropriate dietary regimens,
nutrition support, and nutrient intake; ordering ther-
apeutic diets; improving health status through nutri-
tion research, counseling, and education; and devel-
oping, implementing, and managing nutrition care
systems, which includes, but is not limited to, evalu-
ating, modifying, and maintaining appropriate stand-
ards of high quality in food and nutrition care ser-
vices.
Id. § 468.503(5). And the Act regulates “nutrition counseling,” id.
§ 468.504, which entails “advising and assisting individuals or
groups on appropriate nutrition intake by integrating information
from the nutrition assessment,” id. § 468.503(10). In enacting this
regulation, the Florida legislature specifically found that “the prac-
tice of dietetics and nutrition or nutrition counseling by unskilled
and incompetent practitioners presents a danger to the public
health and safety.” Id. § 468.502 (emphasis added).
Assessing a client’s nutrition needs, conducting nutrition re-
search, developing a nutrition care system, and integrating infor-
mation from a nutrition assessment are not speech. They are
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19-13070 Opinion of the Court 25
“occupational conduct”; they’re what a dietician or nutritionist
does as part of her professional services. See Locke, 634 F.3d at
1191 (quotation marks omitted).
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 profes-
sion’s conduct.
The Act’s effect on speech for dieticians and nutritionists is
as incidental as was the licensing scheme in Locke’s effect on
speech for interior designers. The interior designer licensing
scheme in Locke defined “interior design” as “designs, consulta-
tions, studies, drawings, specifications, and administration of de-
sign construction contracts relating to nonstructural interior ele-
ments of a building or structure.” Id. at 1189 (quoting what is now
Fla. Stat. § 481.203(10)). Interior design included “reflected ceiling
plans, space planning, furnishings, and the fabrication of nonstruc-
tural elements within and surrounding interior spaces of build-
ings.” Id. (quotation marks omitted).
But interior design also involved some speech. An interior
designer not only creates designs and drawings of nonstructural in-
terior elements of a building, id.; she also has to talk to her clients
about their preferences and communicate the final designs and
drawings to the clients. Even so, the fact that the profession in-
volved speech did not mean that the licensing scheme for interior
designers violated the First Amendment. Rather, because “the
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26 Opinion of the Court 19-13070
[interior designer] license requirement [was] a professional regula-
tion with a merely incidental effect on protected speech,” we held
that it was “constitutional under the First Amendment.” Id. at
1192.
We’re bound by Locke to reach the same conclusion here.
Like the interior designer licensing scheme in Locke, the Act regu-
lated the professional conduct of dieticians and nutritionists and
only incidentally burdened Del Castillo’s free speech rights. Be-
cause the Act “is a professional regulation with a merely incidental
effect on protected speech,” it is “constitutional under the First
Amendment.” See id.AFFIRMED.