represent the appellant heather del castillo your honor the question this appeal is whether individualized advice about one diet and nutrition is speech within the scope of the st amendment protection the court below relying primarily on this court's earlier decision in the law for sure held that it is not characterizing such speech as merely professional conduct that was error and this court should reverse the reason locke doesn't control this case is because the interpretation of locke adopted by the district court and pressed by the government here conflicts irreconcilably with the supreme court's recent decision in this live vs the sarah that case rejected the so called professional speech doctrine under which speech by certain licensed professionals was subject to a lower level of st amendment protection now the government has tried to draw a distinction here between the professional speech doctrine and the the notion that the government can regulate professional conduct when it has only an incidental burden on speech but in this case that is just a distinction without a difference because the only conduct at issue in this case is ms what is the conduct that triggers the application of the law why is the government enforcing the law against someone and the government in this case isn't enforcing the law against ms del castillo because she has come to some personal conclusion about what someone's dietary needs are they're going after her because she has communicated that to somebody their only interest is that she is going to give advice that they don't think is good enough that goes directly to the content of the speech it's really not it's really not based on the content of the advice whether it's good or counsel that's you know fairly be the case when you say well there's no requirement that but that's irrelevant to the level of st amendment protection we know from read versus town of gilbert laws that draw distinctions based on the subject matter of speech are themselves content based regulations of speech and it's undisputed that in this case if ms del castillo had been giving advice about just exercise alone would not apply to or it only applies to her because she also gives people advice about how to eat what to buy at the grocery store so that even if in general the law can be thought of as a regulation of conduct when in a specific case the law is triggered by speech of a particular content that is a content based restriction on speech and it has to think instructive here and we submitted supplemental authority on this is the th circuit's recent decision in the visitor line case invisalign the th circuit recognized the that court's professional speech doctrine which was adopted in a case called heinze had been abrogated by nestle of vs basara i think this is significant for a couple of reasons number one that the th circuit thought that this was simply obvious it doesn't engage in extended should no longer be good law dietary advice speech we know from older versus humanitarian law project that individualized expert advice to speech this florida law burden that speech absolutely have heard that speech my client would have to go back to college and do nine hundred hours of supervised practice and pay fees and pass tests before she can talk to people that would take years of her time that's an obvious person and what sort of evidence has the state produced to justify those burdens it's produced virtually not that's insufficient to satisfy any standard of st amendment scrutiny whether strict or intermediate so i'm happy to address any further questions that  we we think this case presents extremely straightforward st amendment questions and the government has clearly failed to satisfy any level of st amendment scrutiny let me ask this counsel what do you ram conditions of your position for regulating and licensing other professions virtually every profession requires the i mean that's part of it aren't you arguing in essence that unless you can meet some higher standard you can't regulate a license the profession no your honor so st i want to emphasize that although we argue that the speech incident to conduct exception is not applicable to this case nothing that this court decides would undermine the speech incidental to conduct exceptions so the parodic matic example of that is from planned parenthood versus casey where the court held that if you want to engage in the non communicative conduct of performing abortions you also have to provide certain speech to your your patients so to the extent that the law is triggered by non communicative conduct to which speech genuinely is incidental that's completely  unaffected now other cases where the law is triggered soley by speech on a particular subject that is going to raise st amendment questions and the government will have to satisfy st of the burden but that is the import of the court's statutes provides that quote nothing in this act may be construed to prohibit or limit any person from the free dissemination of information related to nutrition that would also include any unlicensed individual what triggers application of the act is not necessarily the license practice of dietetics it is the unlicensed practice of diet well your honor he does say that but he's incorrect because the act itself provides that it does not limit anyone's right to free expression concerning dietetics or nutrition so i guess in that in that instance dual meaning well that's that's correct your honor i made it if you can't get paid for it that's what actually triggers the unlicensed provision practice parts of the statu it also means that you cannot be limited in what you say you're free to say whatever you would like about diet and nutrition and you are free to say as to anyone  court found that this act is subject to not enhanced scrutiny but rational basis and we certainly do not object to that however the way this act is is written it allows castillo and anyone similarly situated to discuss dietetics with anyone she would like at any time she replied and almost any matter she would like as long as she doesn't accept looking recommendation in other words that this is a statute directed at conduct and any incidental effects that it has are authorized under basara and the case is relied on by your opposing counsel that that's absolutely correct you honor and you just anticipated the next portion of my argument that is the exactly the point the sara does not say that any sort of statutes that restricts the class of people who can practice a profession has to me enhanced scrutiny all it says is that any speech which limits the content of what may be said any content based restriction on speech is subject to enhance i have great respect for has argued so hard that this is a constant basis for scription on speech which i respectfully submit is clearly not merely regulates professional conduct and either right or wrong and why is it right or wrong well it's right because what is as you pointed out and this branch pointed out under question this act regulates conduct  only affects speech rights incidentally to an otherwise valid regulation of professional conduct is exactly correct if it involves giving dietary advice that's how these exceptions fit into the scheme now there's also you know an exception for people who provide  you know i guess advocate dietary supplements but i would also point out that that exception just merely states that anybody who's in that position just like anybody else who's not license cannot practice cannot accept pay for getting any advice they may give in tallying their products so i would respectfully submit these exceptions are well thought out and well crafted so that while the public is being protected from bad dietary advice by one licensed or unqualified individuals that people who have a license to practice another profession to the extent that dietary advice may be included within that are still free to practice their profession has a compelling interest in protecting the public health safety and welfare nor does the circus in there's a line as just pointed out does not determine to what extent if there's a line that the th circuit in that particular case also determined that the law in question in that case was a conscious restriction on speech it was something more than just incidental burden on speech by an otherwise generally a political licensing requirements scrutiny applies intermediates for example can they satisfy the test i would i would argue that yes a chance the record contains evidence from the state expert witness that there is certainly an example of how scribing a certain diet like the whole thirty diet challenge something that restricts carbohydrate intake in certain individuals with certain health problems mainly pregnant women or women who are of childbearing age  may become pregnant the if you don't prescribe somebody like that additional folic acid while they are while they are on this diet that they their unborn baby could be subject to a significantly disagree with that just because this asked is i don't see how it could be tailored any more narrowly than it is now that i think when i think just branch out to a little bit about that with all of the exceptions i mean there's that there's a lot of holes in this thing for what you can do if this is so important and such a atan interest of the state how is there so many people who can go about doing this with a lot less training in the in the various specialties that that are required here well as i these exceptions only they hold someone who is licensed to practice medicine for example if if giving some advice about a particular aspect of diet may be within the scope of know i can't comment on the scope of practice of acupuncturists but to the extent that acupuncturists have any advice about diet and they can get that pursuant to their license then they can continue to do that and larly situated can absolutely give all the advice they want as long as they don't get paid for it they can put a you know perhaps they could have a web site and sell ads i don't know but as long as they are not giving individualized dietary advice and getting paid for it directly for that advice then i don't think this act limits their ability to to do that and i would submit that it's very thank you your honor just a few quick points st it's black letter st amendment law that the receipt of pay for speech has no effect on the level of constitutional protection that that speech has that has been held by the supreme court time and again it's no different than saying you can give away a book but you can't sell a book that that is not a st amendment distinction that matters on this issue of whether there's the conduct of assessments and that her advice is merely incidental to assessments here i think holder the humanitarian law project again supplies the answer because we have to look at what is the assessment that she's engaging in that triggers the law and the only assessment that she's engaging  asking people questions and getting information from them which is st amendment activity now if she were doing blood tests or something like that that would be different that would be non communicative conduct but here the only thing she's doing is talking to people about their dietary goals and then providing them with her advice all of that is speech and no matter what part of that triggers the application of the law it's a law that burdens st amendment activity and has to satisfy heightened scrutiny as to the level of scrutiny that applies this court does not have to decide that because this law fails under any standard of st amendment scrutiny i would reemphasize that the government has provided no evidence on less restrictive alternatives the evidence that it has provided simply can't satisfy the government's burden waltz lagger versus governor of florida rejected evidence that was even more weighty than this when it held  that six anecdotes were insufficient to justify the law at issue in that case here we don't even have that many anecdotes we have the hypothetical conjecture of the expert and then we have references to a thirty year old episode of the oprah winfrey show and finally your honor the government also ignores the least restrictive alternative here which is the one that many states have which is simply to to not regulate this to leave the sub to the market the government could have provided evidence that people in those states have been harmed by that that that that's a bad system not only did they not provide that evidence their experts said that she was not aware of any evidence that supported s licensing laws for tour guides that case is relevant as we'll explain in our letter because it holds that this distinction between paid and unpaid is irrelevant you could give unpaid tours but not paid tours and  similarly rejects the speech incidental to conduct argument if there are no further questions i will simply ask the court to reverse the decision below and remand with instructions to enter judgment for the p