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About Serafine v Branaman

This blog has two sets of readers. Many have been following the case for years and want frequent updates on latest developments. Others are learning about this case and want background info before getting up-to-date. This post is for the latter. Please scroll down for latest updates.

Who is Mary Lou Serafine?
At the beginning of this case, Mary Lou Serafine was the Republican nominee in her district for Texas Senate in 2010. She lived then, as now, in Austin. Continue reading “About Serafine v Branaman”

What issue started this case?
Serafine posted on her campaign website, www.serafineforsenate.com, a traditional “bio.” It said: “Mary Lou Serafine is an Austin attorney and psychologist.”

Why was that a problem?
Texas had taken the position, in the Texas Psychologists’ Licensing Act, that the unlicensed “practice of psychology” was prohibited, fined, and carried criminal penalties. The practice of psychology included even using the words “psychological, psychologist, or psychology” to describe oneself or any service one offered.

Who noticed it?
The Texas Psychological Association—which is a private organization—emailed Serafine that, in their opinion, the sentence on her website violated the Psychologists’ Licensing Act. TPA then notified the government agency, the Texas State Board of Examiners of Psychologists.

Serafine asserts there is virtually no division between the TPA and the Board. The Board then signed its own complaint against Serafine and later contacted the Attorney General’s office to begin enforcement. The Board and the Attorney General also found Serafine unlawful for filling out the form to get on the ballot, when she hand-wrote the words “attorney, psychologist” in the slot marked “Occupation.”

Why was she known to be a psychologist?
Serafine holds a Ph.D. in education and published her doctoral dissertation in psychology. She did post-doctoral work in psychology at the Yale Department of Psychology and also taught undergraduate courses in psychology at Yale and Vassar. At the introductory level over the years, she taught in virtually all of psychology’s sub-fields – developmental and cognitive psychology, psychobiology, learning, memory, perception, language, motivation, social psychology, intelligence, personality, mental illness, psychotherapy and early childhood education. She taught several of these at the advanced level, plus research and statistics. In her research field, which concerned the psychology of music, Serafine was said to have done ground-breaking research.

How did this case wind up in court?
Serafine sued the Texas psychology board in order to get the psychology law struck down as unconstitutional under the First Amendment of the U.S. Constitution. In her view, it violated the freedom of speech. Psychologists do nothing but talk. Their opinions and advice—whether implicit or explicit—may be those of experts who are thoughtful and well-educated, but there is nothing about what they do that should prevent other people from equally providing their own opinions and advice. The public is entitled to choose whom they wish to talk to about the problems and joys of life. Serafine also believed that words like “psychologist, psychology, and psychologically” are ordinary words that the government may not ban. A government law that declares such words to be “titles” instead of just words, is not sufficient to create a ban.

What was the result of the law suit?
The U.S. Court of Appeals for the Fifth Circuit struck down as unconstitutional the major portion of the psychology law that defines the “practice of psychology.” It also held that the portion forbidding Serafine from using “psychologist,psychology, and psychologically” was also unconstitutional as applied to Serafine.

The case is Serafine v. Branaman, 810 F.3d 354 (5th Cir. 2016).

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Serafine featured on Newseum Institute Podcast

Mary Lou Serafine provided a primer on Serafine v Branaman, occupational licensing, and First Amendment issues to the First Five podcast series produced by the Washington, D.C. Newseum Institute. From their website:

In this episode of The First Five, lawyer and psychologist Mary Louise Serafine discusses her fight against Texas state laws that forbade her from identifying herself as a psychologist because she didn’t have a Texas license…. Mary Lou herself takes issue with the concept of putting speech into different categories, and discusses how difficult it can be to determine whether something is “professional speech”–especially a profession like psychology, where there’s no universal definition of what the practice is (by some standards, running a Weight Watchers meeting or writing an advice column could qualify as “practicing psychology”).

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Texas Psychological Association sues Board of Examiners over competition

The president of the private group Texas Psychological Association has just filed suit against the Texas psychology board, seeking a temporary restraining order to stop the board from moving forward with new rules which would have the effect of promoting more free enterprise in the area of psychology.

Continue reading “Texas Psychological Association sues Board of Examiners over competition”

The plaintiff, TPA president  Dr. Carol Grothues, wants to stop this good effort.  The reason?  Aside from trivial (in my view) procedural complaints, the law suit contends the rules would be bad for business for licensed psychologists because they would lower the price for services and increase competition by increasing the number of service providers.

“You can’t make this stuff up,” is a phrase that fits here.

This is the most remarkable law suit I have seen in the anti-trust area:  A cartel suing the government because the government is limiting the power of the cartel.

One of the new rules would allow masters-degreed psychologists to practice psychology independently, without having to pay money to and be “supervised” by a doctoral-level psychologist.  I consider this practice to be a “protection fee,” in essence, and at a minimum an anti-trust violation.  But the psychology board is proposing to do away with it, which is good.  Dr. Grothues is suing to put a stop to this good development.

Dr. Grothues’ letter to the members of the TPA is here and here or google “Texas Psychological Association” and scroll down.

I consider this a very good development for all helping professions because it shows the public how far the psychology cartel will go, including against “its own” state agency.  At a minimum I believe the law suit will diminish the power of these professional organizations over state government.

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Texas Legislature and Governor ignore Fifth Circuit decision on infringements of free speech contained in psychologist licensing laws

Press Release for Immediate Distribution

AUSTIN (June 16, 2017) — Austin attorney Mary Lou Serafine denounced Governor Greg Abbott’s signing HB 3808 into law late afternoon June 15 saying the bill carried a new definition of the “practice of psychology” that is worse than the old one struck down by the Fifth Circuit Court of Appeals in her case Serafine v. Branaman. The new law, which goes into effect on September 1, enables a state agency to determine when people are practicing psychology so as to enforce a licensing regime.

Continue reading “Texas Legislature and Governor ignore Fifth Circuit decision on infringements of free speech contained in psychologist licensing laws”

“By the time this law goes into effect, Texas will have survived nearly 20 months without any catastrophic effect from the Fifth Circuit’s overturning of the prior definition. HB 3808 outlaws broad swaths of opinion, advice and ideas about life if they are discussed without an expensive state license during a ‘relationship’ only the Texas State Board of Examiners of Psychologists can identify,” Serafine said. “Only the Board will know what counts as a ‘professional relationship’ and they won’t decide what that is until someone stands – at their sole discretion – in trouble before them.

“This is an egregious chilling of free speech for coaches, hypnotherapists, spiritual healers, business coaches, athletes, curanderas, positive thinking coaches, internet programs, masters-degreed psychologists who are currently prohibited unless ‘supervised,’ and countless others,” Serafine said. “They will be forced to operate under the radar or to avoid many fruitful topics of psychological science out of fear of agency action. They will never know what rises to the level of offense to be brought before the Board until they are there, under threat of civil penalties and the certainty of sky-high legal fees. In this environment, most people will never venture into advice-giving — which is the exact outcome sought by the Texas Psychological Association so as to secure a monopoly for their members on free speech involved in counsel and advice.”

Serafine contends that psychology boils down to thinking, ideas and speech about life and the mind and therefore is protected by the First Amendment.

In its Serafine v Branaman judgment in early 2016, the Fifth Circuit Court of Appeals wrote:

The ability to provide guidance about the common problems of life—marriage, children, alcohol, health—is a foundation of human interaction and society, whether this advice be found in an almanac, at the feet of grandparents, or in a circle of friends. There is no doubt that such speech is protected by the First Amendment. By limiting the ability of individuals to dispense personal advice about mental or emotional problems based on knowledge gleaned in a graduate class in practically any context, subsection (c) chills and prohibits protected speech. But that is precisely what the overbreadth doctrine is meant to prevent.

Serafine advocates for certification programs instead of licensing as a solution:

“Private associations such as the Texas Psychological Association should run their own certification program instead of infringing on others’ civil rights,” Serafine said. “Certificate holders could advertise themselves as such, and the public will enjoy more health care freedom and will seek more services at market rates. Schools, hospitals, prisons, insurance companies and state programs can choose to fund only certificate holders.”

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