Serafine’s brief in the Fifth Circuit appeal and outline of contents

This case began in the U.S. District Court for the Western District of Texas. This is the trial court in the federal system, and a trial was held in this case. The trial court rejected Serafine’s claim that the psychology statute was inconsistent with the First Amendment’s guarantee of freedom of speech.

Serafine appealed the trial court’s decision to the Fifth Circuit Court of Appeals. Serafine’s opening brief to the Fifth Circuit is HERE.

Below is an outline of the facts and arguments in her brief. [All page numbers refer to pdf page numbers.]: Continue reading “Serafine’s brief in the Fifth Circuit appeal and outline of contents”

  • The TPA and the psychology board said Serafine could not call herself a “psychologist.” p. 15.
  • Serafine’s background and training is in psychology. p. 17.
  • “Psychologist” is a generic word for one who studies the mind. p. 22.
  • What the psychology law does, actually, is prohibit speech. p. 26.
  • The Board says, in effect, that the law even prohibits certain conversations. p. 29.
  • Serafine claims that the Board is asserting “psychologist” as a “brand name.” p. 37.
  • Serafine says that the Board had no facts justifying the law. p. 41.
  • There is no evidence or even consensus about effective talk therapy. p. 44.
  • This law is a prohibition on speech. p. 53.
  • It is not exempt from the First Amendment. p. 57.
  • Psychology, unlike medicine, lacks a knowledge base. p. 64.
  • The psychology statute is unconstitutional. p. 67.

Documents for Serafine v Branaman in the Fifth Circuit

On Petition for Rehearing En Banc
Petition for Rehearing En Banc 
Fifth Circuit Decision re: Serafine v Branaman 
Serafine Brief of Appellant to the Fifth Circuit Court of Appeals 

Update re: Serafine First Amendment / Psychology Licensing Case

Those interested will remember that, in Serafine v. Branaman, the Fifth Circuit Court of Appeals recently struck down, as unconstitutional under the First Amendment, that portion of the Texas Psychologists’ Licensing Act that prohibited the providing of unlicensed psychological services because, the Court said, the statute’s definition of psychological services is overbroad. A summary of the case is here:

Fifth Circuit Tosses Texas Psychology Licensing Law

Texas has now petitioned the Fifth Circuit for re-hearing en banc, hoping to convince the remaining judges on that bench to reconsider the opinion. Continue reading “Update re: Serafine First Amendment / Psychology Licensing Case”

The State’s petition for rehearing is available here. Note that beginning at page 27, the Court’s full opinion is included.

The State’s reasons are three-fold: First, the State says that the Fifth Circuit mis-applied the First Amendment doctrine it used. To give a nutshell version of the State’s argument, the Court should not have read the First Amendment doctrine so expansively.

Second, the State argues that the Court’s opinion will have “sweeping consequences.” “And the consequences do not stop with Texas. The Mississippi and Louisiana statutes governing the practice of psychology are, if anything, broader. They are now under direct threat.”

Third, the State proposes that perhaps the Texas Supreme Court should be asked to weigh in on what the statute means.

Serafine made this comment:

“The State’s first two arguments are the same ones they made before, and the third one, which is new, is unlikely to be very persuasive. The federal courts do not need another court’s interpretation, when they have the text right before them.

“But one thing about the State’s brief is fascinating to me, although this issue has not directly come up in the Court’s opinion.

“Repeatedly the State refers, in reverent terms, to “psychological techniques” and how a license is needed to deploy them. But what, exactly, is a “psychological technique”? The State never describes it, or gives an example of one. The statute certainly never defines them or gives an example that would not also be a “technique” in a weight-loss, AA, or grief group. And therein lies the problem: Speech and ideas are the “technique.” The First Amendment lets us speak and think as we wish, particularly about the problems of life.”

There is no particular deadline by which the Fifth Circuit will rule on the State’s petition for rehearing.

Mary Louise Serafine

Attorney at Law

Licensed in Texas, California, New York, and the District of Columbia P.O. Box 4342 Austin, Texas 78765