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.

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“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.”

Serafine calls for veto of HB 3808

Mary Lou Serafine criticized HB 3808 as a Trojan Horse in the following op-ed in the Houston Chronicle.

Serafine: Licensing of psychologists is a fix for a problem that doesn’t exist

Gov. Abbott should veto HB 3808

Texas House Bill 3808 is carrying within it a bad amendment, one that unconstitutionally infringes free speech and limits health-care freedom. The amendment does this by redefining the licensed “practice of psychology” so that a broad swath of opinion, advice and ideas about life are now outlawed if they are discussed without an expensive state license during a “relationship” only the government can identify.

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The amendment recites a long list of things that are prohibited to provide to a client, unless you have a license. But all of them boil down to prohibiting conversations on myriad topics about how to cope with the troubles and joys of life, if those conversations occur in a “professional relationship.”

 

What counts as a “professional relationship”? Only the Texas State Board of Examiners of Psychologists would know, and they would not decide what it is until someone is in trouble before them.

Last year, a federal court struck down as unconstitutional Texas’ previous definition of the practice of psychology, rendering it unenforceable, because it infringed the freedom of speech. The federal case is Serafine v. Branaman. The new definition is worse than the old one and equally unconstitutional. You would be engaged in the unlicensed practice of psychology if you engaged professionally in “description” of human behavior. The rest of the amendment is incomprehensible to the point of meaninglessness.

Does the government know how to tell who can best talk and advise about life’s joys and problems? No. The last thing we need is government bureaucracy spreading into this area.

This bad amendment was tacked on to the opening text of HB 3808 in the last days of the legislative session. The opening text – like a true Trojan Horse – does not harm the people of Texas too much beyond how they are already harmed by having to pay off other people’s debts – people who don’t need the help. Right now taxpayers pay parts of the educational loans of young psychiatrists, psychologists and counselors, under certain conditions. HB 3808 adds more people to the list of those getting the free money – adding marriage and family counselors.

Government licensing schemes for mental health do no more than create monopolies and cartels in which the licensees’ boards drive others out of business. The licensees then charge higher prices than they otherwise would in a free market. How great a deal for them that we subsidize their school loans!

Health freedom is a better idea, especially in mental health. It refers to allowing people a choice in addressing the problems of life. Some people prefer practitioners outside the conventional system. They want coaches, hypnotherapists, spiritual healers, business coaches, athletes, masters-degreed psychologists (currently prohibited unless “supervised”), curanderas, positive thinking coaches, internet programs and countless others who are forced to operate under the radar or in fear of agency action based on definitions such as the one inside House Bill 3808.

The governor should veto this bill. This will give Texas the chance to reach the right solution – certifying psychologists, which would not infringe the freedom of speech.

Serafine is the Austin attorney who brought the Serafine v. Branaman case. Serafine ran for Texas Senate in 2010. She sued the Texas psychology board after it required her to change campaign materials in which she called herself “an Austin attorney and psychologist.” She had taught psychology and published research papers in psychology, but was not licensed to practice in Texas. She prevailed at the Fifth Circuit.

 

Texas Special Session should be very short: “Let the sun set on helping profession boards”

Mary Lou Serafine urged that Texas should shutter four regulatory boards in this op-ed today in the San Antonio Express-News and Laredo Morning Times

Let the sun set on these boards of helping professions

By Mary Lou Serafine

Marriage and family therapists, social workers, counselors and professional psychologists will be lighting up phones at the Capitol in coming days as they try to save their regulatory boards from extinction as a result of each one failing its sunset review.

Tellingly, not a single citizen will be calling his legislator crying, “We want higher prices and fewer choices! Please keep these boards!” 

The Legislature should let these boards expire. We don’t need them.

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The helping professions — clinical social work, psychology, counseling and therapy, no matter what the name — all work in one way: through ideas, opinions and advice about the mind and life itself, transmitted through speech.

The American Psychological Association’s website has advice for people who need help. They recommend, “Talk to a psychologist.” I emphasized the word “talk” because that is what these professions do. And nothing more — at least nothing that can be articulated into a body of fixed principles.
 
None of this trivializes what these good people do. But government has no business passing laws in this field. Indeed, the First Amendment prohibits government from infringing freedom of speech, which includes the freedom to think and to share ideas.
 
This is why the federal court in the 2016 case of Serafine vs. Branaman struck down as unconstitutional the main part of the Texas psychologists’ licensing act.
 
In my view, such laws infringe the freedom of speech because no matter how you try to define the “practice of psychology,” it boils down to thinking, ideas and speech about life and the mind. This is protected speech and thought. The last place we need legislation — and these boards have actual criminal authority — is in the area of the mind and how to live your life.
 

What is the real purpose of these boards in psychology, social work, counseling, and marriage and family therapy? To divide up the market for helping services among a few cartels that drive their competitors out of business.

Regulation is the very cause of the claimed shortage of mental health services in Texas.

In reality, thousands of capable people — inside and outside conventional thinking about “therapy” — are available, but they are operating with one hand tied behind their back and are in fear of being reported, investigated, prosecuted, and destroyed.

People should have the freedom to choose unlicensed help, including from life coaches, hypnotherapists, spiritual healers, business coaches, athletes, masters-degreed psychologists (currently prohibited unless “supervised”), curanderas, positive thinking coaches, or internet or teletherapy programs.

Texas legislators should think about what will happen if these four boards are eliminated.

The answer is, nothing bad.

Private associations such as the Texas Psychological Association will run their own certification program. So will the other professions. Certificate holders will 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.

Texas has the chance to lead the nation in this area of freedom. These boards should sunset.

Mary Lou Serafine is the Austin attorney who brought the Serafine vs. Branaman case. Her website is www.mlserafine.com