Can Texas legislators ban words?

A Letter to a Basketball Psychologist

by Mary Lou Serafine

I sued the Texas psychology board after they ordered me not to practice psychology or write words on my website saying, “Mary Lou Serafine is an Austin attorney and psychologist.”  They said I first needed a license in psychology.

As a result, the U.S. Court of Appeals for the Fifth Circuit struck down major parts of the Texas psychology licensing law as unconstitutional. The court agreed that the the law violated my first amendment right to freedom of speech.  The case is Serafine v. Branaman (2016). I’ve written about it here and here.

Later a reader who didn’t want to “get in any trouble” emailed me and said:

I work with basketball players at every level. Built my program from a biblical foundation and Basketball psychological approach.  Just so I understand, can I call myself a basketball psychologist?

I wrote back:

Dear Coach,

Of course, yes.  In America, we can call ourselves whatever we want—an astrophysicist, a war hero, a golf psychologist, a former unicorn in another life.  Because the question is not, Can I call myself a basketball psychologist? but rather, Can the government decide that I’m not who I say I am, and then tell me not to say that?

The answer is no.  The government can’t decide what is true or false about who we are, what we do, or what we call ourselves.  The First Amendment guarantees we’ll never have a Board of Truth to decide these questions.  There are no wise angels to sit on a Board of Truth.

But unfortunately there are still “Boards of Truth” running occupations such as psychology, counseling, nursing, accountancy, engineering, etc., and they have appointed themselves the wise angels, in my metaphor.  They have lobbied our state senators and representatives—people we actually voted in—so that laws have been passed letting these occupational angels keep certain words for themselves.

So if you call yourself a psychologist, accountant, or engineer, without getting their permission by obtaining an expensive license, the Boards of Truth as I call them will probably come after you.  They threaten huge fines.  They claim to own even variations on the forbidden words—psychologically, psychology, accounting, etc.

When they threaten big fines, ordinary people can’t fight back.

These boards are enforcing unconstitutional word-bans.  State legislators seem blind to the constitutional violation.

No one should think these boards are just going after false advertising.

They go after honest advertising.  They go after speech that isn’t advertising at all.  The Texas Attorney General’s lawyer stated in court, at the opening of the trial in Serafine v. Branaman, that “allowing just anybody to say ‘I’m a psychologist’ can mislead members of the public.”  So they tried to ban a whole sentence, not just a word.

The law on the books said that calling yourself a “psychologist” means that you are “practicing psychology”—itself a crime, without a license.

But how would you know if you were “practicing psychology”?  As background, remember that the law has to be clear, not vague or overly broad, so that the citizen knows what he is allowed to do.  He doesn’t have to stay in the dark, or go to the government, hat in hand, to ask if what he’s saying is OK.

But not even the psychology board’s Chairman, Dr. Branaman, could tell us what the “practice of psychology” is in the law, when we asked him under oath.  My lawyer said:

Well, what I’m trying to understand is when does advice about life’s challenges cross the line from — into the practice of psychology, because I can’t figure that out based on what we’ve discussed.

There was no clear answer, so my lawyer went on:

But golf coaches, for instance, give advice about the psychology of the game and how to control your thoughts in order to improve your — your behavior on the golf course?

Dr. Branaman: They might.

Q. And assuming they’re not calling themselves psychologists, wouldn’t that nevertheless come under the purview of the act?

Dr. Branaman: I think I’d have to know the context of the specific case.

Q. Well, how — how would one read the statute and then determine if what they’ re going to do violates the act? I mean, if they’re — if they’re engaged in what I just described, golf coaching, talking to players about the psychological aspects of the game.

Dr. Branaman: To the best of my knowledge, we’ve never had a complaint filed in that regard, so I don’t know. 

Q. But in looking at the statute, can you tell me right now if that — if that would be covered?

Dr. Branaman: I would need to know the facts of the case.

Q. Well, they’re as I’ve represented them to you.

Dr. Branaman: Well, I would I would be looking for more collateral data if you came to me with a case based on that representation. I would be saying to you, just as I am now, I don’ t know. I need to know more about this.

For precisely this type of reason, the higher court in Serafine v. Branaman struck down the Texas definition of the practice of psychology “on its face,” as it applies to everyone.   But the Court did not strike down the word-ban on “psychologist” except “as applied” to me only.

Coach, I’m not able to give you legal advice on what you should “call yourself” and where, when, or to whom you can do that.  Even so, it depends on what state you or your players are in.  The Serafine v. Branaman decision doesn’t officially apply right now in 47 states.  It officially applies only in Texas, Louisiana, and Mississippi.

The Texas legislature starts meeting today, January 10, 2017.

Although I’ve recommended they create only a voluntary certification for psychologists, they might write a new psychology license.  Whether it’s constitutional is another matter.

Thanks for writing, Coach.

All the best,

Mary Lou Serafine

 

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