UPDATE: Fifth Circuit strikes Texas’ “Practice of Psychology” law as unconstitutional

AUSTIN (June 1, 2016) — With the passing on May 12 of the deadline by which either party could have filed a petition for certiorari to the U.S. Supreme Court, Mary Lou Serafine announced the finality of her victory in Serafine v. Branaman, the federal First Amendment case she brought in 2011 aimed at striking down the Texas law that bans the unlicensed practice of psychology.

“The Fifth Circuit Court of Appeals has issued its judgment that the central part of the Texas psychology licensing law is unconstitutional because it violates freedom of speech,” Serafine said.  “The law defined the ‘practice of psychology’ too broadly.  I thought it was unconstitutional because it effectively banned giving advice about the whole of life.”

Serafine continued, “Many states have the same overbroad, unconstitutional law because the APA—the American Psychological Association—drafted the model act.  The psychologists’ lobby obviously intended it to be broad.  It gives psychology boards too much power to drive others out of business if they offer help with personal problems.”

Serafine quoted the Court of Appeals’ opinion in her case, Serafine v. Branaman, No. 14-51151 (5th Cir.):

“The ability to provide guidance about the common problems of life—marriage, children, alcohol, health—is a foundation of human interaction and society….  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.  Section 501.003(c), and by implication, Section 501.003(b)(2), are overbroad and contravene the First Amendment.  [citations omitted].

“State legislators have been gullible,” Serafine added.  “They are hurting the public.”

The case started in 2010 when Serafine ran as the Republican nominee against Democrat State Senator Kirk Watson.  “On my campaign website I told the voters who I am,” Serafine said.  “I wrote, ‘Mary Lou Serafine is an Austin attorney and psychologist.’”

“So the Texas Psychological Association, the Texas Board of Examiners of Psychologists, and the Texas Attorney General invoked the law, which allows a fine of $1000 a day and jail time.  If anything can inhibit speech, that would be it.”

Serafine had been giving personal growth seminars and offering counselling sessions.  She complied with the law, then sued under the First Amendment.

Speaking about her success at the Court of Appeals, Serafine said, “Countless unlicensed professionals in Texas who give one-to-one psychological advice for a fee should be relieved to be out from under this law’s infringement of their speech.  Life and executive coaches, management consultants, health coaches, and anyone with graduate training in psychology, education, or even art, sports, or business are only a few such people.”

Serafine was quick to say the Court left the door open for the legislature to draft a narrower and constitutionally-viable statute.

But asked whether it was possible to draft a narrower definition of the practice of psychology, Serafine said, “No.  Because there is no scientific basis for it. There isn’t even a general professional consensus about the correct principles and methods of psychology.  The lobby is one of self-interest.”

“Testing the licensing of psychologists under the First Amendment was decades overdue,” Serafine said.  “Psychology is not medicine.”

Do other licenses such as marriage and family counseling or professional counseling also suffer from overbroad statutes?  “I’m certain they do,” Serafine said, “in fact they are sometimes broader. The bottom line is that the talking professions do just that—talk.  The First Amendment protects our right to talk and listen.”

“I do think a state government could legally certify psychologists and counselors,” Serafine said.  “But they can’t license them, I believe, and prevent everyone else from engaging in psychological speech.”

The Court’s opinion, the appellate briefs Serafine wrote, and parts of the trial transcript are on the website www.mlserafine.com.

The Dallas firm of Haynes Boone presented oral argument on Serafine’s behalf at the Court, under attorney Andrew Guthrie.

In support of Serafine’s position, the Center for Individual Rights of Washington, D.C. filed an amicus brief focused on First Amendment overbreadth doctrine.

Serafine said she would like to hear from attorneys in other states facing similar cases.

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