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.

“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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