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:
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.
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