5th Circuit holds Texas statutes and regulations regarding the practice of psychology unconstitutional

Serafine v. Branaman No. 14-51151 (5th Cir. January 12, 2016).

This is a First Amendment/Professional Speech case where the U.S. 5th Circuit invalidated as unconstitutional part of the Texas statute regulating psychologists.

Mary Serafine ran for a Texas Senate seat and described herself as a “lawyer and psychologist.”  She was not licensed to practice as a psychologist.  However, she possesses a four-year post-doctoral fellowship in psychology from Yale, and the dissertation for her Ph.D. in education was published in Genetic Psychology Monographs. Serafine was a professor in the psychology departments at Yale University and Vassar College, where she taught a variety of psychology courses and spoke to various psychology groups. However, the Texas State Board of Examiners of Psychologists (the “Board”) sent her a letter to cease and desist using the “psychologist” designation. She sued alleging the statue and regulations, in various parts, were unconstitutional.  The trial court dismissed many of her claims, tried several, and found the statues were a valid exercise of police power. Serafine appealed.

The 5th Circuit first held that while it has never adopted the “professional speech” doctrine, if it were to be adopted it must be limited to matters which address the profession only.  The court drew a distinction noting “[t]here is a difference, for First Amendment purposes, between . . . professionals’ speech to the public at large versus their direct, personalized speech with clients.” “Any interest the government can claim in protecting clients from manipulation or exploitation by a psychotherapist fails when the psychotherapist is no longer speaking to the client…” “In other words, the professional speech doctrine is properly limited to the actual practice of the profession.” The court held Serafine’s speech on her campaign website were far removed from speaking to a client. She simply identified herself with her earned degrees and experience. The Board did not order Serafine to cease and desist because she used the word “psychologist” on a promotional flyer seeking clients, or on official business letterhead, or in a phonebook advertisement. The board “directed her to cease describing herself as a psychologist on her political campaign website. Yet Seraphine was seeking votes, not clients.” Serafine’s speech on her campaign website was not professional or commercial speech; it was political speech of the highest form—a candidate seeking election to public office. Texas Occupation Code §501.003(b)(1) is a content-based restriction on speech.  “Though protecting mental health may be a compelling interest, the state has not narrowly tailored its laws to further that interest where it regulates outside the context of the actual practice of psychology.”  “Although she may not be able to practice as a psychologist under Texas law, that does not bear on whether she is a psychologist by reputation or training.” Likewise, after going through a long standard of review then substantive analysis the court held §501.003(b)(2) is also overbroad since it applies to offers to provide services but where no pecuniary gain is involved or no service is actually rendered. Further, under subsection (c), if read literally, golf coaches, weight-loss services, and smoking-cessation programs would be within the “practice of psychology.” The court held “[w]e decline to give it an additional extra-textual limiting construction in a frantic attempt to rescue it.” The regulations encompass far more than legitimately permitted and are unconstitutional.  However, the court did hold that Serafine’s prior-restraint claim fails since prior-restraint deals with orders forbidding future action not enforcement actions penalizing past speech. The statue and regulations penalize past speech in this case. The court reversed in part and affirmed in part.

If you would like to read this opinion, click here. Panel: Justices JONES, SMITH, and SOUTHWICK.  Opinion by Justice Smith.  The attorney listed for Serafine is Andrew W. Guthrie.  The attorney listed for the Board is Alex Potapov.

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