Texas Contemplates Rewriting Psychologist Licensing Law to Get Around Court Declaring Previous One Unconstitutional

The state of Texas really wants to be able to license psychologists. After being told last year by the Fifth Circuit Court of Appeals that its existing professional licensing laws regarding psychology were so overbroad they impinged upon First Amendment rights, they are now contemplating amending the definition of "psychologist" that falls under their power to license.

Texas' trouble with psychologist licensing began when Mary Louise Serafine was ordered by the state's Board of Examiners of Psychologists to not call herself a psychologist in the context of her failed campaign for state Senate in 2010.

She did not, after all, have a license to practice psychology under state law, and didn't even have a degree in the topic (though she'd done years of post-doc work in the field at Yale and had been a member of the American Psychological Association).

This violates her First Amendment rights, Serafine believed, and so she sued. After losing in lower court, she won last year at the Fifth Circuit.

The Court found aspects of Texas' then-existing psychological licensing laws unconstitutionally overbroad.

Why? While the regulation "certainly includes professional psychologists," the decision declared, "it also applies to other professionals and citizens. Besides leaders for AA, Weight-Watchers, or other self-help groups, someone who has taken graduate classes in psychology, fitness, or counseling and has written a marriage-advice column or parenting blog could conceivably be within the ambit of" the law.

The law, the Fifth Circuit insisted, should not be able to force people to get a state license or approval to do those things, which constitute First Amendment-protected communication.

To get around that aspect of the decision, the currently contemplated S.B. 2001 will specifically exclude from the activity that requires a license to practice the following:

(A) the offering of advice, counsel, or guidance addressing or affecting the mental, emotional, or behavioral health of another individual, whether solicited or unsolicited, when:

(i) the advice, counsel, or guidance is not offered in the context of a professional relationship;

(ii) the primary focus of the provider's occupation is other than the delivery of mental, emotional, or behavioral health care services and the person is offering the advice, counsel, or guidance ancillary to the person's occupation; or

(iii) the advice, counsel, or guidance is offered within the context of an organized or structured program or peer support service that is designed to support or assist individuals with a self-identified goal of changing or improving certain aspects of their mental, emotional, or behavioral health...

That still seems pretty vague, especially when it comes to deciding what is or isn't a "professional relationship" and what one should call that professional relationship when it comes to giving advice, counsel, or guidance. Serafine's original argument had it that it should be legally fine to do such counseling—an act of free speech—even "professionally."

The Fifth Circuit's decision last year did conclude that giving psychological advice, even for pay, is not for that reason merely "commercial speech" and thus, under existing (though wrongheaded) First Amendment doctrine entitled to less rigorous protection, since "commercial speech" is properly speech which merely proposes a commercial interaction, not true of a counsel-counseled relationship.

However, if you are practicing "the observation, description, diagnosis, evaluation, assessment, interpretation, or intervention in and treatment of human behavior by applying education, training, methods, and procedures for the purposes of: (A) preventing, predicting, treating, remediating or eliminating certain behaviors, disorders, or mental illness..." then you would still require a state license under this proposed law.

Serafine herself planned to testify against this new approach, and told the Texas Tribune that "The whole problem can be solved by turning the licensing into a certification," meaning that "there would still be preferred providers, a certification, same as a license except that it doesn't prohibit anyone else."

The prohibition is of course seen by Texas lawmakers (and many professional psychologists) as the feature, not the bug, in their professional licensing schemes.

Texas Contemplates Rewriting Psychologist Licensing Law to Get Around Court Declaring Previous One Unconstitutional

The state of Texas really wants to be able to license psychologists. After being told last year by the Fifth Circuit Court of Appeals that its existing professional licensing laws regarding psychology were so overbroad they impinged upon First Amendment rights, they are now contemplating amending the definition of "psychologist" that falls under their power to license.

Texas' trouble with psychologist licensing began when Mary Louise Serafine was ordered by the state's Board of Examiners of Psychologists to not call herself a psychologist in the context of her failed campaign for state Senate in 2010.

She did not, after all, have a license to practice psychology under state law, and didn't even have a degree in the topic (though she'd done years of post-doc work in the field at Yale and had been a member of the American Psychological Association).

This violates her First Amendment rights, Serafine believed, and so she sued. After losing in lower court, she won last year at the Fifth Circuit.

The Court found aspects of Texas' then-existing psychological licensing laws unconstitutionally overbroad.

Why? While the regulation "certainly includes professional psychologists," the decision declared, "it also applies to other professionals and citizens. Besides leaders for AA, Weight-Watchers, or other self-help groups, someone who has taken graduate classes in psychology, fitness, or counseling and has written a marriage-advice column or parenting blog could conceivably be within the ambit of" the law.

The law, the Fifth Circuit insisted, should not be able to force people to get a state license or approval to do those things, which constitute First Amendment-protected communication.

To get around that aspect of the decision, the currently contemplated S.B. 2001 will specifically exclude from the activity that requires a license to practice the following:

(A) the offering of advice, counsel, or guidance addressing or affecting the mental, emotional, or behavioral health of another individual, whether solicited or unsolicited, when:

(i) the advice, counsel, or guidance is not offered in the context of a professional relationship;

(ii) the primary focus of the provider's occupation is other than the delivery of mental, emotional, or behavioral health care services and the person is offering the advice, counsel, or guidance ancillary to the person's occupation; or

(iii) the advice, counsel, or guidance is offered within the context of an organized or structured program or peer support service that is designed to support or assist individuals with a self-identified goal of changing or improving certain aspects of their mental, emotional, or behavioral health...

That still seems pretty vague, especially when it comes to deciding what is or isn't a "professional relationship" and what one should call that professional relationship when it comes to giving advice, counsel, or guidance. Serafine's original argument had it that it should be legally fine to do such counseling—an act of free speech—even "professionally."

The Fifth Circuit's decision last year did conclude that giving psychological advice, even for pay, is not for that reason merely "commercial speech" and thus, under existing (though wrongheaded) First Amendment doctrine entitled to less rigorous protection, since "commercial speech" is properly speech which merely proposes a commercial interaction, not true of a counsel-counseled relationship.

However, if you are practicing "the observation, description, diagnosis, evaluation, assessment, interpretation, or intervention in and treatment of human behavior by applying education, training, methods, and procedures for the purposes of: (A) preventing, predicting, treating, remediating or eliminating certain behaviors, disorders, or mental illness..." then you would still require a state license under this proposed law.

Serafine herself planned to testify against this new approach, and told the Texas Tribune that "The whole problem can be solved by turning the licensing into a certification," meaning that "there would still be preferred providers, a certification, same as a license except that it doesn't prohibit anyone else."

The prohibition is of course seen by Texas lawmakers (and many professional psychologists) as the feature, not the bug, in their professional licensing schemes.