The Texas legislature will face a major “mental health” decision when they meet this January.
The question will be whether to pass a replacement law for the psychologists’ licensing statute. Their major problem will be passing something — if they pass anything at all — that is constitutional under the First Amendment’s guarantee of freedom of speech.
The issue is that the freedom of speech includes the freedom to talk and listen to whomever you’d like about psychological matters — thoughts, feelings, behavior, perceptions — including as a paid service. According to the old Texas law, you needed a license from the state in order to talk about such things to a member of the public. And as a member of the public, the only lawful person to talk to about your problems would be a state-licensed psychologist.
But in January, 2016 the U.S. Court of Appeals for the Fifth Circuit determined that the Texas psychologists’ licensing law violated the First Amendment. And because it was unconstitutional, the law became unenforceable. The law had defined the “practice of psychology” too broadly, the Court said, and therefore infringed our freedom of speech. It was so broad, in fact, it allowed the state to forbid and punish anti-smoking and weight loss counselors, life coaches, and many others — just about anyone providing a service that was broadly about behavior.
I brought the case. I sued the Texas psychology board under the First Amendment. After a bench trial, I lost in federal district court. But the Court of Appeals reversed that decision and declared the Texas definition of “the practice of psychology” unconstitutional.
It began in 2010 when I ran for Texas senate and called myself “an Austin attorney and psychologist” in my campaign bio. The Fifth Circuit’s opinion is Serafine v. Branaman, 810 F.3d 354 (5th Cir. 2016).
The larger victory, though, is the Court’s determination that even professional licensing schemes — which have largely been seen as a state’s prerogative — must comply with constitutional guarantees. This is a huge victory for freedom.
Previously, state governments had treated occupational licenses as somehow exempt from the Constitution. If that were true, in my view, there would be no limit on far government could go in limiting our freedoms. We would be left with freedom only in the domain of what was secret, or for which we never got paid. Being paid for something does not entitle the state to regulate it.
Here is what the Court wrote in its Serafine v. Branaman opinion:
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. (Opinion at p. 369).
I have nothing against practicing psychologists or what are called “clinical” psychologists. They do a world of good. I am not against psychologists coming into our mental life, if invited. But I am against government doing so, especially if uninvited.
The Texas law is similar to such laws in most states, and very similar to laws for counselors, marriage and family therapists, and others whose job is to talk, listen, and to give advice about the problems and joys of life, whether the advice is implicit or explicit. Psychologists implicitly give advice when they dispense therapy. Why should the government decide who is allowed to dispense “mental health” advice? Does the government know what’s best for us in the arena of “mental health”? The answer is no.
The self-interest of professional organizations — such as the American Psychological Association and the Texas Psychological Association — is really what’s at work here. They want to keep unlicensed people from offering similar or better services at lower prices, or different services that some people might prefer.
The problem for lawmakers is that they will not be able to define “the practice of psychology” without violating the First Amendment. That is because there is no definition of “the practice of psychology” upon which most psychologists would agree, except in overly broad, vague terms. In fact, there is disagreement about fundamental questions: Are dreams important? Are we driven by subconscious factors? What is the best way to change behavior? Is more communication a good thing?
Let me issue the same challenge I have made several times: Give me a definition of “the practice of psychology” on which most psychologists would agree that does not ensnare many helpful, legal activities such as talking and listening, and giving advice or expressing opinions that are common to many occupations — political consultants, speech coaches, fortune tellers. Give me any definition on which a substantial percentage of psychologists would agree, that does not violate the freedom of speech.
Legislators will not be able to come up with one.
The testimony of the chairman of the psychology board is representative of the problem that anyone would have. He was asked whether any number of activities — such as stop-smoking programs, even golf coaching — would violate the Texas statute.
He answered: “I would be looking for more collateral data if you came to me with a case based on that representation. I would be saying to you, just as I am now, I don’t know. I need to know more about this.”
In other words, he can’t tell whether an activity violates the law, unless he looks into it. This is a recipe for authoritarianism. If the requirements of the law cannot be determined from the written law itself, then we are at the mercy of government officials to determine it for us.
The Fifth Circuit drew specific attention to this testimony, writing: “Such unfettered discretion is untenable. Even if the Board promised to limit the scope of its enforcement, the Supreme Court has held that this is insufficient, and the First Amendment ‘does not leave us at the mercy of noblesse oblige.’ Like the Court, we would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.”
The Texas Psychological Association and the Texas Board have been working to develop a new statute. Can they come up with a more narrow definition?
Consider the Board’s attempt: You would be practicing psychology if you are taking payment to observe, describe, diagnose, evaluate, assess, interpret, and modify human behavior by applying education, training, methods and procedures for the purposes of three types of activities. The first is “predicting, remediating or eliminating” mental illness, etc. The second is “facilitating the enhancement of individual, group, or organizational effectiveness.” The third is “assisting in legal decision-making.”
This definition is still too broad.
The way out of this quagmire is for state legislators to certify psychologists, not license them. Certification would merely put the state’s stamp of approval on the psychologists it recommends, without punishing people who operate without that approval. The public would then be free to choose.