A pair of recent court rulings have declared therapy to be speech, not conduct. That distinction could make it much more difficult for states to regulate psychotherapy at all. That’s precisely what the law firm representing one of the plaintiffs hopes to achieve.
Earlier this year, the Supreme Court ruled in Chiles v Salazar that Colorado’s ban on reparative therapy for minors was not legal. The state ban, which was modeled after similar bans in California (see disclosure below) and other states, was seen by the court as a restriction on the suing counselor’s free speech rights under the First Amendment. The ruling sent the case back to lower courts for further proceedings. Still, it was widely seen as likely to make other states’ similar bans unenforceable.
And then last week, a federal district court ruled in favor of Elizabeth Brokamp, a counselor who believed that the District of Columbia’s licensure rules for telehealth similarly violated her First Amendment rights. The counselor, who lives in Virginia, wanted to provide sessions via telehealth to DC residents. But because the District, like most US states, restricts who can provide telehealth to residents through its licensure laws, she couldn’t do so.
The court sided with Brokamp, and ruled that DC couldn’t enforce its licensing laws against her. In issuing the ruling, the court specifically cited the Chiles ruling that therapy is speech and not conduct. The court determined that DC stopping the counselor from meeting with clients in DC was an unconstitutional restriction of speech, and not the regulation of professional conduct.
Why it matters
That distinction between speech and conduct is of enormous legal importance. Most professional licensing is meant to regulate who can engage in certain professional conduct. You can’t participate in many jobs, from electrician to surgeon, without meeting state licensure requirements. But some jobs are mostly or completely made up of talking.
The Institute for Justice, which represented Brokamp, has taken the stance that these jobs shouldn’t require licensure. They argue that professional licensure requirements for jobs that are ultimately speech amount to prior restraints on speech, and are thus unconstitutional.
They’ve had mixed results so far. In addition to the favorable ruling in Brokamp’s DC case, the Institute also was successful in a lawsuit against Virginia over licensing for tour operators. In that case, they argued that the state can’t require a license for someone to simply talk to a tour group. They have filed several similar suits challenging various licensure laws in different states.
However, they lost a New York case filed on behalf of Brokamp. She wanted to offer telehealth sessions to clients living in New York as well as DC. But in that case, the federal court chose to defer to state law that expressly defined therapy as conduct.
I don’t suspect that the Institute for Justice minds taking the occasional loss in court. They might even welcome it. When federal court rulings on similar issues disagree, that conflict can eventually become the basis for Supreme Court review. And the Supreme Court just showed its leanings in the Chiles ruling.
What the future of mental health licensure could look like
It’s hard to overstate just how far-reaching it would be if the Supreme Court broadly determined that certain jobs, like therapy, law, or financial advising, consist entirely of speech and not conduct. Speech can be regulated, but as a foundational right enshrined in the First Amendment, it can only be regulated in very limited instances. If therapy is speech, then requiring a license to do it could be considered a “prior restraint” on speech, which courts have generally ruled against.
So, state licensure laws would be widely impacted. Those laws would not go away; title protection (where states limit use of specific professional titles) seems likely to remain. And functionally, a state license may still be necessary to bill insurance or other third-party payors for performing psychotherapy. I say each of these a bit tentatively because they strike me as likely to remain intact for now, though these restrictions too could be subject to their own legal challenges.
But more immediately, state practice protection laws for therapy would likely become unenforceable. Those laws govern who is allowed to assess, diagnose, and treat mental illness using psychotherapeutic techniques – talk therapy. If practice protection laws were struck down, anyone, licensed or not, could practice psychotherapy and receive payment for it. Such a shift would also allow anyone to practice therapy across state lines, eliminating a longstanding point of friction and frustration for consumers and therapists alike.
That’s precisely the idea
The Institute for Justice describes their work on these cases as “defend[ing] the free flow of information.” The possible striking down of state licensure laws would not be an accident or an unintended consequence of this work. It is IJ’s goal. As they note on their web site, “The very idea that Americans would have to register with the government before providing information or communicating a message is antithetical to this country’s tradition of free speech and open inquiry.”
Whatever you may think of their mission, they’re making meaningful headway. They do still have a long way to go, in terms of the court process. Above the federal district courts are appellate courts, and there usually has to be disagreement in rulings at the appellate level before an issue like this makes its way to the Supreme Court. But the path is there. And if the Institute for Justice succeeds, they could make it possible for anyone, licensed or not, to perform psychotherapy.
Disclosure: I, along with many others, helped develop California’s first-in-the-nation ban on reparative therapy for minors. This ban became a model for other states. California’s ban, like those in other states, technically remains in effect while Chiles and other cases continue to work their way through the courts.