Free speech challenge to NY mental-health licensing law fails

The Court of Appeals holds that a mental health counselor from Vermont cannot bring a free speech challenge to the New York requirement that such therapists obtain a license to practice in New York. 

The case is Brokamp v. James, issued on April 27. In New York, practicing mental health counseling without a license is a class E felony, punishable by a prison term of up to four years and a fine. In 2002, the State Legislature enacted a licensing requirement for such counselors to protect the public from unprofessional and unqualified counselors.

Plaintiff challenges this requirement under the First Amendment, noting that the licensing requirement regulates her free expression as a therapist. Now, much of everything involves speech, which is why First Amendment cases like this are complex.Hence the 46-page ruling. If the regulation is based on the content of plaintiff's speech, then plaintiff probably wins, since the government cannot control what people can and cannot say. But the analysis more nuanced than that. The regulation is actually content-neutral since it regulates conduct, not speech, the Court of Appeals (Raggi, Wesley, and Lohier) holds, as the state is not regulating what therapists can say or favoring some views over others. 

Since the regulation only regulates "speech having a particular purpose, focus, and circumstance," regardless of what is being said, it is content neutral, which means the law is evaluated under intermediate scrutiny, not strict scrutiny. Intermediate scrutiny is more deferential to the government, which will win the case if the regulation advances an important governmental interest unrelated to the suppression of speech, and it does not substantially burden more speech than necessary to advance that interest. The government wins the case because the licensing rule (1) advances the important governmental interest in promoting public mental health, and (2) the rule is sufficiently narrowly tailored to promote that interest and does not reach too far in doing so.

Nor is the licensing requirement "void for vagueness," another way to bring a First Amendment challenge. The stature clearly states what is being regulated, and the Court of Appeals rejects plaintiff's argument that the statute is vague because it "prohibits and permits the exact same conduct." Plaintiff argues that the statute's definition of "mental health counseling" both covers "evaluation, assessment, amelioration, treatment, modification, or adjustment," but it does not regulate "instruction, advice, support, encouragement, or information." This argument fails because plaintiff's "talk therapy practice falls squarely within the statutory definition of mental health counseling requiring licensure and that both she and enforcement authorities so understood." Plaintiff does not hold herself out as a life coach or self-help guru but as a professional mental health counselor. The statute clearly covers her practice, the Court holds.