The Fifth Circuit Court of Appeals recently issued an opinion addressing First Amendment protections over political speech and First Amendment challenges to the state regulation of psychological services.

In Serafine vs. Branaman, the Texas State Board of Examiners of Psychologists ordered Mary Serafine to stop using the title of “psychologist” on her campaign website and to stop offering or providing psychological services.  Serafine did not have a degree in psychology, but had completed a four-year post-doctoral fellowship in psychology at Yale.  She also taught psychology courses at Yale and Vassar College.  She was not licensed to practice psychology in Texas and was not eligible for a Texas license.  Before running for political office, she taught seminars and provided counseling sessions on personal growth and relationships in Austin.

Serafine brought suit against the State Board of Examiners to challenge the Board’s request that she remove references to the word “psychologist” from her campaign website, and she challenged the Psychologists’ Licensing Act as overbroad.

Judge Jerry Smith authored the opinion for the Fifth Circuit panel.  The opinion holds that a portion of the Psychologists’ Licensing Act was unconstitutional as applied to Serafine.  The opinion drew a distinction between the speech at issue here–political speech–and professional or commercial speech that might be aimed at soliciting clients.  In the political context, the court held that the state’s interest was limited and the First Amendment would not allow the state to regulate Serafine’s political speech.  In fact, the court observed that there was a strong argument that it was not misleading for Serafine to refer to herself as a psychologist, even though she might not be licensed to practice in Texas.

The court also holds that the Psychologists’ Licensing Act is overbroad. The court first observed that the overbreadth doctrine does not apply to commercial speech.  After construing the plain meaning of the Psychologists’ Licensing Act, the court concluded that the Act is so broad that it encompasses life coaches, AA sponsors, weight-loss counselors, and others, which fall outside the parameters of professional psychologists.  The court refused to give the statute an “extra-textual” limiting construction in an attempt to rescue it from unconstitutionality.  Likewise, the court held that it could not uphold an infirm statute merely upon a promise by the government to apply it responsibly.  Thus, the court held that portions of the Act are overbroad and contravene the First Amendment.