Serafine v. Branaman

• Decision Date: 12 January 2016
• Docket Number: No. 14–51151.,14–51151.
• Citation: 810 F.3d 354
• Parties: Dr. Mary Louise SERAFINE, Plaintiff–Appellant, v. Tim F. BRANAMAN, Chairman, Texas State Board of Examiners of Psychologists, in His Official Capacity; Darrel D. Spinks, Executive Director, Texas State Board of Examiners of Psychologists, in His Official Capacity, Defendants–Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

810 F.3d 354

Dr. Mary Louise SERAFINE, Plaintiff–Appellant,

v.Tim F. BRANAMAN, Chairman, Texas State Board of Examiners of Psychologists, in His Official Capacity; Darrel D. Spinks, Executive Director, Texas State Board of Examiners of Psychologists, in His Official Capacity, Defendants–Appellees.

No. 14–51151.

United States Court of Appeals, Fifth Circuit.

Jan. 12, 2016.

Andrew W. Guthrie (argued), Haynes & Boone, L.L.P., Dallas, TX, Mary Louise Serafine, Austin, TX, for Plaintiff–Appellant.

Alex Potapov (argued), Office of the Solicitor General, Autumn Hamit Patterson, Asst. Atty. General, Austin, TX, for Defendants–Appellees.

Paul M. Sherman, Arlington, VA, Michael Evan Rosman, General Counsel, Washington, DC, for Amicus Curiae.

Appeal from the United States District Court for the Western District of Texas.

Before JONES, SMITH, and SOUTHWICK, Circuit Judges.

JERRY E. SMITH, Circuit Judge.

Mary Serafine ran for office and described herself as a "psychologist" on her campaign website. After the Texas State Board of Examiners of Psychologists ordered her to stop using the title of "psychologist" and to desist from offering or providing psychological services, Serafine sued, alleging that the Psychologists' Licensing Act (the "Act"), Sections 501.001 through 501.505 of the Texas Occupational Code, violates the First and Fourteenth Amendments. The district court denied her claims. We affirm in part and reverse in part and remand.

I.

Serafine ran for the Texas Senate in 2010. On her campaign website, she described herself as an "Austin attorney and psychologist." To appear on the ballot, she also filed a form with the Secretary of State in which she listed her profession as an "attorney and psychologist." Although she does not have a degree in psychology, she completed a four-year post-doctoral fellowship in psychology at Yale, and the dissertation for her Ph.D. in education was published in Genetic Psychology Monographs. Serafine was a professor in the psychology departments at Yale University and Vassar College, where she taught a variety of psychology courses. She has studied under leading psychologists and was a member of the American Psychological Association for several years. She is not licensed to practice as a psychologist in Texas, nor could she be, because she does not hold a doctorate from a qualifying program. Before running for office, Serafine taught seminars and provided one-on-one counseling sessions on personal growth and relationships in Austin. She is a lawyer with a degree from Yale Law School.

In September 2010, the Texas State Board of Examiners of Psychologists (the "Board") sent Serafine a letter informing her that she was violating the Act and ordered her to cease using the title "psychologist" on her campaign website (or in any other context) and to refrain from offering or providing "psychological services" in Texas. Two weeks later, the Board sent a follow-up letter telling Serafine she had thirty days to comply or face legal action from the Texas Attorney General. The Board also sought a correction from two Texas newspapers that had identified Serafine as a psychologist. In January 2011, Serafine received a letter from the Attorney General's office threatening prosecution and referencing the Board's complaint and Serafine's use of the title "psychologist" in public records.

Serafine removed the word "psychologist" from her campaign website and requested that the title be deleted from her listing in Who's Who in America. She then sued, claiming that the Act infringed her political speech, commercial speech, equal protection rights, and right to earn a living. She also challenged the Act as vague, overbroad, and a prior restraint.

The district court dismissed the equal protection, right-to-earn-a-living, vagueness, and prior-restraint claims and held a bench trial on the remaining claims. After trial, the court rejected the political speech and overbreadth claims, holding that the Act is a legitimate use of the state's police power, which imposed only an incidental effect on Serafine's speech, and that any impermissible applications of the Act are insubstantial in relation to its overall sweep. The court also rejected the commercial-speech claim, reasoning that the Act is reasonably tailored to further the state's interest in protecting the public from the unauthorized practice of psychology. Serafine appeals.

II.

Serafine contends that Section 501.003(b)(1) ("(b)(1)"), under which "[a] person is engaged in the practice of psychology" if she represents herself "to the public by a title or description of services that includes the word ‘psychological,’ ‘psychologist,’ or ‘psychology,’ " is unconstitutional as applied to speech on her political campaign website. We agree.

A.

The Board urges that the power to restrict the use of "psychological," "psychologist," or "psychology," is incidental to its ability to license and is permissible under the "professional speech doctrine." " ‘[T]he States have a compelling interest in the practice of professions within their boundaries, and ... as part of their power to protect the public health, safety, and other valid interests they have broad power to establish standards for licensing practitioners and regulating the practice of professions.’ "¹ Nevertheless, the extent to which a state can use its licensing power to restrict speech is unsettled.

The Supreme Court has never formally endorsed the professional speech doctrine, though some circuits have embraced it based on Justice White's concurrence in Lowe v. SEC, 472 U.S. 181, 230–33, 105 S.Ct. 2557, 86 L.Ed.2d 130 (1985).² Recently, we also observed that "state regulation of the practice of a profession, even though that regulation may have an incidental impact on speech, does not violate the Constitution."³

Assuming that the professional speech doctrine is valid, its application should be limited. "There is a difference, for First Amendment purposes, between ... professionals' speech to the public at large versus their direct, personalized speech with clients."⁴ While a professional may speak on a variety of topics in a variety of contexts, only some of this speech falls under the category of "professional speech."⁵ Indeed, in his concurrence in Lowe, Justice White first suggested this distinction between speech by a professional to a client (which may be restricted) and speech by a professional to the general public, which is subject to full First Amendment protection:

Where the personal nexus between professional and client does not exist, and a speaker does not purport to be exercising judgment on behalf of any particular individual with whose circumstances he is directly acquainted, government regulation ceases to function as legitimate regulation of professional practice with only incidental impact on speech; it becomes regulation of speaking or publishing as such, subject to the First Amendment's command that "Congress shall make no law ... abridging the freedom of speech, or of the press."

Lowe, 472 U.S. at 232, 105 S.Ct. 2557 (White, J., concurring). Thus, assuming arguendo that the speech of professionals can be regulated incidentally to a valid licensing scheme, Justice White's concurrence suggests that such restrictions—to avoid running afoul of the First Amendment—are properly confined to occupational-related speech made to individual clients.

Any interest the government can claim in protecting clients from manipulation or exploitation by a psychotherapist fails when the psychotherapist is no longer speaking to the client in her capacity as such.⁶ In other words, the professional speech doctrine is properly limited to the actual practice of the profession. "[T]he state may prohibit the pursuit of medicine as an occupation without its license, but I do not think it could make it a crime publicly or privately to speak urging persons to follow or reject any school of medical thought."⁷ Outside the fiduciary relationship between client and therapist, speech is granted ordinary First Amendment protection. Indeed, "the principle that the government may restrict entry into professions and vocations through licensing schemes has never been extended to encompass the licensing of speech per se. "⁸

Serafine's speech on her campaign website was far removed from the context of professional speech. She was not providing advice to any particular client but communicating with the voters at large, so the professional speech doctrine is inapplicable. Serafine's campaign statements are entitled to full First Amendment protection.

B.

The Board also cites cases upholding restrictions on the use of professional titles. States' ability to limit the use of titles and trade names to protect the public from "false, deceptive, and misleading" advertising is well-established.⁹ Nevertheless, Maceluch and other cases cited by the Board arose in the context of commercial speech where a party was trying to use a professional title or trade name for business purposes.¹⁰

The Board did not order Serafine to cease and desist because she used the word "psychologist" on a promotional flyer seeking clients, or on official business letterhead, or in a phonebook advertisement. Instead the Board directed her to cease describing herself as a psychologist on her political campaign website. Yet Seraphine was seeking votes, not clients. Thus, the inclusion of "psychologist" on the website was not commercial speech, and therefore the decisions involving a state's legitimate power to restrict the use of titles in the commercial context are inapplicable.

C.

Serafine's speech on her campaign website was not professional or commercial speech; it was political speech of the highest form—a candidate seeking election to public office. Indeed, "it can hardly be doubted that the constitutional guarantee [of free speech] has its fullest and most urgent application precisely to the conduct of campaigns for political office."¹¹ Section 501.003(b)(1) is a...