The Sunset Commission will hear testimony today about whether Texas laws for licensing psychologists can be made to be constitutional. Given the first draft of the commission staff report, it seems more likely the Legislature will be led down the path of never-ending litigation in contravention of our basic American right to free speech. They should consider certification instead.
In January, the 5th U.S. Circuit Court of Appeals determined that the Texas psychologists’ licensing law violated the First Amendment because 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. It was overly broad and thus unconstitutional.
Sadly, the Texas law was similar to those in most states, and 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.
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 how 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.
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.
Texas lawmakers will not be able to redefine “the practice of psychology” without violating the First Amendment. Psychologists themselves can’t even agree upon fundamental questions about best practices in psychology: Are dreams important? Are we driven by subconscious factors? What is the best way to change behavior? Is more communication a good thing?
Nonetheless, the Texas Psychological Association and the Texas Board have been working to develop a new statute. 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. 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 and will ensnare life coaches, business advisors, political consultants, court mitigation specialists, fortune tellers, hypnotists, expert witnesses and countless others engaged in helpful, legal activities involving talking and listening, giving advice or expressing opinions.
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.
About the author
Serafine is an attorney who ran for Texas Senate in 2010. She sued the state psychology board after it required her to change campaign materials in which she called herself “an Austin attorney and psychologist.” She had taught psychology and published research papers but was not licensed to practice. She prevailed at the 5th U.S. Circuit Court of Appeals.