While running for the Texas Senate in 2010, Dr. Mary Serafine described herself as an "attorney and psychologist" on her campaign website. Though her PhD is in education, she has noteworthy experience in the field of psychology: She completed a four-year postdoctoral fellowship in psychology at Yale, served as a professor of psychology, published research in psychological journals, and taught seminars on personal and family issues. However, she was not licensed as a psychologist in Texas.
Serafine's use of the term "psychologist" drew scrutiny from the Texas State Board of Examiners of Psychologists, which determined that her use of the title and her seminar teaching constituted the "practice of psychology" in violation of the Psychologists' Licensing Act. In response, Serafine deleted the word "psychologist" from her site. She also filed a lawsuit alleging that the act's restrictions on her political speech and seminars violated her First Amendment rights. Last year, the 5th Circuit Court of Appeals found that two components of the act were unconstitutional. (See Serafine v. Branaman).
First, the court concluded that Serafine's use of the term psychologist on her campaign website was political speech entitled to full First Amendment protection. The board argued that its ability to limit use of the term psychologist was essential to regulate the practice of psychology, protect public health and prevent false advertising. The court found, however, that the state's interest in "protecting clients from manipulation or exploitation by a psychotherapist" is "limited to the actual practice of the profession." Thus, because Serafine was using her website to communicate with the voters at large and not for counseling clients, her campaign statements were protected speech. The court added that the state's interest in preventing deceptive advertising is limited to commercial speech, and Serafine "was seeking votes, not clients" on her campaign website.
Second, the court concluded that the section of the act that defines the term "practice of psychology" was unconstitutionally overbroad. After analyzing the act's definition, the court concluded that the act could constrain entities such as Weight Watchers, Alcoholics Anonymous and other self-help groups that are engaged in speech "outside the realm of professional psychologists." As the court explained, "the ability to provide guidance about the common problems of life—marriage, children, alcohol, health—is a foundation of human interaction and society, whether this advice be found in an almanac, at the feet of grandparents, or in a circle of friends. There is no doubt that such speech is protected by the First Amendment. By limiting the ability of individuals to dispense personal advice about mental or emotional problems based on knowledge gleaned in a graduate class in practically any context, [the Act] chills and prohibits protected speech."
The Serafine decision significantly disrupted the regulation of the practice of psychology in Texas, and it has serious implications for states with similar statutes. A multidisciplinary group chaired by the Texas Psychological Association has been working to redefine the "practice of psychology" in a manner that addresses the overbreadth ruling. As of this writing, potential definitions have been formulated in anticipation of a spring legislative vote. A point of contention is whether the definition of the "practice of psychology" should include exceptions, or whether it is more appropriate to list entities or activities that are exempted from the act's licensing requirement. In the meantime, Texas's ability to regulate the practice of psychology effectively is uncertain.
"Judicial Notebook" is a project of APA Div. 9 (Society for the Psychological Study of Social Issues).
