The Volokh Conspiracy
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Here are the facts of today's Fifth Circuit opinion in Serafine v. Branaman (some paragraph breaks added and deleted throughout):
[Mary Louise] 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 Psychologists' Licensing 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…. 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 ….
The court concluded that this speech didn't fall within a "professional-client" speech exception. To the extent that such an exception may exist, the court held,
"There is a difference, for First Amendment purposes, between … professionals' speech to the public at large versus their direct, personalized speech with 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….
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….
The court then went on to say that Serafine's noncommercial use of the word "psychologist"—here, her use in a political campaign, rather than in (say) promoting her services to would-be clients—can't be barred on the theory that it's "misleading."
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….
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…. Section 501.003(b)(1) [which bars people who lack the proper licenses from representing themselves "to the public by a title or description of services that includes the word 'psychological,' 'psychologist,' or 'psychology'"] is a content-based restriction on speech—proscribing one's ability to claim to be a psychologist. As applied to Serafine's political speech, (b)(1) is subject to "exacting scrutiny" and must be "narrowly tailored to serve an overriding state interest." …
Though protecting mental health may be a compelling interest, the state has not narrowly tailored its laws to further that interest where it regulates outside the context of the actual practice of psychology. Serafine was not practicing psychology by speaking on her political website or filing forms for political office….
Similarly, any interest the Board might claim in preventing the misleading belief that Serafine was licensed by the state as a psychologist is neither compelling nor narrowly tailored. As the district court recognized, such an interest is strongest in the context of commercial speech, but as discussed above, Serafine was not engaged in that.
In the political context, the remedy for misleading speech is "more speech, not enforced silence." Indeed, in the midst of "a political campaign, a candidate's factual blunder is unlikely to escape the notice of, and correction by, the erring candidate's political opponent."
Likewise, in United States v. Alvarez (2012) (plurality opinion), the Court explained that "[t]ruth needs neither handcuffs nor a badge for its vindication." The Court held that false statements about receiving the Congressional Medal of Honor made by a water-district board member at a public meeting were entitled to First Amendment protection; it struck down the Stolen Valor Act, which criminalized such statements….
Unlike the plaintiff in Alvarez, Serafine did not engage in a bald-faced lie. This case is much closer to Byrum v. Landreth (5th Cir. 2009), in which we noted the "strong argument" that calling oneself an interior designer in contravention of a state law which required a license in order to do so was "neither actually nor potentially misleading." Serafine has taught psychology at the collegiate level and was published in psychological journals. Thus there is again a "strong argument" that calling herself a psychologist on her campaign website was not misleading. Although she may not be able to practice as a psychologist under Texas law, that does not bear on whether she is a psychologist by reputation or training.
Therefore, because the state's interest in proscribing misleading speech is limited in the political context, and because the Board's goal of preventing deception can be served by other means—the vigorous public debate and scrutiny that accompany political campaigns—(b)(1) is unconstitutional as applied to Serafine.
There's more interesting stuff in this case, but I'm on the run and will post about it later.
Thanks to Michael Rosman (Center for Individual Rights) for the pointer.