First Amendment Challenge to D.C. Licensing Requirement for Professional Counselors May Go Forward

The case was brought by a Virginia counselor who wants to counsel D.C. clients by video.

From Judge Timothy Kelly's order Monday in Brokamp v. D.C. (D.D.C.):

Plaintiff, a professional counselor in Virginia who seeks to counsel clients in the District of Columbia over internet video, challenges the District of Columbia's licensing requirement for professional counselors, claiming that the requirement (1) violates the First Amendment, (2) is unconstitutionally overbroad, and (3) is unconstitutionally vague….

[Plaintiff] has stated a viable claim under the First Amendment. The licensing requirement regulates counseling, which is speech, not conduct. And Defendant's "characterization of [the licensing requirement] as [a] professional regulation[] cannot lower that bar. The Supreme Court has consistently rejected attempts to set aside the dangers of content-based speech regulation in professional settings." Otto v. Boca Raton, 981 F.3d 854, 861 (11th Cir. 2020) (citing Nat'l Inst. of Fam. & Life Advocs. (NIFLA) v. Becerra, 138 S. Ct. 2361, 2374 (2018)).

The Circuit's decision in National Association for Advancement of Multijurisdiction Practice (NAAMJP) v. Howell does not counsel differently, 851 F.3d 12, 19 (D.C. Cir. 2017) ("[g]enerally, the government may 'license and regulate those who would provide services to their clients for compensation without running afoul of the First Amendment'" (emphasis added)), but in any event, it was decided before NIFLA. The licensing requirement is also content-based, given that it only applies to Plaintiff's speech if she speaks about certain topics, such as her clients' mental, emotional, or behavioral issues; meanwhile, she is able to discuss other topics with them without a license.

Because the District's licensing requirement is content-based regulation of speech, strict scrutiny applies, and Plaintiff has adequately alleged that the requirement does not survive such scrutiny. Thus, Defendant's motion to dismiss the claim fails…. [A] strict-scrutiny claim cannot be resolved on a motion to dismiss because the government "bears the burden…to prove the infringement is narrowly tailored to serve a compelling state interest" ….

Second, Plaintiff has stated an overbreadth claim as well. A law is unconstitutionally overbroad if a "substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep." But at this stage, before the Court has decided what speech the licensing requirement may constitutionally cover, it cannot decide whether it is overbroad, and so it will deny the motion to dismiss this claim as well….

[But] Plaintiff has not sufficiently stated a claim for unconstitutional vagueness. "Vagueness doctrine is an outgrowth not of the First Amendment, but of the Due Process Clause of the Fifth Amendment. A conviction fails to comport with due process if the statute under which it is obtained fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement." Plaintiff does not raise a "lack of notice" argument; she claims only that the District of Columbia's licensing requirement is so standardless that it is unconstitutional. According to her, the "licensing requirement sweeps up vast swaths of speech," yet is only enforced narrowly. "But Supreme Court precedent teaches that the presence of enforcement discretion alone does not render a statutory scheme unconstitutionally vague."

The licensing requirement may be broad—indeed, potentially overbroad—but it sets "reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent arbitrary and discriminatory enforcement." The law includes a comprehensive multi-part definition for the practice of professional counseling, no part of which relies on subjective standards courts have found problematic ….

Comments

[Michael P]

Sometimes, you just have to throw a bunch of stuff at the wall to see what sticks. Sometimes it sticks great, like the First Amendment claim. Sometimes it flops to the floor, like the vagueness argument. Sometimes it sticks for a little bit but enough hangs off that it's obviously not fully cooked, like the overbreadth argument. And sometimes, it kind of sticks to the wall but it is so long it makes a funny shape and it's not clear what it really means, like this metaphor.

[DaivdBehar]

The courts are totally biased in favor of their employer, big government. Plain language, self evident doctrines, and mandatory constitutional provisions mean nothing to these Mafia goons.

[bernard11]

Is it possible to know what the requirements actually are, and what a "professional counselor" is?

[Eric VonSalzen]

Back in the 1960's the government of Hartford, Conn., decided "gypsy" fortune tellers were ripping folks off, so they passed an ordinance banning fortune telling (I put "gypsy" in quotes because it's now considered an ethnic slur, but that wasn't considered a problem back then). So the fortune tellers took down their Fortune Telling signs and replaced them with signs advertisinging Character Readings. So the City decided to amend the ordinance to ban Character Readings, too. But the Psychiatric Society protested that what their members did could be prohibited by that ordinance. So the City added a proviso saying it didn't apply to any activity licensed by the State of Connecticut. Solved the problem, so far as I know.

[DaivdBehar]

Those gypsies were telling people, your money is cursed. That is why you suffer so much. Bring us the money and we will burn it in a special ritual we have. The money was brought but was not burned, newspaper was burned instead. They kept the money.

Gypsies as a group have a culture of theft. That is a statistic, not a stereotype. All stereotypes are folk statistics anyway.

Does no one see the deepest irony possible?

Crack down on gypsy fortune tellers who steal $millions, However, elevate the lawyer hierarchy that bases tort liability on foreseeability, and steals $trillions. Both are pranking our country. Both need to be visited.

[Stephen Lathrop]

Medicine. Teaching. Psychiatry. Law. Pharmacy. Air Traffic Control. Accounting. All speech, not conduct. Thank God bridge building is still conduct.

Speech-not-conduct is getting to be a right-wing meme. A growth center in the culture war, too. Not much you can do without speaking. It's a target-rich environment. Whatever takes training, or especially education, is probably elitist. If it's elitist, you can raise money attacking it.

[Holden C]

That's how Eugene Volokh wants it to be. Online harassment? Doxing? Stalking? Posting personal information to harass? Intimidation? Extortion? Revenge Porn? All Free Speech. Free Speech has become a "free for all" for any criminal conduct. As long as it includes spoken or written (or typed) words, the mentally retarded Free Speech absolutists come in and call these crimes their "God Given Right". That's how Eugene wants it, as he makes money from peddling this dangerous version of Free Speech Absolutism.

[DaivdBehar]

Holden. Are you male or female?

If you post my address, and mobs throw rocks at my house, breaking windows, who caused the damage?

The lawyer always protects evil. They will arrest and sue you if you fight back against the Democrat thugs. The lawyer totally immunized the KKK for their public extra-judicial executions of 4000 black people over 100 years. The lawyer hierarchy is pure evil and must be totally deterred.

Before going after Free Speech, try going after evil. Bring a major visiting on the lawyer hierarchy, protecting harassers, stalkers, abusers. The lawyer hierarchy is the font of all the suffering of victims. A victims' movement is needed to visit this font of evil in our nation.

[Michael P]

Surprisingly, nobody has argued that those things are speech rather than conduct. Medicine and psychiatry involve prescribing drugs. Pharmacy is dispensing drugs. Practice of law generally involves representing someone else in filling court papers and other conduct. Air traffic control is so controlled and regulated because of its conduct elements that you must not even know how to spell "airport", much less ever been in one.

"Your Constitution is a meme." "Your speech is violence." "Our violence is speech." "Fiery but mostly peaceful protest." It's sad what the left believes today.

[Stephen Lathrop]

Michael P, in those occupations, no matter how much conduct may be involved, you cannot do that conduct without speech. So if you regulate them, you are suppressing speech. That means your regulations must be strict in principle, and fatal in fact—also, narrowly tailored to each case individually, so a perpetually-operating mechanism to empower legal attacks on any target of opportunity.

Am I getting this law stuff right?

It's exaggeration for the sake of sarcasm, by the way.

But there is a recognizable substantive issue. How come right-wingers have taken to saying everything is speech, and thus can't be regulated? Pretty obviously, it is because they do not want the stuff regulated, and are just trying to use speech as a legal hook to hang lawsuits on. Cut that out. Make the case against regulations forthrightly, on substantive grounds that the conduct itself will remain reasonably harmless, even without regulation.

[Krayt]

So you're into speech "inextricably intertwined" with acts, so the act cannot be banned lest the speech be?

[DaivdBehar]

While this quibbling is fascinating, licensing boards are destroying the lives of doctors who advise other than CDC guidelines on Covid. Meanwhile, 100,000 fatal medical errors go unanswered. Many are by repeat offenders. Tells us, these licensing boards are nothing more than Democrat enforcer thugs.

[Stephen Lathrop]

You know me, Nieporent. I don't want courts messing with policy. Which is why I did not mention courts in that comment. Did you notice that my comments in this thread have been objections to judicial intervention?

[Stephen Lathrop]

Meant to be a reply to Nieporent below.

[JHR]

This is a straw man. Nobody is arguing that conduct is immune from regulation just because it's attached to speech. Moreover, it's pretty uncontroversial that speech that is merely "incidental to conduct" is subject to lesser protection. As in many areas of the law, there can be close cases in deciding what's incidental to conduct, but in this case, there's no "conduct" at all. Literally the only thing a talk therapist does is have conversations.

[tkamenick]

Except that you're ignoring that what these people are supposedly "attacking", rather they are actually trying to allow more of it. That doesn't seem to fit your cozy narrative.

[tkamenick]

Maybe it's a target rich environment because it's long overdue for correction? Maybe the overregulation of people trying to earn a living actually is a problem that people who actually care have been trying to do something about for a long time?

[Stephen Lathrop]

tkamenick, except for the demands of ideology, why would anyone suppose that regulation is anything but a case-by-case problem? With different results appropriate for different cases? Why not look at each instance, put speech questions aside as irrelevant, and evaluate instead whether regulation could be set aside without creating egregious harm?

[David Nieporent]

That's a weird argument from someone who thinks courts should stay out of policy questions. The legislature regulating or banning speech is subject to strict judicial oversight. The legislature making dumb policy choices is subject to only very limited judicial oversight.

[apedad]

I dunno...seems like the DC's licensing requirements/process for a professional counselor are pretty standard.

And I don't see a problem to have certain standards if someone wants to be listed as a "professional" and have people pay for their services.

2. Have completed a minimum of sixty (60) semester hours in counseling or related subjects after earning a
bachelor’s degree. Courses earned outside of a counseling degree program shall be evaluated individually.
Related subjects to counseling acceptable to the Board include social science, psychology, social work, human
services, behavioral science, psychiatric nursing, rehabilitation counseling, family counseling, individual and
family development, student counseling and personnel services, mental health and human services, family and
community services, and creative arts therapy.
For purposes of above requirements 1 and 2, the content shall include:
(a) counseling theory and practice
(b) human growth and development
(c) lifestyle and career development
(d) group counseling appraisal, assessment, and testing of individuals
(e) principles of etiology, diagnosis, treatment planning, and prevention of mental and emotional disorders
and dysfunctional behavior
(f) social and cultural foundations including multicultural counseling
(g) marriage and family counseling
(h) research and program evaluation
(i) professional orientation and ethics
(j) counseling practicum or internship

And I think they'll lose on the 1A thing.

They can talk to anyone about anything - including marriage, human growth, etiology - at anytime, just not for money without a license.

https://dc.gov/sites/default/files/dc/sites/doh/publication/attachments/Professional_Counseling_Application_Instructions.pdf

[Michael P]

What, only one of the five "educational requirements" is defensible?

[Archibald Tuttle]

"They can talk to anyone about anything - including marriage, human growth, etiology - at anytime, just not for money without a license."

That's going to cut the number of paid speakers at public events. If you want Bill Clinton for your conference, he must have a license.

Also, you won't have people like Oprah giving advice on TV.

[JHR]

The argument that they can talk about anything, just not for money without a license, is something that uneducated commentators often say. It isn't grounded in the First Amendment. The Supreme Court has repeatedly held that paid speech is as protected as unpaid speech. (To be sure, "commercial speech" is subject to less protection, but that's basically just advertising and point-of-sale disclosures, not all speech for money.) The reason this is the rule is pretty obvious. Otherwise the government could prohibit the unlicensed "practice" of journalism or even book writing, since those are usually done for money.

In any event the plaintiff has already basically won this case, as the court held that the law is a content-based restriction on speech, subject to strict scrutiny. The government has a nearly insurmountable burden.

Also, while these speech restrictions might seem "pretty standard," they're actually fairly novel. Counseling was an unlicensed profession in most of the U.S. until the 21st Century.

[tkamenick]

"just not for money without a license" - directly attacking people's right to earn a living, yes, this is a problem.

[Stephen Lathrop]

Alternatively, tkamenick, as in cases of unlicensed physicians, regulations constrain people who attempt to make an unearned living. Right-wingers for Fraud is getting to be an overworked brand these days. Best to back off a bit.

[iowatwo]

I thought covid taught us tele medicine was the wave of the future.
I know in Iowa counselors stopped all in person work. Phone/video only
I would be interested in the rest of DC regulations concerning tele medicine. That involves issuing prescriptions. But some things, like a UI still require a personal visit to a DR. Just dropping off a sample will not meet some ambiguous standard of care.
Medico's are working overtime telling patients the virtues of tele medicine. Govt is stepping all over their messaging.

[Nisiiko]

So much for the argument that any unconstitutional restriction can be justified by declaring it part of a "license." You hear that from supporters of mandatory cake baking all the time. "If you want a business license, you agree to serve everyone in the public."

[Archibald Tuttle]

The Institute For Justice (IJ) has found that many or most of such licensing requirements are there just to reduce competition for those established in the field. Professionals get named to the licensing board and deny licenses to would be competitors.

[Michael P]

That is apparently part of this law, too. It requires positive reviews from all supervisors, and each applicant must have at least three licensed supervisors, with a minimum amount of supervision from each. (Technically, the supervisors don't have to be licensed in DC, they only have to show their qualifications to be licensed in DC, but out-of-district supervisors likely won't have positive reviews from at least three DC-licensed supervisors....)

[Stephen Lathrop]

Tuttle, you say that as if it is self-evidently a bad thing. I can see a potential downside myself, potentially a big one. But are you sure your reasoning is not simply an unreflective application of free-market ideology.

Suppose there are professional occupations in which sound practice actually does depend on collegially-arrived-at standards of practice. Suppose some of those occupations profit society greatly. If without regulation those occupations would become over-populated, to the detriment of all existing and would-be practitioners, is that self-evidently a good result?

Except for ideology, what is the argument that such regulations would be bad, even if they prune practitioner numbers by selectively cutting out lesser performers, while leaving an adequate supply of better ones to meet market demands? I get that you want to argue that no one should be empowered to define an adequate supply.

I get that anyone can argue that an adequate supply of better practitioners would not happen. But if you do it, that would just be you predicting the future. Why should your ideological preference become society's window into the future?

[Stephen Lathrop]

Tuttle, for some reason your advocacy has brought to mind a fact of nature, admittedly somewhat far afield. It is well known that for some prey species to thrive, it is paradoxically necessary that they suffer predation.

Deer have spectacular reproductive capacity, which they may have developed because many predators like to eat them. But the deer have to eat too, and in harsh climates, the feeding capacity of their winter range—which is always far less than the feeding capacity of summer range available to herds thriving with newborns—puts an absolute limit on survival.

In bad winters—after the herd gets too large on summer forage—all the winter feed may be gone by mid-February. Then the whole herd dies before spring.

I suppose that if deer could license reproduction, they might be wise to do it. What would definitely not be in the long-term interest of herd survival, would be a deer-ideological commitment to kill off all the predators, in the interest of maximally accommodating new arrivals.

[Stephen Lathrop]

So Tuttle, I am not saying, ignore the IJ. I am saying life is complicated. If the IJ sounds like it doesn't get that, then pay them a little less attention.