Mary Serafine v. Tim Branaman

Case: 14-51151 Document: 00513339930 Page: 1 Date Filed: 01/12/2016

REVISED January 12, 2016

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-51151 United States Court of Appeals

Fifth Circuit

FILED

January 12, 2016

DR. MARY LOUISE SERAFINE, Lyle W. Cayce

Clerk

Plaintiff–Appellant,

versus

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.

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 Psycholo-

gists 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.

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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 pub-

lished in Genetic Psychology Monographs. Serafine was a professor in the psy-

chology 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 counsel-

ing 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 “psy-

chological services” in Texas. Two weeks later, the Board sent a follow-up let-

ter 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,

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Serafine received a letter from the Attorney General’s office threatening pro-

secution 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 Amer-

ica. She then sued, claiming that the Act infringed her political speech, com-

mercial 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

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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 practi-

tioners 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 con-

currence in Lowe v. SEC, 472 U.S. 181, 230–33 (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 vari-

ety of topics in a variety of contexts, only some of this speech falls under the

1 Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 108 (1992) (quoting Goldfarb

v. Va. State Bar, 421 U.S. 773, 792 (1975)).

2 See Moore-King v. Cty. of Chesterfield, 708 F.3d 560, 568–70 (4th Cir. 2013) (applying

professional speech doctrine); Pickup v. Brown, 740 F.3d 1208, 1228–29 (9th Cir.) (same),

cert. denied, 134 S. Ct. 2871, and cert. denied, 134 S. Ct. 2881 (2014); Locke v. Shore, 634 F.3d

1185, 1191–92 (11th Cir. 2011) (same).

3 Hines v. Alldredge, 783 F.3d 197, 201 (5th Cir. 2015), cert. denied, 2015 U.S. LEXIS

7664 (U.S. Nov. 30, 2015) (No. 14-1543). See also Kagan v. City of New Orleans, 753 F.3d

560, 562 (5th Cir. 2014), cert. denied, 135 S. Ct. 1403 (2015) (upholding licensing law for tour

guides against First Amendment challenge).

4Wollschlaeger v. Governor of Fla., No. 12-14009, 2015 U.S. App. LEXIS 21573, at *69

(11th Cir. Dec. 14, 2015) (alteration in original) (quoting Locke v. Shore, 634 F.3d 1185, 1191

(11th Cir. 2011)).

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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 dir-

ectly acquainted, government regulation ceases to function as legiti-

mate 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 (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 manip-

ulation 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,

5 Id.

6 See Rosemond v. Markham, No. CV 13-42-GFVT, 2015 WL 5769091, at *6 (E.D. Ky.

Sept. 30, 2015) (explaining that without the “professional-client relationship,” the “vices” of

the professional speech doctrine “outweigh its virtues”).

7Lowe, 472 U.S. at 231 (White, J., concurring) (quoting Thomas v. Collins, 323 U.S.

516, 544 (1945) (Jackson, J., concurring)).

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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 profes-

sional 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 profes-

sional 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

8 Id. at 229–30.

9 Maceluch v. Wysong, 680 F.2d 1062, 1069 (5th Cir. 1982) (per curiam) (affirming on

basis of appended district court opinion); see also Friedman v. Rogers, 440 U.S. 1, 15 (1979).

10See Maceluch, 680 F.2d at 1064, 1068–70 (upholding Texas licensing law that pre-

vented doctors of osteopathy from using “M.D.” in connection with their medical practice);

Accountant’s Soc’y of Va. v. Bowman, 860 F.2d 602, 605–06 (4th Cir. 1988) (upholding statute

that prohibited unlicensed accountants from using the title “public accountant” because of

the danger of “misleading commercial speech”); Brandwein v. Cal. Bd. of Osteopathic

Exam’rs, 708 F.2d 1466, 1469–70 (9th Cir. 1983) (upholding restriction preventing doctor of

osteopathy from holding himself out as an M.D. because of the danger of false or misleading

commercial speech).

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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 com-

mercial speech; it was political speech of the highest form—a candidate seeking

election to public office. Indeed, “it can hardly be doubted that the constitu-

tional guarantee [of free speech] has its fullest and most urgent application

precisely to the conduct of campaigns for political office.” 11 Sec-

tion 501.003(b)(1) 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.” 12

The state claims that its interest in health and safety extends to mental

health and thus to psychology. 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 psychol-

ogy. Serafine was not practicing psychology by speaking on her political web-

site or filing forms for political office. Although it is not clear whether the

Board was aware of Serafine’s activities before her candidacy, she had taught

11 McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 347 (1995) (quoting Buckley v.

Valeo, 424 U.S. 1, 15 (1976) (per curiam)).

12 Id. See also United States v. Playboy Entm’t Grp., 529 U.S. 803, 812–13 (2000)

(explaining that content-based restrictions must survive strict scrutiny).

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personal-growth seminars and offered one-on-one sessions to seminar partici-

pants for many years, yet the Board did not complain until she decided to run

for office. Perhaps the Board is concerned that by hearing Serafine’s claim that

she is a psychologist, voters will somehow be converted from political

supporters to clients. Yet, if that is so, the way to protect the state’s interest

in mental health is for the Board to bring an enforcement action against Ser-

afine for engaging in the practice of psychology (once she is actually treating

such clients), not to suppress her political speech. Thus, when the Board

applied (b)(1) to a statement made on Serafine’s campaign website, it stepped

far beyond the bounds of narrow tailoring.

Similarly, any interest the Board might claim in preventing the mislead-

ing 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, 13 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.” 14 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.” 15

Likewise, in United States v. Alvarez, 132 S. Ct. 2537, 2551 (2012) (plur-

ality 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

13See Friedman v. Rogers, 440 U.S. 1, 10 (1979) (discussing why commercial speech

needs a lesser degree of protection).

14Brown v. Hartlage, 456 U.S. 45, 61 (1982) (quoting Whitney v. California, 274 U.S.

357, 377 (1927) (Brandeis, J., concurring)).

15 Id.

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member at a public meeting were entitled to First Amendment protection; it

struck down the Stolen Valor Act, which criminalized such statements. Id.

at 2542–43. The plurality specifically noted the public ridicule and swift

refutation that immediately followed the false claim. Id. at 2549–50.

Indeed, the Court has long held that “erroneous statement is inevitable

in free debate, and . . . it must be protected if the freedoms of expression are to

have the ‘breathing space’ that they ‘need . . . to survive.’” New York Times Co.

v. Sullivan, 376 U.S. 254, 271–72 (1964) (quoting NAACP v. Button, 371 U.S.

415, 433 (1963)). Thus, the “First Amendment requires that we protect some

falsehood in order to protect speech that matters.” Gertz v. Robert Welch, Inc.,

418 U.S. 323, 341 (1974).

Unlike the plaintiff in Alvarez, Serafine did not engage in a bald-faced

lie. This case is much closer to Byrum v. Landreth, 566 F.3d 442, 447–48 (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 psy-

chologist 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. 16 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

16For example, a lawyer who is not barred in a particular state does not cease to be a

lawyer because he is merely prohibited from practicing in that state.

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campaigns—(b)(1) is unconstitutional as applied to Serafine. 17

III.

Serafine contends that Section 501.003(b)(1) and (2) are overbroad. We

decline to address her overbreadth argument in regard to (b)(1), because that

subsection is invalid as applied to her, but we agree with her that Sec-

tion 501.003(b)(2) (“(b)(2)”) is overbroad.

A.

Although litigants are permitted to raise both as-applied and over-

breadth challenges in First Amendment cases, “the lawfulness of the particular

application of the law should ordinarily be decided first.” 18 Generally, we “pro-

ceed to an overbreadth issue” only if “it is determined that the statute would

be valid as applied.” 19 Applying the overbreadth doctrine is “strong medicine” 20

17 Because we determine that (b)(1) is invalid as applied, we need not further address

Serafine’s commercial-speech claim. As discussed above, and as Serafine acknowledges, the

facts giving rise to this case concern political rather than commercial speech.

18 Bd. of Trs. v. Fox, 492 U.S. 469, 485 (1989). See also Gibson v. Tex. Dep’t of Ins.,

700 F.3d 227, 238 (5th Cir. 2012) (explaining that as-applied challenges should be considered

before facial challenges).

19 Fox, 492 U.S. at 484–85. See also United States v. Stevens, 559 U.S. 460, 484 (2010)

(Alito, J., dissenting) (explaining that “overbreadth invalidation need not and generally

should not be administered when the statute under attack is unconstitutional as applied to

the challenger before the court”); Massachusetts v. Oakes, 491 U.S. 576, 582 (1989) (“There

was no need for any comment on the overbreadth challenge, as the defendant’s conviction

could have been—and indeed was—reversed on a narrower and alternative ground, i.e., that

the statute was unconstitutional as applied.”); Spence v. Washington, 418 U.S. 405, 414 n.9

(1974) (“Because we agree with appellant’s as-applied argument, we do not reach the more

comprehensive overbreadth contention he also advances.”); Street v. New York, 394 U.S. 576,

580–81 (1969) (finding no need to consider overbreadth arguments because statute was

unconstitutional as applied to defendant’s speech); Netherland v. Eubanks, 302 F. App’x 244,

247 (5th Cir. 2008) (quoting Fox, 492 U.S. at 485); Moore v. City of Kilgore, 877 F.2d 364, 390

(5th Cir. 1989) (explaining that because we held a fire department rule unconstitutional as

applied to plaintiff’s speech, there was no need to consider his additional overbreadth

argument).

Bd. of Airport Comm’rs v. Jews for Jesus, Inc., 482 U.S. 569, 574 (1987) (quoting

20

Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973)).

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and is also “more difficult to resolve than the as-applied [challenge], since it

. . . requires consideration of many more applications than those immediately

before the court.” Fox, 492 U.S. at 485. Though “the occasional case requires

us to entertain a facial challenge in order to vindicate a party’s right not to be

bound by an unconstitutional statute, we neither want nor need to provide

relief to nonparties when a narrower remedy will fully protect the litigants.” 21

Indeed, the few cases in which the Supreme Court found statutes uncon-

stitutional facially and as applied to defendants’ conduct were decided under a

different strand of facial invalidity that requires “that the statute could never

be applied in a valid manner.” 22 The more recent expression of the overbreadth

doctrine, which we apply here, allows a party to challenge a statute if “a sub-

stantial number of its applications are unconstitutional.” 23 Under modern

overbreadth doctrine, where a statute is invalid as applied, we should “resist

the pulls to decide the constitutional issues involved in this case on a broader

basis than the record before us imperatively requires.” Street, 394 U.S. at 581.

Indeed, “[g]oing beyond our ‘case or controversy’ limits spawns advisory opin-

ions that are likely to be ill-informed. In re Cao, 619 F.3d 410, 440 (5th Cir.

2010) (Jones, C.J., concurring in part and dissenting in part). Because (b)(1)

is invalid as applied to Serafine’s political speech, we need not address her

claim that it is overbroad.

21 United States v. Nat’l Treasury Emps. Union, 513 U.S. 454, 477–78 (1995) (internal

citations omitted).

22 Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 796–98 (1984)

(discussing Stromberg v. California, 283 U.S. 359 (1931), and Lovell v. Griffin, 303 U.S. 444

(1938)).

23 Stevens, 559 U.S. at 473 (quoting Wash. State Grange v. Wash. State Republican

Party, 552 U.S. 442, 449 n.6 (2008)); see also Taxpayers for Vincent, 466 U.S. at 798–99

(explaining the development of modern overbreadth doctrine); Moore, 877 F.2d at 381 (Gold-

berg, J., dissenting) (discussing various strands of the overbreadth doctrine).

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B.

Serafine also brings an overbreadth challenge to (b)(2), which prohibits

providing “psychological services to individuals, groups, organizations, or the

public.” Although Serafine appears to have standing to challenge both (b)(1)

and (b)(2) as applied to her (the Board ordered her to cease using the title of

psychologist and to refrain from providing psychological services), she does not

press an as-applied challenge under (b)(2) in this court. 24 Normally, “the prin-

cipal advantage of the overbreadth doctrine . . . is that it enables [a litigant] to

benefit from the statute’s unlawful application to someone else.” Fox, 492 U.S.

at 483. Yet, Fox held that even in the “unusual situation” in which a “plaintiff

has standing to challenge all the applications of the statute he contends are

unlawful,” the plaintiff may still bring an overbreadth challenge where an as-

applied challenge “will fail.” Id. at 484. By electing not to press an as-applied

challenge to (b)(2), Serafine clears the way for us to consider her overbreadth

challenge. Not bringing the as-applied challenge before us is similar to the

situation in which the as-applied challenge fails or in which there was no pos-

sibility for an as-applied challenge at all.

Our conclusion that the Act is unconstitutional as applied to Serafine’s

speech pertains only to (b)(1), not (b)(2). Thus, the rule that overbreadth chal-

lenges should not be addressed if the statute is invalid as applied does not

govern our determination of (b)(2). Therefore, notwithstanding our conclusion

in regard to (b)(1), we must also consider Serafine’s overbreadth challenge to

(b)(2) to vindicate her “right not to be bound by an unconstitutional statute.”

Nat’l Treasury Employees Union, 513 U.S. at 477–78.

24Although, based on the briefing, it was uncertain whether Serafine was bringing an

as-applied challenge to (b)(2), at oral argument her lawyer explicitly stated that she is press-

ing the as-applied challenge only to (b)(1), not (b)(2).

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C.

Under the First Amendment, “a law may be invalidated as overbroad if

‘a substantial number of its applications are unconstitutional, judged in

relation to the statute’s plainly legitimate sweep.’” 25 Indeed, “[t]he

constitutional defect of an overbroad restraint on speech lies in the risk that

the wide sweep of the restraint may chill protected expression.” 26 Even though

the state may have the power to regulate the professional speech of psycholo-

gists incidental to a valid licensing scheme, if that scheme affects the speech of

people beyond the purview of the state’s interests or power, it is overbroad.

1.

The overbreadth doctrine does not apply to commercial speech. See Vill.

of Hoffman Estates v. Flipside, 455 U.S. 489, 496–97 (1982). Thus, before

proceeding with the overbreadth analysis, we must clarify that providing psy-

chological services under (b)(2) is not commercial speech. Commercial speech

is speech “that proposes a commercial transaction,” not “speech for profit.” Fox,

492 U.S. at 482. Therefore, merely receiving compensation for psychological

services cannot be commercial speech. Indeed, “[s]ome of our most valued

forms of fully protected speech are uttered for a profit.” Id.

Nevertheless, (b)(2) does not govern just the providing of “psychological

services but also “offers to provide psychological services” (emphasis added). If

such offers are made for pecuniary gain, they properly could be classified as

25 Stevens, 559 U.S. at 473 (quoting Wash. State Grange, 552 U.S. at 449 n.6). See also

Fairchild v. Liberty Indep. Sch. Dist., 597 F.3d 747, 755 (5th Cir. 2010) (explaining that the

critical question is “whether the enactment reaches a substantial amount of constitutionally

protected conduct”).

26 United States v. Wallington, 889 F.2d 573, 576 (5th Cir. 1989). See also Ashcroft v.

Free Speech Coal., 535 U.S. 234, 255 (2002) (“The overbreadth doctrine prohibits the Govern-

ment from banning unprotected speech if a substantial amount of protected speech is prohib-

ited or chilled in the process.”).

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commercial speech, and an overbreadth analysis might appear in error. Yet,

in Fox, id. at 481–82, the Court explained that where a statute applies to both

commercial and non-commercial speech, an overbreadth challenge still may be

considered with respect to non-commercial speech. Likewise, because (b)(2)

covers both commercial and non-commercial speech, we address the over-

breadth challenge, but we properly confine our analysis to the providing of psy-

chological services under that subsection or to offers to provide such services

made without a commercial purpose (not for pecuniary gain).

2.

“The first step in overbreadth analysis is to construe the challenged stat-

ute; it is impossible to determine whether a statute reaches too far without

first knowing what the statute covers.” 27 “Facial challenges to the constitu-

tionality of statutes should be granted ‘sparingly and only as a last resort.’” 28

Under (b)(2), “[a] person is engaged in the practice of psychology” if she

“provides or offers to provide psychological services to individuals, groups,

organizations, or the public.” Serafine contends that the statute must be con-

strued by looking to Section 501.003(a), which defines “psychological services”

as “acts or behaviors that are included within the purview of the practice of

psychology.” (Emphasis added.) In turn, Section 501.003(a) must be construed

by reference to Section 501.003(c) (“subsection (c)”), according to which “[t]he

practice of psychology”

(1) includes providing or offering to provide services to an individual or

group, including providing computerized procedures, that include the

application of established principles, methods, and procedures of de-

scribing, explaining, and ameliorating behavior;

27Hersh v. United States ex rel. Mukasey, 553 F.3d 743, 763 (5th Cir. 2008) (quoting

United States v. Williams, 553 U.S. 285, 293 (2008)).

28 Id. at 762 (quoting Broadrick, 413 U.S. at 613).

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(2) addresses normal behavior and involves evaluating, preventing, and

remediating psychological, emotional, mental, interpersonal, learning,

and behavioral disorders of individuals or groups, as well as the psycho-

logical disorders that accompany medical problems, organizational

structures, stress, and health;

(3) includes:

(A) using projective techniques, neuropsychological testing,

counseling, career counseling, psychotherapy, hypnosis for

health care purposes, hypnotherapy, and biofeedback; and

(B) evaluating and treating mental or emotional disorders and

disabilities by psychological techniques and procedures; and

(4) is based on:

(A) a systematic body of knowledge and principles acquired in

an organized program of graduate study; and

(B) the standards of ethics established by the profession.

TEX. OCC. CODE ANN. § 501.003(c) (West 2015). Serafine urges that subsec-

tion (c) is overbroad because it covers a significant amount of advice that is

given outside the traditional context of the psychotherapist. Thus, by implica-

tion, (b)(2) is also overbroad.

3.

The first inquiry is whether the subsections should be read conjunctively

as the Board urges or disjunctively as Serafine contends. Thus, for something

to be the “practice of psychology,” must it meet the requirements of all four

subsections or only one? A textual reading supports the Board’s position that

subsection (c) is conjunctive. Each of the subparts (1) through (4) begins with

a verb (“includes,” “addresses,” or “is”), and subpart (3) ends with “and” that

appears before subpart (4). The presence of “and” (as opposed to “or”) indicates

that subsection (c) should be read as an inclusive list—the practice of psychol-

ogy requires something from each of the four subparts. 29

29 See ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF

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That conclusion is undermined, however, by the seeming absurdity that

would result if subsection (c) were read conjunctively. A person who has not

conducted graduate coursework, as required by Section 501.003(c)(4) (“(c)(4)”),

but engaged in the other conduct listed in subsection (c)—counseling clients on

psychological disorders, offering psychotherapy, or remediating behavioral

problems—could not be said to be providing “psychological services” under

(b)(2). If that practitioner did not advertise as a “psychologist” or fall within

the other subparts of Section 501.003(b) (such as working for an organization

that sells psychological services), she would not be engaged in the “practice of

psychology” as defined by the Act. Thus, the Board would be powerless to pre-

vent the very individuals the Act appears most concerned about—those

without qualifying doctoral degrees—from providing psychological counseling.

Perhaps to avoid that problem, it appears that the Board heretofore has

also read subsection (c) disjunctively. At trial, the chairman of the Board,

Branaman, testified that it is disjunctive—so if someone were not applying a

“body of knowledge” learned in “an organized program of graduate study”

under (c)(4), she still could be engaged in the “practice of psychology” if the

other requirements of subsection (c) were met.

Nevertheless, regardless of any enforcement problems that the conjunc-

tive reading occasions, we are bound by the statute as the legislature fashioned

it. The grammatical structure of subsection (c) is plain, and notably it con-

trasts with the disjunctive structure of Section 501.003(b), which uses a similar

format (beginning each subsection with a verb) but employs “or” rather than

“and” before the last subsection. Thus, while in practice the Board might prefer

that subsection (c) be read disjunctively, we agree with the Board’s position

LEGAL TEXTS 116–119 (2012) (explaining the conjunctive/disjunctive canon).

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here on appeal—the straightforward textual reading of subsection (c) is con-

junctive. This reading may limit the Board’s ability to bring actions against

psychologists it considers illegitimate—those who do not base their practice on

principles acquired in a graduate program—but it also will constrain the

Board’s power, as Serafine is seeking.

4.

Serafine’s primary basis for an overbreadth challenge is the sweeping

language of Section 501.003(c)(1) and (2) (“(c)(1)” and “(c)(2)”). Serafine cor-

rectly contends that providing “services to an individual or group . . . that

include the application of established principles, methods, and procedures of

describing, explaining, and ameliorating behavior” could apply to a number of

activities, such as Alcoholics Anonymous (AA), Weight-Watchers, various self-

help groups, life-coaches, yoga teachers, political consultants, and golf profes-

sionals. See Section 501.003(c)(1).

Similarly, (c)(2) also contains sweeping language requiring that the prac-

tice of psychology “address[] normal behavior and involve[] evaluating, pre-

venting, and remediating psychological, emotional, mental, interpersonal,

learning, and behavioral disorders.” Yet (c)(2) is somewhat narrower than

(c)(1), and given that subsection (c) is conjunctive, we do not read the Act as

broadly as does Serafine. Political consultants may describe, explain, and ame-

liorate behavior (under (c)(1)), but they rarely, if ever, evaluate, prevent, or

remediate “psychological, emotional, mental, interpersonal, learning, and

behavioral disorders” under (c)(2). Nevertheless, (c)(2) could still apply to Alco-

holics Anonymous (AA), Weight-Watchers, golf coaches, yoga teachers, life-

coaches, and various self-help groups, which do remediate various “psycho-

logical, emotional, mental, interpersonal, learning and behavioral disorders.”

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The Board reasons that (c)(3) and (c)(4) limit the scope of subsection (c)

to exclude such groups. Under subsection (3), the practice of psychology

“includes: (A) using . . . counseling . . . and (B) evaluating and treating mental

or emotional disorders and disabilities by psychological techniques and

procedures.” By requiring the evaluation and treatment of “mental or

emotional disorders,” Section 501.003(c)(3)(B) is in many ways a repeat of

(c)(2), except that it requires the use of “psychological techniques and proce-

dures,” which appear to be listed in (c)(3)(A). By narrowing the range of dis-

orders from “psychological, emotional, mental, interpersonal, learning and

behavioral disorders” to “mental or emotional disorders and disabilities,” (3)(B)

does further constrain the “practice of psychology,” so that a golf coach no

longer appears to fall within its ambit. Nevertheless, Weight Watchers, AA,

and other self-help groups that provide counseling to participants on emotional

problems would still be included in subsection (c).

Section 501.003(c)(4)(A) provides the most significant limitation, given

that it requires services based on “a systematic body of knowledge and princi-

ples acquired in an organized program of graduate study” as well as a pro-

fessional code of ethics. But there is no indication that a practitioner needs to

have completed a graduate degree if she has taken graduate-level classes.

“Graduate” is defined as “of, relating to, or engaged in studies beyond the first

or bachelor’s degree.” Graduate, MERRIAM-WEBSTER.COM,

http://www.merriam-webster.com/dictionary/graduate (last visited Oct. 26,

2015). Thus, anyone who has taken graduate-level psychology, counseling, or

fitness classes after completing a bachelor’s degree and applied this knowledge

to lead an AA group or work at a Weight-Watcher program would be included

in the definition in (c)(4).

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It is also possible that any classes taken after the completion of an

undergraduate degree, regardless of whether at a traditional university, could

be within the definition of an “organized program of graduate study.” So, by

attending a meditation seminar or AA training conference, it is conceivable

that someone could be participating in “an organized program of graduate

study.” As long as an individual who has taken graduate classes also applies

a professional standard of ethics (which it is not unusual for organizations such

as AA to have), she would be engaging in the practice of psychology under

Section 501.003(c). Thus, although (c)(4) does narrow the scope of subsec-

tion (c), and by implication (b)(2), the provision still covers a substantial

amount of speech that occurs outside the realm of professional psychologists.

Indeed, though subsection (c) certainly includes professional psycholo-

gists, it also applies to other professionals and citizens. Besides leaders for AA,

Weight-Watchers, or other self-help groups, someone who has taken graduate

classes in psychology, fitness, or counseling and has written a marriage-advice

column or parenting blog could conceivably be within the ambit of subsec-

tion (c). Prosecution in such a circumstance might sound absurd, but in other

jurisdictions it has not been merely hypothetical.

Recently, relying on a similar statute, 30 the Kentucky Board of Examin-

ers of Psychology ordered a syndicated newspaper columnist to stop offering

30 The statute in question was Kentucky Revised Statutes Section 319.010, which

defined the “practice of psychology” as

rendering to individuals, groups, organizations, or the public any psychological ser-

vice involving the application of principles, methods, and procedures of understand-

ing, predicting, and influencing behavior, such as the principles pertaining to learn-

ing, perception, motivation, thinking, emotions, and interpersonal relationships; the

methods and procedures of interviewing, counseling, and psychotherapy; and psy-

chological testing in constructing, administering, and interpreting tests of mental

abilities, aptitudes, interests, attitudes, personality characteristics, emotion, and

motivation. The application of said principles in testing, evaluation, treatment, use

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parenting advice in response to readers’ questions. See Rosemond v. Markham,

No. CV 13-42-GFVT, 2015 WL 5769091, at *1–2 (E.D. Ky. Sept. 30, 2015). The

columnist, who held a master’s degree in psychology but was not a licensed

psychologist, had recommended that the parents of a “highly spoiled under-

achiev[ing]” teenager suspend his privileges until he improved his grades. Id.

at *1. According to the state, such public advice constituted the “practice of

psychology.” Id. at *2.

Similarly, at Serafine’s trial, the chairman of the Board testified that he

could not tell, without more information or looking at a specific case, whether

golf coaches, weight-loss services, or smoking-cessation programs would be

within the “practice of psychology” as defined in subsection (c). The “opportun-

ity for abuse, especially where a statute has received a virtually open-ended

interpretation, is self-evident.” 31

Like the airport officials in Jews for Jesus, who “alone [had] the power

to decide in the first instance whether a given activity [wa]s airport related,” 32

here the Board would get to decide in the first instance what advice constitutes

the “practice of psychology,” then enforce the law as it sees fit. Such unfettered

discretion is untenable. Even if the Board had promised to limit the scope of

its enforcement, the Supreme Court has held that this is insufficient, and the

First Amendment “does not leave us at the mercy of noblesse oblige.” United

States v. Stevens, 559 U.S. 460, 480 (2010). Like the Court, we “would not

of psychotherapeutic techniques, and other methods includes, but is not limited to:

diagnosis, prevention, and amelioration of adjustment problems and emotional,

mental, nervous, and addictive disorders and mental health conditions of individuals

and groups; educational and vocational counseling; the evaluation and planning for

effective work and learning situations; and the resolution of interpersonal and social

conflicts.

31 Bd. of Airport Comm’rs v. Jews for Jesus, Inc., 482 U.S. 569, 576 (1987) (quoting

Lewis v. City of New Orleans, 415 U.S. 130, 136 (1974) (Powell, J., concurring)).

32 Id.

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uphold an unconstitutional statute merely because the Government promised

to use it responsibly.” Id.

The Board urges that because Section 501.004 of the Texas Occupation

Code contains limited exemptions from the Act for clergy members, certain

non-profit employees, and various licensed professionals (including physicians,

attorneys, registered nurses, licensed social workers, licensed counselors, and

licensed therapists), its scope is appropriately narrowed to professional

psychologists. Yet if anything, under the canon of expressio unius, the presence

of those exemptions suggests that anyone not granted an exemption in Section

501.004 is affirmatively covered by the Act. 33 Life coaches, weight loss coun-

selors, and AA sponsors could all fall under the Act as discussed above.

Although the Board maintains that, under United States v. Wallington,

889 F.2d 573, 576 (5th Cir. 1989), we should construe the statute narrowly to

avoid overbreadth problems, we are mindful of the Supreme Court’s decision

not to “rely upon” the canon of constitutional avoidance in the overbreadth

context. 34 Courts should “impose a limiting construction on a statute only if it

is readily susceptible to such a construction.” Stevens, 559 U.S. at 481 (quoting

Reno v. ACLU, 521 U.S. 844, 884 (1997)). Nor should we “rewrite a . . . law to

conform it to constitutional requirements.” Id. (alteration in original) (quoting

ACLU, 521 U.S. at 884–85). The plain text properly limits the sweep of Section

501.003(c) to the evaluation and treatment of mental or emotional disorders,

using psychological techniques such as counseling, by someone who relies on

33 See SCALIA & GARNER, supra, at 108 (explaining that the “more specific the enumer-

ation, the greater the force of the [expressio unius] canon”).

34Stevens, 559 U.S. at 481; see also Hersh, 553 F.3d at 756–57 (5th Cir. 2008) (quoting

United States v. Albertini, 472 U.S. 675, 680 (1985)) (recognizing “that the doctrine of consti-

tutional avoidance ‘is not a license for the judiciary to rewrite language enacted by the

legislature’”).

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post-undergraduate classes or training and follows a professional code of

ethics. We decline to give it an additional extra-textual limiting construction

in a frantic attempt to rescue it.

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 grand-

parents, or in a circle of friends. There is no doubt that such speech is protected

by the First Amendment. 35 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, subsection (c) chills and

prohibits protected speech. But that is precisely what the overbreadth doctrine

is meant to prevent. See Free Speech Coal., 535 U.S. at 255. Section 501.003(c),

and by implication, Section 501.003(b)(2), are overbroad and contravene the

First Amendment.

IV.

Serafine’s prior-restraint challenge fails. There is a “clear distinction,

‘solidly grounded in our cases, between prior restraints and subsequent pun-

ishments.’” Gibson v. Tex. Dep’t of Ins., 700 F.3d 227, 235 (5th Cir. 2012)

(quoting Alexander v. United States, 509 U.S. 544, 550 (1993)). Prior restraints

“involve ‘administrative and judicial orders [such as temporary restraining

orders and permanent injunctions] forbidding certain communications when

issued in advance of the time that such communications are to occur.’” Id.

(alteration in original) (quoting Alexander, 509 U.S. at 550). Thus, by “penaliz-

ing past speech,” the Act is not a prior restraint on speech. Alexander, 509 U.S.

35 See Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226 (2015) (quoting Police Dep’t of

Chi. v. Mosley, 408 U.S. 92, 95 (1972)) (stating that government “has no power to restrict

expression because of its message, its ideas, its subject matter, or its content”).

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at 553. The district court was correct in rejecting this claim.

In summary, the judgment is AFFIRMED in regard to the prior-restraint

claim and REVERSED in respect to the constitutionality of

Section 501.003(b)(1) as applied to Serafine’s campaign speech and in regard

to the overbreadth of Section 501.003(b)(2). This matter is REMANDED for

entry of appropriate orders and judgment and other proceedings as needed.

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