Brokamp v. James

21-3050

Brokamp v. James

In the

United States Court of Appeals

for the Second Circuit

AUGUST TERM 2022

No. 21-3050-cv

ELIZABETH BROKAMP,

Plaintiff-Appellant,

v.

LETITIA JAMES, in her official capacity as Attorney General of the State of New York,

BETTY A. ROSA, in her official capacity as the New York State Commissioner of

Education, NEW YORK STATE EDUCATION DEPARTMENT BOARD OF REGENTS, NEW

YORK STATE BOARD OF MENTAL HEALTH PRACTITIONERS, THOMAS BIGLIN, in his

official capacity as a member of the New York State Board of Mental Health

Practitioners, RODNEY MEANS, in his official capacity as a member of the New York

State Board of Mental Health Practitioners, TIMOTHY MOONEY, in his official

capacity as a member of the New York State Board of Mental Health Practitioners,

HELENA BOERSMA, in her official capacity as a member of the New York State

Board of Mental Health Practitioners, SARGAM JAIN, in her official capacity as a

member of the New York State Board of Mental Health Practitioners, RENE JONES,

in her official capacity as a member of the New York State Board of Mental Health

Practitioners, SUSAN L. BOXER KAPPEL, in her official capacity as a member of the

New York State Board of Mental Health Practitioners, SARA LIN FRIEDMAN

MCMULLIAN, in her official capacity as a member of the New York State Board of

Mental Health Practitioners, ANGELA MUSOLINO, in her official capacity as a

member of the New York State Board of Mental Health Practitioners, MICHELE

LANDERS MEYER, in her official capacity as a member of the New York State Board

of Mental Health Practitioners, NATALIE Z. RICCIO, in her official capacity as a

member of the New York State Board of Mental Health Practitioners, HOLLY

VOLLINK-LENT, in her official capacity as a member of the New York State Board

of Mental Health Practitioners, JILL R. WELDUM, in her official capacity as a

member of the New York State Board of Mental Health Practitioners, and SUSAN

WHEELER WEEKS, in her official capacity as a member of the New York State Board

of Mental Health Practitioners,

Defendants-Appellees.

__________

ARGUED: SEPTEMBER 19, 2022

DECIDED: APRIL 27, 2023

__________

Before: RAGGI, WESLEY, and LOHIER, Circuit Judges.

________________

Plaintiff Elizabeth Brokamp, a Virginia-licensed mental health counselor,

appeals from a judgment entered in the United States District Court for the

Northern District of New York (David N. Hurd, J.), dismissing her First

Amendment and Due Process challenges to a New York law requiring her to

obtain a further license in that state to provide mental health counseling to New

York residents. Brokamp argues that the district court erred in (1) dismissing her

as-applied challenges for lack of standing and, therefore, lack of jurisdiction, see

Fed. R. Civ. P. 12(b)(1); (2) construing her First Amendment facial challenge as

alleging overbreadth and concluding therefrom that she failed to state a plausible

claim for relief, see Fed. R. Civ. P. 12(b)(6); and (3) overlooking her facial Due

Process claim. Because Brokamp alleges that the very fact of New York’s license

requirement chills her speech, she did not have to apply for and be denied a license

to demonstrate standing to pursue her First Amendment and Due Process claims.

Nevertheless, because New York permits her to obtain a New York license by

endorsement of her Virginia license without need to satisfy the many particular

requirements for initial licensure, her claimed injury is attributable to the former

endorsement provision and, thus, it is that provision rather than the particular

requirements for initial licensure that she has standing to challenge, whether

facially or as applied. In all other respects, her claims are properly dismissed for

2

lack of standing. As to licensure by endorsement, accepting Brokamp’s express

disavowal of a First Amendment overbreadth challenge and construing her Due

Process claim as both a facial and as-applied challenge, we conclude that her

claims are properly dismissed for failure to state a plausible claim for relief.

AFFIRMED.

_________________

JEFFREY H. REDFERN, Institute for Justice, Arlington, VA

(Robert J. McNamara; Robert Johnson, Institute for

Justice, Shaker Heights, OH; Alan J. Pierce, Hancock

Estabrook LLP, Syracuse, NY, on the brief), for Plaintiff-

Appellant.

FREDERICK A. BRODIE, Assistant Solicitor General

(Barbara D. Underwood, Solicitor General, Jeffrey W.

Lang, Deputy Solicitor General, on the brief) for Letitia

James, Attorney General, State of New York, Albany,

NY, for Defendants-Appellees.

_________________

REENA RAGGI, Circuit Judge:

Plaintiff Elizabeth Brokamp is a Virginia-licensed mental health counselor

who, for a fee, treats patients online with “talk therapy.” Compl. ¶ 1. 1 Pursuant

to 42 U.S.C. § 1983, she sued various New York state agencies and named officials

in the United States District Court for the Northern District of New York (David

N. Hurd, Judge), seeking (1) a judicial declaration that New York’s mental health

counselor licensing laws violate the First Amendment right to free speech and the

1The National Institute of Mental Health explains that “talk therapy” is another name for “psychotherapy,”

which “refers to a variety of treatments that aim to help a person identify and change troubling emotions,

thoughts, and behaviors. Most psychotherapy takes place when a licensed mental health professional and

a patient meet one-on-one or with other patients in a group setting.” Psychotherapies, NAT’L INST. OF

MENTAL HEALTH, https://www.nimh.nih.gov/health/topics/psychotherapies (last updated Jan. 2023).

3

Due Process Clause’s prohibition on statutory vagueness, see U.S. Const. amends.

I, XIV; and (2) an injunction prohibiting defendants from enforcing those laws as

against her. On November 22, 2021, the district court dismissed Brokamp’s

complaint in its entirety as against defendant state agencies on sovereign

immunity grounds, see id. amend. XI; and as against defendant state officials in

part for lack of jurisdiction, see Fed. R. Civ. P. 12(b)(1), and in part for failure to

state a claim, see Fed. R. Civ. P. 12(b)(6). See Brokamp v. James, 573 F. Supp. 3d 696

(N.D.N.Y. 2021). Brokamp now appeals that dismissal as against the state officials,

arguing that the district court (1) erred in ruling that she had to apply for a New

York license to establish standing to pursue as-applied challenges to the state

license requirements, (2) mischaracterized her facial First Amendment claim as an

overbreadth challenge in concluding that she failed to state a plausible claim for

relief, and (3) overlooked her facial Due Process claim. 2

For reasons stated in this opinion, we affirm the judgment of dismissal.

While Brokamp did not have to apply for a license to demonstrate standing to

complain that New York’s license requirement unconstitutionally chilled her

speech in vaguely defined ways, she nevertheless has standing only to challenge

New York’s requirement for licensure by endorsement as that provision,

providing a streamlined license process for persons already holding out-of-state

licenses, is the one causing her alleged concrete injury. Insofar as Brokamp

challenges New York’s initial license requirement—whether under the First

Amendment or the Due Process Clause, whether on its face or as applied—

dismissal for lack of jurisdiction is warranted because she need not satisfy the

particular requirements for initial licensure to procure a New York license, thus,

she cannot demonstrate a risk of real and concrete injury as necessary for standing.

Finally, accepting Brokamp’s express disavowal of any overbreadth challenge and

2 Because Brokamp has confirmed that she does not appeal the district court’s sovereign immunity

dismissal of her claims against defendant state agencies, see Appellant Br. 10 n.1, we do not here review

that part of the judgment.

4

construing her vagueness challenge to be both facial and as applied, we conclude

that her First Amendment and Due Process challenges to New York’s license-by-

endorsement requirement are properly dismissed for failure to state plausible

claims for relief. See Jusino v. Fed’n of Cath. Tchrs., Inc., 54 F.4th 95, 100 (2d Cir.

2022) (holding that appeals court can affirm judgment on any ground supported

by record).

BACKGROUND

The following facts are drawn from Brokamp’s complaint, documents

attached thereto or incorporated therein, and facts of which we may take judicial

notice. See Melendez v. City of New York, 16 F.4th 992, 996 (2d Cir. 2021). Our

recitation assumes the truth of Brokamp’s factual allegations and casts all facts in

the light most favorable to her. See id. (discussing Rule 12(b)(6) dismissal); Carter

v. HealthPort Techs., LLC, 822 F.3d 47, 56–57 (2d Cir. 2016) (discussing Rule 12(b)(1)

dismissal).

I. Brokamp’s Talk Therapy Practice

Plaintiff Brokamp is highly educated and Virginia licensed to provide

mental health counseling. In 1994, she was awarded a master’s degree in

Counseling Psychology by Columbia University, and, in 2018, she began work

toward a doctoral degree in Counseling at the University of the Cumberlands,

which degree she has since been awarded. Brokamp was first licensed to practice

mental health counseling in 2004 by Virginia’s Board of Counseling. 3 She

continues to hold that Virginia license, having renewed it at required intervals

3 See License Lookup: License No. 0701003683, VA. DEP’T OF HEALTH PROFESSIONS, https://dhp.virginia

interactive.org/Lookup/Detail/0701003683 (last accessed Apr. 25, 2023); see also Cangemi v. United States, 13

F.4th 115, 124 n.4 (2d Cir. 2021) (taking judicial notice of record published on government website). To

secure a license in Virginia, Brokamp had to (1) satisfy certain educational and experiential requirements;

(2) pass a standardized exam; and (3) submit an application including, inter alia, (a) proof of her completion

of required education and experience, and (b) application processing and licensure fees. See 18 Va. Admin.

Code § 115-20-40.

5

through the present date. 4 Brokamp has never challenged Virginia’s licensing

requirement. See Oral Arg. Tr. 3:14–23. To the contrary, Brokamp plainly

recognizes the value of her state license. In promoting herself to clients, 5 the first

thing Brokamp says is that she is “a licensed professional counselor.” See NOVA

TERRA THERAPY, https://novaterratherapy.com/ (last accessed Nov. 2, 2022)

(emphasis added).

Until 2018, Brokamp provided mental health counseling to clients in person

at her office in Alexandria, Virginia. Brokamp closed her office that year to pursue

her doctoral degree. When she resumed her counseling practice in 2020—during

the early stages of the COVID-19 pandemic—Brokamp offered only online

services, operating out of her Virginia home under the name Nova Terra Therapy.

That remained the case as of the date of the operative complaint.

Under ordinary circumstances, New York law would not permit Brokamp

to provide mental health counseling to persons residing in New York without

being licensed by that state. See N.Y. Educ. Law § 8402(2) (“Only a person licensed

or exempt under this article shall practice mental health counseling or use the title

‘mental health counselor.’”). Among the many executive orders signed by New

York’s governor in response to the COVID-19 pandemic, however, was one

suspending this (and other) in-state licensing requirements for persons, such as

Brokamp, holding valid out-of-state licenses. See N.Y. Exec. Order 202.15

(temporarily suspending § 8402 “to the extent necessary to allow mental health

counselors . . . in current good standing in any state in the United States to practice

in New York State without civil or criminal penalty related to lack of licensure”).

4To renew her Virginia license, Brokamp must annually complete a minimum of 20 hours of continuing

education—two of which must be “in courses that emphasize the ethics, standards of practice, or laws

governing behavioral science professions in Virginia”—and pay a renewal fee. See 18 Va. Admin. Code

§§ 115-20-100, 115-20-105.

5Because Brokamp refers to the persons she counsels as “clients” rather than patients, e.g., Compl. ¶ 1, we

do the same in this opinion, but see supra Note 1.

6

As a result, for a time, Brokamp provided online counseling to one client who had

relocated to New York during the pandemic. She declined, however, to initiate a

counseling relationship with another former client then residing in New York

because, in response to Brokamp’s inquiry, the New York State Board of Mental

Health Practitioners (“N.Y. Board”) advised that she would not be able to continue

such counseling after Executive Order 202.15 expired. Thus, since expiration of

that order on June 25, 2021, Brokamp has provided no mental health counseling to

any New York resident, although she wishes to do so.

Brokamp asserts that she should be permitted to provide online counseling

to New York residents without having to obtain a New York license. She

maintains that New York’s licensing requirement cannot stand because it is

content-based and vague, violating the First Amendment’s guarantee of free

speech both on its face and as applied, as well as the Due Process Clause.

II. New York’s Mental Health Counselor Licensing Requirement

Before addressing Brokamp’s claims, it is helpful to review certain

provisions of New York law.

The practice of certain professions in New York without a required license

is a class E felony, see N.Y. Educ. Law § 6512(1), punishable by a prison term of up

to four years and a monetary fine, see N.Y. Penal Law §§ 70.00(2)(e), 80.00(1). In

2002, having found that the practice of mental health counseling “affects the public

safety and welfare,” the New York legislature enacted a licensing requirement for

such counselors to “protect the public from unprofessional, improper,

unauthorized and unqualified practice of counseling and psychotherapy.” 2002

N.Y. Sess. Laws ch. 676, § 7. 6 Thus, New York Education Law § 8402(2) states that

6All fifty states, the District of Columbia, and Puerto Rico have license requirements for mental health

counselors. See Ala. Code § 34-8A-18; Alaska Stat. § 08.29.100; Ariz. Rev. Stat. Ann. § 32-3286; Ark. Code

Ann. § 17-27-104; Cal. Bus. & Prof. Code § 4999.30; Colo. Rev. Stat. § 12-245-218; Conn. Gen. Stat. § 20-

195bb; Del. Code Ann. tit. 24, § 3030; D.C. Code § 3-1205.01; Fla. Stat. § 491.003; Ga. Code Ann. § 43-10A-7;

Haw. Rev. Stat. § 453D-5; Idaho Code § 54-3402; 225 Ill. Comp. Stat. 107/21; Ind. Code § 25-23.6-4.5-1; Iowa

7

“[o]nly a person licensed or exempt under this article shall practice mental health

counseling or use the title ‘mental health counselor.’” 7

In requiring such licensure, the legislature defined the “practice of the

profession of mental health counseling” as follows:

(a) the evaluation, assessment, amelioration, treatment,

modification, or adjustment to a disability, problem, or

disorder of behavior, character, development, emotion,

personality or relationships by the use of verbal or behavioral

methods with individuals, couples, families or groups in

private practice, group, or organized settings; and

(b) the use of assessment instruments and mental health

counseling and psychotherapy to identify, evaluate and treat

dysfunctions and disorders for purposes of providing

appropriate mental health counseling services.

N.Y. Educ. Law § 8402(1). The first paragraph—which the parties emphasize on

this appeal—uses four factors to define “mental health counseling.” These can be

denominated: (1) purpose, (2) focus, (3) methods, and (4) circumstances. To begin

Code § 147.2; Kan. Stat. Ann. § 65-5803; Ky. Rev. Stat. Ann. § 335.505; La. Stat. Ann. § 37:1122; Me. Stat.

tit. 32, § 13854; Md. Code Ann., Health Occ. § 17-301; Mass. Gen. Laws ch. 112, § 164; Mich. Comp. Laws

§ 333.18105; Minn. Stat. § 148B.591; Miss. Code Ann. § 73-30-19; Mo. Rev. Stat. § 337.505; Mont. Code Ann.

§ 37-23-201; Neb. Rev. Stat. § 38-2116; Nev. Rev. Stat. § 641A.410; N.H. Rev. Stat. Ann. § 330-A:23; N.J. Stat.

Ann. § 45:8B-39; N.M. Stat. Ann. § 61-9A-4; N.Y. Educ. Law § 8402; N.C. Gen. Stat. § 90-331; N.D. Cent.

Code § 43-47-06; Ohio Rev. Code Ann. § 4757.02; Okla. Stat. tit. 59, § 1911; Or. Rev. Stat. § 675.825; 63 Pa.

Stat. and Cons. Stat. Ann. § 1904; P.R. Laws Ann. tit. 20, § 3254; 5 R.I. Gen. Laws § 5-63.2-11; S.C. Code Ann.

§ 40-75-30; S.D. Codified Laws § 36-32-58; Tenn. Code Ann. § 63-22-117; Tex. Occ. Code Ann. § 503.301;

Utah Code Ann. § 58-60-103; Vt. Stat. Ann. tit. 26, § 3262; Va. Code Ann. § 54.1-3506; Wash. Rev. Code

§ 18.225.020; W. Va. Code § 30-31-1; Wis. Stat. § 457.04; Wyo. Stat. Ann. § 33-38-110.

In 2002, New York already required the licensure of four professions addressing mental health concerns:

medicine, nursing, psychology, and social work. See N.Y. Educ. Law §§ 6522, 6903, 7601, 7702. That year,

the state extended a license requirement to mental health counselors, psychoanalysts, marriage and family

therapists, and creative arts therapists. See id. §§ 8402–8405.

7Hereafter, when we use the phrase “the license requirement” or “New York license requirement” in this

opinion, we refer to the requirement for a mental health counselor, unless otherwise indicated.

8

with methods, the definition references both “verbal” and “behavioral” methods,

thus plainly reaching speech. The other three factors cabin the speech qualifying

as mental health counseling. Specifically, to constitute mental health counseling

requiring licensure, speech must be used for a specific purpose, i.e., “evaluation,

assessment, amelioration, treatment, modification, or adjustment.” These terms

are not statutorily defined, but their plain meaning in the health context signals a

therapeutic purpose. 8 Further, to constitute mental health counseling requiring

licensure, the focus of therapeutic speech must be more than “behavior, character,

development, emotion, personality or relationships.” It must be “a disability,

problem, or disorder” in one of those areas. In other words, the therapeutic speech

must address something wrong with a person’s psyche. Finally, to constitute

mental health counseling requiring licensure, therapeutic speech addressing a

mental “disability, problem, or disorder” must occur in particular circumstances:

“private practice, group or organized settings.” This signals that mental health

counseling is not something rendered casually or on the spur of the moment.

8As pertinent to health, the dictionary defines the statute’s purpose words as follows: (1) “evaluate”—“to

examine and judge concerning the . . . condition of,” as in “at the first visit, an attempt should be made to

evaluate the patient as a whole,” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 786 (Philip Babcock

Gove ed. 1986); (2) “assess”—“to analyze critically and judge definitively the nature, significance, status or

merit of” the matter under consideration, id. at 131; (3) “ameliorate”—“to make better,” id. at 67;

(4) “treat”—“to seek cure or relief of (as a disease),” id. at 2435; (5) “modification”—“the act or action of

changing something without fundamentally altering it,” id. at 1452; (6) “adjust”—“to bring to a more

satisfactory state” or “to achieve a harmonious mental and behavioral balance between one’s own personal

needs and strivings and the demands of other individuals and of society,” id. at 27; see generally Perrin v.

United States, 444 U.S. 37, 42 (1979) (“A fundamental canon of statutory construction is that, unless

otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.”);

Yates v. United States, 574 U.S. 528, 543 (2015) (relying on “principle of noscitur a sociis—a word is known by

the company it keeps—to avoid ascribing to one word a meaning so broad that it is inconsistent with its

accompanying words” (internal quotation marks omitted)).

9

To secure a counselor license, New York law requires a person to satisfy

particular educational, experiential, examination, age, and character requirements,

and to pay a fee. See N.Y. Educ. Law § 8402(3). 9

9“To qualify for a license as a ‘licensed mental health counselor’” in New York, an applicant must fulfill

the following requirements:

(a) Application: File an application with the [Education Department];

(b) Education: Have received an education, including a master’s or higher degree in

counseling from a program registered by the department or determined by the department

to be the substantial equivalent thereof, in accordance with the commissioner’s

regulations. The graduate coursework shall include, but not be limited to the following

areas:

(i) human growth and development;

(ii) social and cultural foundations of counseling;

(iii) counseling theory and practice and psychopathology;

(iv) group dynamics;

(v) lifestyle and career development;

(vi) assessment and appraisal of individuals, couples and families and groups;

(vii) research and program evaluation;

(viii) professional orientation and ethics;

(ix) foundations of mental health counseling and consultation;

(x) clinical instruction; and

(xi) completion of a minimum one year supervised internship or practicum in mental

health counseling;

(c) Experience: An applicant shall complete a minimum of three thousand hours of post-

master’s supervised experience relevant to the practice of mental health counseling

satisfactory to the board and in accordance with the commissioner’s regulations [or such

other experience as the statute identifies as satisfactory];

(d) Examination: Pass an examination satisfactory to the board and in accordance with the

commissioner’s regulations;

(e) Age: Be at least twenty-one years of age;

(f) Character: Be of good moral character as determined by the department; and

10

New York permits persons (such as Brokamp) already licensed in another

state to practice mental health counseling to practice in New York upon obtaining

“endorsement” of their out-of-state licenses. See N.Y. Educ. Law § 6506(6)

(granting Board of Regents authority to endorse licenses issued by other states);

N.Y. Comp. Codes R. & Regs. tit. 8, § 79-9.7 (providing for mental health

counseling licensure by endorsement). 10 It appears that Brokamp has never

(g) Fees: Pay a fee of one hundred seventy-five dollars for an initial license and a fee of one

hundred seventy dollars for each triennial registration period.

N.Y. Educ. Law § 8402(3).

10“An applicant seeking [New York] endorsement of a license in mental health counseling issued by

another state, country or territory shall present evidence of:

(a) age, the applicant shall be at least 21 years of age;

(b) licensure by another jurisdiction;

(c) completion of a graduate degree in mental health counseling or a related field that at the

time of completion qualified the applicant for licensure as a mental health counselor in the

other jurisdiction;

(d) completion of supervised experience in mental health counseling and psychotherapy that

qualified the applicant for initial licensure in the other jurisdiction;

(e) passage of an examination acceptable to the department for the practice of mental health

counseling;

(f) at least five years of experience in mental health counseling satisfactory to the State Board

for Mental Health Practitioners, within the 10 years immediately preceding the application

for licensure by endorsement in New York;

(g) completion of coursework in the identification and reporting of suspected child abuse and

neglect or the exemption from such coursework, as specified in section 6507(3) of the

Education Law;

(h) good moral character as determined by the department;

(i) acceptable licensure and discipline status in each jurisdiction in which the applicant holds

a professional license.

N.Y. Comp. Codes R. & Regs. tit. 8, § 79-9.7. An applicant for licensure by endorsement must also pay a

$371 fee. See License Requirements for Mental Health Counselors, N.Y. STATE EDUC. DEP’T OFF. OF THE

PROFESSIONS, https://www.op.nysed.gov/professions/mental-health-counselors/license-requirements (last

accessed Apr. 25, 2023).

11

sought a license by endorsement to practice mental health counseling in New

York.

III. District Court Proceedings

On April 5, 2021, Brokamp initiated this action and, on June 21, 2021, filed

the amended complaint here at issue. 11 On November 22, 2021, the district court

dismissed that complaint in its entirety against the individual defendants under

Fed. R. Civ. P. 12(b)(1) and 12(b)(6). See Brokamp v. James, 573 F. Supp. 3d at 704–

06, 709–10.

The district court ruled that because Brokamp had not (1) applied for a New

York mental health counselor license, (2) alleged that applying for such a license

would have been futile, or (3) alleged a credible threat of prosecution for engaging

in unlicensed mental health counseling, she lacked standing to bring her as-

applied First Amendment and Due Process challenges to New York’s licensure

regime. See id. at 704–06. As to her First Amendment facial challenge—which the

district court construed to complain of overbreadth, see id. at 709—the district

ordered dismissal based on Brokamp’s failure to plead that New York’s licensing

laws would have a substantial chilling effect on protected conduct, see id. at 709–

10.

The district court entered judgment on the same day, and Brokamp timely

appealed.

11We note that on December 9, 2020, Brokamp also initiated an action in the United States District Court

for the District of Columbia challenging the District’s code requirement for licensure of the “practice of

professional counseling,” an action still pending in that court. See Brokamp v. District of Columbia, No. 20-

cv-3574 (D.D.C.).

12

DISCUSSION

I. Standard of Review

“A district court properly dismisses an action under Fed. R. Civ. P. 12(b)(1)

for lack of subject matter jurisdiction if the court ‘lacks the statutory or

constitutional power to adjudicate it,’ such as when . . . the plaintiff lacks

constitutional standing to bring the action.” Cortlandt St. Recovery Corp. v. Hellas

Telecomms., S.a.r.l., 790 F.3d 411, 416–17 (2d Cir. 2015) (quoting Makarova v. United

States, 201 F.3d 110, 113 (2d Cir. 2000)). “On appeal from a dismissal under [Fed.

R. Civ. P.] 12(b)(1), we review the court’s factual findings for clear error and its

legal conclusions de novo.” Id. at 417; accord Cangemi v. United States, 13 F.4th 115,

129 (2d Cir. 2021).

A district court properly dismisses an action under Fed. R. Civ. P. 12(b)(6)

when the pleadings fail to “contain sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Because a

judgment of dismissal pursuant to Fed. R. Civ. P. 12(b)(6) can only be entered if a

court determines that, as a matter of law, a plaintiff failed to state a claim upon

which relief can be granted, we review that legal determination de novo.” Melendez

v. City of New York, 16 F.4th at 1010.

II. Standing

The Constitution limits federal courts’ jurisdiction to actual cases or

controversies. See U.S. Const. art. III, § 2. “The doctrine of standing gives meaning

to these constitutional limits,” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157

(2014), by requiring a plaintiff to “allege[] such a personal stake in the outcome of

the controversy as to warrant his invocation of federal-court jurisdiction and to

justify exercise of the court’s remedial powers on his behalf,” Warth v. Seldin, 422

U.S. 490, 498–99 (1975) (internal quotation marks omitted). Thus, to plead

Article III standing, a plaintiff must allege facts plausibly demonstrating “(1) an

13

‘injury in fact,’ (2) a sufficient ‘causal connection between the injury and the

conduct complained of,’ and (3) a ‘likel[ihood]’ that the injury ‘will be redressed

by a favorable decision.’” Susan B. Anthony List v. Driehaus, 573 U.S. at 157–58

(alteration in original) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61

(1992)). To satisfy the first requirement, a plaintiff must plead an injury that is

“concrete and particularized and . . . actual or imminent, not conjectural or

hypothetical.” Lujan v. Defs. of Wildlife, 504 U.S. at 560 (internal quotation marks,

citations, and footnote omitted). A threatened injury may be sufficiently imminent

if it “is ‘certainly impending,’ or there is a ‘substantial risk that the harm will

occur.’” Susan B. Anthony List v. Driehaus, 573 U.S. at 158 (quoting Clapper v.

Amnesty Int’l USA, 568 U.S. 398, 414 n.5 (2013) (employing “certainly impending”

standard while acknowledging cases referencing “substantial risk” standard, but

declining to address possible distinction)).

A. Brokamp’s Failure To Apply for a License Does Not Deprive Her of

Standing

The district court found Brokamp to lack standing to pursue as-applied

challenges to New York’s license requirements for mental health counselors

because she did not allege that she had ever applied for such a license or that such

an application would have been futile. See Brokamp v. James, 573 F. Supp. 3d at

704–05. The district court located such an application requirement in Jackson-Bey

v. Hanslmaier, 115 F.3d 1091 (2d Cir. 1997). In that case, an inmate alleged religious

discrimination by prison officials who denied his request to wear certain garments

allegedly prescribed by his Moorish Science Temple faith, rather than standard

issued clothing, when taken to attend his father’s funeral. See id. at 1094. Prisoners

have no right to wear garments of their choosing. Nevertheless, record evidence

indicated that the defendant prison authorities accommodated requests to wear

garments prescribed by an inmate’s registered religion. See id. Jackson-Bey did not

challenge the constitutionality of the registration requirement or dispute his

failure to comply with it, despite opportunities to do so. See id. at 1096. In those

14

circumstances, this court concluded that Jackson-Bey lacked standing to claim

religious discrimination because “any injury suffered by Jackson-Bey result[ed]

from his own decision not to follow the simple procedure of registering his

religion.” Id. at 1095. It was in that context that the court noted that, “[a]s a general

matter, to establish standing to challenge an allegedly unconstitutional policy, a

plaintiff must submit to the challenged policy” or “make[] a substantial showing

that application for the benefit . . . would have been futile.” Id. at 1096.

This case is plainly distinguishable from Jackson-Bey in that Brokamp is

certainly challenging the constitutionality of New York’s mental health counselor

license requirement as an impermissible restraint on free speech. Her complaint

is not that a permissible licensing requirement is being applied to her in an

unconstitutional or unlawful manner. As the cases cited in Jackson-Bey to support

the above-quoted statement show, an application requirement is apt when a party

complains that he is being denied a benefit that is not itself constitutionally

guaranteed—e.g., a club membership, admission to a private school, a job, a

parking permit—for unconstitutional (or other unlawful) reasons. 12 In those

12 In Jackson-Bey, this court discussed the supporting authority as follows:

[I]n Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 167–68 (1972), the Supreme Court held that

an African-American who never actually applied for membership to the Moose Lodge

lacked standing to challenge the club’s all-white membership requirement. Similarly, in

Allen v. Wright, 468 U.S. [737,] 755 [(1984)], the Court held that plaintiffs, parents of children

who had never applied for admission to private schools with allegedly racially

discriminatory admissions policies, had no standing to challenge the tax-exempt status of

those private schools. See also Madsen v. Boise State Univ., 976 F.2d 1219, 1220 (9th Cir. 1992)

(denying standing to university student who failed to apply for handicap parking permit);

Albuquerque [Indian Rts. v. Lujan], 930 F.2d [49,] 57 [(D.C. Cir. 1991)] (denying standing to

plaintiffs who sought to extend Indian hiring preferences to jobs for which they had never

applied); Doe v. Blum, 729 F.2d 186, 189–90 (2d Cir. 1984) (denying standing to plaintiffs—

sexually active teenagers—who never applied for and therefore were never denied desired

family planning benefits); cf. Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43 (1993) (holding

that claims of immigrants who never applied for amnesty, challenging alleged mistakes

made in administration of amnesty provision, were not ripe).

115 F.3d at 1096.

15

circumstances, because there is no legally cognizable injury until there is a denial,

a party must apply for the benefit or allege that application would be futile to

plead the injury element of standing.

The same conclusion does not obtain in this case. Brokamp asserts that talk

therapy is speech, in which she is constitutionally entitled to engage without state

limitation or license. In that circumstance, Brokamp’s alleged First Amendment

injury does not arise only upon application for or denial of a license. Rather, injury

arises from the very fact of a licensure requirement which presently silences

Brokamp—under pain of criminal prosecution—from engaging in the professed

protected speech. Further, Brokamp maintains that the extent to which she is

silenced is informed by the vagueness of the law’s proscriptions. She contends

that speech that she could, and did, engage in while Executive Order 202.15 was

in effect has become speech that she cannot, and does not, engage in because of

the challenged license requirement.

To be sure, defendants may defend against Brokamp’s First Amendment

and Due Process claims by demonstrating that the challenged licensure

requirement passes the requisite level of constitutional scrutiny. But that goes to

the merits of her claims. It is the present chilling effect of that requirement on

Brokamp’s speech that demonstrates actual injury sufficient for standing without

need to submit a license application. See Virginia v. Am. Booksellers Ass’n, 484 U.S.

383, 393 (1988) (holding that plaintiffs pleaded Article III injury where they alleged

“actual and well-founded fear that the law will be enforced against them,”

explaining that “alleged danger of this statute is . . . one of self-censorship; a harm

that can be realized even without an actual prosecution”); Bordell v. Gen. Elec. Co.,

922 F.2d 1057, 1060 (2d Cir. 1991) (“[T]he fact that a plaintiff’s speech has actually

been chilled can establish an injury in fact . . . . ”).

The district court nevertheless concluded that Brokamp lacked standing

because she failed to allege a credible threat of prosecution. See Brokamp v. James,

16

573 F. Supp. 3d at 705–06. That conclusion appears to rest on the well-settled

principle that a plaintiff may bring a pre-enforcement challenge to a statute by

alleging “an intention to engage in a course of conduct arguably affected with a

constitutional interest, but proscribed by a statute, and there exists a credible

threat of prosecution thereunder.” Susan B. Anthony List v. Driehaus, 573 U.S. at

159 (quoting Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)).

The district court reasoned that Brokamp’s conceded cessation of online

counseling in New York (after expiration of Executive Order 202.15) meant she

was at no present risk of prosecution. See Brokamp v. James, 573 F. Supp. 3d at 705–

06. That, however, misperceives Brokamp’s burden.

The law does “not require a plaintiff to expose himself to liability before

bringing suit to challenge the basis for the threat.” MedImmune, Inc. v. Genentech,

Inc., 549 U.S. 118, 128–29 (2007). That Brokamp would have faced a credible threat

of prosecution if she had continued counseling New York residents after

expiration of Executive Order 202.15 is evident both from the N.Y. Board’s explicit

communication to Brokamp that she could not lawfully continue unlicensed

mental health counseling of New York residents after expiration of Executive

Order 202.15, see supra at 7; and from caselaw demonstrating New York’s

prosecution of persons who practice certain professions without obtaining

required licenses. 13

Thus, contrary to the district court, we conclude that Brokamp was not

required to apply for a New York mental health counselor license to demonstrate

standing to pursue her as-applied First Amendment and Due Process challenges.

Rather, we hold that Brokamp satisfactorily demonstrated standing by “ceas[ing]”

13See, e.g., People v. Hollander, 177 A.D.3d 683, 113 N.Y.S.3d 712 (2d Dep’t 2019) (unauthorized practice of

dentistry); People v. Mobley, 144 A.D.3d 477, 40 N.Y.S.3d 426 (1st Dep’t 2016) (unauthorized practice of

medicine); People v. Eun Sil Jang, 17 A.D.3d 693, 793 N.Y.S.2d 540 (2d Dep’t 2005) (unauthorized practice of

massage therapy).

17

her online counseling of New York residents “unless and until” the challenged

licensing law, as applied to her, is “declared unconstitutional and the

threat . . . of . . . sanctions . . . thereby removed.” Vermont Rt. to Life Comm., Inc. v.

Sorrell, 221 F.3d 376, 381–84 (2d Cir. 2000).

B. Only New York’s Licensure by Endorsement Requirement Causes

Brokamp Injury Supporting Standing

While we recognize Brokamp’s standing generally to challenge New York’s

requirement that mental health counselors be licensed to practice in that state, that

does not mean that she has standing to challenge “[t]he entire licensing law.” Oral

Arg. Tr. 2:25–3:7. As discussed supra at 10–11, New York provides different means

for obtaining a mental health counselor license depending on whether a person is

seeking an initial license or endorsement of a license already obtained in another

state. Brokamp draws no distinction between the two. She does not dispute,

however, that as a Virginia-licensed mental health counselor in good standing, she

does not need to satisfy the many particulars of New York’s initial license

requirement to provide mental health counseling in that state. She need only

satisfy New York’s streamlined requirement for licensure by endorsement. 14

Thus, Brokamp cannot plausibly claim imminent and concrete (as opposed to

hypothetical and speculative) injury from the eleven specific coursework

requirements and 3,000 hours of supervised counseling demanded of applicants

for initial licensure, but not required of her. She can claim imminent and concrete

injury from, and therefore standing to challenge, only the endorsement part of

New York’s licensing regime. As the Supreme Court has observed, “standing is

not dispensed in gross.” Lewis v. Casey, 518 U.S. 343, 358 n.6 (1996); see also Davis

14Brokamp does not contend that any person already licensed as a mental health counselor in a state other

than New York would seek to satisfy New York’s detailed requirements for initial licensure rather than its

streamlined requirements for licensure by endorsement. Thus, injury to such a party from the former

requirements is hypothetical and speculative in nature. Accordingly, we need not here consider a party’s

standing to challenge alternative statutory requirements when either might reasonably apply.

18

v. FEC, 554 U.S. 724, 733–34 (2008) (“The fact that Davis has standing to challenge

§ 319(b) does not necessarily mean that he also has standing to challenge the

scheme of contribution limitations that applies when § 319(a) comes into play.”).

Thus, while Brokamp has standing to challenge New York’s licensure by

endorsement requirement, the same conclusion does not obtain for her challenges

to New York’s particular provisions for initial licensure. Her First Amendment

and Due Process claims as to these provisions are properly dismissed.

Moreover, that dismissal properly extends to both Brokamp’s as-applied

and facial First Amendment challenges, without regard to whether the latter is

based on overbreadth. The substantial overbreadth doctrine permits a plaintiff to

plead a facial First Amendment challenge to a statute “with no requirement that

the person making the attack demonstrate that his own conduct could not be

regulated by a statute drawn with the requisite narrow specificity.” Parker v. Levy,

417 U.S. 733, 759 (1974) (quoting Dombrowski v. Pfister, 380 U.S. 479, 486 (1965)).

But that doctrine does not absolve the plaintiff of the initial obligation to plead the

injury in fact required for standing. As this court has explained, “the overbreadth

doctrine speaks to whose interests a plaintiff suffering Article III injury may

represent. It does not provide a reason to find [personal] injury where none is

present or imminently threatened in the first instance.” Hedges v. Obama, 724 F.3d

170, 204 (2d Cir. 2013); see also Secretary of State v. Joseph H. Munson Co., 467 U.S.

947, 958 (1984) (“Facial challenges to overly broad statutes are allowed not

primarily for the benefit of the litigant, but for the benefit of society—to prevent

the statute from chilling the First Amendment rights of other parties not before the

court. Munson’s ability to serve that function has nothing to do with whether or

not its own First Amendment rights are at stake. The crucial issues are whether

19

Munson satisfies the requirement of ‘injury-in-fact,’ and whether it can be

expected satisfactorily to frame the issues in the case.”). 15

Because Brokamp can plead concrete injury only from New York’s license-

by-endorsement requirement, and not from its particular requirements for initial

licensure, all claims as to the latter are properly dismissed.

III. Failure To State a Claim

A. First Amendment Claims

Brokamp contends that New York’s licensing regime for mental health

counselors is, both on its face and as applied, a content-based restriction on speech

that cannot satisfy strict scrutiny. See Appellant Br. 24–38. 16 The First Amendment

generally prevents government from “proscribing speech . . . because [it]

disapprov[es] of the ideas expressed,” R.A.V. v. City of St. Paul, 505 U.S. 377, 382

(1992), or mandating speech because it seeks to promote particular views, see

Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205, 213 (2013)

(reiterating “basic First Amendment principle that freedom of speech prohibits the

15Because Brokamp here specifically disavows any overbreadth claim, this case is distinguishable from

those holding that in resolving disputes as to whether a First Amendment is facial or as-applied, “[t]he

label is not what matters.” Doe v. Reed, 561 U.S. 186, 194 (2010); accord Vermont Rt. to Life Comm., Inc. v.

Sorrell, 758 F.3d 118, 126 (2d Cir. 2014). Here, Brokamp not only disavows an overbreadth claim, she argues

that it was error for the district court to construe her facial First Amendment challenge to allege

overbreadth: “Because Dr. Brokamp alleges that her speech is constitutionally protected, the ‘substantial

overbreadth’ doctrine is inapplicable.” Appellant Br. 32. In these circumstances, we take Brokamp at her

word, mindful both that “the party who brings a suit is master to decide what law he will rely upon,” Fair

v. Kohler Die & Specialty Co., 228 U.S. 22, 25 (1913), and that facial challenges are frequently pleaded with

as-applied challenges simply to expand “the breadth of the remedy employed by the Court,” Citizens United

v. FEC, 558 U.S. 310, 331 (2010). That, however, does not alter “what must be pleaded in a complaint” to

demonstrate standing to pursue any claim or remedy. Id.

16Our use of the phrase “licensing regime” should not be interpreted as a departure from our ruling that

Brokamp has standing to challenge only the licensure by endorsement requirement of that regime. See

supra at 18–20. Rather, we use the phrase simply as shorthand, recognizing that certain statutory provisions

apply equally to New York’s initial license and license-by-endorsement requirements. See, e.g., N.Y. Educ.

Law § 8402(1) (defining “mental health counseling”); id. § 8410 (identifying exemptions from license

requirements); id. § 6512(1) (criminally proscribing unlicensed mental health counseling by “[a]nyone not

authorized to practice under this title,” regardless of license method applicable to particular person).

20

government from telling people what they must say” (internal quotation marks

omitted)). See generally Barr v. Am. Ass’n of Pol. Consultants, Inc., 140 S. Ct. 2335,

2354 (2020) (plurality opinion) (describing First Amendment as “a kind of Equal

Protection Clause for ideas” (internal quotation marks omitted)). For this reason,

“[c]ontent-based regulations are presumptively invalid” and must satisfy strict

scrutiny to withstand constitutional attack. R.A.V. v. City of St. Paul, 505 U.S. at

382. To pass that test, challenged regulations must be “narrowly tailored to serve

compelling state interests.” Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015)

(“Content-based laws—those that target speech based on its communicative

content—are presumptively unconstitutional and may be justified only if the

government proves that they are narrowly tailored to serve compelling state

interests.”). No exception to this principle applies for speech engaged in by

professional persons subject to state licensure. See National Inst. of Fam. & Life

Advocs. (“NIFLA”) v. Becerra, 138 S. Ct. 2361, 2371–72 (2018) (“Speech is not

unprotected merely because it is uttered by ‘professionals.’”); id. at 2375 (observing

that “licensing requirement” does not give state “unfettered power to reduce a

group’s First Amendment rights”).

Defendants submit that New York’s licensing regime is content-neutral and,

in fact, is directed at the conduct of mental health counselors, while only

incidentally burdening speech. In these circumstances, they maintain that

licensing requirements need satisfy only the “less stringent test” of intermediate

scrutiny, Hobbs v. County of Westchester, 397 F.3d 133, 149 (2d Cir. 2005), which can

be satisfied by a showing that the challenged license requirement “(1) advances

important governmental interests unrelated to the suppression of free speech and

(2) does not burden substantially more speech than necessary to further those

interests,” Cornelio v. Connecticut, 32 F.4th 160, 171 (2d Cir. 2022) (internal

quotation marks omitted). See generally Vincenty v. Bloomberg, 476 F.3d 74, 84 (2d

Cir. 2007) (emphasizing that intermediate scrutiny does not demand “‘least

speech-restrictive means of advancing the Government’s interests,’” as required

21

for strict scrutiny (quoting Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 662 (1994))).

Under this standard, states have been permitted to “regulate professional conduct,

even though that conduct incidentally involves speech.” NIFLA v. Becerra, 138

S. Ct. at 2372; see, e.g., Del Castillo v. Sec’y, Fla. Dep’t of Health, 26 F.4th 1214, 1225–

26 (11th Cir. 2022) (upholding license requirement for nutritionists as regulation

of “occupational conduct”); Capital Associated Indus., Inc. v. Stein, 922 F.3d 198, 207–

08 (4th Cir. 2019) (upholding ban on corporate practice of law because the relevant

“statutes [did not] target the communicative aspects of practicing law”). 17

Brokamp maintains that these professional licensing cases are inapt here

because, in each, the professional engaged in at least some non-expressive

conduct. She submits that mental health counseling—as she practices it, using talk

therapy—consists of nothing but speech. For this reason, Brokamp argues that it

is “unconstitutional to require any license for this kind of a mental health

professional.” Oral Arg. Tr. 8:13–22 (emphasis added).

For purposes of reviewing the dismissal of Brokamp’s First Amendment

challenge to New York’s licensure-by-endorsement requirement, we will assume,

without deciding, that her counseling services consist only of speech without any

non-verbal conduct. Cf. Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293

(1984) (assuming, without deciding, that certain conduct was expressive for

purposes of First Amendment claim). Thus, in deciding the appropriate level of

scrutiny, we focus only on whether the licensing requirement is a content-based

or content-neutral limitation on speech. For reasons we now explain, we conclude

17Regulation of conduct, directed not against but incidentally burdening speech, has also been upheld in

other contexts because of the strong state interest in the conduct. As the Supreme Court has explained,

“[t]hat is why a ban on race-based hiring may require employers to remove ‘White Applicants Only’ signs;

why an ordinance against outdoor fires may forbid burning a flag; and why antitrust laws can prohibit

agreements in restraint of trade.” Sorrell v. IMS Health Inc., 564 U.S. 552, 567 (2011) (internal quotation

marks and citations omitted); see R.A.V. v. City of St. Paul, 505 U.S. at 389 (stating that “law against

treason . . . is violated by telling the enemy the Nation’s defense secrets”).

22

that the requirement is content neutral and, therefore, subject to intermediate

rather than strict scrutiny.

1. New York’s License Requirement Is Content Neutral

The Supreme Court has repeatedly emphasized the First Amendment’s

intolerance for content discrimination—most obviously, government censorship

of controversial, unpopular, or simply disfavored viewpoints. See, e.g., Police Dep’t

of Chi. v. Mosley, 408 U.S. 92 (1972). In Mosley, the Court invalidated a city

ordinance that prohibited picketing within 150 feet of a school except for picketing

involving a labor dispute, ruling that “government may not grant the use of a

forum to people whose views it finds acceptable, but deny use to those wishing to

express less favored or more controversial views.” Id. at 96. The Court explained

that such content discrimination was unconstitutional because,

above all else, the First Amendment means that government has no

power to restrict expression because of its message, its ideas, its

subject matter, or its content. To permit the continued building of our

politics and culture, and to assure self-fulfillment for each individual,

our people are guaranteed the right to express any thought, free from

government censorship. The essence of this forbidden censorship is

content control. Any restriction on expressive activity because of its

content would completely undercut the profound national

commitment to the principle that debate on public issues should be

uninhibited, robust, and wide-open.

Id. at 95–96 (internal quotation marks and citations omitted).

Consistent with the First Amendment’s strict prohibition on content

censorship, the Supreme Court in Boos v. Barry, 485 U.S. 312 (1988), invalidated a

District of Columbia code provision that forbade “the display of any sign within

500 feet of a foreign embassy if that sign tends to bring that foreign government

into ‘public odium’ or ‘public disrepute,’” id. at 315. Though the prohibition might

have appeared “not viewpoint based” insofar as acceptable and unacceptable

23

viewpoints were identified “in a neutral fashion by looking to the policies of

foreign governments,” id. at 319, the Court ruled it unconstitutional, reasoning that

“a regulation that ‘does not favor either side of a political controversy’ is

nonetheless impermissible because the ‘First Amendment’s hostility to content-

based regulation extends to prohibition of public discussion of an entire topic,’”

id. (ellipsis omitted) (quoting Consolidated Edison Co. v. Pub. Serv. Comm’n, 447 U.S.

530, 537 (1980)). More recently, the Court has reiterated that “content

discrimination” is constitutionally proscribed because it “‘raises the specter that

the Government may effectively drive certain ideas or viewpoints from the

marketplace.’” R.A.V. v. City of St. Paul, 505 U.S. at 387 (quoting Simon & Schuster

Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 116 (1991)).

Applying these principles here, we conclude that New York’s mental health

licensing regime, particularly the licensing-by-endorsement requirement

applicable to Brokamp, is not a content-based restriction on speech. Like any

license requirement, the one here at issue regulates—and to that extent limits—

who can use the title “mental health counselor,” or “practice mental health

counseling,” N.Y. Educ. Law § 8402(2)—activity that, for purposes of this appeal,

we presume to consist only of speech. But New York’s mental health counseling

license requirement does not turn on the content of what a person says.

Specifically, it does not license “views it finds acceptable,” while refusing to license

“less favored or more controversial views.” Police Dep’t of Chi. v. Mosley, 408 U.S.

at 96. It does not condemn “certain ideas or viewpoints.” R.A.V. v. City of St. Paul,

505 U.S. at 387 (internal quotation marks omitted). It does not “prohibit[] public

discussion of an entire topic.” Boos v. Barry, 485 U.S. at 319 (internal quotation

marks omitted). Rather, New York’s license requirement applies—regardless of

what is said—only to speech having a particular purpose, focus, and

24

circumstance. 18 Thus, we conclude that New York’s license-by-endorsement

requirement is not content based, but rather content neutral.

That conclusion finds support in the rulings of our sister circuits, notably,

National Association for Advancement of Psychoanalysts v. California Board of

Psychology, 228 F.3d 1043 (9th Cir. 2000) (“NAAP v. Cal. Bd.”), and Otto v. City of

Boca Raton, 981 F.3d 854 (11th Cir. 2020).

In NAAP, psychoanalysts challenged California’s psychologist licensing

requirement on First and Fourteenth Amendment grounds. Like the challenged

New York law, a California law required license applicants to satisfy educational,

experiential, and examination requirements. See 228 F.3d at 1046–47. In rejecting

the psychoanalysts’ First Amendment challenge, the Ninth Circuit ruled that

California’s license requirement was a content-neutral exercise of the state’s police

power, explaining that “California’s mental health licensing laws . . . do not

dictate what can be said between psychologists and patients during treatment,” id.

at 1055 (emphasis added); they “merely determine[] who is qualified as a mental

health professional,” id. at 1056. The same conclusion obtains here. New York’s

license-by-endorsement requirement determines what persons, already licensed

by another state to provide mental health counseling, can provide such counseling

in New York upon a less detailed showing of competency than that required by

the state’s initial licensure procedure. The license-by-endorsement requirement

does not “dictate what can be said” between a mental health counselor and client;

18 See supra at 8–9 (discussing statutory definition of “mental health counseling”). We note that in

Brokamp’s challenge to the District of Columbia code requirement for licensure of the practice of

professional counseling, the district court, in a minute order denying dismissal of her First Amendment

claim, ruled that the D.C. code “is . . . 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.” See Brokamp v.

District of Columbia, No. 20-cv-3574, Minute Order (D.D.C. Mar. 7, 2022). We need not decide whether we

agree with this conclusion about the D.C. code because we consider only New York’s license laws. For

reasons discussed in text, we conclude that New York’s license requirement depends not on any topic that

a counselor may discuss with a client, but on the purpose, focus, and circumstance of any discussion.

25

it merely determines “who is qualified” as a mental health counseling

professional. Id. at 1055–56.

In Otto, the Eleventh Circuit struck down as content-based restrictions on

speech a pair of ordinances prohibiting talk therapy practices designed to change

a minor’s sexual orientation or gender identity (practices more commonly known

as “conversion therapy”). See 981 F.3d at 859. The court there explained that,

under the challenged ordinances,

[w]hether therapy is prohibited depends only on the content of the

words used in that therapy, and the ban on that content is because the

government disagrees with it. And whether the government’s

disagreement is for good reasons, great reasons, or terrible reasons

has nothing at all to do with it. All that matters is that a therapist’s

speech to a minor client is legal or illegal under the ordinances based

solely on its content.

Id. at 863. By contrast to these ordinances, which were “based solely on [the]

content” of a therapist’s speech to a minor client, id., the licensing requirements in

this case do not depend on anything that is said between a counselor and a client

seeking mental health care. What matters is that—whatever is said—the speech

(1) have a therapeutic purpose, (2) relating to a mental disorder or problem, (3) in

the context of a professional practice or organized setting. See supra at 8–9.

Brokamp may disagree with New York’s determination that mental health

counselors licensed in other states, such as herself, must make some (streamlined)

showing of competency to be licensed to treat New York residents. But that does

not alter the fact that New York‘s license-by-endorsement requirement for such

counselors places no limits or conditions on what a licensed counselor may hear

and say in providing mental health counseling. Thus, like the license requirement

26

in NAAP, and unlike the ordinances at issue in Otto, New York’s license-by-

endorsement requirement is content neutral. 19

In urging otherwise, Brokamp relies on Reed v. Town of Gilbert, 576 U.S. 155.

In that case, a church and its pastor raised a First Amendment challenge to a town

code prohibiting the display of outdoor signs anywhere in the town without a

permit but providing for 23 exemptions, each of which was subject to different

restrictions. See id. at 159. Among these were exemptions for “Ideological Signs,”

“Political Signs,” and “Temporary Directional Signs Relating to a Qualifying

Event.” Id. at 159–60 (brackets omitted). The Supreme Court ruled that the sign

code was a content-based restriction on speech because its application to any

19A trio of Supreme Court cases identifying content-based restrictions on speech are also distinguishable

from this case and, thus, further support our conclusion that the licensing requirement here at issue is

content neutral. Insofar as New York’s license requirement does not depend on the topics discussed

between counselor and client, this case is not akin to Barr v. American Association of Political Consultants, Inc.,

140 S. Ct. at 2347 (striking down government-debt exception to federal restriction on robocalls to cell

phones as content-based restriction on speech because “law here focuses on whether the caller is speaking

about a particular topic” (emphasis omitted)). Its singular concern is on whether the counselor purports to

be speaking for a therapeutic purpose in order to treat a condition of the psyche in a professional context.

Nor does New York mandate that a licensed counselor provide any information or convey any message

when treating a client, distinguishing this case from NIFLA v. Becerra, 138 S. Ct. at 2371 (holding California

statute requiring licensed clinics to notify women that state provides free or low-cost health care services,

including abortions, is “content-based regulation of speech” because “[b]y compelling individuals to speak

a particular message, such notices alter the content of their speech” (brackets and internal quotation marks

omitted)). Further, New York imposes criminal penalties only for providing mental health counseling

without a license; the content of that counseling is irrelevant. Cf. Holder v. Humanitarian L. Project, 561 U.S.

1, 8–9, 27 (2010) (ruling that statute criminalizing provision of material support for foreign terrorist

organizations, including by providing “expert advice or assistance,” “regulates speech on the basis of its

content” because “[p]laintiffs want to speak to [two groups designated as foreign terrorist organizations],

and whether they may do so under [the statute] depends on what they say[;] [i]f plaintiffs’ speech to those

groups imparts a ‘specific skill’ or communicates advice derived from ‘specialized knowledge’ . . . then it

is barred [whereas] plaintiffs’ speech is not barred if it imparts only general or unspecialized knowledge”

(internal quotation marks omitted)).

27

particular sign “depend[ed] entirely on the communicative content of the sign.”

Id. at 164. 20 The Court explained:

Government regulation of speech is content based if a law applies to

particular speech because of the topic discussed or the idea or

message expressed. This commonsense meaning of the phrase

“content based” requires a court to consider whether a regulation of

speech “on its face” draws distinctions based on the message a

speaker conveys. Some facial distinctions based on a message are

obvious, defining regulated speech by particular subject matter, and

others are more subtle, defining regulated speech by its function or

purpose. Both are distinctions drawn based on the message a speaker

conveys, and, therefore, are subject to strict scrutiny.

Id. at 163–64 (quoting Sorrell v. IMS Health Inc., 564 U.S. 552, 566 (2011)).

Brokamp argues that “[t]he upshot of Reed is that a law is content based

whenever it is necessary to examine the content of speech in order to determine

how the law applies.” Appellant Br. 29. She submits that New York law requires

such an examination of content because the law “defines the type of speech that

requires a license both in terms of its ‘subject matter’ and its ‘function or purpose.’”

Id. at 30 (quoting Reed v. Town of Gilbert, 576 U.S. at 163–64). Like the Seventh

Circuit, we cannot construe Reed as Brokamp urges because the Supreme Court

specifically disavowed that construction last term in City of Austin v. Reagan

National Advertising of Austin, LLC, 142 S. Ct. 1464 (2022). See GEFT Outdoor, LLC

v. City of Westfield, 39 F.4th 821, 825 (7th Cir. 2022) (observing that, in City of Austin,

Supreme Court “altogether rejected [idea] that a need-to-read requirement” to

20The Court illustrated with a hypothetical: “If a sign informs its reader of the time and place a book club

will discuss John Locke’s Two Treatises of Government, that sign will be treated differently from a sign

expressing the view that one should vote for one of Locke’s followers in an upcoming election, and both

signs will be treated differently from a sign expressing an ideological view in Locke’s theory of

government.” Reed v. Town of Gilbert, 576 U.S. at 164.

28

determine whether communication falls within statutory prohibition “necessarily

shows regulation based on the content of speech”).

In City of Austin, a pair of companies that owned outdoor billboards raised

a First Amendment challenge to a municipal sign code that distinguished between

on-premises signs (i.e., signs advertising products or services offered on the same

premises as the signs) and off-premises signs (i.e., signs advertising products or

services not available on the same premises or directing people to other locations)

in more strictly limiting the latter. See 142 S. Ct. at 1468–70. In ruling for the

billboard owners, the Fifth Circuit construed Reed, as Brokamp here urges, “to

mean that if ‘a reader must ask[,] who is the speaker and what is the speaker

saying’ to apply a regulation, then the regulation is automatically content based.”

Id. at 1471 (brackets omitted) (quoting Reagan Nat’l Advert. of Austin, Inc. v. City of

Austin, 972 F.3d 696, 706 (5th Cir. 2020)). The Supreme Court reversed,

characterizing the quoted language from the Fifth Circuit as “too extreme an

interpretation” of Reed. Id. The Supreme Court concluded that the Austin sign

code presented no facial First Amendment violation because, while enforcement

of the challenged code required “reading a billboard to determine whether it

directs readers to the property on which it stands or to some other, offsite

location,” the law did “not single out any topic or subject matter for differential

treatment.” Id. at 1472.

Of particular relevance here, the Supreme Court clarified that Reed’s

“function or purpose” language did not upset well-settled precedent that

“restrictions on speech may require some evaluation of the speech and nonetheless

remain content neutral.” Id. at 1473–74. It explained that “a regulation of speech

cannot escape classification as facially content based simply by swapping an

obvious subject-matter distinction for a ‘function or purpose’ proxy that achieves

the same result.” Id. at 1474. But “[t]hat does not mean that any classification that

considers function or purpose is always content based.” Id. (emphasis in original).

29

The four dissenting justices in City of Austin did not take exception to this

last statement, much less urge, as Brokamp does here, that any function or purpose

classification is necessarily content based. Rather, the dissenters appear to have

questioned the majority’s conclusion that the particular classifications drawn by

the Austin sign code did not depend on the message conveyed. See id. at 1481–84

(Thomas, J., with Gorsuch, Barrett, JJ., dissenting) (stating that “per Reed, it does

not matter that Austin’s code defines regulated speech by its function or

purpose[;] . . . all that matters is that the regulation draws distinctions based on a

sign’s communicative content, which the off-premises restriction plainly does”

(brackets and internal quotation marks omitted)); see also id. at 1480 (Alito, J.,

concurring in part and dissenting in part) (rejecting majority’s “categorical”

statement that challenged code provision did “not discriminate on the basis of the

topic discussed or the idea or message expressed” (internal quotation marks

omitted)). To illustrate its concern, the dissent offered hypotheticals suggesting

that Austin enforcing officials would have to know not only “where the sign is”

located, but also “what the sign says” to determine if there was a violation of law.

Id. at 1484 (Thomas, J., dissenting) (emphasis in original) (distinguishing between

sign on Catholic bookstore’s premises saying “‘Visit the Holy Land,’” which

dissent deemed “likely an off-premises sign because it conveys a message

directing people elsewhere (unless the name of the bookstore is ‘Holy Land

Books’)” and sign saying “‘Buy More Books,’” which it deemed “likely a

permissible on-premises sign (unless the sign also contains the address of another

bookstore across town)”).

The license requirement here raises no concerns akin to those presented by

these hypotheticals. New York law does not condition its mental health licensing

requirement on the topics or subject matters discussed. Indeed, for purposes of

licensure, it matters not at all whether a counselor speaks to a client about personal

relationships, professional anxieties, medical challenges, world events, planned

travel, hobbies, sports, favorite movies, or any other subject. All that matters is

30

that the conversations be for one of the statutorily identified therapeutic purposes,

in addressing a mental disorder or problem, in the context of a private practice,

group, or organized setting. 21

Thus, we conclude that New York’s mental health counseling license

requirement is content neutral, and we apply intermediate, rather than strict,

scrutiny in deciding whether Brokamp’s First Amendment challenge was correctly

dismissed for failure to state a claim.

2. Application of Intermediate Scrutiny

To defeat Brokamp’s claim that New York’s license-by-endorsement

requirement impermissibly limits speech—even in a content-neutral way—it is

defendants’ burden to demonstrate that the requirement withstands intermediate

scrutiny, i.e., that it “(1) advances important governmental interests unrelated to

the suppression of free speech and (2) does not burden substantially more speech

than necessary to further those interests.” Cornelio v. Connecticut, 32 F.4th at 171

(internal quotation marks omitted). To make the first showing, defendants must

do more than demonstrate that “‘the recited harms are real, not merely

conjectural’”; they must show “‘that the regulation will in fact alleviate these

harms in a direct and material way.’” Id. (quoting Turner Broad. Sys., Inc. v. FCC,

512 U.S. at 664). “To establish that the law does not burden substantially more

speech than necessary, the government must demonstrate that the law is ‘narrowly

tailored’ to serve the relevant interest.” Id. (quoting Ward v. Rock Against Racism,

491 U.S. 781, 796 (1989)). Because the intermediate scrutiny burden will frequently

require the government to “identify evidence—or, at least, provide sound

reasoning that draws reasonable inferences based on substantial evidence,” courts

will generally “wait until the summary judgment stage of the litigation” to

21This conclusion obtains with particular force to Brokamp, who holds herself out as acting with a

therapeutic purpose to address mental health problems in the context of her private Nova Terra Therapy

practice. See supra at 6.

31

determine if the burden has been carried as a matter of law. Id. at 172 (brackets

and internal quotation marks omitted). Nevertheless, in some circumstances, the

determination can be made on a motion to dismiss. See, e.g., Citizens United v.

Schneiderman, 882 F.3d 374, 380–85 (2d Cir. 2018) (affirming judgment of dismissal

upon district court determination that challenged New York regulations of

charitable organizations withstood intermediate scrutiny). This is such a case.

a. Advances Important State Interest in Public Health

Brokamp does not seriously dispute that New York’s license requirement

addresses an important government interest, i.e., promoting and protecting public

health, specifically, mental health. As her counsel stated at oral argument: “[W]e

don’t really dispute that [the challenged licensure] involves the health of New

Yorkers.” Oral Arg. Tr. 5:16–17 (arguing that point in dispute was tailoring). This

appears to abandon the assertion made in Brokamp’s brief that New York “has not

actually said what harm it believes it is combatting with its licensing law.”

Appellant Br. 36. In any event, the record is to the contrary.

Defendants have detailed at length findings made by the New York State

legislature, and contemporaneously memorialized in the enactment record, that

(1) mental health counseling “affects the public safety and welfare”; and (2) there

is a demonstrated need (a) “to protect the public from unprofessional, improper,

unauthorized and unqualified practice of [mental health] counseling and

psychotherapy”; (b) “to protect both the mental health profession and the public

by clearly defining the scope of practice of the profession of mental health

counselor”; and (c) “to increase access to vital mental health services from

recognized professionals.” Appellees Br. 39–43 (internal quotation marks

omitted); see Goe v. Zucker, 43 F.4th 19, 29 (2d Cir. 2022) (recognizing that, in

considering state interest in vaccination mandate challenged as unconstitutional,

32

“courts may take judicial notice of legislative history” (citing Territory of Alaska v.

Am. Can Co., 358 U.S. 224, 226–27 (1959)). 22

The Supreme Court has long recognized the states’ strong interest in

protecting public health “against the consequences of ignorance and incapacity, as

well as of deception and fraud.” Dent v. West Virginia, 129 U.S. 114, 122 (1889). On

this basis, the Court in Dent unanimously rejected the argument that a state

certification requirement to practice medicine violated the Due Process right to

pursue a profession. The Court explained that while everyone may at some time

have occasion to consult a physician,

comparatively few can judge of the qualifications of learning and skill

which he possesses. Reliance must be placed upon the assurance

given by his license, issued by an authority competent to judge in that

respect, that he possesses the requisite qualifications. Due

consideration, therefore, for the protection of society may well induce

22 Defendants support the quoted text with citations to 2002 N.Y. Sess. Laws ch. 676, § 7, N.Y. Educ. Law

§§ 6509–6511, as well as to various materials included in the licensure legislation’s Bill Jacket. See Vatore v.

Comm’r of Consumer Affs., 83 N.Y.2d 645, 651 (1994) (referencing bill jacket in observing that

“contemporaneous interpretation of a statute is entitled to considerable weight in discerning legislative

intent” (internal quotation marks omitted)); accord Doe v. Pataki, 120 F.3d 1263, 1277 (2d Cir. 1997). The

latter included letters from academicians, mental health and counseling associations, and other entities

providing mental health services (e.g., American Red Cross), see Bill Jacket for L.2002, ch. 676, at 17–40,

citing anecdotal and statistical evidence “that patients can suffer significant, traumatic damage at the hands

of mental health professionals who are unscrupulous, unethical, or untrained,” id. at 29, 36; and

emphasizing the value of a uniform credential that could be recognized by institutions and insurers, id. at

21, 32, 77. It included a Sponsor Letter indicating that the licensure legislation was intended to “ensure

that those professionals offering services identified in their scope of practice have met the education,

experience, and examination requirements established by law” and to increase access to mental health

services from recognized professionals. Id. at 3. It included a Budget Report, see id. at 5–7, concluding that

licensing requirements would protect persons seeking mental health care from “exploitation by

incompetent, unqualified and fraudulent practitioners,” and that standards for licensure would “raise the

quality of mental health services available in the State,” id. at 6; as well as a State Education Department

Recommendation, see id. at 8–12, advising that the legislation’s “entry standards” and the department’s

ability to discipline counselors who failed to comply with these standards would ensure “substantially

increased public protection” consistent with standards “refined over a period of years” by the mental health

counseling profession, id. at 11.

33

the state to exclude from practice those who have not such a license,

or who are found upon examination not to be fully qualified.

Id. at 122–23. 23 The Supreme Court has extended this reasoning to health

professionals other than physicians. See, e.g., Semler v. Or. State Bd. of Dental

Exam’rs, 294 U.S. 608, 611 (1935) (“That the state may regulate the practice of

dentistry, prescribing the qualifications that are reasonably necessary, and to that

end may require licenses and establish supervision by an administrative board, is

not open to dispute. The state may thus afford protection against ignorance,

incapacity[,] and imposition.” (citations omitted)). Indeed, the Court has observed

that a state’s “broad power to establish and enforce standards of conduct within

its borders relative to the health of everyone there” extends “naturally to the

regulation of all professions concerned with health.” Barsky v. Bd. of Regents, 347

U.S. 442, 449 (1954) (emphasis added). 24 As noted supra at Note 6, at present, all

fifty states, the District of Columbia, and Puerto Rico have established licensure

standards for mental health counselors.

Thus, at the first step of intermediate scrutiny, we conclude as a matter of

law that New York’s license requirement for mental health counselors both

(1) addresses a significant state interest in safeguarding and promoting public

health, and (2) does so in a way—licensure based on specified standards of

education, experience, and testing—long recognized by the Supreme Court

directly and materially to alleviate concerns about ignorant, incompetent, and/or

deceptive health care providers.

23Brokamp herself appears to recognize the value of a license to persons seeking health care from

competent and ethical practitioners. As noted earlier, in her promotional materials, the first thing she says

about herself is that she is a “licensed professional.” See NOVA TERRA THERAPY, supra at 6 (emphasis added).

24This case thus does not raise concerns about over-licensing professions involving less apparent state

interests than public health. See, e.g., Claudia E. Haupt, Licensing Knowledge, 72 VAND. L. REV. 501, 515–24

(2019); see generally David E. Bernstein, The Due Process Right To Pursue a Lawful Occupation: A Brighter Future

Ahead?, 126 YALE L.J.F. 287 (2016).

34

In urging against the second of these findings, Brokamp points to the

numerous statutory exemptions from New York’s license requirements for mental

health counselors, which she submits “necessarily allow whatever harm the State

supposedly wants to prevent.” Appellant Br. 34. But, as Brokamp herself

acknowledges, underinclusiveness does not necessarily mean that a statute fails

the government-interest prong of intermediate scrutiny. See id. at 37. Precedent

has long held that laws need not address all aspects of a problem to pass scrutiny.

See Erznoznik v. City of Jacksonville, 422 U.S. 205, 215 (1975) (observing, in context

of First Amendment strict scrutiny, “[t]his Court frequently has upheld

underinclusive classifications on the sound theory that a legislature may deal with

one part of a problem without addressing all of it”). Nevertheless, to the extent

underinclusiveness might bear on intermediate scrutiny, cf. Williams-Yulee v. Fla.

Bar, 575 U.S. 433, 449 (2015) (observing that underinclusiveness can “raise[] a red

flag” as to whether law advances “compelling interest” required for strict

scrutiny); see also Trans Union Corp. v. FTC, 267 F.3d 1138, 1143 (D.C. Cir. 2001)

(stating, in applying intermediate scrutiny, that “[u]nderinclusiveness analysis

ensures that the proffered state interest actually underlies the law, so a rule is

struck for underinclusiveness only if it cannot fairly be said to advance any

genuinely substantial government interest” (brackets and internal quotation

marks omitted)), the exemptions here at issue raise no colorable claim as to the

license requirement’s direct and material alleviation of public health concerns.

In general, the exemptions stated in N.Y. Educ. Law § 8410 identify persons

acting in circumstances reducing the risk of incompetent or deceptive counseling.

These include persons already licensed in a related health field such as licensed

physicians, physician’s assistants, registered professional nurses, nurse

practitioners, psychologists, master social workers, clinical social workers, and

behavior analysts. See N.Y. Educ. Law § 8410(1). Such persons need not obtain a

further license to provide what New York defines as mental health counseling

provided that they do not represent themselves as “licensed mental health

35

counselor[s].” Id. An exemption also pertains to persons already licensed or

credentialed in other fields—attorneys, rape crisis counselors, and alcohol and

substance abuse counselors—but only insofar as they may provide counseling

“within their respective established authorities.” Id. § 8410(2). These two

exemptions effectively acknowledge the reality that mental health issues can arise

in various professional contexts and reflect a legislative judgment that other

professional licenses provide a sufficient safeguard against incompetent or

deceptive practices, at least when the professional refrains from holding himself

out as a “licensed mental health counselor” or limits his discussions to the scope

of his licensed authority. Other exemptions, applying to persons training in a

state-approved educational program or acting through, with, or at the direction of

an otherwise duly licensed counselor, see id. § 8410(3), (7), (8), similarly present

circumstances thought to present reduced risks of incompetent or deceptive

counseling. As for the exemption afforded members of the clergy, to the extent

they provide “pastoral counseling services . . . within the context of [their]

ministerial charge or obligation,” id. § 8410(4), this avoids any possible

infringement of First Amendment religion rights.

Brokamp does not suggest otherwise. Instead, she focuses her exemption

argument largely on § 8410(5), which says that New York’s license requirement

does not “[p]rohibit or limit individuals, churches, schools, teachers,

organizations, or not-for-profit businesses[] from providing instruction, advice,

support, encouragement, or information” to others. To the extent this assures

relatives, friends, teachers, church groups, and support organizations such as the

Salvation Army, the Red Cross, and Alcoholics Anonymous that they can offer

instruction, advice, support, encouragement, and information without a mental

health counselor license, New York could reasonably conclude that the benefits of

such interactions sufficiently outweigh the risks to public health as to be excused

from license requirements. See generally Jacobson v. Massachusetts, 197 U.S. 11, 25

(1905) (recognizing state police power to embrace “reasonable regulations” to

36

protect public health, “mode or manner” of which “is within the discretion of the

state, subject . . . to the condition that no rule prescribed by a state . . . shall

contravene the Constitution of the United States”).

In urging otherwise, Brokamp submits that the exemption can reach such a

wide variety of persons—“life coaches, mentors, and self-help gurus”—as to risk

the very harm that New York purportedly wants to prevent. Appellant Br. 42

(internal quotation marks omitted). Brokamp’s concern is overstated. The license

requirement would still reach such persons, however they characterized

themselves, if they spoke to others for a therapeutic purpose pertaining to a mental

disorder or problem in the particular circumstances specified in the definition of

mental health counseling.

In sum, Brokamp's complaint has not plausibly alleged that New York's

exemptions from its license requirements for mental health counselors belie a

conclusion that those requirements serve a significant state interest in protecting

public mental health by directly and materially alleviating concerns about

incompetent and deceptive counselors.

b. Tailoring

In arguing at the second step of intermediate scrutiny that defendants have

not carried their tailoring burden, Brokamp reiterates certain points already

addressed: (1) New York’s expansive definition of mental health counseling

means that its licensing requirements burden substantially more speech than

necessary to further the state’s interest in protecting public health, and

(2) numerous license exemptions in fact allow the very harms that the state

purportedly seeks to prevent. Further, she submits that this tailoring defect is

particularly apparent in the application of New York’s license requirement to her

because, by virtue of Brokamp’s Virginia license, extensive education and

experience, and satisfactory unlicensed counseling in New York during the

37

pandemic, it is plain that she poses no threat to public health. Neither argument

persuades.

We have already detailed how New York’s four-part definition of “the

profession of mental health counseling” limits the speech requiring a mental

health counselor license to that (1) engaged in for a therapeutic purpose,

(2) focused on a disorder or problem of the psyche, and (3) given in the particular

circumstances of a private practice, group, or otherwise organized setting. See

supra at 8–9. These limits serve to tailor the license requirement to those

circumstances where persons are most likely to present as professional mental

health counselors in order to gain client trust and, thus, where there is a state

interest in minimizing the risks incompetence or deception pose to public health.

At the same time, statutory exemptions serve to ensure that even speech

qualifying as mental health counseling is not unduly burdened with a mental

health counselor license requirement. Thus, as detailed more fully supra at 35–36,

no mental health counselor license is required for persons already holding other

New York health care licenses, nor for persons licensed in other specified

professions, to the extent such persons provide counseling only within their

licensed authorities or do not hold themselves out as mental health counselors.

No license requirement is imposed on members of the clergy, or on students or

persons working in state-approved programs or under the supervision or

direction of licensed mental health counselors. No license is required for

individuals, churches, schools, teachers, organizations, or not-for-profit

businesses providing instruction, advice, support, encouragement, or information

to others. Brokamp submits that mental health counseling often involves

“instruction, advice, support, encouragement, or information.” Appellant Br. 36

(internal quotation marks omitted). We expect that is so, but to constitute mental

health counseling requiring a license, the instruction, advice, support, etc., must

be more than empathetic. It must be given for a statutorily identified therapeutic

38

purpose, in order to address a disorder or problem of the psyche, in private

practice, group, or organized settings. See N.Y. Educ. Law § 8402(1)(a).

Thus, from the statutory definition of “mental health counseling” together

with the statutory exemptions, we can conclude that the law is sufficiently tailored

to ensure that its licensing requirement does not burden more speech than

necessary to allow the state to protect residents against incompetent and deceptive

mental health counselors. See Cornelio v. Connecticut, 32 F.4th at 171.

Nor is a different conclusion warranted in Brokamp’s particular case. As

noted supra at 10–11, to provide mental health counseling services to New York

residents, she need satisfy only the state’s license-by-endorsement requirement,

not the more detailed showing for initial licensure. This streamlined endorsement

procedure itself tailors the licensing statute to avoid an undue burden on the

speech of counselors, such as Brokamp, already licensed and in good standing in

another state. Insofar as Brokamp might be understood to complain that even a

license-by-endorsement requirement fails intermediate scrutiny, her argument

falls short because New York’s interest in protecting its residents from

incompetent or deceptive counselors warrants the state ensuring, at a minimum,

that persons really are licensed and in good standing in another state before

exempting them from the state’s initial license requirement. Similarly, requiring a

showing that the out-of-state license was obtained by satisfying educational,

experiential, and testing requirements comparable to New York’s is sufficiently

tailored to the state’s public health interest to avoid unduly burdening First

Amendment rights. Indeed, it appears that Brokamp can easily make this showing

such that it is not seriously burdensome as applied to her. See supra at 5–6. As for

New York’s requirement that license-by-endorsement applicants (as well as initial

applicants) complete a course in the identification of child abuse, Brokamp raises

no specific First Amendment tailoring challenge to this requirement, which is, in

any event, tailored to yet a further state interest—this one implicating criminal law

39

as well as public health—i.e., maximizing the identification and prevention of

abuse against particularly vulnerable victims: children. 25 Finally, no colorable

claim of undue burden is raised by the $371 fee for licensure by endorsement.

Although higher than the $175 fee for initial licensure, Brokamp does not allege

that this fee is unreasonable to cover administrative costs in connection with

confirming that a person seeking license by endorsement holds an out-of-state

license, obtained that license by satisfying requirements comparable to New

York’s, and is in good standing. See American Entertainers, LLC v. City of Rocky

Mount, 888 F.3d 707, 711 (4th Cir. 2018) (holding that “‘ordinance requiring a

person to pay a license or permit fee before he can engage in a constitutionally

protected activity does not violate the Constitution so long as the purpose of

charging the fee is limited to defraying expenses incurred in furtherance of a

legitimate state activity’” (quoting Deja Vu of Nashville, Inc. v. Metro. Gov’t of

Nashville & Davidson Cnty., 274 F.3d 377, 395 (6th Cir. 2001))).

In sum, because licensure by endorsement is the only requirement that

Brokamp must satisfy to provide mental health counseling services to New York

residents and because that requirement, insofar as it affects speech, survives

intermediate scrutiny both on its face and as applied, Brokamp fails to state a First

Amendment claim for which relief can be granted.

B. Vagueness Claims 26

A statute is unconstitutionally vague in violation of the Due Process Clause

if it (1) “fails to provide a person of ordinary intelligence fair notice of what is

25 New York enlists a variety of professionals in this endeavor. See N.Y. Soc. Serv. Law § 413(1)(a).

26 In her reply brief, Brokamp specifically disavows a Fourteenth Amendment vagueness claim, insisting

that her claim is that “the licensing law is unconstitutionally vague under the First Amendment.” Appellant

Reply Br. 28 (emphasis in original). However, the Supreme Court has explained that “[v]agueness doctrine

is an outgrowth not of the First Amendment, but of the Due Process Clause.” United States v. Williams, 553

40

prohibited,” or (2) “is so standardless that it authorizes or encourages seriously

discriminatory enforcement.” Holder v. Humanitarian L. Project, 561 U.S. 1, 18

(2010) (internal quotation marks omitted); see Melendez v. City of New York, 16 F.4th

at 1015. Vagueness review is heightened when, as here, a challenged statute

pertains to speech protected by the First Amendment. See Holder v. Humanitarian

L. Project, 561 U.S. at 19. Nevertheless, to the extent Brokamp complains that New

York’s license requirement is unconstitutionally vague both on its face and as

applied to her, we first consider her as-applied challenge because a “‘plaintiff who

engages in some conduct that is clearly proscribed cannot complain of the

vagueness of the law as applied to the conduct of others.’” Id. at 20 (brackets

omitted) (quoting Village of Hoffman Estates v. Flipside, Hoffman Ests., Inc., 455 U.S.

489, 495 (1982)). 27 “That rule makes no exception for conduct in the form of

speech.” Id. 28

1. As-Applied Vagueness Claim

Brokamp argues that New York’s mental health counselor license

requirement is unconstitutionally vague because it effectively “both prohibits and

permits the exact same conduct.” Appellant Br. 39. To support this argument,

U.S. 285, 304 (2008). Cognizant of our duty to read the pleadings in the light most favorable to Brokamp,

we will interpret Brokamp’s vagueness claims as brought under the Fourteenth Amendment.

27While Brokamp’s vagueness claim, pleaded by frequent references to her by name, see Compl. ¶¶ 105–

12, might be construed, as the district court did, to allege an as-applied vagueness challenge, because she

argues on appeal that “nobody can tell what speech is covered by the law,” Appellant Br. 39 n.3 (emphasis

in original), we assume that she wishes to pursue a vagueness challenge both facially and as applied and

that Brokamp’s complaint is properly read to address both challenges. Nevertheless, as we explain in text,

the failure of Brokamp’s as-applied challenge necessarily defeats her facial challenge.

28As the Supreme Court has explained, a plaintiff whose vagueness challenge is “based on the speech of

others . . . may have a valid overbreadth claim under the First Amendment, but our precedents make clear

that a [Due Process] vagueness challenge does not turn on whether a law applies to a substantial amount

of protected expression.” Holder v. Humanitarian L. Project, 561 U.S. at 20 (stating that, otherwise, vagueness

and overbreadth doctrines “would be substantially redundant”). As noted supra at Note 15, Brokamp

specifically disavows an overbreadth claim in this case.

41

Brokamp cites that phrase in the statutory definition of “mental health counseling”

specifying the purpose for which “verbal methods” must be used to warrant

licensing, i.e., “evaluation, assessment, amelioration, treatment, modification, or

adjustment.” N.Y. Educ. Law § 8402(1)(a). She submits that this is coterminous

with the statutory exemption from licensure for “instruction, advice, support,

encouragement, or information.“ Id. § 8410(5). For the same reason we rejected

this argument as a matter of law when advanced to challenge dismissal of

Brokamp’s First Amendment claims, see supra at 35–37, we reject it as a matter of

law as advanced to challenge dismissal of Brokamp’s vagueness claim. The

quoted definitional phrase is particular, referencing speech used for a therapeutic

purpose, having a prescribed focus, and occurring in a particular circumstance.

Thus, while a mental health counselor may provide “instruction, advice, support,

encouragement, or information” to clients, the statutory definition of mental

health counseling serves clear notice that it is only when the counselor does so

(1) for therapeutic purposes of “evaluation, assessment, amelioration, treatment,

modification, or adjustment,” (2) focused on a mental “disability, problem, or

disorder,” and (3) in the context of “private practice, group, or organized settings”

that a mental health counselor license is required. Meanwhile, the exception

serves notice that absent such prescribed purposes, foci, or circumstances, there is

no limit placed on the ability to provide “instruction, advice, support,

encouragement, or information” to others. 29

Here, there can be no question that Brokamp’s professional talk therapy

practice falls squarely within this statutory definition of mental health counseling

requiring licensure and that both she and enforcement authorities so understood.

In her promotional materials to clients, Brokamp describes herself as “a licensed

professional counselor”—a reference to her Virginia mental health counselor

29This makes implausible Brokamp’s pleading that “life coaches, self-help gurus, mentors, religious

leaders, or even close friends . . . routinely offer[] advice that falls within the legal definition of ‘mental

health counseling.’” Compl. ¶ 96.

42

license. See NOVA TERRA THERAPY, supra at 6. In short, she recognizes that she is

no mere life coach, mentor, or self-help guru, but a professional mental health

counselor. Further, her promotional materials state that she can provide “relief

from trauma, stress, grief, and anxiety using CBT [cognitive behavioral therapy]

and other research-supported counseling approaches.” Id. “Relief” promises

more than the “instruction, advice, support, encouragement, or information” that

N.Y. Educ. Law § 8410(5) exempts from licensure. Rather, “relief” promises

“amelioration,” or at least “modification, or adjustment”: the therapeutic purposes

New York uses to define mental health counseling requiring licensure. N.Y. Educ.

Law § 8402(1)(a). Further, what Brokamp promises relief from is “trauma, stress,

grief, and anxiety,” id., which as a person with two graduate degrees in mental

health counseling and two decades of mental health counseling experience and

licensure, she would know can reflect a mental “disability, problem, or disorder,”

the statutorily prescribed focus of mental health counseling. Indeed, that

conclusion is reinforced by Brokamp’s representation that, in obtaining such relief

for clients, she uses professional counseling methods: CBT—a widely used form

of psychotherapy, see Cognitive Behavioral Therapy, MAYO CLINIC, https://

www.mayoclinic.org/tests-procedures/cognitive-behavioral-therapy/about/pac-

20384610 (last accessed Apr. 25, 2023)—as well as “other research-supported

counseling approaches,” NOVA TERRA THERAPY, supra at 6. Finally, Brokamp only

provides such counseling in the context of her private practice, see id., a factor

further bringing her work squarely within New York’s definition of “mental

health counseling” requiring licensure, see N.Y. Educ. Law § 8402(1)(a).

Given these undisputed facts, it is no surprise that, in her Complaint,

Brokamp herself acknowledges that her “teletherapy conversations with her

clients constitute ‘mental health counseling’ under New York law because they

include the ‘assessment’ and ‘amelioration’ of ‘problem[s] or disorder[s] [of]

behavior, character, development, emotion, personality or relationships.’” Compl.

¶ 33 (alterations in original). Further, Brokamp had notice that her practice

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constituted “mental health counseling” when the N.Y. Board confirmed as much

to her via email. See id. ¶ 38; see supra at 7. Thus, there is no colorable claim as to

Brokamp having notice that the services she offers clients are mental health

counseling subject to New York’s license requirement.

For much the same reasons that Brokamp had notice that her counseling

falls squarely within New York’s definition of mental health counseling requiring

licensure, so did state enforcement authorities. See Farrell v. Burke, 449 F.3d 470,

493–94 (2d Cir. 2006) (Sotomayor, J.) (observing that where party’s conduct falls

“so squarely in the core” of statute, “no reasonable enforcing officer could doubt

the law’s application in the circumstances”). That is evident from the fact that

when Brokamp inquired of the N.Y. Board whether she could continue providing

unlicensed counseling to New York residents after expiration of Executive

Order 202.15, the N.Y. Board promptly told her that she could not. See Compl.

¶ 38.

Thus, Brokamp’s as-applied vagueness challenge was properly dismissed

for failure to state a claim.

2. Facial Vagueness Claim

Our ruling that Brokamp has failed to state an as-applied vagueness claim

is fatal to her facial vagueness challenge. As this court has observed, “[a] facial

vagueness challenge will succeed only when the challenged law can never be

validly applied.” Vermont Rt. to Life Comm., Inc. v. Sorrell, 758 F.3d 118, 128 (2d Cir.

2014). That is because a party pursuing a facial challenge must plausibly allege

that a legal requirement is “vague not in the sense that it requires a person to

conform his conduct to an imprecise but comprehensible normative standard, but

rather in the sense that no standard of conduct is specified at all. Such a provision

simply has no core.” Village of Hoffman Estates v. Flipside, Hoffman Ests., Inc., 455

U.S. at 495 n.7 (emphasis in original) (internal quotation marks and citation

omitted). For reasons already discussed, New York’s definition of “mental health

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counseling” provides a counseling “core” subject to licensure, which is here

recognized by both Brokamp and the relevant state enforcement authority to apply

to her counseling practice. Thus, Brokamp cannot plausibly plead that New York’s

license requirement is unconstitutionally vague, either facially or as applied.

CONCLUSION

To summarize,

1. As to standing,

a. Because Brokamp plausibly alleges that New York’s

prohibition of unlicensed mental health counseling—under

threat of criminal prosecution—by itself chills her from

engaging in First Amendment-protected speech, she need not

apply for a license to plead injury sufficient for standing.

b. Because New York allows Brokamp, a Virginia-licensed mental

health counselor, to satisfy New York’s streamlined process for

licensure by endorsement, she can claim injury from, and

therefore has standing to challenge, that part of New York’s

license requirement.

c. Because Brokamp need not satisfy the particular requirements

for initial licensure to provide mental health counseling to New

York residents, she can allege no injury from, and therefore has

no standing to challenge, that part of the law. To that extent

her claims are properly dismissed for lack of jurisdiction. See

Fed. R. Civ. P. 12(b)(1).

2. As to Brokamp’s First Amendment claims,

a. Assuming that New York’s mental health counselor license

requirement limits speech unrelated to conduct, the

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requirement is nevertheless subject to intermediate, not strict,

scrutiny because the limitation, although defined in part by

purpose and function, is nevertheless content neutral.

b. New York’s license requirement withstands intermediate

scrutiny as a matter of law because there is no question that the

law (i) serves an important government interest in promoting

and protecting public health, specifically, public mental health;

and (ii) is narrowly tailored by statutory definition and

exemptions to advance that interest without unduly burdening

speech. Thus, her First Amendment claims are properly

dismissed for failure to state a claim. See Fed. R. Civ. P. 12(b)(6).

3. As to vagueness, because Brokamp fails plausibly to plead that New

York’s license requirement is unconstitutionally vague as applied to

her, both her facial and as-applied Due Process claims are properly

dismissed. See id.

Accordingly, for the reasons stated in this opinion, we AFFIRM the

judgment dismissing plaintiff’s claims in their entirety.

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