WASHINGTON—Today, the United States Supreme Court declined to grant a writ of certiorari to hear a case dealing with the issue of whether laws that censor conversations between counselors and clients violate the First Amendment. In that case, Tingley v. Ferguson, the issue at hand was a ban on discussing so-called “conversion therapy.” Denial in the case opens the door for the high court to consider a different free speech case, filed by the Institute for Justice (IJ), which challenges restrictions on teletherapists’ ability to provide counseling across state lines.
Brokamp v. James will be considered at the Supreme Court’s January 5 conference.
“Like Tingley, our case provides the court with the opportunity to consider the First Amendment implications of restricting a counselor’s ability to speak with clients,” said IJ Attorney Rob Johnson, “But, unlike Tingley, our case does not implicate the divisive culture war issues that arise with a topic like conversion therapy. Three Justices indicated that they would have granted cert in Tingley. We are hopeful that more will agree to grant cert in our case instead.”
Elizabeth Brokamp, a licensed therapist, is challenging New York’s restrictions on her ability to conduct teletherapy across state lines. Elizabeth lives in the Virginia suburbs of Washington, D.C., and operates a licensed counseling practice completely online. In 2020, one of her clients moved to New York. Elizabeth was able to continue seeing the client because during the pandemic the state waived its restrictions on teletherapy from counselors without a New York State license. But the waiver was only extended on a month-to-month basis, and it eventually expired, forcing Elizabeth to stop speaking with her client—and leaving countless other New Yorkers at risk of similarly losing their mental health providers.
New York’s licensing law requires a mental health counseling license for anyone who speaks with another person to “ameliorate” any “problems or disorders of behavior, character, development, emotion, personality or relationships by the use of verbal … methods.”
Under this law, if Elizabeth had no training, she could provide her services as an unlicensed “life coach.” However, because of Elizabeth’s qualifications and experience—the very reasons clients want her help—New York bars her from talking. New York cannot constitutionally require a license to talk to people about their feelings, as such a restriction would sweep far too broadly, and it cannot constitutionally prohibit Elizabeth’s speech just because she is effective at that type of speech.
“Elizabeth and her patients have a First Amendment right to talk to one another, regardless of whether one of them moves to a new state,” said IJ Attorney Jeffrey Redfern. “Americans don’t lose their constitutional rights when they move from one state to another.”