D.C. Teletherapy

Elizabeth Brokamp, Experienced Counselor

Elizabeth Brokamp has worked as a professional counselor for over twenty years, and she holds a Master’s Degree in Counseling Psychology from Columbia University. Her job is to use words to help people: She offers talk therapy to individuals who are going through difficult times, who are struggling with mental health, or who simply want to live a better life. While she serves a broad variety of clients, she has developed a particular focus helping women who have had trouble getting pregnant or who have had complicated pre- and post-partum experiences.

Elizabeth has been a proponent of teletherapy for years—even before internet video made it more feasible. Among other things, teletherapy provides a means for busy clients to more easily schedule therapy; allows clients to attend therapy without leaving home or having to find a babysitter; allows clients to stay in touch with their therapist while temporarily out of town; and allows clients to maintain their relationship with their therapist even after a long-distance move.

But these potential benefits have been stymied by arbitrary and unnecessary licensing. Elizabeth is licensed as a professional counselor in Virginia, where she is located. But in many states, as well as in D.C., it is generally unlawful to provide teletherapy to individuals located in the jurisdiction without a license from that jurisdiction. Licensing requirements vary state-to-state, and it would be impractical for a therapist to obtain a license in each state (plus D.C.) just to make phone and video calls.

Teletherapy and the Pandemic

Regulatory restrictions on teletherapy have become an even greater problem during the pandemic. Elizabeth has stopped seeing clients in person; in fact, she gave up her plans to open a new office for her counseling practice. She sees all her clients online, wherever they are located. All of her therapy is teletherapy.

Many jurisdictions—including D.C.—have waived at least some restrictions on teletherapy during the pandemic. In D.C., for instance, a professional counselor who is licensed in another jurisdiction can speak with a D.C. resident if the counselor has an existing relationship with the client or if the counselor is affiliated with a D.C.-licensed healthcare facility.

But these waivers are incomplete. Because D.C.’s waiver does not apply to new clients, Elizabeth has been forced to turn away D.C. residents who have sought out her services during the pandemic. In normal times, Elizabeth could have met with those clients in person in Virginia. But because Elizabeth is now seeing clients online, she has been forced to turn them away—even though she believes they would benefit from her help.

People like Elizabeth are working hard to adjust to the pandemic, and teletherapy provides a safe way for Elizabeth to serve clients. Elizabeth has spent countless hours training to help people, and there are people in D.C. who are asking her for help. The D.C. government needs to get out of the way.

Moreover, even D.C.’s limited and inadequate waiver is only temporary. D.C. currently allows counselors like Elizabeth to talk to existing clients in D.C., but when the pandemic is over even that partial waiver will expire—even though the pandemic has shown these restrictions can be waived.

Government Cannot Require a License to Talk Over Zoom

Elizabeth has joined with the Institute for Justice to challenge D.C.’s arbitrary and unnecessary restrictions on cross-border teletherapy. The claim is simple: Counselors like Elizabeth talk to people about how to deal with problems in their lives, and, under the First Amendment, the government cannot prohibit unauthorized talking.

D.C.’s licensing law requires a professional counseling license for anyone who speaks with another person to “achieve long-term effective mental, emotional, physical, spiritual, social, educational, or career development and adjustment.” That statutory language is staggeringly broad; read literally, it would sweep up friends, family members, pastors, self-help gurus and life coaches. That cannot be constitutional: D.C. cannot require a license to talk to people about their feelings.

Indeed, even the D.C. government seemingly recognizes that its law sweeps too far, as it does not enforce the law to its full extent. Instead, in practice, D.C. applies its licensing requirement to people like Elizabeth who have specialized training and expertise. If Elizabeth had no training, she could provide her services as an unlicensed “life coach.” But, because Elizabeth has specialized training and expertise, she cannot talk to clients in D.C. over Zoom without risking prosecution for unlicensed practice.

In other words, it’s precisely because of Elizabeth’s qualifications and experience—the very reasons clients want her help—that D.C. bars her from talking. That is completely backwards: The government cannot limit your speech just because you’re qualified to talk. D.C. cannot constitutionally prohibit all unlicensed counseling, as such a restriction would sweep too broadly, and it cannot constitutionally prohibit Elizabeth’s speech just because she is effective at her job.

The Broader Context—Occupational Speech

This case is part of IJ’s broader initiative to protect occupational speech. IJ successfully challenged D.C.’s licensing requirement for tour guides as a violation of the First Amendment, and IJ successfully represented a psychologist who was prosecuted by Kentucky’s psychology licensing board for distributing a newspaper advice column in the state without a license. IJ is also currently challenging a Texas law forbidding licensed veterinarians from giving online advice, as well as Arizona’s attempt to prohibit a trained engineer from truthfully describing himself as an “engineer.”

All these cases advance the principle that the First Amendment fully applies to speech that people use to earn a living. Nobody questions that the First Amendment protects the occupational speech of journalists, actors, authors, artists or professors. But some courts have advanced the idea that speech by so-called “professionals” somehow falls outside the First Amendment. IJ’s occupational speech cases push back against that idea: Speech is speech, and the First Amendment protects your right to speak regardless of your chosen career. Or, as the Supreme Court recently explained: “Speech is not unprotected merely because it is uttered by ‘professionals.’”

Victory in this case will ensure that Elizabeth can speak with D.C. residents over Zoom during the pandemic, and it will allow Elizabeth to make greater use of teletherapy with D.C. clients after the pandemic is over. It also will set a precedent that will expand the use of teletherapy nationwide—ensuring that unnecessary and arbitrary government regulation does not stand in the way of individuals seeking greater access to counseling and advice.

The Litigation Team

The case is being litigated by IJ Senior Attorneys Rob Johnson and Robert McNamara and Constitutional Law Fellow John Wrench.

About the Institute for Justice

Founded in 1991, the Institute for Justice is the national law firm for liberty and defends the free flow of information, whether it deals with politics or commerce. IJ litigates in the courts of law and in the court of public opinion to defend free speech, property rights, economic liberty and educational choice. In Virginia, IJ is fighting on behalf of a small publisher being forced to provide free books to the U.S. Copyright Office. IJ helped dairy farmers in Florida and Maryland eliminate regulations that forced them to publish dishonest labels. And in North Dakota, IJ helped defend a bar that was being threatened with fines for an “illegal” mural.