A federal court has imposed the demanding “strict scrutiny” standard on a fight over a New York speech limit on online counseling, giving the counselor challenging the restriction a significant early victory in the case.
Officials with the Institute for Justice had brought the case on behalf of licensed therapist Elizabeth Brokamp of Virginia.
She is located in Virginia, but works with clients in Washington. During the pandemic, a rule requiring a Washington license for talk therapists working with Washington clients was suspended, but such a restriction could be restored any time.
Now the IJ said the judge in the case has determined that since the D.C. restriction is a “content-based regulation of speech,” the case must be decided based on the “strict scrutiny” level of evidence, which is the most restrictive level there is.
Free speech cases involving struct scrutiny almost always end up being decided for – the free speech, the IJ explained.
The IJ said the burden for the government to prove its case – that the D.C. licensing requirement is essential – is now “nearly insurmountable.”
Brokamp brought the federal lawsuit after she was forced to turn away potential clients who wanted to see her online. D.C. insists that only therapists licensed by the district can serve clients located in the district, even if all they are engaging in is talk therapy.
The IJ also represents Brokamp in a similar claim against the state of New York.
The court found, regarding the D.C. demand, its “licensing requirement regulates counseling, which is speech, not conduct,” so that since it is “content-based regulation of speech, strict scrutiny applies.”
“Strict scrutiny is the most demanding standard that courts can apply in free speech cases and is almost always fatal to the law being challenged,” said IJ Senior Attorney Rob Johnson. “While we haven’t won the case yet, this is a huge first step toward protecting the right of clients and therapists to talk over the internet without arbitrary interference from the government. After all, counseling is speech, and the government cannot prohibit unauthorized talking.””
Brokamp has a master’s in Counseling Psychology from Columbia, and has been a counselor for more than 20 years.
She often has had D.C. residents at her Virginia business location, but those circumstances were changed by the COVID pandemic and online counseling because the norm.
“It’s been so difficult to tell prospective clients that I can’t help them, especially at a time when many prefer teletherapy to in-person visits,” Brokamp said. “Hopefully, today’s ruling will mean being able to provide clients with the mental health care they need, where and when they would like to access it.”
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