66 F.4th 374
2d Cir.2023Background
- Elizabeth Brokamp is a Virginia‑licensed mental‑health counselor who provides online "talk therapy." She stopped counseling New York residents after New York’s COVID executive order that temporarily waived in‑state licensure expired.
- New York Education Law makes practicing as a "mental health counselor" without a license a crime; the statute defines counseling by purpose, focus, methods and circumstances and provides exemptions and a streamlined licensure‑by‑endorsement for out‑of‑state licensees.
- Brokamp sued New York state officials under 42 U.S.C. § 1983 seeking declaratory and injunctive relief, alleging the licensing scheme is a content‑based First Amendment restriction and unconstitutionally vague.
- The district court dismissed (Rule 12(b)(1) and 12(b)(6)); Brokamp appealed the dismissal as to state officials.
- The Second Circuit held Brokamp had standing to challenge only New York’s licensure‑by‑endorsement requirement (not the initial‑licensure provisions), ruled the endorsement requirement content‑neutral and subject to intermediate scrutiny, and affirmed dismissal of First Amendment and vagueness claims for failure to state plausible claims.
Issues
| Issue | Plaintiff's Argument (Brokamp) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Standing to bring pre‑enforcement as‑applied and facial challenges | Need not apply for a NY license; the licensing requirement chills her speech and thus gives Article III injury | Plaintiff lacked standing because she never applied for a NY license or alleged futility or a credible threat of prosecution | Brokamp need not apply to establish standing to sue pre‑enforcement, but she has standing only to challenge the endorsement provision that actually injures her; challenges to initial‑licensure provisions dismissed for lack of standing |
| Whether the licensure requirement is a content‑based First Amendment restriction | The law regulates only speech (talk therapy) and defines it by subject and purpose, so it is content‑based and should trigger strict scrutiny | The statute regulates who may practice (professional conduct) and is content‑neutral because it applies irrespective of viewpoint or topic; intermediate scrutiny applies | The endorsement requirement is content‑neutral (purpose/function limits do not make it content‑based) and is subject to intermediate scrutiny |
| Whether NY’s endorsement requirement survives intermediate scrutiny | The statute is overbroad and underinclusive and burdens substantially more speech than necessary | The law advances important public‑health interests and is tailored via definition, exemptions, and a streamlined endorsement route for licensed out‑of‑state counselors | As a matter of law, the endorsement requirement advances an important public‑health interest and is sufficiently tailored; First Amendment claims dismissed for failure to state a claim |
| Vagueness (facial and as‑applied) under Due Process | Definitions overlap (e.g., "amelioration" vs. "instruction, advice") and leave speakers unclear what conduct triggers licensure | The statute’s multi‑part definition and exemptions give ordinary persons and enforcers a core of clear application; Brokamp’s own practice squarely fits the definition | As‑applied vagueness claim fails (Brokamp’s practice plainly fits); facial vagueness therefore fails as the statute has a valid core; due process claims dismissed |
Key Cases Cited
- Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014) (pre‑enforcement standing requires credible threat or well‑founded fear of enforcement)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (injury‑in‑fact must be concrete and imminent)
- Virginia v. American Booksellers Ass'n, 484 U.S. 383 (1988) (chilling/self‑censorship can constitute Article III injury)
- Reed v. Town of Gilbert, 576 U.S. 155 (2015) (framework for content‑based regulation of speech)
- City of Austin v. Reagan Nat'l Advert. of Austin, LLC, 142 S. Ct. 1464 (2022) (function/purpose‑based classifications may be content neutral in context)
- National Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361 (2018) (speech by professionals not categorically unprotected)
- Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) (vagueness doctrine and scrutiny where speech regulation implicated)
- MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007) (no need to expose oneself to enforcement to bring a pre‑enforcement challenge)
- Dent v. West Virginia, 129 U.S. 114 (1889) (state licensing for health professions is a legitimate exercise of police power)
- National Ass'n for Advancement of Psychoanalysis v. California Bd. of Psychology, 228 F.3d 1043 (9th Cir. 2000) (professional licensure is content‑neutral regulation of who is qualified)
- Otto v. City of Boca Raton, 981 F.3d 854 (11th Cir. 2020) (distinguishing speech‑content bans in therapy from neutral professional regulation)