Brokamp v. JamesBrokamp v. James
AFFIRMED.
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
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
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
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
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
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.
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
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
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.
I. Standard of Review
“A district court properly dismisses an action under
A district court properly dismisses an action under
II. Standing
The Constitution limits federal courts’ jurisdiction to actual cases or controversies. See
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
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
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, 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]”
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 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
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
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
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
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
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,”
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;
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
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
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
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).
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
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
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,
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
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.
In general, the exemptions stated in
Brokamp does not suggest otherwise. Instead, she focuses her exemption argument largely on
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
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
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
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 Claims26
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
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,
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
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
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
CONCLUSION
To summarize,
- As to standing,
- 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.
- 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.
- 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) .
- As to Brokamp‘s First Amendment claims,
- Assuming that New York‘s mental health counselor license requirement limits speech unrelated to conduct, the
requirement is nevertheless subject to intermediate, not strict, scrutiny because the limitation, although defined in part by purpose and function, is nevertheless content neutral. - 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) .
- Assuming that New York‘s mental health counselor license requirement limits speech unrelated to conduct, the
- 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.
Notes
In 2002, New York already required the licensure of four professions addressing mental health concerns: medicine, nursing, psychology, and social work. See
(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
(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.
[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.