Therapy knows no geographical boundaries

One- on- one advice from a pro is protected speech

Like so many other therapists across the nation throughout the pandemic, Elizabeth Brokamp used online video technology to talk with one of her clients about family struggles, COVID- 19 anxiety, an engagement and a looming job change.

Unfortunately, that last one meant these conversations eventually turned from “counseling” into “crimes.” Not because anything changed about the client or her needs, but because the job change meant the client moved across state lines – so Brokamp’s helpful conversations were suddenly forbidden by the government.

That might seem illogical or incredible, but it is a standard feature of the regulatory landscape for teletherapy in America today. Licensing for therapists such as Brokamp is a state patchwork: A therapist licensed in one state can speak with clients in that state, but that license is good for one state only. Talk to a client in another state – even an existing client – and you may be engaged in the unlicensed practice of counseling.

Building trust with a therapist

That system is not just illogical and arbitrary; it’s also cruel.

It can take a long time to build a relationship with a therapist, to work through issues of trust, to uncover layers of personal history and to establish a personal understanding. Yet every day, the government uses the power of law to break up those relationships based on an arbitrary matter of geography, often for no other reason than to protect existing service providers in their jurisdiction from competition.

The government also is barring those relationships from forming in the first place. Clients seek out Brokamp because she has a specialty working with new mothers, including women suffering from postpartum depression. Yet Brokamp has been forced to turn away new clients located outside her home state of Virginia.

Now, a decision from a federal district court in Washington, D. C., paints that arbitrary cruelty in yet another light: as a possible violation of the First Amendment.

Represented by the Institute for Justice, Brokamp sued the District of Columbia to challenge its restrictions on teletherapy by out- of- state counselors. Brokamp argued that all she wanted to do was talk, that she does not write prescriptions or do anything other than speak, and that she has a constitutional right to talk to her clients wherever they are located.

The government moved to dismiss Brokamp’s case, arguing she has no First Amendment claim. But the D. C. court allowed the case to proceed, explaining that counseling “is speech, not conduct“and, as a result, is subject to the highest levels of protection under the First Amendment. That case remains ongoing, but the court’s ruling means the government will bear a heavy burden to justify its law.

And rightly so. Imagine if the government barred a professor located in one state from teaching across state lines, prohibited a minister in one state from talking to a congregant in another, or told a friend it’s illegal to give out- ofstate life advice. We recognize these relationships are protected by the First Amendment, and the therapist- client relationship is no different.

Yet, even as the D. C. court allowed Brokamp’s case to proceed, a federal court in New York has dismissed a similar challenge to that state’s law.

Brokamp is appealing the New York decision, and federal appellate judges will soon decide whether that case can proceed.

Arguing against Brokamp’s First Amendment claims, the government has tried to raise a boogeyman. If therapists can speak across state lines, the government argues, then lawyers or other professionals will be able to do the same.

One- on- one advice

On reflection, though, the government’s slippery slope is not so slippery at all. Lawyers already talk across state lines all the time; it is hardly unheard of for a businessman in New York to pick up a phone and call a lawyer at a firm in Washington, and courts have held that the First Amendment protects the speech rights of other professionals as well. A court in Texas, for instance, recently held that the First Amendment protects a veterinarian’s speech over the internet.

To be clear, that does not mean all licensing must go out the window. Brokamp is not arguing that she has a First Amendment right to write prescriptions for controlled substances. And, even if a lawyer can talk to clients located in another state, that does not mean a lawyer can appear in court in a state where she is not admitted to practice law. These types of restrictions are consistent with the First Amendment.

But when professionals talk to their clients, to give one- on- one advice, that is speech protected by the First Amendment. And the First Amendment applies without regard to state lines.

PROVIDED BY THE INSTITUTE FOR JUSTICE Elizabeth Brokamp is licensed as a professional counselor in Virginia, where she is located. But in many states, it is generally unlawful to provide teletherapy to individuals located in the jurisdiction without a license from that jurisdiction.