California's mental health licensing laws do not violate the First
Amendment rights of psychoanalysts, a federal appeals court panel has ruled.
California law provides that anyone charging fees for psychological
services, including psychoanalysts, must meet a host of requirements,
including: a doctorate in psychology, two years of supervised professional
experience under the direction of a licensed psychologist, passage of a board
exam, training in substance abuse and courses on partner abuse and human
The National Association for the Advancement of Psychoanalysis and
three individual psychoanalysts sued the California Board of Psychology,
contending that the state's licensing scheme prevents them from practicing
psychoanalysis in California.
The three psychoanalysts possessed education and experience in
psychoanalysis, but the state board said that education and experience did not
meet the state requirements.
The plaintiffs sued, contending that the licensing laws violated their
due-process and First Amendment rights. After a federal district court
dismissed their claims, the plaintiffs appealed to the 9th U.S. Circuit Court
The 9th Circuit panel also ruled against the psychoanalysts on all of
their claims in National Association for
theAdvancement of Psychoanalysis v.
California State Board of Psychology, including their First
The psychoanalysts had argued that because psychoanalysis is "the
talking cure," it deserves special First Amendment protection.
However, the panel cited the U.S. Supreme Court's 1989 decision in
City of Dallas v. Stanglin for the
proposition that "while it is possible to find some kernel of expression
in almost every activity a person undertakes ... such a kernel is not
sufficient to bring the activity within the protection of the First
The panel concluded that the licensing laws were content-neutral
because "they do not dictate what can be said between psychologists and
patients during treatment."
The panel concluded in its Sept. 29 opinion: "Although some
speech interest may be implicated, California's content-neutral mental health
licensing scheme is a valid exercise of its police power to protect the health
and safety of its citizens and does not offend the First
Jeffrey S. Love, attorney for the plaintiffs, said a decision had not
been made on whether to appeal the decision. "As I see it, there are three
critical issues in this case. The first is whether professional psychoanalysis
is pure speech or, as the court found, just a kernel of expression," he
"The next issue is whether the California licensing law is
content-based or content-neutral," he said. "Finally, there is a
question as to whether the state has the burden of proof to show that its law
is narrowly tailored and does benefit the public."
Calls to the state attorney general's office, which defended the laws,
were not returned.