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California mental health licensing laws upheld

By David Hudson
The Freedom Forum Online
10.06.00

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 sexuality.

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 of Appeals.

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 Amendment arguments.

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 Amendment."

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 Amendment."

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 said.

"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.


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