Apparently not, at least if we are to follow the recent Fifth Circuit decision in Serafine v. Branaman, in which a political candidate was allowed to refer to herself as a “psychologist” despite lacking a license – or the technical qualifications – to practice that profession.
But let’s not get too hasty. The Serafine case doesn’t represent a license-to-be-unlicensed, as it were. Rather, it simply offers a good illustration of the limits of professional speech regulation.
The key point in the case is that Serafine wasn’t engaging in commercial speech. She wasn’t trying to attract clients by claiming to be a psychologist when she wasn’t licensed. Rather, she was making a statement as part of a political campaign.
There is little question that the state has an enforceable interest in keeping unlicensed professionals from “holding out” as being licensed; doing so is flatly deceptive and bad for consumers. But get outside of this commercial context and the state’s got to make it past strict scrutiny if it wants to regulate the content of speech. And that? That’s next-to-impossible, as we’ve seen from recent, failed attempts to regulate away lying in political campaigns and when referring to military honors.
What’s more, while Serafine wasn’t licensed in Texas, and didn’t hold a doctorate from a program that would qualify her for such a license, it wasn’t like she was just making things up from whole cloth. She had completed a four-year post-doctoral fellowship in psychology at Yale. Her Ph.D in education was focused on psychology. She was a professor in the psychology departments at Yale and Vassar. She taught seminars and provided one-on-one counseling sessions on personal growth and relationships. And so on. So it doesn’t seem unreasonable that she would characterize herself as a psychologist when speaking broadly (and non-commercially) about her background.
The Serafine case doesn’t nearly begin to answer all of the questions that swirl around professional speech regulation. But it does nicely point out that there is a fundamental difference between commercial and non-commercial professional speech. 1 While the professional regulators will often have an interest in regulating the former, they should have little-to-no influence over the latter.
- Or perhaps more accurately, “professional speech” and “non-commercial speech by professionals.” ↩