Court Rules on Acceptable Use of Professional Titles in Political Campaigns

The Fifth Circuit Court of Appeals Considers whether Potentially Misleading Use of Professional Titles in a Political Campaign Merits Constitutional Protection

In Serafine v. Branaman, 810 F.3d 354 (5th Cir. 2016), Dr. Mary Louise Serafine filed an appeal after the United States District Court for the Western District of Texas denied her claims that the Texas Psychologists' Licensing Act violated her First and Fourteenth Amendments by preventing her from using the title “psychologist” in her campaign for public office. The Fifth Circuit Court of Appeals accepted the appeal and considered whether potentially erroneous statements concerning one's profession are, in fact, protected political speech.

Ruling and Reasoning

The Fifth Circuit held that the “candidate's campaign statements referring to herself on her political campaign internet website as a psychologist were entitled to full First Amendment protection” (Serafine, p 362). The circuit court noted that the Board argues that the power to restrict the use of “psychological,” “psychologist,” or “psychology” is permissible under the “professional speech doctrine.” The circuit court noted that while the Supreme Court has never officially endorsed the professional speech doctrine, some circuits have embraced it given Justice White's concurrence in Lowe v. SEC, 472 U.S. 181 (1985). Justice White suggested a distinction be drawn between speech by a professional to a client and speech by a professional to the general public, the latter being subject to full First Amendment protection. The circuit court found that Dr. Serafine's speech on her campaign website was communication with voters at large and not with any particular client. Thus, the professional speech doctrine is inapplicable and her campaign statements are entitled to full First Amendment protection.

The Fifth Circuit also held that a “candidate's campaign statements” could not be considered “commercial speech.” The circuit court asserted that Dr. Seraphine's political communications were “for votes” and not for clients. The circuit court further stated that the professional speech doctrine did not apply given that Dr. Serafine's “speech was far removed from [the] context of professional speech in that she was not providing advice to any particular client but communicating to voters at large” (Serafine, p 360).

The district court had found the PLA restriction on Ms. Serafine's use of the title “psychologist” as a legitimate use of state police power. The district court also found that the PLA was “reasonably tailored” to protect the public from the “unauthorized practice of psychology.” The Fifth Circuit disagreed on both counts. The circuit court held that the PLA was not “narrowly tailored” because Dr. Serafine was not practicing psychology through her campaign website; rather, she was campaigning for public office. The circuit court opined that the way to protect the state's interest would be to bring an enforcement action against Dr. Serafine for actually engaging in the practice of psychology, when she is treating clients, and not to suppress her political speech. The circuit court referenced the Supreme Court's opinion in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), asserting that erroneous statements are unavoidable in political debate and that such statements must be protected for freedom of expression to have the “breathing space” it needs to survive. The circuit court rejected the claim that the Board had an important interest in preventing the mistaken belief that a candidate was licensed to practice psychology by the state. Because the potential mistake would occur because of her campaign's attestation that she was a “psychologist,” the circuit court held that the Board's approach was not actually “narrowly tailored.”

Finally, the circuit court held that the Board's licensing scheme was overbroad because it “affected speech beyond purview of state's interests or power, such as Alcoholic Anonymous (AA), WeightWatchers, various self-help groups, life-coaches, and yoga teachers” (Serafine, p 367). The circuit court held that the scheme was an overbroad restriction on free speech that could even limit “the ability of individuals to dispense personal advice about mental or emotional problems, based on knowledge gleaned in a graduate class, in practically any context” and that it “chills and prohibits protected speech” (Serafine, p 370).

Discussion

Psychiatrists reading the fact pattern of Serafine might be mystified, or even angered, by a holding that protects a political candidate's right to assert that she is a “psychologist,” when she, in fact, lacked the degree requirement necessary to be licensed as a psychologist in the state in which she was campaigning. The circuit court noted that Dr. Serafine had taught psychology at prestigious colleges and had even published an article in a respected psychology journal.

The circuit court noted that “although she may not be able to practice as a psychologist under Texas law, that does not bear on whether she is a psychologist by reputation or training” (Serafine, p 362). Given her educational and occupational background, the circuit court did not consider her campaign declaration that she was a “psychologist” to be a “bald-faced lie.” Even so, the circuit court was not going to readily countenance any abridgement of political free speech. Free speech, in particular political speech, is a fundamental right, and limitations on it are strictly scrutinized by federal courts. The circuit court asserted that the Board's goal of preventing deception can be served by other means, namely “the vigorous public debate and scrutiny that accompany political campaigns” (Serafine, p 362). The court noted, paraphrasing Justice Brandeis, “the remedy” for misleading speech is “more speech, not enforced silence” (citing Whitney v. California, 274 U.S. 357 (1927), p 377).