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In the case Brokamp v. James, the U.S. Court of Appeals for the Second Circuit on April 27 affirmed the dismissal of Elizabeth Brokamp’s suit against New York officials. The Virginia-licensed mental health counselor’s suit claiming that New York’s licensing laws violated her right to free speech was previously dismissed by a lower court.

Brokamp had alleged that New York’s licensing requirements constitute content-based restrictions on speech, but the three-judge panel of the court disagreed. U.S. Circuit Judge Reena Raggi’s opinion stated that “there is no question that the law . . . serves an important government interest in promoting and protecting public health, specifically, public mental health; and . . . is narrowly tailored by statutory definition and exemptions to advance that interest without unduly burdening speech.”

Brokamp argued that she only engages in talk therapy, which constitutes free speech. “This law says if you don’t have the license, not only can you not represent that you have the license, you just can’t talk to people at all,” her attorney said. However, the panel held that the licensing regime regulates who can use the title “mental health counselor” and, critically, the licensing requirement does not turn on the content of what a person says.

In April 2020, former New York Gov. Andrew Cuomo signed an executive order in response to the COVID-19 pandemic, extending temporary licensure to out-of-state therapists. Upon the expiration of the executive order in June 2021, Brokamp had to cease providing services to patients in New York. However, the panel agreed with the lower court that Brokamp failed to allege injury caused by the licensure requirements, noting that her Virginia license would allow her to become licensed in New York under a streamlined process.

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