Like many people, Elizabeth Brokamp moved her job online when the pandemic began. She is a professional counselor—meaning she uses talk therapy to help people feel better—and online teletherapy has allowed her to continue helping people during a difficult time.
But by making use of new technology to continue her work, Elizabeth ran into a licensing thicket. Because she provides counseling online, it makes no difference to Elizabeth where her clients live. But, in the eyes of regulators, talking to a client in the wrong location turns counseling into a crime.
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Elizabeth is licensed as a professional counselor in Virginia, where she is located, but she cannot talk to new clients just across the river in Washington, D.C., without a D.C. license. As a result, although Elizabeth has been contacted by District residents seeking her help, she has been forced to turn them away. And the problem is by no means limited to D.C., as many states have similar laws. Just keeping track of every state’s licensing laws would be a full-time job.
These restrictions violate the First Amendment. Counseling is speech: Elizabeth does not prescribe medicine or perform medical procedures. Literally all she wants to do is talk to clients over internet video, and the Constitution protects her right to do just that.
Elizabeth teamed up with IJ to challenge D.C.’s restrictions on her use of teletherapy. Ultimately, though, the case is about a broader principle. Counselors like Elizabeth have the same right as anyone else to talk to willing listeners—no matter where they reside.
The fact that Elizabeth can even make that argument is a testament to IJ’s work in other cases. Not long ago, many courts held that, while the First Amendment might apply to journalists, professors, and artists, other occupations somehow fell outside its scope. But of course the First Amendment says nothing of the sort, and IJ has persuaded courts to recognize that in cases involving tour guides, nutritionists, interior designers, and a veterinarian named Ron Hines. As a result, we have built a body of law under which Elizabeth’s arguments are not just reasonable but obviously correct.
The government needs to get out of Elizabeth’s way. And, more broadly, the government needs to get out of the way of counselors across the country who are making greater use of teletherapy during the pandemic. Teletherapy is innovative, safe, and—when all is said and done—nothing more than speech.
Rob Johnson is an IJ senior attorney.