Andrew Wimer
Andrew Wimer · April 6, 2021

ALBANY, N.Y.—The COVID-19 pandemic has taken a toll on the mental health of New Yorkers. According to the New York State Health Foundation, more than one-third of New Yorkers reported poor mental health in 2020, three times the average before the pandemic. Yet despite the demand for mental health services, the state could soon make it again illegal for residents to receive teletherapy from out-of-state counselors. Now, a Virginia-licensed counselor is suing the state of New York before it stops her from seeing one her clients.

Elizabeth Brokamp lives in the Virginia suburbs outside Washington, D.C., and operates a counseling practice that is completely online. When one of her clients moved to New York, she was able to continue seeing them only because the Empire State waived its restrictions on teletherapy from counselors without a New York license. When that waiver expires, Elizabeth will be forced to end therapy with her client. Elizabeth’s federal lawsuit, filed with the Institute for Justice (IJ), seeks to protect her First Amendment right to provide talk therapy in New York.

“New York could do tremendous damage to the mental health of New Yorkers by suddenly ending the relationships they have built with counselors online,” said IJ Attorney Jeffrey Redfern. “During the pandemic, New York wisely suspended barriers to online therapy without a state license, but only on a month-to-month basis. But restrictions on talking over the internet are not constitutional to begin with, and Elizabeth Brokamp has a First Amendment right to continue seeing her client.”

The demand for teletherapy has greatly increased during the pandemic, with many Americans looking for a safe way to cope with stress related to sickness, lockdowns and economic hardship. And while video conferencing services have allowed many employees to continue working from home, a patchwork of regulations confronts professionals wishing to practice teletherapy and telemedicine.

Elizabeth Brokamp has worked as a professional counselor for over 20 years, and she holds a master’s degree in Counseling Psychology from Columbia University. She is currently working toward a doctorate and holds certifications in several counseling specialties, including teletherapy. In December 2020, Elizabeth sued the District of Columbia over a similar restriction on teletherapy, which bars her from taking on new clients in D.C.

“Continuity of care is critical in counseling, yet when the pandemic ends New York could end client relationships across the state,” said Elizabeth. “People should be able to engage with the counselor who can best meet their needs wherever they live and continue seeing that counselor if they move across the country. I hope that my lawsuit can remove senseless barriers to teletherapy, in New York and across the United States.”

Elizabeth’s legal claim is simple: Counselors talk to people about how to deal with problems in their lives, and, under the First Amendment, the government cannot cite counselors for talking. New York’s licensing law requires a mental health counseling license for anyone who speaks with another person to “ameliorate” any “problems or disorders or behavior, character, development, emotion, personality or relationships by the use of verbal … methods.” That law is staggeringly broad; read literally, it would sweep up friends, family members, pastors, self-help gurus and life coaches.

In practice, however, only professionals like Elizabeth are subject to the restriction on their speech. If Elizabeth had no training, she could provide her services as an unlicensed “life coach.” It is precisely because of Elizabeth’s qualifications and experience—the very reasons clients want her help—that New York bars her from talking. New York cannot constitutionally require a license to talk to people about their feelings, as such a restriction would sweep far too broadly, and it cannot constitutionally prohibit Elizabeth’s speech just because she is effective at that type of speech.

“New York’s licensing law makes it illegal for people with qualifications and expertise to speak with people about their problems,” said IJ Senior Attorney Rob Johnson. “This doesn’t make sense and it is unconstitutional. The government cannot restrict someone’s speech just because they have specialized training while allowing others to do the exact same thing. Unfortunately, there are similar restrictions across the U.S., and they stand as a barrier to many people getting the counseling they seek.”

This case is part of IJ’s broader initiative to protect occupational speech. In 2010, IJ successfully challenged the District’s licensing requirement for tour guides as a violation of the First Amendment, and IJ successfully represented a psychologist who was prosecuted by Kentucky’s psychology licensing board for distributing a newspaper advice column in the state without a license. IJ is also currently challenging a Texas law forbidding licensed veterinarians from giving online advice, as well as Arizona’s attempt to prohibit a trained engineer from truthfully describing himself as an “engineer.”