Dan King
Dan King · March 26, 2024

WASHINGTONYesterday, the United States Supreme Court declined to hear a First Amendment case brought by a Virginia-based counselor challenging New York’s restrictions on teletherapy across state lines. In 2021, Elizabeth Brokamp teamed up with the Institute for Justice (IJ) to file the lawsuit, after one of her clients moved from Virginia to New York.  

“We’re disappointed the Supreme Court declined to hear this important First Amendment case,” said IJ Attorney Jeffrey Redfern. “Lower courts continue to do incredibly misguided things in free speech cases, and at some point, we hope the Supreme Court will address these issues.” 

New York’s licensing laws require a mental health counseling license for anyone who speaks with another person to “ameliorate” any “problems or disorders of behavior, character, development, emotion, personality or relationships by the use of verbal … methods.” While Elizabeth is licensed in Virginia, her license is not recognized by New York. In order to continue seeing a patient that moves to New York, she would be required to spend thousands of dollars on a duplicative New York license. 

“These laws don’t just hurt the ability of counselors to make a living, they have a negative effect on the mental health of clients who move from one state to another,” said Elizabeth. “You shouldn’t lose access to a counselor you’ve built a good rapport with just because you move to a new state.” 

Under New York’s laws, if Elizabeth had no training, she could provide her services as an unlicensed “life coach.” However, because of her qualifications and experience, New York bars her from talking with clients. Furthermore, during the pandemic, New York temporarily lifted the strict licensing requirements on teletherapy.  

“The government cannot decide some people need a license to offer advice while others don’t,” said IJ Senior Attorney Rob Johnson. “Elizabeth has a right to provide counseling to her clients without jumping through licensing hoops, and her clients have the right to hear her counseling if they choose to do so.” 

Elizabeth first filed her lawsuit in 2021, after one of her clients moved from Virginia to New York. In April 2023, the 2nd U.S. Circuit Court of Appeals ruled against Elizabeth, which led to her petitioning the Supreme Court to review the case. 

While her case against New York’s licensing restrictions is now over, Elizabeth does still have a pending lawsuit challenging similar restrictions in Washington, D.C. In March 2022, the U.S. District Court for the District of Columbia handed Elizabeth a first round victory in that case, when it ruled that the District’s “licensing requirement regulates counseling, which is speech, not conduct,” and that “[b]ecause the District’s licensing requirement is a content-based regulation of speech, strict scrutiny applies.” 

“Today’s Supreme Court decision is certainly disappointing, but this fight is far from over, and we look forward to making it clear in Elizabeth’s other case that the government cannot discriminate against certain types of speech through licensing laws,” said IJ President and Chief Counsel Scott Bullock.