ARLINGTON, Va.—Today, a federal appellate court sided with the state of New York in a challenge to its unconstitutional licensing restrictions for teletherapy across state lines. Therapist Elizabeth Brokamp, represented by the Institute for Justice (IJ), plans to file a petition seeking further review in the case.
Elizabeth filed her lawsuit against the state in April 2021, when one of her clients moved from Virginia to New York. The client wanted to continue speaking with Elizabeth—who is located and licensed in Virginia—and Elizabeth wanted to continue working with the client too. But, under New York’s licensing law, Elizabeth could not continue seeing her client over the internet without becoming fully licensed in New York.
Therapists like Elizabeth face a patchwork of licensing laws in different states, and, with the rise of teletherapy, are increasingly running into the barriers posed by those laws. Teletherapy makes it possible to continue speaking with a client who has moved for work, school, or family, but therapists who speak across state lines without a license can face significant penalties. Unlicensed practice in New York, for instance, is a felony punishable by heavy fines and even jail time.
Today’s decision by the 2nd United States Circuit Court of Appeals rejected a First Amendment challenge to that license requirement.
“Today the court held that the government can require a license to talk over zoom, just because the speech is intended to help somebody who is struggling with mental health. This flies in the face of decades of First Amendment case law,” said IJ Attorney Jeffrey Redfern. “Elizabeth shouldn’t lose the ability to speak with her client, simply because that client moves from one state to another.”
Elizabeth and IJ plan to petition the full Second Circuit for en banc rehearing. The petition will be due by May 11.
“As a therapist, there is no way I could possibly afford the cost in time and money to become licensed in every state, and as a result I have had to turn away people seeking my help in New York,” said Elizabeth. “I’m disappointed for all those New Yorkers, who deserve to work with a therapist of their choosing, regardless of where they’re located.”
Elizabeth also filed another lawsuit in the District of Columbia, raising the same First Amendment claims. The judge in that case issued a decision in March 2022, allowing the case to proceed past a motion to dismiss.
“This isn’t just about New York,” said IJ Attorney John Wrench, who is representing Elizabeth in the D.C. case. “Under the First Amendment, your ability to talk to your therapist shouldn’t depend on arbitrary state lines, and that’s true wherever people are located. We’re going to continue to fight for that important principle.”