REVISED January 12, 2016

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-51151

DR. MARY LOUISE SERAFINE, 

 Plaintiff–Appellant,

versus

TIM F. BRANAMAN, Chairman, 

 Texas State Board of Examiners of Psychologists, in His Official Capacity;

DARREL D. SPINKS, Executive Director, 

 Texas State Board of Examiners of Psychologists, in His Official Capacity, 

 Defendants–Appellees.

Appeal from the United States District Court 

for the Western District of Texas

Before JONES, SMITH, and SOUTHWICK, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Mary Serafine ran for office and described herself as a “psychologist” on 

her campaign website. After the Texas State Board of Examiners of Psychologists ordered her to stop using the title of “psychologist” and to desist from

offering or providing psychological services, Serafine sued, alleging that the 

Psychologists’ Licensing Act (the “Act”), Sections 501.001 through 501.505 of 

the Texas Occupational Code, violates the First and Fourteenth Amendments. 

United States Court of Appeals

Fifth Circuit

FILED

January 12, 2016

Lyle W. Cayce

Clerk

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The district court denied her claims. We affirm in part and reverse in part and 

remand.

I.

Serafine ran for the Texas Senate in 2010. On her campaign website, 

she described herself as an “Austin attorney and psychologist.” To appear on 

the ballot, she also filed a form with the Secretary of State in which she listed 

her profession as an “attorney and psychologist.” Although she does not have 

a degree in psychology, she completed a four-year post-doctoral fellowship in 

psychology at Yale, and the dissertation for her Ph.D. in education was published in Genetic Psychology Monographs. Serafine was a professor in the psychology departments at Yale University and Vassar College, where she taught 

a variety of psychology courses. She has studied under leading psychologists

and was a member of the American Psychological Association for several years. 

She is not licensed to practice as a psychologist in Texas, nor could she be,

because she does not hold a doctorate from a qualifying program. Before

running for office, Serafine taught seminars and provided one-on-one counseling sessions on personal growth and relationships in Austin. She is a lawyer

with a degree from Yale Law School. 

In September 2010, the Texas State Board of Examiners of Psychologists 

(the “Board”) sent Serafine a letter informing her that she was violating the 

Act and ordered her to cease using the title “psychologist” on her campaign 

website (or in any other context) and to refrain from offering or providing “psychological services” in Texas. Two weeks later, the Board sent a follow-up letter telling Serafine she had thirty days to comply or face legal action from the 

Texas Attorney General. The Board also sought a correction from two Texas 

newspapers that had identified Serafine as a psychologist. In January 2011, 

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Serafine received a letter from the Attorney General’s office threatening prosecution and referencing the Board’s complaint and Serafine’s use of the title 

“psychologist” in public records. 

Serafine removed the word “psychologist” from her campaign website 

and requested that the title be deleted from her listing in Who’s Who in America. She then sued, claiming that the Act infringed her political speech, commercial speech, equal protection rights, and right to earn a living. She also 

challenged the Act as vague, overbroad, and a prior restraint.

The district court dismissed the equal protection, right-to-earn-a-living, 

vagueness, and prior-restraint claims and held a bench trial on the remaining 

claims. After trial, the court rejected the political speech and overbreadth 

claims, holding that the Act is a legitimate use of the state’s police power,

which imposed only an incidental effect on Serafine’s speech, and that any 

impermissible applications of the Act are insubstantial in relation to its overall 

sweep. The court also rejected the commercial-speech claim, reasoning that 

the Act is reasonably tailored to further the state’s interest in protecting the 

public from the unauthorized practice of psychology. Serafine appeals. 

II.

Serafine contends that Section 501.003(b)(1) (“(b)(1)”), under which “[a] 

person is engaged in the practice of psychology” if she represents herself “to 

the public by a title or description of services that includes the word 

‘psychological,’ ‘psychologist,’ or ‘psychology,’” is unconstitutional as applied to 

speech on her political campaign website. We agree.

A.

The Board urges that the power to restrict the use of “psychological,” 

“psychologist,” or “psychology,” is incidental to its ability to license and is

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permissible under the “professional speech doctrine.” “‘[T]he States have a 

compelling interest in the practice of professions within their boundaries, and

. . . as part of their power to protect the public health, safety, and other valid 

interests they have broad power to establish standards for licensing practitioners and regulating the practice of professions.’”1 Nevertheless, the extent 

to which a state can use its licensing power to restrict speech is unsettled. 

The Supreme Court has never formally endorsed the professional speech

doctrine, though some circuits have embraced it based on Justice White’s concurrence in Lowe v. SEC, 472 U.S. 181, 230–33 (1985).2 Recently, we also 

observed that “state regulation of the practice of a profession, even though that 

regulation may have an incidental impact on speech, does not violate the 

Constitution.”3

Assuming that the professional speech doctrine is valid, its application 

should be limited. “There is a difference, for First Amendment purposes, 

between . . . professionals’ speech to the public at large versus their direct, 

personalized speech with clients.”4 “While a professional may speak on a variety of topics in a variety of contexts, only some of this speech falls under the 

 

1 Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 108 (1992) (quoting Goldfarb 

v. Va. State Bar, 421 U.S. 773, 792 (1975)).

2 See Moore-King v. Cty. of Chesterfield, 708 F.3d 560, 568–70 (4th Cir. 2013) (applying 

professional speech doctrine); Pickup v. Brown, 740 F.3d 1208, 1228–29 (9th Cir.) (same),

cert. denied, 134 S. Ct. 2871, and cert. denied, 134 S. Ct. 2881 (2014); Locke v. Shore, 634 F.3d 

1185, 1191–92 (11th Cir. 2011) (same).

3 Hines v. Alldredge, 783 F.3d 197, 201 (5th Cir. 2015), cert. denied, 2015 U.S. LEXIS 

7664 (U.S. Nov. 30, 2015) (No. 14-1543). See also Kagan v. City of New Orleans, 753 F.3d 

560, 562 (5th Cir. 2014), cert. denied, 135 S. Ct. 1403 (2015) (upholding licensing law for tour 

guides against First Amendment challenge).

4 Wollschlaeger v. Governor of Fla., No. 12-14009, 2015 U.S. App. LEXIS 21573, at *69

(11th Cir. Dec. 14, 2015) (alteration in original) (quoting Locke v. Shore, 634 F.3d 1185, 1191

(11th Cir. 2011)).

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category of “professional speech.”5 Indeed, in his concurrence in Lowe, Justice 

White first suggested this distinction between speech by a professional to a 

client (which may be restricted) and speech by a professional to the general 

public, which is subject to full First Amendment protection: 

Where the personal nexus between professional and client does not 

exist, and a speaker does not purport to be exercising judgment on 

behalf of any particular individual with whose circumstances he is directly acquainted, government regulation ceases to function as legitimate regulation of professional practice with only incidental impact on 

speech; it becomes regulation of speaking or publishing as such, subject 

to the First Amendment’s command that “Congress shall make no 

law . . . abridging the freedom of speech, or of the press.”

Lowe, 472 U.S. at 232 (White, J., concurring). Thus, assuming arguendo that 

the speech of professionals can be regulated incidentally to a valid licensing 

scheme, Justice White’s concurrence suggests that such restrictions―to avoid 

running afoul of the First Amendment―are properly confined to occupationalrelated speech made to individual clients. 

Any interest the government can claim in protecting clients from manipulation or exploitation by a psychotherapist fails when the psychotherapist is 

no longer speaking to the client in her capacity as such.6 In other words, the 

professional speech doctrine is properly limited to the actual practice of the 

profession. “[T]he state may prohibit the pursuit of medicine as an occupation 

without its license, but I do not think it could make it a crime publicly or 

privately to speak urging persons to follow or reject any school of medical 

thought.”7 Outside the fiduciary relationship between client and therapist,

 

5 Id.

6 See Rosemond v. Markham, No. CV 13-42-GFVT, 2015 WL 5769091, at *6 (E.D. Ky. 

Sept. 30, 2015) (explaining that without the “professional-client relationship,” the “vices” of 

the professional speech doctrine “outweigh its virtues”).

7 Lowe, 472 U.S. at 231 (White, J., concurring) (quoting Thomas v. Collins, 323 U.S. 

516, 544 (1945) (Jackson, J., concurring)).

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speech is granted ordinary First Amendment protection. Indeed, “the principle 

that the government may restrict entry into professions and vocations through 

licensing schemes has never been extended to encompass the licensing of 

speech per se.”8

Serafine’s speech on her campaign website was far removed from the

context of professional speech. She was not providing advice to any particular 

client but communicating with the voters at large, so the professional speech 

doctrine is inapplicable. Serafine’s campaign statements are entitled to full 

First Amendment protection. 

B.

The Board also cites cases upholding restrictions on the use of professional titles. States’ ability to limit the use of titles and trade names to protect 

the public from “false, deceptive, and misleading” advertising is wellestablished.9 Nevertheless, Maceluch and other cases cited by the Board arose 

in the context of commercial speech where a party was trying to use a professional title or trade name for business purposes.10

The Board did not order Serafine to cease and desist because she used 

the word “psychologist” on a promotional flyer seeking clients, or on official 

business letterhead, or in a phonebook advertisement. Instead the Board

 

8 Id. at 229–30.

9 Maceluch v. Wysong, 680 F.2d 1062, 1069 (5th Cir. 1982) (per curiam) (affirming on 

basis of appended district court opinion); see also Friedman v. Rogers, 440 U.S. 1, 15 (1979).

10 See Maceluch, 680 F.2d at 1064, 1068–70 (upholding Texas licensing law that prevented doctors of osteopathy from using “M.D.” in connection with their medical practice); 

Accountant’s Soc’y of Va. v. Bowman, 860 F.2d 602, 605–06 (4th Cir. 1988) (upholding statute 

that prohibited unlicensed accountants from using the title “public accountant” because of 

the danger of “misleading commercial speech”); Brandwein v. Cal. Bd. of Osteopathic 

Exam’rs, 708 F.2d 1466, 1469–70 (9th Cir. 1983) (upholding restriction preventing doctor of 

osteopathy from holding himself out as an M.D. because of the danger of false or misleading 

commercial speech).

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directed her to cease describing herself as a psychologist on her political 

campaign website. Yet Seraphine was seeking votes, not clients. Thus, the

inclusion of “psychologist” on the website was not commercial speech, and 

therefore the decisions involving a state’s legitimate power to restrict the use 

of titles in the commercial context are inapplicable. 

C.

Serafine’s speech on her campaign website was not professional or commercial speech; it was political speech of the highest form—a candidate seeking 

election to public office. Indeed, “it can hardly be doubted that the constitutional guarantee [of free speech] has its fullest and most urgent application 

precisely to the conduct of campaigns for political office.”11 Section 501.003(b)(1) is a content-based restriction on speech—proscribing one’s 

ability to claim to be a psychologist. As applied to Serafine’s political speech, 

(b)(1) is subject to “exacting scrutiny” and must be “narrowly tailored to serve 

an overriding state interest.”12

The state claims that its interest in health and safety extends to mental 

health and thus to psychology. Though protecting mental health may be a 

compelling interest, the state has not narrowly tailored its laws to further that

interest where it regulates outside the context of the actual practice of psychology. Serafine was not practicing psychology by speaking on her political website or filing forms for political office. Although it is not clear whether the 

Board was aware of Serafine’s activities before her candidacy, she had taught 

 

11 McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 347 (1995) (quoting Buckley v. 

Valeo, 424 U.S. 1, 15 (1976) (per curiam)).

12 Id. See also United States v. Playboy Entm’t Grp., 529 U.S. 803, 812–13 (2000)

(explaining that content-based restrictions must survive strict scrutiny).

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personal-growth seminars and offered one-on-one sessions to seminar participants for many years, yet the Board did not complain until she decided to run 

for office. Perhaps the Board is concerned that by hearing Serafine’s claim that 

she is a psychologist, voters will somehow be converted from political 

supporters to clients. Yet, if that is so, the way to protect the state’s interest 

in mental health is for the Board to bring an enforcement action against Serafine for engaging in the practice of psychology (once she is actually treating 

such clients), not to suppress her political speech. Thus, when the Board 

applied (b)(1) to a statement made on Serafine’s campaign website, it stepped 

far beyond the bounds of narrow tailoring.

Similarly, any interest the Board might claim in preventing the misleading belief that Serafine was licensed by the state as a psychologist is neither 

compelling nor narrowly tailored. As the district court recognized, such an 

interest is strongest in the context of commercial speech,13 but as discussed 

above, Serafine was not engaged in that. In the political context, the remedy 

for misleading speech is “more speech, not enforced silence.”14 Indeed, in the 

midst of “a political campaign, a candidate’s factual blunder is unlikely to 

escape the notice of, and correction by, the erring candidate’s political 

opponent.”15

Likewise, in United States v. Alvarez, 132 S. Ct. 2537, 2551 (2012) (plurality opinion), the Court explained that “[t]ruth needs neither handcuffs nor a 

badge for its vindication.” The Court held that false statements about 

receiving the Congressional Medal of Honor made by a water-district board 

 

13 See Friedman v. Rogers, 440 U.S. 1, 10 (1979) (discussing why commercial speech 

needs a lesser degree of protection).

14 Brown v. Hartlage, 456 U.S. 45, 61 (1982) (quoting Whitney v. California, 274 U.S. 

357, 377 (1927) (Brandeis, J., concurring)).

15 Id.

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member at a public meeting were entitled to First Amendment protection; it 

struck down the Stolen Valor Act, which criminalized such statements. Id.

at 2542–43. The plurality specifically noted the public ridicule and swift 

refutation that immediately followed the false claim. Id. at 2549–50. 

Indeed, the Court has long held that “erroneous statement is inevitable 

in free debate, and . . . it must be protected if the freedoms of expression are to 

have the ‘breathing space’ that they ‘need . . . to survive.’” New York Times Co. 

v. Sullivan, 376 U.S. 254, 271–72 (1964) (quoting NAACP v. Button, 371 U.S. 

415, 433 (1963)). Thus, the “First Amendment requires that we protect some 

falsehood in order to protect speech that matters.” Gertz v. Robert Welch, Inc., 

418 U.S. 323, 341 (1974). 

Unlike the plaintiff in Alvarez, Serafine did not engage in a bald-faced 

lie. This case is much closer to Byrum v. Landreth, 566 F.3d 442, 447–48 (5th 

Cir. 2009), in which we noted the “strong argument” that calling oneself an 

interior designer in contravention of a state law which required a license in 

order to do so was “neither actually nor potentially misleading.” Serafine has 

taught psychology at the collegiate level and was published in psychological 

journals. Thus there is again a “strong argument” that calling herself a psychologist on her campaign website was not misleading. Although she may not 

be able to practice as a psychologist under Texas law, that does not bear on 

whether she is a psychologist by reputation or training.16 Therefore, because 

the state’s interest in proscribing misleading speech is limited in the political 

context, and because the Board’s goal of preventing deception can be served by 

other means—the vigorous public debate and scrutiny that accompany political 

 

16 For example, a lawyer who is not barred in a particular state does not cease to be a

lawyer because he is merely prohibited from practicing in that state.

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campaigns—(b)(1) is unconstitutional as applied to Serafine.17

III.

Serafine contends that Section 501.003(b)(1) and (2) are overbroad. We

decline to address her overbreadth argument in regard to (b)(1), because that 

subsection is invalid as applied to her, but we agree with her that Section 501.003(b)(2) (“(b)(2)”) is overbroad. 

A.

Although litigants are permitted to raise both as-applied and overbreadth challenges in First Amendment cases, “the lawfulness of the particular 

application of the law should ordinarily be decided first.”18 Generally, we “proceed to an overbreadth issue” only if “it is determined that the statute would 

be valid as applied.”19 Applying the overbreadth doctrine is “strong medicine”20

 

17 Because we determine that (b)(1) is invalid as applied, we need not further address 

Serafine’s commercial-speech claim. As discussed above, and as Serafine acknowledges, the 

facts giving rise to this case concern political rather than commercial speech.

18 Bd. of Trs. v. Fox, 492 U.S. 469, 485 (1989). See also Gibson v. Tex. Dep’t of Ins., 

700 F.3d 227, 238 (5th Cir. 2012) (explaining that as-applied challenges should be considered 

before facial challenges).

19 Fox, 492 U.S. at 484–85. See also United States v. Stevens, 559 U.S. 460, 484 (2010) 

(Alito, J., dissenting) (explaining that “overbreadth invalidation need not and generally 

should not be administered when the statute under attack is unconstitutional as applied to 

the challenger before the court”); Massachusetts v. Oakes, 491 U.S. 576, 582 (1989) (“There 

was no need for any comment on the overbreadth challenge, as the defendant’s conviction 

could have been—and indeed was—reversed on a narrower and alternative ground, i.e., that 

the statute was unconstitutional as applied.”); Spence v. Washington, 418 U.S. 405, 414 n.9 

(1974) (“Because we agree with appellant’s as-applied argument, we do not reach the more 

comprehensive overbreadth contention he also advances.”); Street v. New York, 394 U.S. 576, 

580–81 (1969) (finding no need to consider overbreadth arguments because statute was 

unconstitutional as applied to defendant’s speech); Netherland v. Eubanks, 302 F. App’x 244, 

247 (5th Cir. 2008) (quoting Fox, 492 U.S. at 485); Moore v. City of Kilgore, 877 F.2d 364, 390 

(5th Cir. 1989) (explaining that because we held a fire department rule unconstitutional as 

applied to plaintiff’s speech, there was no need to consider his additional overbreadth 

argument).

20 Bd. of Airport Comm’rs v. Jews for Jesus, Inc., 482 U.S. 569, 574 (1987) (quoting 

Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973)).

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and is also “more difficult to resolve than the as-applied [challenge], since it

. . . requires consideration of many more applications than those immediately 

before the court.” Fox, 492 U.S. at 485. Though “the occasional case requires 

us to entertain a facial challenge in order to vindicate a party’s right not to be 

bound by an unconstitutional statute, we neither want nor need to provide 

relief to nonparties when a narrower remedy will fully protect the litigants.”21

Indeed, the few cases in which the Supreme Court found statutes unconstitutional facially and as applied to defendants’ conduct were decided under a 

different strand of facial invalidity that requires “that the statute could never

be applied in a valid manner.”22 The more recent expression of the overbreadth 

doctrine, which we apply here, allows a party to challenge a statute if “a substantial number of its applications are unconstitutional.”23 Under modern 

overbreadth doctrine, where a statute is invalid as applied, we should “resist 

the pulls to decide the constitutional issues involved in this case on a broader 

basis than the record before us imperatively requires.” Street, 394 U.S. at 581. 

Indeed, “[g]oing beyond our ‘case or controversy’ limits spawns advisory opinions that are likely to be ill-informed. In re Cao, 619 F.3d 410, 440 (5th Cir. 

2010) (Jones, C.J., concurring in part and dissenting in part). Because (b)(1) 

is invalid as applied to Serafine’s political speech, we need not address her

claim that it is overbroad. 

 

21 United States v. Nat’l Treasury Emps. Union, 513 U.S. 454, 477–78 (1995) (internal 

citations omitted).

22 Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 796–98 (1984)

(discussing Stromberg v. California, 283 U.S. 359 (1931), and Lovell v. Griffin, 303 U.S. 444 

(1938)).

23 Stevens, 559 U.S. at 473 (quoting Wash. State Grange v. Wash. State Republican 

Party, 552 U.S. 442, 449 n.6 (2008)); see also Taxpayers for Vincent, 466 U.S. at 798–99 

(explaining the development of modern overbreadth doctrine); Moore, 877 F.2d at 381 (Goldberg, J., dissenting) (discussing various strands of the overbreadth doctrine).

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B.

Serafine also brings an overbreadth challenge to (b)(2), which prohibits 

providing “psychological services to individuals, groups, organizations, or the 

public.” Although Serafine appears to have standing to challenge both (b)(1)

and (b)(2) as applied to her (the Board ordered her to cease using the title of 

psychologist and to refrain from providing psychological services), she does not 

press an as-applied challenge under (b)(2) in this court.24 Normally, “the principal advantage of the overbreadth doctrine . . . is that it enables [a litigant] to 

benefit from the statute’s unlawful application to someone else.” Fox, 492 U.S.

at 483. Yet, Fox held that even in the “unusual situation” in which a “plaintiff 

has standing to challenge all the applications of the statute he contends are 

unlawful,” the plaintiff may still bring an overbreadth challenge where an asapplied challenge “will fail.” Id. at 484. By electing not to press an as-applied 

challenge to (b)(2), Serafine clears the way for us to consider her overbreadth 

challenge. Not bringing the as-applied challenge before us is similar to the

situation in which the as-applied challenge fails or in which there was no possibility for an as-applied challenge at all. 

Our conclusion that the Act is unconstitutional as applied to Serafine’s 

speech pertains only to (b)(1), not (b)(2). Thus, the rule that overbreadth challenges should not be addressed if the statute is invalid as applied does not 

govern our determination of (b)(2). Therefore, notwithstanding our conclusion 

in regard to (b)(1), we must also consider Serafine’s overbreadth challenge to 

(b)(2) to vindicate her “right not to be bound by an unconstitutional statute.” 

Nat’l Treasury Employees Union, 513 U.S. at 477–78. 

 

24 Although, based on the briefing, it was uncertain whether Serafine was bringing an 

as-applied challenge to (b)(2), at oral argument her lawyer explicitly stated that she is pressing the as-applied challenge only to (b)(1), not (b)(2). 

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C.

Under the First Amendment, “a law may be invalidated as overbroad if 

‘a substantial number of its applications are unconstitutional, judged in 

relation to the statute’s plainly legitimate sweep.’”25 Indeed, “[t]he 

constitutional defect of an overbroad restraint on speech lies in the risk that 

the wide sweep of the restraint may chill protected expression.”26 Even though 

the state may have the power to regulate the professional speech of psychologists incidental to a valid licensing scheme, if that scheme affects the speech of 

people beyond the purview of the state’s interests or power, it is overbroad. 

1.

The overbreadth doctrine does not apply to commercial speech. See Vill. 

of Hoffman Estates v. Flipside, 455 U.S. 489, 496–97 (1982). Thus, before 

proceeding with the overbreadth analysis, we must clarify that providing psychological services under (b)(2) is not commercial speech. Commercial speech 

is speech “that proposes a commercial transaction,” not “speech for profit.” Fox, 

492 U.S. at 482. Therefore, merely receiving compensation for psychological 

services cannot be commercial speech. Indeed, “[s]ome of our most valued 

forms of fully protected speech are uttered for a profit.” Id.

Nevertheless, (b)(2) does not govern just the providing of “psychological 

services but also “offers to provide psychological services” (emphasis added). If 

such offers are made for pecuniary gain, they properly could be classified as 

 

25 Stevens, 559 U.S. at 473 (quoting Wash. State Grange, 552 U.S. at 449 n.6). See also

Fairchild v. Liberty Indep. Sch. Dist., 597 F.3d 747, 755 (5th Cir. 2010) (explaining that the 

critical question is “whether the enactment reaches a substantial amount of constitutionally 

protected conduct”).

26 United States v. Wallington, 889 F.2d 573, 576 (5th Cir. 1989). See also Ashcroft v. 

Free Speech Coal., 535 U.S. 234, 255 (2002) (“The overbreadth doctrine prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process.”).

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commercial speech, and an overbreadth analysis might appear in error. Yet, 

in Fox, id. at 481–82, the Court explained that where a statute applies to both 

commercial and non-commercial speech, an overbreadth challenge still may be 

considered with respect to non-commercial speech. Likewise, because (b)(2) 

covers both commercial and non-commercial speech, we address the overbreadth challenge, but we properly confine our analysis to the providing of psychological services under that subsection or to offers to provide such services 

made without a commercial purpose (not for pecuniary gain). 

2.

“The first step in overbreadth analysis is to construe the challenged statute; it is impossible to determine whether a statute reaches too far without 

first knowing what the statute covers.”27 “Facial challenges to the constitutionality of statutes should be granted ‘sparingly and only as a last resort.’”28

Under (b)(2), “[a] person is engaged in the practice of psychology” if she 

“provides or offers to provide psychological services to individuals, groups, 

organizations, or the public.” Serafine contends that the statute must be construed by looking to Section 501.003(a), which defines “psychological services” 

as “acts or behaviors that are included within the purview of the practice of 

psychology.” (Emphasis added.) In turn, Section 501.003(a) must be construed 

by reference to Section 501.003(c) (“subsection (c)”), according to which “[t]he 

practice of psychology”

(1) includes providing or offering to provide services to an individual or 

group, including providing computerized procedures, that include the 

application of established principles, methods, and procedures of describing, explaining, and ameliorating behavior;

 

27 Hersh v. United States ex rel. Mukasey, 553 F.3d 743, 763 (5th Cir. 2008) (quoting 

United States v. Williams, 553 U.S. 285, 293 (2008)).

28 Id. at 762 (quoting Broadrick, 413 U.S. at 613). 

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(2) addresses normal behavior and involves evaluating, preventing, and 

remediating psychological, emotional, mental, interpersonal, learning, 

and behavioral disorders of individuals or groups, as well as the psychological disorders that accompany medical problems, organizational 

structures, stress, and health;

(3) includes:

(A) using projective techniques, neuropsychological testing, 

counseling, career counseling, psychotherapy, hypnosis for 

health care purposes, hypnotherapy, and biofeedback; and

(B) evaluating and treating mental or emotional disorders and

disabilities by psychological techniques and procedures; and

(4) is based on:

(A) a systematic body of knowledge and principles acquired in 

an organized program of graduate study; and

(B) the standards of ethics established by the profession.

TEX. OCC. CODE ANN. § 501.003(c) (West 2015). Serafine urges that subsection (c) is overbroad because it covers a significant amount of advice that is 

given outside the traditional context of the psychotherapist. Thus, by implication, (b)(2) is also overbroad.

3.

The first inquiry is whether the subsections should be read conjunctively 

as the Board urges or disjunctively as Serafine contends. Thus, for something 

to be the “practice of psychology,” must it meet the requirements of all four 

subsections or only one? A textual reading supports the Board’s position that

subsection (c) is conjunctive. Each of the subparts (1) through (4) begins with 

a verb (“includes,” “addresses,” or “is”), and subpart (3) ends with “and” that 

appears before subpart (4). The presence of “and” (as opposed to “or”) indicates 

that subsection (c) should be read as an inclusive list—the practice of psychology requires something from each of the four subparts.29

 

29 See ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF 

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That conclusion is undermined, however, by the seeming absurdity that 

would result if subsection (c) were read conjunctively. A person who has not 

conducted graduate coursework, as required by Section 501.003(c)(4) (“(c)(4)”), 

but engaged in the other conduct listed in subsection (c)—counseling clients on 

psychological disorders, offering psychotherapy, or remediating behavioral 

problems—could not be said to be providing “psychological services” under

(b)(2). If that practitioner did not advertise as a “psychologist” or fall within 

the other subparts of Section 501.003(b) (such as working for an organization 

that sells psychological services), she would not be engaged in the “practice of 

psychology” as defined by the Act. Thus, the Board would be powerless to prevent the very individuals the Act appears most concerned about—those 

without qualifying doctoral degrees—from providing psychological counseling. 

Perhaps to avoid that problem, it appears that the Board heretofore has 

also read subsection (c) disjunctively. At trial, the chairman of the Board, 

Branaman, testified that it is disjunctive—so if someone were not applying a 

“body of knowledge” learned in “an organized program of graduate study” 

under (c)(4), she still could be engaged in the “practice of psychology” if the 

other requirements of subsection (c) were met. 

Nevertheless, regardless of any enforcement problems that the conjunctive reading occasions, we are bound by the statute as the legislature fashioned 

it. The grammatical structure of subsection (c) is plain, and notably it contrasts with the disjunctive structure of Section 501.003(b), which uses a similar 

format (beginning each subsection with a verb) but employs “or” rather than 

“and” before the last subsection. Thus, while in practice the Board might prefer 

that subsection (c) be read disjunctively, we agree with the Board’s position 

 

LEGAL TEXTS 116–119 (2012) (explaining the conjunctive/disjunctive canon).

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here on appeal—the straightforward textual reading of subsection (c) is conjunctive. This reading may limit the Board’s ability to bring actions against 

psychologists it considers illegitimate—those who do not base their practice on 

principles acquired in a graduate program—but it also will constrain the 

Board’s power, as Serafine is seeking. 

4.

Serafine’s primary basis for an overbreadth challenge is the sweeping 

language of Section 501.003(c)(1) and (2) (“(c)(1)” and “(c)(2)”). Serafine correctly contends that providing “services to an individual or group . . . that 

include the application of established principles, methods, and procedures of 

describing, explaining, and ameliorating behavior” could apply to a number of 

activities, such as Alcoholics Anonymous (AA), Weight-Watchers, various selfhelp groups, life-coaches, yoga teachers, political consultants, and golf professionals. See Section 501.003(c)(1).

Similarly, (c)(2) also contains sweeping language requiring that the practice of psychology “address[] normal behavior and involve[] evaluating, preventing, and remediating psychological, emotional, mental, interpersonal, 

learning, and behavioral disorders.” Yet (c)(2) is somewhat narrower than

(c)(1), and given that subsection (c) is conjunctive, we do not read the Act as 

broadly as does Serafine. Political consultants may describe, explain, and ameliorate behavior (under (c)(1)), but they rarely, if ever, evaluate, prevent, or 

remediate “psychological, emotional, mental, interpersonal, learning, and 

behavioral disorders” under (c)(2). Nevertheless, (c)(2) could still apply to Alcoholics Anonymous (AA), Weight-Watchers, golf coaches, yoga teachers, lifecoaches, and various self-help groups, which do remediate various “psychological, emotional, mental, interpersonal, learning and behavioral disorders.”

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The Board reasons that (c)(3) and (c)(4) limit the scope of subsection (c)

to exclude such groups. Under subsection (3), the practice of psychology

“includes: (A) using . . . counseling . . . and (B) evaluating and treating mental 

or emotional disorders and disabilities by psychological techniques and 

procedures.” By requiring the evaluation and treatment of “mental or 

emotional disorders,” Section 501.003(c)(3)(B) is in many ways a repeat of 

(c)(2), except that it requires the use of “psychological techniques and procedures,” which appear to be listed in (c)(3)(A). By narrowing the range of disorders from “psychological, emotional, mental, interpersonal, learning and 

behavioral disorders” to “mental or emotional disorders and disabilities,” (3)(B) 

does further constrain the “practice of psychology,” so that a golf coach no 

longer appears to fall within its ambit. Nevertheless, Weight Watchers, AA, 

and other self-help groups that provide counseling to participants on emotional 

problems would still be included in subsection (c). 

Section 501.003(c)(4)(A) provides the most significant limitation, given 

that it requires services based on “a systematic body of knowledge and principles acquired in an organized program of graduate study” as well as a professional code of ethics. But there is no indication that a practitioner needs to 

have completed a graduate degree if she has taken graduate-level classes. 

“Graduate” is defined as “of, relating to, or engaged in studies beyond the first 

or bachelor’s degree.” Graduate, MERRIAM-WEBSTER.COM, 

http://www.merriam-webster.com/dictionary/graduate (last visited Oct. 26, 

2015). Thus, anyone who has taken graduate-level psychology, counseling, or 

fitness classes after completing a bachelor’s degree and applied this knowledge 

to lead an AA group or work at a Weight-Watcher program would be included 

in the definition in (c)(4).

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It is also possible that any classes taken after the completion of an 

undergraduate degree, regardless of whether at a traditional university, could

be within the definition of an “organized program of graduate study.” So, by 

attending a meditation seminar or AA training conference, it is conceivable 

that someone could be participating in “an organized program of graduate 

study.” As long as an individual who has taken graduate classes also applies

a professional standard of ethics (which it is not unusual for organizations such 

as AA to have), she would be engaging in the practice of psychology under 

Section 501.003(c). Thus, although (c)(4) does narrow the scope of subsection (c), and by implication (b)(2), the provision still covers a substantial 

amount of speech that occurs outside the realm of professional psychologists. 

Indeed, though subsection (c) certainly includes professional psychologists, it also applies to other professionals and citizens. Besides leaders for AA, 

Weight-Watchers, or other self-help groups, someone who has taken graduate 

classes in psychology, fitness, or counseling and has written a marriage-advice 

column or parenting blog could conceivably be within the ambit of subsection (c). Prosecution in such a circumstance might sound absurd, but in other 

jurisdictions it has not been merely hypothetical. 

Recently, relying on a similar statute,30 the Kentucky Board of Examiners of Psychology ordered a syndicated newspaper columnist to stop offering 

 

30 The statute in question was Kentucky Revised Statutes Section 319.010, which 

defined the “practice of psychology” as

rendering to individuals, groups, organizations, or the public any psychological service involving the application of principles, methods, and procedures of understanding, predicting, and influencing behavior, such as the principles pertaining to learning, perception, motivation, thinking, emotions, and interpersonal relationships; the 

methods and procedures of interviewing, counseling, and psychotherapy; and psychological testing in constructing, administering, and interpreting tests of mental 

abilities, aptitudes, interests, attitudes, personality characteristics, emotion, and 

motivation. The application of said principles in testing, evaluation, treatment, use 

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parenting advice in response to readers’ questions. See Rosemond v. Markham, 

No. CV 13-42-GFVT, 2015 WL 5769091, at *1–2 (E.D. Ky. Sept. 30, 2015). The 

columnist, who held a master’s degree in psychology but was not a licensed 

psychologist, had recommended that the parents of a “highly spoiled underachiev[ing]” teenager suspend his privileges until he improved his grades. Id.

at *1. According to the state, such public advice constituted the “practice of 

psychology.” Id. at *2. 

Similarly, at Serafine’s trial, the chairman of the Board testified that he 

could not tell, without more information or looking at a specific case, whether 

golf coaches, weight-loss services, or smoking-cessation programs would be 

within the “practice of psychology” as defined in subsection (c). The “opportunity for abuse, especially where a statute has received a virtually open-ended 

interpretation, is self-evident.”31

Like the airport officials in Jews for Jesus, who “alone [had] the power 

to decide in the first instance whether a given activity [wa]s airport related,”32

here the Board would get to decide in the first instance what advice constitutes 

the “practice of psychology,” then enforce the law as it sees fit. Such unfettered 

discretion is untenable. Even if the Board had promised to limit the scope of 

its enforcement, the Supreme Court has held that this is insufficient, and the 

First Amendment “does not leave us at the mercy of noblesse oblige.” United 

States v. Stevens, 559 U.S. 460, 480 (2010). Like the Court, we “would not 

 

of psychotherapeutic techniques, and other methods includes, but is not limited to: 

diagnosis, prevention, and amelioration of adjustment problems and emotional, 

mental, nervous, and addictive disorders and mental health conditions of individuals 

and groups; educational and vocational counseling; the evaluation and planning for 

effective work and learning situations; and the resolution of interpersonal and social 

conflicts.

31 Bd. of Airport Comm’rs v. Jews for Jesus, Inc., 482 U.S. 569, 576 (1987) (quoting 

Lewis v. City of New Orleans, 415 U.S. 130, 136 (1974) (Powell, J., concurring)).

32 Id.

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uphold an unconstitutional statute merely because the Government promised 

to use it responsibly.” Id. 

The Board urges that because Section 501.004 of the Texas Occupation 

Code contains limited exemptions from the Act for clergy members, certain 

non-profit employees, and various licensed professionals (including physicians, 

attorneys, registered nurses, licensed social workers, licensed counselors, and 

licensed therapists), its scope is appropriately narrowed to professional 

psychologists. Yet if anything, under the canon of expressio unius, the presence 

of those exemptions suggests that anyone not granted an exemption in Section

501.004 is affirmatively covered by the Act.33 Life coaches, weight loss counselors, and AA sponsors could all fall under the Act as discussed above. 

Although the Board maintains that, under United States v. Wallington, 

889 F.2d 573, 576 (5th Cir. 1989), we should construe the statute narrowly to 

avoid overbreadth problems, we are mindful of the Supreme Court’s decision 

not to “rely upon” the canon of constitutional avoidance in the overbreadth 

context.34 Courts should “impose a limiting construction on a statute only if it 

is readily susceptible to such a construction.” Stevens, 559 U.S. at 481 (quoting 

Reno v. ACLU, 521 U.S. 844, 884 (1997)). Nor should we “rewrite a . . . law to 

conform it to constitutional requirements.” Id. (alteration in original) (quoting 

ACLU, 521 U.S. at 884–85). The plain text properly limits the sweep of Section 

501.003(c) to the evaluation and treatment of mental or emotional disorders, 

using psychological techniques such as counseling, by someone who relies on 

 

33 See SCALIA & GARNER, supra, at 108 (explaining that the “more specific the enumeration, the greater the force of the [expressio unius] canon”).

34 Stevens, 559 U.S. at 481; see also Hersh, 553 F.3d at 756–57 (5th Cir. 2008) (quoting 

United States v. Albertini, 472 U.S. 675, 680 (1985)) (recognizing “that the doctrine of constitutional avoidance ‘is not a license for the judiciary to rewrite language enacted by the 

legislature’”).

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post-undergraduate classes or training and follows a professional code of 

ethics. We decline to give it an additional extra-textual limiting construction 

in a frantic attempt to rescue it.

The ability to provide guidance about the common problems of life—

marriage, children, alcohol, health—is a foundation of human interaction and 

society, whether this advice be found in an almanac, at the feet of grandparents, or in a circle of friends. There is no doubt that such speech is protected 

by the First Amendment.35 By limiting the ability of individuals to dispense

personal advice about mental or emotional problems based on knowledge 

gleaned in a graduate class in practically any context, subsection (c) chills and 

prohibits protected speech. But that is precisely what the overbreadth doctrine 

is meant to prevent. See Free Speech Coal., 535 U.S. at 255. Section 501.003(c), 

and by implication, Section 501.003(b)(2), are overbroad and contravene the 

First Amendment. 

IV.

Serafine’s prior-restraint challenge fails. There is a “clear distinction, 

‘solidly grounded in our cases, between prior restraints and subsequent punishments.’” Gibson v. Tex. Dep’t of Ins., 700 F.3d 227, 235 (5th Cir. 2012)

(quoting Alexander v. United States, 509 U.S. 544, 550 (1993)). Prior restraints 

“involve ‘administrative and judicial orders [such as temporary restraining 

orders and permanent injunctions] forbidding certain communications when 

issued in advance of the time that such communications are to occur.’” Id.

(alteration in original) (quoting Alexander, 509 U.S. at 550). Thus, by “penalizing past speech,” the Act is not a prior restraint on speech. Alexander, 509 U.S. 

 

35 See Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226 (2015) (quoting Police Dep’t of 

Chi. v. Mosley, 408 U.S. 92, 95 (1972)) (stating that government “has no power to restrict 

expression because of its message, its ideas, its subject matter, or its content”).

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at 553. The district court was correct in rejecting this claim. 

In summary, the judgment is AFFIRMED in regard to the prior-restraint 

claim and REVERSED in respect to the constitutionality of 

Section 501.003(b)(1) as applied to Serafine’s campaign speech and in regard 

to the overbreadth of Section 501.003(b)(2). This matter is REMANDED for 

entry of appropriate orders and judgment and other proceedings as needed.

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