### REVISED January 12, 2016
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 14

- 51151

DR. MARY LOUISE SERA FINE , Plaintiff

–

Appellant , versus TIM F. BRANAMAN , Chairman, Texas State Board of Examiners of Psychologists, in H is O fficial C apacity; DARREL D. SPINKS , Executive Director, Texas State Board of Examiners of Psychologists, in H is O fficial C apacity , 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 “psyc hologist” on her campaign website. After the Texas State Board of Examiners of Psy cholo

gists ordered her to stop using th e title of “ psychologist ” and to desist from of fer ing or providing psychological services , Serafine sued, alleging that the Psy chologists’ Licensing Act (the “Act”) , Sections 501.001 through 501.505 of the Texas Occupational Code, violate s the First and Fourteenth Amendments. United States Court of Appeals Fifth Circuit 

### FILED January 12, 2016

Lyle W. Cayce Clerk Case: 14-51151 Document: 00513339930 Page: 1 Date Filed: 01/12/2016No. 14

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2 The dis trict court denied her claim s . W e affirm in part and reverse in part and remand.

I. Serafine ran f or the Texas Senate in 2010. On her campaign website, she described herself as a n “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 psycho logist.” 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 e ducation was pub

lished in Genetic Psychology Monographs

. Serafine was a professor in the psy

chol ogy departments at Yale University and Vassar College, where she taught a variety of psychology courses. She has stud ied under leading psy chol ogists and was a member of the American Psychological Association for several years. S h e 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 counsel

ing ses sions on per sonal growth and relationships in Austin. S h e 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 o rdered her to cease using the title “psychologist” on her campaign website (or in any other context) and to refrain from offering or pro viding “ psy cho logical services ” in Texas. T wo weeks later, t he Board sent a follow

- up let

ter telling Serafine she had thirty days to comply or face legal action from the Texas Attorney General. The Board also sought a correcti on from two Texas
newspapers that had identified Serafine as a psychologist. In Ja n uary 2011, Case: 14-51151 Document: 00513339930 Page: 2 Date Filed: 01/12/2016No. 14

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3 Serafine received a letter from the Attorne y General’ s office threatening pro

secution and referenc ing the Board’s complaint and Serafine’s use of the title “psychologist” in public records.
Serafine removed the word “psychologist” from her cam paign website and requested that the title be delet ed from her listing in Who’s Who in Amer

ica

. She then sued , claim ing that the Act infringed her polit ical speech, com

mercial speech, equal protection rights, and right to earn a living. She also challenged the Act as vague, overbroad, and a prior restr aint.
The district court dismissed the equal protection, right

- to

- earn - a - living,
vague ness, and prior

- restraint claims and held a bench trial on the remaining claims. After trial, the court r ejected the political speech and overbreadth claims , hold ing t hat the Act i s a legitimate use of the state’s police power , which imposed only an incidental effect on Serafine’s speech , and that any impermissible appli cations of the Act a re insubstantial in relation to its overall
sweep
. The court also rejected t he commercial

- speech claim, reasoning that the Act i s rea sonably 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 psychol ogy” if she represents herself “to the public by a title or description of services that includes the word ‘psychological,’ ‘psy chologist,’ or ‘psychology,’” is u ncon stitutional a s applied to speech on her polit ical 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 Case: 14-51151 Document: 00513339930 Page: 3 Date Filed: 01/12/2016No. 14

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

com pelling 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 est ablish standards for licensing practi

tioners and regulati ng 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 professi onal speech doctrine , though some circuits have embraced it based on Justice White ’s con

currence in Lowe v. SEC , 472 U.S. 181, 23 0

– 3 3 (1985)

. 2 Recently, we also observed that “ s tate regulation of the practice of a profession, even though that regulation may have an inci den tal impact on speech, does not violate the Constitution. ” 3
A ssuming that the professional speech doctrine is valid, its application should be limited. “T here is a difference, for First Amendment purposes, between

. . . profes sionals’ speech to the public at large versus their direct, personalized speech with clients.” 4 “ W hile a professional may speak on a vari

ety 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

- Ki ng v. Cty. of Chesterfield , 708 F.3d 560, 56 8

– 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 c ert. 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 W ollschlaeger v. Governor of Fl a
. , 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) ). Case: 14-51151 Document: 00513339930 Page: 4 Date Filed: 01/12/2016No. 14

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5 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 ( wh ich may be restricted ) and speech by a professional to the general public , which is subject to full First Amendment protecti on : 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 dir

ectly acquainted, government regulation ceases to function as legiti

mate 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 incidental ly to a valid licensing scheme, Justice White’s concurrence suggests that such restrict ions― to avoid running a foul of the First Amendment

― are properly confined to occupational

related speech made to individual clients. Any interest the government can claim in protecting client s from manip

u lation 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 prac tice of the
pro fession. “ [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 pub licly or privately to speak urging per sons 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)). Case: 14-51151 Document: 00513339930 Page: 5 Date Filed: 01/12/2016No. 14

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6 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 o n 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 sta tements are entitled to full First Amendment protection.

B. The Board also cites cases upholding restrictions on the use of profes

sional titles. States’ ability to limit the use of titles and trade names to protect the public from “ false, deceptive, and misleading ” a dvertising is well

established. 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 profes

sional title or tr ade name for business purposes. 10
T he Board did no t 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 Fried man v. Rogers , 440 U.S. 1, 15 (197 9).

10 See Maceluch , 680 F.2d at 1064, 1068

– 70 (upholding Texas licensing law that pre

vented 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) ( upho lding statute that prohibited unlicensed accountants f rom using the title “public accountant” because of the danger of “misleading com mer cial speech”); Brandwein v. Cal. Bd. of Osteopathic Exam’rs , 708 F.2d 1466, 1469

– 70 (9th Cir. 1983) ( upholding restri ction preventing doctor of
o steopathy from holding himself out as an M.D. because of the danger of false or mis lead ing commercial speech ). Case: 14-51151 Document: 00513339930 Page: 6 Date Filed: 01/12/2016No. 14

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7 d irected her to cease describing herself as a psyc hologist on her political campaign website. Yet Seraphine was seeking votes , not clients. Thus, the inclu sion of “psychologist” on the website was not commercial speech, and there fore 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 com

mercial speech; it was political speech of the highest form

— a candidate seeking election to public office. Indeed, “ it can hardly be doubted that the constitu

tional guarantee [of free speech] has its fullest and most urgent appli cation
pre cisely to the conduct of c ampaigns for political office.” 11 Sec

tion 501.003(b)(1) is a content

- based restric tion on speech

— proscribing one’s ability to claim to be a psychologist. A s applied to Serafine ’s political speech , (b)(1) is subject to “exacting scrutiny” and must be “ nar rowly tailored to serve an overriding state interest. ” 12
T he state claims that its interest in health and safety extends to mental health and thus to psychology. Though protecting mental health may be a

com pelling interest, the state has not narrowly tailored its laws to further th at interest whe re it regulates outside the context of the actual pr actice of psychol

ogy. Serafine was not practicing psychology by speaking o n her political web

site or filing forms for political office. Although it is not clear whether the Board was aware of Serafine’s activities before her candidacy, s h e 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) (explain ing that content

- based restrictions must survive strict scrutiny). Case: 14-51151 Document: 00513339930 Page: 7 Date Filed: 01/12/2016No. 14

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8 p ersonal

- growth sem inars and offered one

- on - one sessions to seminar partici

pants for many years , yet the Board did not complain until she decide d to run for office. Perhaps the Board is concerned that by hearing Sera fine’s claim that she is a psychologist, voters will somehow be converted from political supporters to clients

. Yet, if th at is so , the way to protect the state’s inter est in mental health is for the Board to bring an enforcement action against Ser

afine for engaging in the practi ce of psychology ( once she is actually treating such clients ) , not to sup press her political speech. Thus, w hen the Board applied (b)(1) to a statement made on Serafine’s cam paign website , it stepped far beyond the bounds of narrow tailoring.
Similarl y, any interest the Board might claim in preventing the mislead

ing belief that Serafine was licensed by the state as a psychologist is neither compelling n or narrowly tailored. As the district court recognized, such an in ter est is strongest in the con text 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

es ca pe 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) (plur

al ity opinion), the Court explained that “[t] ruth needs neither handcuf fs 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 S ee Friedman v. Rogers , 440 U.S. 1, 10 (1979) (discussing why commercial speech need s 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. Case: 14-51151 Document: 00513339930 Page: 8 Date Filed: 01/12/2016No. 14

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9 member at a public meeting were enti tled to First Amendment prote ction ; it struck down the Stolen Va lor Act, which criminalized such statements

. Id. at 2542

– 43 . T he plurality specifi cally noted the public ridicule and swift refutation that immediately followed the false claim. Id. at 2549

– 50. Indeed, t he Court has long held that “ erroneous stateme nt is ine vitable in free debate, and

. . . it must be protected if the freedoms of expression are to have the ‘b reathing space’ that they ‘need

. . . to survive. ’ ” New York Times Co. v. Sullivan , 376 U.S. 254, 271

– 72 (1964) (quoting N AACP v. Button , 371 U.S. 415, 433 (1963) ). T hus, 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 bal d

- 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. Th us th ere is again a “ strong argument ” that calling herself a psy

chol ogist on her cam paign website was not misleading. Although she may not be able to prac tice as a psychologist under Texas law , that does not bear on whether she is a psy chologist by reputation or training. 16 Therefore, b ecause the state’ s inter est in proscribing mislea ding 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 scru tiny that accompan y 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. Case: 14-51151 Document: 00513339930 Page: 9 Date Filed: 01/12/2016No. 14

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10 campaigns

— (b)(1) is unconstitu tional 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 Sec

tion 501.003(b)(2) (“(b)(2)”) is overbroad

. A. Although litigants are permitted to raise both as

- applied and over

breadth challenges in First Amendment c ases , “ the lawfulness of the par ticular application of the law should ordinarily be decided first. ” 18 Generally, we “pr o ceed 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 acknowl edges, the facts g iving rise to this case concern political rather than commercial speech. 18 Bd. of Trs. v. Fox , 492 U.S. 469, 48 5 (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) (Al i to, 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 overbrea dth challenge, as th e 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 - appl ied 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
uncon stitutional as applied to defendan t’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, 57 4 (1987) (quot ing Broad rick v. Oklahoma , 413 U.S. 601, 613 (1973) ). Case: 14-51151 Document: 00513339930 Page: 10 Date Filed: 01/12/2016No. 14

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11 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. T hough “the occasional case requires us to entertain a facial challenge in order to vindicate a party ’ s right not to be bound by an uncon stitutional statute, we neither want nor need to provide relief to non parties when a narrower remedy will fully protect the litigants. ” 21 Indeed, the few ca ses in which the Supreme Court found statutes uncon

stitutional facially and as applied to defendants’ conduct were decided under a different strand of facial invalidity that requires “ that the statute could neve r be applied in a valid manner.” 22 T he more recent expression of the overbreadth doctrine, which we apply here, allows a party to challenge a statute if “ a sub

stantial number of its applications are unconstitutional .” 23 Under modern

over breadth 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 5 81

. Indeed, “[g] oing beyond our ‘case or controversy’ limits spawns advisory opin

ions that are likely to be ill

- informed. In re Cao , 619 F.3d 410, 440 (5th Cir. 2010) (Jones, C.J., concurrin g 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 Emp s
. 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 Str omberg 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) ) ; s ee also Taxpayers for Vincent , 466 U.S. at 798

– 99 (explaining the development of modern overbreadth doctrine); Moore , 877 F.2d at 381 (Gold

berg, J., dissenting) (discussing various strands of the overbreadth doctrine). Case: 14-51151 Document: 00513339930 Page: 11 Date Filed: 01/12/2016No. 14

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12 B. Serafine also br ings an overbreadth challenge to (b)(2), which prohibits provi d in g “psychological services to individuals, groups, organizations, or the public.” Although Serafine appears to have stand ing to challenge both ( b)(1) and (b) (2) as applied to her (the Board ordered her to cease using the title of
psy chologist and to ref rain from providing psychological services), she does not
press an as - applied challenge under (b)( 2 ) in this court

. 24 Normally, “ the prin

cipal advant age of the over breadth doctrine . . . is that it enables [a liti gant] to benefit from the statute’ s unla wful application to someone else .” Fox , 492 U.S. at 48 3

. Yet , Fox held that even in the “unusual situation” in which a “ plaintiff has standing to challenge all the applications of the statute he con tends are unlawful ,” the plaintiff may still bring an overbreadth challenge where an as

applied chal lenge “will fail

. ” Id. at 484. B y electing not to press an as

- applied challenge to (b)(2), Serafine clears the way for us to consider her over breadth challenge. Not bringing the as

- applied challenge before us is sim i lar to the sit u ation in which the as

- applied challenge fails or in which there was no pos sibility 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 chal

lenges 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 Serafin e’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 Seraf ine was bringing an
as - applied challenge to (b)( 2 ) , at oral argument her lawyer explicitly stated that she is press

ing the as

- applied challenge only to (b)(1) , not (b)( 2 )

. Case: 14-51151 Document: 00513339930 Page: 12 Date Filed: 01/12/2016No. 14

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

‘ a substantial number of its applications are unconstitutional, ju dged in relation to the statute’ s plainly legitimate sweep. ’” 25 Indeed, “[t]he constitutional defect of an over broad restraint on speech lies in the risk that the wide sweep of the restraint may chill protected expression. ” 26 E ven though the state may have the power to regulate the professional speech of psychol o gists inci den tal to a valid licensing scheme, if that scheme affects the speech of people beyond the purview of the state’s interests or power, it i s overbroad.

1. T he 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 psy

cho logical s ervices under (b)(2) is not commercial speech. Com mercial speech is speech “ that proposes a commercial transaction , ” not “speech for profit.” Fox , 492 U.S. at 48 2

. Therefore, merely receiving compen sa tion for psychological services can not be commercial speech. Indeed, “[s] ome of our most valued forms of fully protected s peech are uttered for a profit.” Id. Nevertheless, (b)(2) does not govern just the provi ding of “psychological services but also “ offers to provide psychological services” (empha sis 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 crit ical question is “ whether the enactment reaches a substantial amount of con stitu tionally 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 Govern

ment from banning unprotected speech if a substantial amount of protected speech is prohib

ited or chilled in the p rocess.”)

. Case: 14-51151 Document: 00513339930 Page: 13 Date Filed: 01/12/2016No. 14

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14 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 spee ch, we address the over

breadth challenge, but we properly confine our analysis to the provi ding of psy

cho logical services under that sub section or to offers to provide such ser vices made without a commercial purpose (not for pecuniary gain).

2.

“ T he first step in overbreadth analysis is to construe the challenged stat

ute; it is impossible to determine whether a statute reaches too far without first knowing what the statute covers.” 27 “ F acial challenges to the constitu

tion ality 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 indi vid uals, groups,
organ izations, or the public.” Serafine contends that the statute must be con

strued by looking to Section 501.003(a) , which defines “psy chological services” as “acts or behaviors that are included within the purview of the practice of psychology .” ( E mphasis 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 appli cation of established principles, methods, and procedures of de

scribing, explaining, and ameliorating behavior;

27 Hersh v. U nited State s ex rel. M ukasey , 553 F.3d 743, 7 63 (5th Cir. 2008) (quoting United States v. Williams, 553 U.S. 285, 293 (2008)).
28 Id. at 762 (quot ing Broadrick, 413 U.S. at 613). Case: 14-51151 Document: 00513339930 Page: 14 Date Filed: 01/12/2016No. 14

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15 (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 psycho

log ical disorders that accompany medical problems, organizational struc tures, stress, and health; (3) includes : (A) using projective techniques, neuropsychological testing,
coun seling, career counseling, psychotherapy, hypnosis for health care purposes, hypnotherapy, and biofeedback; and (B) evaluating and treating mental or emotional disorders and dis abilities by psychological techniques and procedures; and (4) i s 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. T EX

. O CC

. C ODE A NN

. § 501.003 (c) (West 2015)

. Serafine urges that subsec

tion (c) is over broad because it covers a significant amount of advice that is given outside the trad itional context of the psychotherapist. T hus , by implica

tion , ( b)(2) is also overbroad.

3. T he first i nquiry is whether the subsections should be read conju nctively 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 sub sections or only one? A textual reading support s the Board’s position that subsectio n (c) is conjunctive. Each of the subparts (1) through (4) begins with a verb (“includes,” “addresses,” or “is”), and sub part (3) ends with “and” that
appea rs before sub part (4). T he presence of “and” (as opposed to “or ” ) indi cates that subsection (c) should be read as an inclusive list

— the practice of psychol

ogy requires something from each of the four sub parts. 29

29 See A NTONIN S CALIA & B RYAN A. G ARNER , R EADING L AW : T HE I NTERPRETATION OF Case: 14-51151 Document: 00513339930 Page: 15 Date Filed: 01/12/2016No. 14

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16 Th at conclusion is undermined, however, by the seeming absurdity that would result if subsection (c) w ere read con junctively. A person wh o 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

— co uld not be said to be providing “ psychological services ” under (b)(2)

. If th at practitioner did not advertise as a “psychologist” or fall within the other sub parts of Section 501.003 (b) (such as working for an organi za tion that sells psychological services) , she would not be engaged in the “practice of psychology” as defined by the Act. Thus , the Board would be power less to pre

vent the very individuals the Act appears most concern ed about

— those without qualifying doctoral degrees

— from providing p sychologi cal coun seling.
P erhaps to avoid th at problem, it appears that the Board here tofore h as also read subsection (c) disjunctively. At trial, the chair man of the B oard, Bran aman, testified that it is disjunctive

— so if someone w ere not applyi ng a “body of knowledge” learned in “an organized program of graduate study” under (c )(4) , she still could be engaged in the “practice of psy chol ogy ” if the other requirements of subsection ( c ) were met. Nevertheless, regardless of any enforcement problems that the conjunc

tive reading occasions , we are bound by the statute as the legislature fashioned it

. The grammatical structure of subs ection (c) is plain, and notably it con

trasts with the disjunctive structure of Section 501.003(b), which uses a similar format (beginnin g each subsection with a verb) but employs “or” rather than “and” before the last subsection. Thus, w hile in practice the Board might prefer that subs ection ( c) be read disjunctively, w e agree with the Board’ s position

L EGAL T EXTS 116

– 1 19 (2012) (explain ing the conjunctive/disjunctive canon). Case: 14-51151 Document: 00513339930 Page: 16 Date Filed: 01/12/2016No. 14

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17 here on appeal

— the straightforward textual reading of subs ection (c) is con

junc tive. T his reading may limit the Board’s ability to bring actions against psychologists it considers illegitimate

— those who do not base thei r 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 lan guage of Section 501.003(c)(1) and (2) (“(c)(1)” and “(c) (2)”)

. Serafine cor rectly con tends that pro viding “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 self

help groups, life

- coaches, yoga teachers, political consultants , and golf profes

sionals

. See Section 501.003 (c)(1).
S imilarly, (c)(2) also contains sweepin g language requiring that the prac

tice of psychology “address[] normal behavior and involve[] evalu ating, pre

vent ing, and remediating psychological, emotional, mental, interper sonal, learn ing, and behavioral dis orders

. ” Yet (c) (2) is somewhat narro wer than (c) (1), and given that subs ection (c) is conjunctive, we do not read the Act as broadly as does Serafine. Political consultants may describe, explain, and ame

li orate behavior ( under (c) (1)), but they rarely, if ever, evalu ate, prevent, or remediate “ psychological, emotional, mental, interper sonal, learning, and behavioral dis orders” under (c)(2)

. Neverthe less , (c) (2) c ould still apply to Alco

holics Anonymous (AA), Weight

- Watchers, golf coaches, yoga teachers, life

coac hes, and various s elf

- help groups , which do remediate various “psycho

logical, emotio nal, mental, inter personal, learn ing and behavioral disorders

. ” Case: 14-51151 Document: 00513339930 Page: 17 Date Filed: 01/12/2016No. 14

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18 The Board reasons that (c) (3) and (c) (4) limit the scope of subsection (c) to exclude such groups. Under s ubsection (3) , the practice of psychology “includes: (A) using

. . . counseling . . . and (B) evaluating and treat ing mental or emotional disorders and disabilities by psychological techniques and procedures

. ” B y requiring the evaluation and treatment of “mental or

emo tional 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 proce

dures,” wh ich appear to be listed in (c)(3) (A)

. By narrowing the range of dis

orders from “psychological , emotional, mental, inter personal, learning and behav ioral dis orders” to “mental or emotiona l 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. Neve rtheless, Weight Watchers, AA , and other self

- help groups that provide counseling to partici pants 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 princi

ples acquired in an orga nized program of graduate study ” as well as a pro

fessional code of ethics. But there is no indication that a practitioner needs to have completed a graduate degree if sh e has taken graduate

- level classes

.

“ G raduate” is defined as “of, relating to, or engaged in studies beyond the first or bachelor’s degree.” Graduate , M ERRIAM

- W EBSTER

. 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)

. Case: 14-51151 Document: 00513339930 Page: 18 Date Filed: 01/12/2016No. 14

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19 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 “organ ized 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 organiz ations 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 subs ec tion (c), and by implication (b) (2) , the p rovision still covers a substantial amount of speech that occurs outside the realm of profes sional psychologists. Indeed, though subs ection (c) certainly includes professional psy chol o gists, it also applies to other pr ofessionals and citizens. Beside s 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 mar riage

- advice column or parenting blog could conceivably be within the ambit of subs ec tion (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 Exam in

ers of Psychology ordered a syndicated newspaper columnist to stop offering

30 The statute in question was K entucky Revised Statutes Section 319.010 , which defined the “practice of psychology” as rendering to individuals, groups, organi zations, or the public any psychological ser

vice involving the application of principles, methods, and procedures of understand

ing, predicting, and influencing behavior, such as the principles pertaining to learn

ing, perception, motivation, thinking, em otions, and interpersonal relation ships; the methods and procedures of interviewing, counseling, and psychotherapy; and psy

cho logical testing in constructing, administering, and interpreting tests of men tal abilities, aptitudes, interests, attitudes, p ersonality characteristics, emotion, and
mo ti vation. The application of said principles in testing, evaluation, treatment, use Case: 14-51151 Document: 00513339930 Page: 19 Date Filed: 01/12/2016No. 14

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20 par enting 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 under

achiev[ing]” teenager suspend his privileges until he improved his grades. Id. at *1. According to the state, such public advice constituted the “prac tice of psychology.” Id. at *2.
Similar ly, 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 psycholo gy” as defined in subs ection (c). The “ oppor tun

ity for abuse, especially where a statute has received a virtually open

- ended in terpretation, 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 con sti tutes the “practice of psychology ,” then enforce the law as it sees fit. Such unfet tered discretion is untenable. Even if the Board had promised to limit the scope of its enforcement, the Supreme Court has held that this is insuffi cient , and the First Amendment “ does not leave us at the mercy of noblesse oblige

. ” United States v. Stev ens , 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 o f adjustment problems and emotional,
men tal, 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 re solution of int erpersonal 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. Case: 14-51151 Document: 00513339930 Page: 20 Date Filed: 01/12/2016No. 14

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21 uphold an unconstitutional statute merely because the Govern ment promised to use it responsibly. ” Id

. The Board urges that because Section 501.00 4 of the Texas Occupation Code contains limite d exemptions from the Act for clergy members, certain

non - profit employees, and various licensed prof essionals (including physicians, attorneys, registered nurses, licensed social workers, licensed counselors, and licensed therapists), its scope is appropriately narrowed to professional psychol o gists

. Yet if anything, under the canon of expressio unius , the presence of th o se exemption s suggests that anyone not granted an exemption in Section 501.00 4 is affirmatively covered by the Act. 33 Life coaches, weight loss coun

selors , and AA sponsors c ould all fall under the Act as discussed above. Although the Board maintains that , under Unit ed States v. Wallington , 889 F.2d 573, 576 (5th Cir. 1989), we should construe the statute nar rowly 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

c ontext. 34 Courts should “ impose a limiting construct ion 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. (alter a tion in original) (quoting ACLU , 521 U.S. at 884

– 85 )

. T he plain text prop erly limits the sweep of Section 501.003 (c) to the evaluation and treatment of men tal or emotional disorders, using psychological techn iques such as counsel ing, by someone who relies on

33 See S CALIA & G ARNER , supra , at 1 0 8 (explaining that the “more specific the enumer

a tion, the greater the force of the [ expressio unius ] canon”).

34 Stevens , 559 U.S. at 481; s ee also Hersh , 553 F.3d at 756

– 57 (5th Cir. 2008) (quoting United States v. Albertini, 472 U.S. 675, 680 (1985) ) (r ecognizing “that the doctri ne of consti

tu tional avoidance ‘ is not a license for the judiciary to rewrite lang uage enacted by the legislature’ ” ). Case: 14-51151 Document: 00513339930 Page: 21 Date Filed: 01/12/2016No. 14

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22 post

- undergraduate classes or training and fol lows a professional code of ethics. W e 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 li fe

— marriage, children, alcohol, health

— is a foundation of human interaction and society, whether this advice be found in an almanac, at the feet of grand

parents, or in a circle of friends. There is no do ubt that such speech is protected by the First Amendment. 35 By l imiting the ability of individuals to dispense
per sonal advice about mental or emotional problems based on knowl edge gleaned in a graduate class in practically any context, subs ection (c) ch ills and prohibits protected speech. But that is precisely what the overbreadth doc trine 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 over broad and con tra vene the First Amendment.

IV. S erafine’ s prior

- restraint challenge fails. There is a “ clear distinc tion,

‘ solidly grounded in our cases, between prior restraints and subsequent pun

ish m ents. ’ ” 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 o f the time that such communications are to occur

. ’” Id. (alter ation in original) (quoting Alexander, 509 U.S. at 550)

. Thus, by “ penaliz

ing 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 expres sion because of its message, its ideas, its subject matter, or its content” ). Case: 14-51151 Document: 00513339930 Page: 22 Date Filed: 01/12/2016No. 14

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23 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 REVERSE D 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 proceed ings as needed. Case: 14-51151 Document: 00513339930 Page: 23 Date Filed: 01/12/2016