Hofstra Law Review


Psychotherapy, said one of its earliest clients, Anna O, is a “talking cure.” It banishes or lessens mental illness and suffering not with medicine or surgery, but with words. This aspect of psychotherapy raises an interesting set of First Amendment questions. Is verbal communication between a therapist and her client protected by the First Amendment even though it is part of a healing process, or does government have the same authority to restrict this speech-based healing method as it does to restrict the use of pharmaceuticals or medical equipment? Must it show that therapists’ statements about human psychology are false or harmful to the client? Or may it constitutionally bar even truthful therapist-client communications that raise little risk of harm to the client’s physical or mental health, on the grounds that such verbal treatments promote values or behaviors at odds with those of the profession or of the larger society? These questions are challenging for First Amendment law largely because talk therapy is the kind of activity that straddles an important boundary line in First Amendment law and theory. As the Supreme Court noted in Lawrence v. Texas, the Constitution assumes that there will be certain “spaces” where “the State” is not a “dominant presence” and where sovereignty belongs to each individual, not those who exercise collective political power. Among such spaces is the First Amendment-secured realm of “thought, belief, [and] expression.” 539 U.S. 558, 562 (2003). This constitutional line drawn by the Court in Lawrence mirrors that described by John Locke in A Letter Concerning Toleration: Locke argued that while state power extends to “civil interests” such as protection of “life, liberty, health” and other “outward” concerns, it does not extend to the “care of the soul,” which remains under the control of the individual himself. The challenge presented by psychotherapy, I argue in this article, is that it falls partly within and partly outside this constitutional shielded sphere of mental and expressive autonomy. On the one hand, if there is any activity that belongs in the realm of constitutionally protected “thought, belief, [and] expression” it the self-exploration that individuals engage in as they try to understand their inner lives – whether it occurs in a private meditation or diary entry, or in a psychotherapist’s office. When we use talk therapy, in part, to shape (or reshape) our conception of the good, or the perspective we should take on particular life events, the state should not be permitted to forcibly substitute its values for ours. On the other hand, while government is not supposed to interfere with our choices about what to say or think, or about what values to hold, it is charged with protecting our health and safety, and, in psychotherapy, such health and safety interests are very often at stake – for example, when individuals rely on therapists to make accurate diagnoses of possible mental illnesses (or rule them out), and suggest the proper treatment such conditions. The central question about talk therapy’s First Amendment status then is what kind of First Amendment regime can best reconcile these two conflicting demands – to keep government interference out of the way we understand and shape our mental life through conversation, while letting it into medical practices with significant stakes for our mental health. How, in other words, can First Amendment law simultaneously allow the state to regulate the aspects of psychotherapy that are its business, while keeping it out of those aspects that are in the sphere of individual autonomy? This is also a question that is key to the debate about the First Amendment status of other “occupational speech” that occurs when we seek verbal guidance from other experts.

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