|||UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
|||September 29, 2000
|||NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF PSYCHOANALYSIS, A DELAWARE
CORPORATION; CEDRUS MONTE; ALLAN D. SOWERS; LIONEL CORBETT, PLAINTIFFS-APPELLANTS,
CALIFORNIA BOARD OF PSYCHOLOGY, A STATE BOARD (BOARD); BILL LOCKYER, CALIFORNIA STATE ATTORNEY GENERAL; STATE OF CALIFORNIA; THOMAS O'CONNOR, THE BOARD'S EXECUTIVE OFFICER IN HIS OFFICIAL CAPACITY ONLY; BRUCE EBERT; JUDITH JANARO FABIAN; LILLI FRIEDLAND; MARTIN GREENBERG; LINDA HEE; MARY MCMILLAN; MARILYN PALAREA; MARY ELLEN EARLY; EMIL RODOLFA, PHD, DEFENDANTS-APPELLEES.
|||D.C. No. CV 97-3913 WHO
|||Counsel Jeffrey S. Love, Lane Powell Spears Lubersky Llp, Portland, Oregon,
for the plaintiffs-appellants. Kerry Weisel, Deputy Attorney General, Oakland,
California, for the defendants-appellees.
|||Before: A. Wallace Tashima and Susan P. Graber, Circuit Judges, and Robert
J. Kelleher, Senior District Judge.
|||The opinion of the court was delivered by: Tashima, Circuit Judge
|||Appeal from the United States District Court for the Northern District
of California William H. Orrick, District Judge, Presiding Argued and Submitted
|||April 13, 2000--San Francisco, California
|||Opinion by Judge Tashima
|||Plaintiff psychoanalysts Lionel Corbett, Cedrus Monte, and Allan Sowers,
and the National Association for the Advancement of Psychoanalysis ("NAAP")
(collectively"plaintiffs") sued defendants, members of the California
Board of Psychology ("Board"), and the Attorney General of California,
for declaratory and injunctive relief under 42 U.S.C. ' 1983. Plaintiffs
allege that California's mental health licensing laws, which regulate the
practice of psychology and other professions, restrict their First and Fourteenth
Amendment rights. Specifically, they assert that the licensing scheme prohibits
them from practicing psychoanalysis in California. The district court held
that plaintiffs failed to state a claim under Federal Rule of Civil Procedure
12(b)(6), and dismissed their complaint and the action. We affirm.
|||I. FACTUAL AND PROCEDURAL BACKGROUND
|||A. Psychoanalysis and Psychology "Psychoanalysis" is defined
in Stedman's Medical Dictionary (25th ed. 1990) as:
|||[A] method of psychotherapy, originated by Freud, designed to bring preconscious
and unconscious material to consciousness primarily though the analysis
of transference and resistance. . . . A method of investigating the human
mind and psychological functioning, especially through free association
and dream analysis in the psychoanalytic situation. Id. at 1284; see also
American Medical Association Encyclopedia of Medicine 831 (1989) ("The
psychoanalyst is usually a doctor of medicine.").*fn1
|||"Psychology" has been defined as:
|||The scientific study of mental processes. Psychology deals with all internal
aspects of the mind, such as memory, feelings, thought, and perception,
as well as external manifestations, such as speech and behavior. It also
addresses intelligence, learning and the development of personality. Methods
employed in psychology include direct experiments, observations , surveys,
study of personal histories, and special tests (such as intelligence tests
and personality tests). Id. at 832 (emphasis omitted).
|||Psychology includes various approaches, including "psychoanalytic
psychology, " which "stresses the role of the unconscious and
childhood experiences. " Id.
|||B. Licensing Scheme
|||The profession of psychology has been regulated in California since 1958,
when the Legislature enacted the Psychology Certification Act, Cal. Bus.
& Prof. Code ' ' 2900-2980 (1958), which "served only to protect
the title`psychologist, ' " but did not define the practice of psychology.
Executive Summary, California Board of Psychology, Sunset Review Report
, at 1 (October 1, 1997) ("Sunset Report"). In 1967, the Legislature
"recognized the actual and potential consumer harm that can result
from the unlicensed, unqualified or incompetent practice of psychology"
and enacted the Psychology Licensing Law, Cal. Bus. & Prof. Code ' '
29002996. 6 (1968). Sunset Report at 1. That law includes a legislative
finding that the "practice of psychology in California affects the
public health, safety, and welfare and is to be subject to regulation and
control in the public interest to protect the public from the unauthorized
and unqualified practice of psychology." Cal. Bus. & Prof. Code
|||The California Business and Professions Code defines a "psychologist"
as a person so representing himself or herself "to the public by any
title or description," including "psychoanalysis" and "psychoanalyst."
Cal. Bus. & Prof. Code '2 902(c). The practice of psychology in California
requires a license and is defined as rendering any psychological service
to the public "for a fee." Id. ' 2903 (stating that "[n]o
person may engage in the practice of psychology, or represent himself to
be a psychologist, without a license" unless otherwise specified by
|||To qualify for a license to practice psychology in California, an applicant
must possess a doctorate, or a degree deemed equivalent, in psychology or
a related field such as education psychology. See id. ' 2914(b). An applicant
must have at least two years of supervised professional experience under
the direction of a licensed psychologist. See id. ' 2914 (c). In addition,
an applicant must pass the Board's examination, complete training in substance
dependency, and fulfill coursework requirements in partner abuse and human
sexuality. See id. ' 2914 (d)-(f). Any violation of the laws regulating
psychologists can be punished as a misdemeanor.
|||Section 2529 of the Business and Professions Code, relating to research
psychoanalysts, is the only part of the statute that specifically addresses
the qualifications of psychoanalysts.
|||Under ' 2529, graduates of four, specific, California psychoanalytic institutes,
or institutes deemed equivalent, "may engage in psychoanalysis as an
adjunct to teaching, training, or research and hold themselves out to the
public as psychoanalysts . . . ." Id. ' 2529. Under the regulations,
a research psychoanalyst may render psychoanalytic services for a fee for
only a third (or less) of his or her professional time. See Cal. Code Regs.
("C.C.R."), tit. 16 ' 1371. If they register with the state, students
and graduates also"may engage in psychoanalysis under supervision,
provided " that they do not imply in any way that they are licensed
to practice psychology. Cal. Bus. & Prof. Code ' 2529."Physicians
and surgeons, psychologists, clinical social workers, and marriage, family
and child counselors, licensed in this state " need not register to
engage in research psychoanalysis. See 16 C.C.R.'1 369.
|||The licensing laws do not prevent "qualified members of other recognized
professional groups," including physicians, clinical social workers,
family and child counselors, attorneys and ordained members of recognized
clergy, from doing work of a psychological nature consistent with the laws
governing their respective professions, provided that they do not hold themselves
out to the public as psychologists or use terms that imply they are licensed
to practice psychology. Cal. Bus. & Prof. Code ' 2908.
|||The NAAP is a membership association of professional psychoanalysts dedicated
to encouraging the study of, and improving the practice of, psychoanalysis
in the United States and other countries. Its membership includes more than
1,000 certified psychoanalysts and more than 400 psychoanalyst candidates-in-training.
The NAAP alleges that it has lost income from membership dues as a result
of California's licensing scheme. According to the complaint, the NAAP filed
suit "on its own behalf, as a representative of its members whose practice
of psychoanalysis in California allegedly has been unreasonably restricted
by California law, and on behalf of California residents who are prevented
from retaining those NAAP members for professional psychoanalysis."
|||Plaintiff Corbett is a physician licensed to practice in three states
and England, but not in California, because he lacks a one-year medical
residency in the United States or Canada. He has been certified as a Diplomate
Jungian Analyst by the C.G. Jung Institute of Chicago, which does not award
a doctorate degree.*fn2 Dr.
Corbett is currently a professor at the Pacifica Graduate Institute in Santa
Barbara, California, where he trains psychology Ph.D. candidates in the
theory and practice of psychoanalytic psychotherapy. He has held academic
appointments in departments of psychiatry at four United States medical
|||Plaintiff Monte, who lives in California, has a master's degree in psychology
from California State University at Sonoma and a diploma in analytical psychology
from the C.G. Jung Institute in Zurich, Switzerland. Monte undertook clinical
training in psychoanalysis in Switzerland, where she paid her supervisors
and saw clients at a different site from her supervisors. Monte has been
ordained as a Diplomate Jungian Analyst by the Association for the Integration
of the Whole Person, a religious organization chartered in California. Monte
would be eligible for a psychology license in California only if she completed
additional courses and acquired supervised professional experience.
|||Plaintiff Sowers holds a master's degree in divinity and a certificate
in psychoanalysis from the National Psychological Association for Psychoanalysis
in New York City. Sowers is certified as a pastoral counselor in the Presbyterian
Church and certified as a psychoanalyst in the State of Vermont. He is a
resident of New York, but intends to travel to California to establish a
psychoanalytic practice. He wishes to hold himself out professionally to
the public, using the title "psychoanalyst."
|||D. Procedural History
|||The district court dismissed plaintiffs' first amended complaint under
Federal Rule of Civil Procedure 12(b)(1) because no plaintiff had properly
alleged standing. Also, based on Eleventh Amendment immunity, the court
dismissed with prejudice two defendants, the State of California and the
Board. Plaintiffs were granted further leave to amend "to allege further
facts" demonstrating standing. The district court thereafter dismissed
the second amended complaint, ruling that plaintiffs lacked standing because
the complaint was "conclusory" on standing issues. Plaintiffs,
however, were granted leave to amend "one more time."
|||Plaintiffs then filed their third amended and supplemental complaint ("complaint"),
which was dismissed with prejudice for failure to state a claim. The district
court concluded that, although standing was adequately alleged, the complaint
failed to state claims under the First or Fourteenth Amendment. Plaintiffs
filed a timely notice of appeal.
|||The district court had jurisdiction pursuant to 28 U.S.C.'1 331. We have
jurisdiction pursuant to 28 U.S.C. ' 1291.
|||III. STANDARD OF REVIEW
|||We review de novo the district court's dismissal for failure to state
a claim pursuant to Rule 12(b)(6). See TwoRivers v. Lewis , 174 F.3d 987,
991 (9th Cir. 1999). We must "accept all factual allegations of the
complaint as true and draw all reasonable inferences in favor of the nonmoving
party." Id. "Conclusory allegations of law and unwarranted inferences
are insufficient to defeat a motion to dismiss for failure to state a claim."
Halkin v. VeriFone, Inc. (In re VeriFone Sec. Litig. ), 11 F.3d 865, 868
(9th Cir. 1993). In determining whether plaintiffs can prove facts in support
of their claim that would entitle them to relief, we may consider facts
contained in documents attached to the complaint. See Roth v. Garcia Marquez
, 942 F.2d 617, 625 n.1 (9th Cir. 1991) (citing Durning v. First Boston
Corp., 815 F.2d 1265, 1267 (9th Cir. 1987)).
|||Plaintiffs allege that California's mental health licensing laws abridge
their Fourteenth Amendment substantive due process and equal protection
rights and their First Amendment rights of speech and association.*fn3
We affirm the district court's dismissal because we hold that plaintiffs
have failed to state any claim for constitutional relief.*fn4
|||A. Fourteenth Amendment
||| To withstand Fourteenth Amendment scrutiny, a statute is required
to bear only a rational relationship to a legitimate state interest, unless
it makes a suspect classification or implicates a fundamental right. See
City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (per curiam) (equal
protection); Richardson v. City & County of Honolulu, 124 F.3d 1150,
1162 (9th Cir. 1997), cert. denied, 119 S. Ct. 168 (1998) (substantive due
|||1. Fundamental Right
||| Because psychoanalysts are not a suspect class entitled to heightened
scrutiny, we must examine whether the licensing scheme implicates any fundamental
right. We hold that it does not.
||| Plaintiffs contend that California's mental health licensing laws
are subject to strict scrutiny under the Due Process Clause of the Fourteenth
Amendment because they implicate the fundamental rights associated with
the close-knit relationships between analysts and analysands. It is true
that the Fourteenth Amendment protects some personal relationships, such
as "those that attend the creation and sustenance of a family"
and other "highly personal relationships." IDK, Inc. v. Clark
County , 836 F.2d 1185, 1193 (9th Cir. 1988) (internal quotation marks and
||| At the other end of the relationship spectrum, we have held that the
relationship between an escort and a client paying for escort services is
not an intimate association implicating substantive due process rights.
See id. Although we do not imply that the relationship between a client
and an escort is similar in nature to the relationship between a patient
and a psychoanalyst, we do find some of our analysis in IDK to be instructive.
The relationship between a client and a psychoanalyst lasts "only as
long as the client is willing to pay the fee." Id.
|||Even if analysts and clients meet regularly and clients reveal secrets
and emotional thoughts to their analysts, these relationships simply do
not rise to the level of a fundamental right. See Zablocki v. Redhail, 434
U.S. 374, 383-86 (1978) (right to marry); Moore v. City of East Cleveland,
431 U.S. 494, 503-06 (1977) (right to live with family); Griswold v. Connecticut
, 381 U.S. 479, 482-86 (1965) (right to marital privacy); Pierce v. Society
of Sisters, 268 U.S. 510, 534-35 (1925) (right of parents to direct children's
upbringing and education). "These are not the ties that `have played
a critical role in the culture and traditions of the Nation by cultivating
and transmitting shared ideals and beliefs.' " IDK, 836 F.2d at 1193
(quoting Roberts v. United States Jaycees, 468 U.S. 609, 618-19 (1984)).
||| We further conclude that substantive due process rights do not extend
to the choice of type of treatment or of a particular health care provider.
The Seventh Circuit has noted that "most federal courts have held that
a patient does not have a constitutional right to obtain a particular type
of treatment or to obtain treatment from a particular provider if the government
has reasonably prohibited that type of treatment or provider. " Mitchell
v. Clayton, 995 F.2d 772, 775 (7th Cir. 1993) (citations omitted). We agree,
and hold that there is no fundamental right to choose a mental health professional
with specific training.
|||2. Rational Basis
|||Because we conclude that the licensing scheme neither utilizes a suspect
classification nor implicates a fundamental right, we now examine whether
it is "rationally related to a legitimate state interest." Dukes,
427 U.S. at 303. In applying the rational basis test, we presume the constitutionality
of the classification. See id. "[T]hose challenging the legislative
judgment must convince the court that the legislative facts on which the
classification is apparently based could not reasonably be conceived to
be true by the governmental decisionmaker. " Vance v. Bradley, 440
U.S. 93, 111 (1979); see also Williamson v. Lee Optical, 348 U.S. 483, 488
(1955) (holding under a Fifth Amendment due process analysis that a statute
should be upheld if "it might be thought that the particular legislative
measure was a rational way to correct " a problem).
|||"[W]e do not require that the government's action actually advance
its stated purposes, but merely look to see whether the government could
have had a legitimate reason for acting as it did." Dittman v. California,
191 F.3d 1020, 1031 (9th Cir. 1999) (quoting Halverson v. Skagit County
, 42 F.3d 1257, 1262 (9th Cir. 1995) (citation and internal quotation marks
omitted)), cert. denied, 120 S. Ct. 2717 (2000). We need only determine
whether the licensing scheme has a "conceivable basis" on which
it might survive rational basis scrutiny. Id. (quoting Lupert v. California
State Bar, 761 F.2d 1325, 1328 (9th Cir. 1985)).
||| Plaintiffs advance numerous arguments about why the licensing scheme
should fail rational basis review. Primarily, they contend that: (a) there
is no rational basis for requiring professionals who already are trained
in psychoanalysis to obtain additional training in order to qualify for
a license; (b) the licensing scheme irrationally exempts research psychoanalysts
from its requirements; (c) the licensing scheme is irrational because it
is unnecessary and ineffective; and (d) the licensing scheme is irrational
because it is more stringent than similar schemes regulating other counseling
professions. We do not find any of those arguments persuasive and conclude
that the licensing scheme is rationally related to California's interest
in protecting the mental health and safety of its citizens.
|||First, plaintiffs argue that there is no rational basis for requiring
professionals already trained in psychoanalysis to have certain other training
in order to obtain a license. Because the Lochner *fn5
era has long passed, this argument must fail. See Armendariz v. Penman,
75 F.3d 1311, 1318 (9th Cir. 1996) (stating that Lochner "symbolizes
an era in which the Court, invalidating economic legislation, engaged in
a level of judicial activism which was unprecedented in its time and unmatched
since"). As the Supreme Court stated in Williamson:
|||It is enough that there is an evil at hand for correction , and that it
might be thought that the particular legislative measure was a rational
way to correct it. The day is gone when this Court uses the Due Process
Clause of the Fourteenth Amendment to strike down state laws, regulatory
of business and industrial conditions, because they may be unwise, improvident,
or out of harmony with a particular school of thought. 348 U.S. at 488 (citation
|||This case is nearly identical to Maguire v. Thompson, 957 F.2d 374 (7th
Cir. 1992), in which the Seventh Circuit held that the Illinois General
Assembly had a rational basis for requiring certain training for health
care professionals to obtain a medical license, even though naprapaths,
who treat human ailments through manipulation of tissue, were excluded from
practicing. The Maguire court observed that:
|||[T]he General Assembly could have concluded that [certain] level[s] of
education provide[ ] better training in theories of disease. Logically,
better training leads to better diagnosis and better treatment. . . . [I]t
is within the legislative prerogative to limit the practice of medicine
to those who provide the safest service . . . . It would even be rational
for a legislature to conclude that the training offered in a school of naprapathy
would in fact be inadequate for proper medical diagnosis and treatment and
therefore people seeking treatment from those who hold only a degree in
naprapathy run a serious risk of either misdiagnosis or non-diagnosis of
their ailment. Id. at 377-78 (citation omitted).
|||The Seventh Circuit again utilized the reasoning of Maguire in holding
that the Illinois legislature could regulate acupuncture by requiring a
degree from a chiropractic school. See Mitchell, 995 F.2d at 774-76. We
agree with the reasoning of these cases.
||| Based on the health and welfare of its citizens, California certainly
has a "conceivable rational basis " for regulating the licensing
of psychologists, and therefore, psychoanalysts. Dittman , 191 F.3d at 1031.
According to the Supreme Court, "health . . . includes psychological
as well as physical well-being. " United States v. Vuitch, 402 U.S.
62, 72 (1971). The California Legislature first regulated psychology because
it "recognized the actual and potential consumer harm that can result
from the unlicensed, unqualified or incompetent practice of psychology."
Sunset Report at 1. The Psychology Licensing Law includes a legislative
finding that the "practice of psychology in California affects the
public health, safety, and welfare and is to be subject to regulation and
control in the public interest to protect the public from the unauthorized
and unqualified practice of psychology." Cal. Bus. & Prof. Code
' 2900. Plaintiffs Monte and Corbett even concede in their declarations
that psychoanalytic methods cannot effectively be used to treat people with
major mental illness.
|||According to Dr. Corbett, the adverse effects of incompetent psychotherapy
could include sexual activity between a client and therapist, deteriorating
mental health, family, job, and relationships of the patient, and even suicide.
Regulating psychology, and through it psychoanalysis, is rational because
it is within the state's police power to regulate mental health treatment.
See Maguire, 957 F.2d at 377.
||| Next, plaintiffs assert that the licensing scheme is irrational because
it exempts research psychoanalysts from its requirements. As the district
court noted, the exemption for research psychoanalyst is valid because it
is not unusual or irrational to provide exemptions in a licensure statute.
See Cal. Bus. & Prof. Code ' 2529 (allowing the practice of psychoanalysis
"as an adjunct to teaching, training or research").
|||The licensing scheme also contains exemptions for employees of schools
and governmental agencies, psychologists licensed in other jurisdictions,
and graduate students. See id. ' ' 290912. Certainly it is rational for
the Legislature to allow academics to engage in psychoanalysis on a limited
basis to enhance teaching and research. Further, it is not improper for
the Legislature to single out research psychoanalysts. The Supreme Court
has held that a state legislature addressing health and safety reform "may
take one step at a time, addressing itself to the phase of the problem which
seems most acute to the legislative mind. The legislature may select one
phase of one field and apply a remedy there, neglecting the others."
Williamson, 348 U.S. at 489 (citations omitted). The California Legislature
enacted a certification law regulating psychology in the 1950s, substituted
a licensing scheme in the 1960s, and enacted a limited exception for academic
research psychoanalysis in the 1970s.
||| Plaintiffs argue additionally that the licensing scheme is not rationally
related to a legitimate state interest because it is ineffective and unnecessary.
In support of their argument, they observe that a committee had recommended
to the California Medical Board that the laws regulating psychoanalysts
were unnecessary and ineffective. As additional evidence that the scheme
is unnecessary, plaintiffs point to the facts that research psychoanalysts
are allowed to practice without meeting all of the requirements of the licensing
scheme and that, in four years, only one complaint has been filed against
a research psychoanalyst. Research psychoanalysts, however, are a small
and discrete group. That they appear to be able to practice satisfactorily
without having met all licensing requirements does not compel the Legislature
to infer that all psychoanalysts could practice satisfactorily without having
met the educationnal and experience requirements of the licensing scheme.
We thus perceive no legal basis for interfering with the Legislature's judgment
regarding the training needed for mental health professionals.
||| Plaintiffs next argue that the psychology licensing laws have no
rational basis because the California licensing schemes for other, similar
counseling professions are less stringent. Plaintiffs highlight the differences
between the licensing schemes for family counselors and social workers,
as opposed to psychologists, in an attempt to show that the exclusion of
psychoanalysts is irrational, when other professionals are permitted to
engage in counseling. See Cal. Bus. & Prof. Code ' ' 4996, 4996.12,
4980, 4980.02. To qualify for a license, a social worker must have a master's
degree from an accredited school of social work, two years of supervised
experience, and chemical dependency training. See id.'4 996.2. For licensure,
a marriage, family, and child counselor must have a master's or doctorate
degree from an accredited school, certain course work, a supervised clinical
placement, and two years of supervised experience. See id.'4 980.40. The
stated purpose of the marriage and family therapy law is to regulate the
provision of "wise, competent, caring, compassionate, and effective
counseling in order to enable [people] to improve and maintain healthy family
|||Healthy individuals and healthy families and healthy relationships are
inherently beneficial and crucial to a healthy society, and are our most
precious and valuable natural resource." See id. ' 4980(a). The question
is not whether we would choose to implement the same scheme, but whether
it was rational for the California Legislature to implement different licensing
schemes for psychologists, and for social workers and family counselors.
It is not irrational for the Legislature to progress one step, or one profession,
at a time. See Williamson , 348 U.S. at 489.
|||Finally, plaintiffs attack the psychologist licensing scheme on several
other grounds, all of which we reject. They suggest that the scheme is irrational
because other states, such as Vermont, Washington and Colorado, have less
restrictive licensing schemes for psychoanalysts. This does not mean, however,
that it is irrational for California to have its existing scheme. It simply
is not the function of the courts to tell California how to craft its legislation.
|||Plaintiffs also argue that there is no rational basis for the Legislature
to require two years of supervised on-site training and to credit only non-paid
supervision for psychologists. See 16 C.C.R. ' 1387(r). Plaintiffs claim
that psychoanalysts practice at sites separate from their supervisors' locations
and sometimes pay for this supervision. See 16 C.C.R. ' 1387. Specifically,
Dr. Corbett paid for her supervision in England. It is certainly rational,
however, for the Legislature to require on-site supervision for the training
of mental health professionals. See Maguire , 957 F.2d at 377 (holding that
it is rational for a legislature to require certain levels of education
for health care professionals). It is also rational to be suspicious of
|||We conclude that the psychologist licensing scheme is rationally related
to legitimate government interests; therefore, the district court properly
dismissed plaintiffs' Fourteenth Amendment claims.
|||B. First Amendment
||| Plaintiffs further contend that California's psychologist licensing
laws violate their First Amendment rights to freedom of speech.*fn6
The First Amendment applies to state laws and regulations through the Due
Process Clause of the Fourteenth Amendment. See 44 Liquormart, Inc. v. Rhode
Island , 517 U.S. 484, 489 n.1 (1996). We conclude that, even if a speech
interest is implicated, California's licensing scheme passes First Amendment
|||1. Extent to Which Speech is Implicated
|||The Supreme Court has held that "it has never been deemed an abridgement
of freedom of speech or press to make a course of conduct illegal merely
because the conduct was in part initiated, evidenced, or carried out by
means of language, either spoken, written, or printed." Giboney v.
Empire Storage & Ice Co., 336 U.S. 490, 502 (1949); see also Ohralik
v. Ohio State Bar Ass'n, 436 U.S. 447, 456 (1978) (holding that "the
State does not lose its power to regulate commercial activity deemed harmful
to the public whenever speech is a component of that activity").
||| Plaintiffs contend that, because psychoanalysis is the "talking
cure," it deserves special First Amendment protection because it is
"pure speech." As the district court noted, however, "the
key component of psychoanalysis is the treatment of emotional suffering
and depression, not speech . . . . That psychoanalysts employ speech to
treat their clients does not entitle them, or their profession, to special
First Amendment protection."*fn7
The Supreme Court has noted that "[w]hile it is possible to find some
kernel of expression in almost every activity a person undertakes . . .
such a kernel is not sufficient to bring the activity within the protection
of the First Amendment. " City of Dallas v. Stanglin, 490 U.S. 19,
25 (1989), quoted in Las Vegas Nightlife, Inc. v. Clark County , 38 F.3d
1100, 1102 (9th Cir. 1994). The communication that occurs during psychoanalysis
is entitled to constitutional protection, but it is not immune from regulation.
See IDK , 836 F.2d at 1191 (noting that simply because speech may be implicated,
an activity is not "excluded from the safeguards of the first amendment").
|||The Supreme Court noted that an attorney's in-person solicitation of clients
is "entitled to some constitutional protection," but "is
subject to regulation in furtherance of important state interests."
Ohralik, 436 U.S. at 459. The Ohralik Court also noted "numerous"
examples of communications "that are regulated without offending the
First Amendment." Id. at 456 (highlighting the exchange of securities
information, corporate proxy statements, exchange of price and pro duction
information among competitors, and employers' threats of retaliation for
the labor activities of employees). The Supreme Court held that the regulation
of solicitation within the legal profession "falls within the State's
proper sphere of economic and professional regulation." Id. at 459.
||| It is properly within the state's police power to regulate and license
professions, especially when public health concerns are affected. See Watson
v. Maryland , 218 U.S. 173, 176 (1910) ("It is too well settled to
require discussion at this day that the police power of the states extends
to the regulation of certain trades and callings, particularly those which
closely concern the public health."). Justice Jackson eloquently summarized
the state's interest in licensing certain professions:
|||The modern state owes and attempts to perform a duty to protect the public
from those who seek for one purpose or another to obtain its money. When
one does so through the practice of a calling, the state may have an interest
in shielding the public from the untrustworthy, the incompetent, or the
irresponsible , or against unauthorized representation of agency. A usual
method of performing this function is through a licensing system. Thomas
v. Collins , 323 U.S. 516, 544 (1945) (Jackson, J., concurring).
|||Given the health and safety implications, California's interest in regulating
mental health is even more compelling than a state's interest in regulating
in-person solicitation by attorneys. We conclude that the licensing scheme
is a valid exercise of California's police power.
|||2. Content and Viewpoint Neutrality
||| We further conclude that California's licensing scheme is content
and viewpoint neutral; therefore, it does not trigger strict scrutiny. We
have held that " `[t]he appropriate level of scrutiny is tied to whether
the statute distinguishes between prohibited and permitted speech on the
basis of content. ' " Black v. Arthur, 201 F.3d 1120, 1123 (9th Cir.
2000) (quoting Foti v. City of Menlo Park, 146 F.3d 629, 635 (9th Cir. 1998)).
"The `principal inquiry' in determining whether a regulation is content-neutral
or content-based`is whether the government has adopted [the] regulation
. . . because of [agreement or] disagreement with the message it conveys.'
" Crawford v. Lungren , 96 F.3d 380, 384 (9th Cir. 1996) (quoting Turner
Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641 (1994)).
||| California's mental health licensing laws are contentneutral ; they
do not dictate what can be said between psychologists and patients during
treatment. Nothing in the statutes prevents licensed therapists from utilizing
psychoanalytical methods or prevents unlicensed people from engaging in
psychoanalysis if no fee is charged.*fn8
This reasoning mirrors Justice Jackson's concurrence in Thomas, 323 U.S.
at 545, in which he stated:
|||A state may forbid one without its license to practice law as a vocation,
but I think it could not stop an unlicensed person making a speech about
the rights of man or the rights of labor . . . . Likewise, the 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. Id. (Jackson,
||| Although the California laws and regulations may require certain
training, speech is not being suppressed based on its message. Plaintiffs
argue that the licensing scheme regulates the content of speech because
the Board's psychological examination tests only certain areas, including
the biological bases of behavior, research methods, and assessment and diagnosis.
Plaintiffs contend that psychoanalysts, on the other hand, are trained in
such areas as Jungian understanding of personality, techniques for the activation
and interpretation of the unconscious, and archetypal material, including
mythology and fairy tales. Plaintiffs also allege that the Board uses the
content of an institution's curriculum to determine which institutions provide
"equivalent " training under California Business and Professions
Code ' ' 2914 and 2529. The licensing scheme, however, was not adopted because
of any disagreement with psychoanalytical theories. See Crawford , 96 F.3d
at 384. It was adopted for the important purpose of protecting "public
health, safety, and welfare." Cal. Bus. & Prof. Code ' 2900.
|||This case is different from Riley v. National Fed'n of the Blind , 487
U.S. 781 (1988). In Riley, the Supreme Court held that North Carolina's
licensing laws for professional fundraisers violated the First Amendment
because the state had "the power directly and substantially to affect
the speech they utter." Id. at 801. California does not dictate the
content of what is said in therapy; the state merely determines who is qualified
as a mental health professional. Mental health professionals, unlike fundraisers,
safeguard public health interests by monitoring the care and safety of their
patients.*fn9 Although some
speech interest may be implicated, California's content-neutral mental health
licensing scheme is a valid exercise of its police power to protect the
health and safety of its citizens and does not offend the First Amendment.*fn10
|||3. Prior Restraint
||| In addition, we hold that the psychology licensing laws are not a
prior restraint on speech. See Baby Tam & Co., Inc. v. City of Las Vegas,
154 F.3d 1097, 1100 (9th Cir. 1998) ("A prior restraint exists when
the enjoyment of protected expression is contingent upon the approval of
government officials. "). Because this is a valid licensing scheme
designed to protect the mental health of Californians, the state"may
exercise some discretion in granting licenses." IDK, 836 F.2d at 1196.
Because there is no allegation that the state is revoking or denying licenses
"for arbitrary or constitutionally suspect reasons," there is
no problem of prior restraint. Id.; see also City of Lakewood v. Plain Dealer
Publ'g Co., 486 U.S. 750, 755-56 (1988) (fearing "unbridled discretion"
in state officials could result in censorship); Young v. City of Simi Valley,
216 F.3d 807, 819 (9th Cir. 2000) ("When an approval process . . .
is completely discretionary, there is a danger that protected speech will
be suppressed impermissibly because of the government official's . . . distaste
for the content of the speech.") (citation omitted).
|||In sum, we hold that California's psychology licensing laws do not violate
either the First or the Fourteenth Amendment. We thus affirm the district
court's dismissal of this action. As the district court noted, plaintiffs'
concerns about the licensing of psychoanalysts are "best addressed
to the state legislature."
|||*fn1 Plaintiffs allege
that psychoanalysis: is a treatment based on verbal communication between
the analyst and client. Its aim is to promote emotional growth through insight,
character change, personal integration, and a lessening of symptoms that
originate in the client's mind or emotions. It is based on extensive scientific
research into human behavior and inner experience. The term psychoanalyst
identifies practitioners from various schools of thought including Adlerian,
Existential, Eclectic, Ego-Psychology, Freudian, Jungian, Modern Freudian,
Object Relations, and Self-Psychology. Plaintiffs further claim that "[t]he
association between the analyst and the analysand is deep, intimate, personal
and lengthy. The analysand typically sees the analyst two to five hours
a week for two to five years or more. . . . Strong emotional bonds develop
between the analysand and analyst, and are an expected part of the therapeutic
|||*fn2 The research psychoanalyst
laws do not recognize the psychoanalytic institute from which he graduated
as substantially equivalent to California institutes.
|||*fn3 Plaintiffs alleged
right to travel and freedom of religion claims below, but on appeal made
no arguments relating to them. Plaintiffs also do not challenge the Eleventh
Amendment dismissal of the State and the Board. We deem all of these arguments
waived. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). There is
some hint in plaintiffs' briefs of an overbreadth challenge; however, it
is never explicitly argued, and thus is also waived. See Retlaw Broad. Co.
v. NLRB, 53 F.3d 1002, 1005 n.1 (9th Cir. 1995) (holding that an issue is
waived if the briefs fail to contain appellant's contentions, and citations
to authorities, statutes, and the record).
|||*fn4 We agree with the
district court that there is no problem of standing for either the individual
plaintiffs or the NAAP, as an organization. See Lujan v. Defenders of Wildlife
, 504 U.S. 555, 560-61 (1992) (holding that to satisfy constitutional standing,
plaintiffs must show that: (1) they suffered an "injury in fact;"
(2) the injury is fairly traceable to the challenged action of defendants;
and (3) it is "likely," as opposed to " speculative,"
that the injury will be redressed by a favorable decision) (citations and
internal quotation marks omitted); Hunt v. Washington State Apple Adver.
Comm'n , 432 U.S. 333, 343 (1977) (holding that an organization has standing
to sue on behalf of its members where: (1) the individual members would
otherwise have standing to sue on their own; (2) the interests the organization
seeks to protect are germane to the organization's purpose; and (3) the
lawsuit does not require the participation of individual members).
|||*fn5 Lochner v. New York,
198 U.S. 45 (1905).
|||*fn6 Our discussion of
highly personal relationships under Fourteenth Amendment substantive due
process, see Part IV.A.1, supra , also disposes of plaintiffs' freedom of
association claims under the First Amendment. See IDK , 836 F.2d at 1192-96.
|||*fn7 This discussion relates
as well to plaintiffs' claim that the First Amendment extends to the rights
of clients to receive information from their psychoanalysts. See Monteiro
v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1027 n.5 (9th Cir. 1998)
(acknowledging "the well-established rule that the right to receive
information is an inherent corollary of the rights of free speech and press,
because the right to distribute information necessarily protects the right
to receive it . . . the right to receive ideas is a necessary predicate
to the recipient's meaningful exercise of his own rights of speech, press,
and political freedom") (internal quotation marks and citation omitted).
|||*fn8 We agree with the
district court that the statutory scheme does not prevent plaintiffs from
engaging in psychoanalysis if they do not charge a fee. Under the "psychologists"
licensing law, the practice of psychology explicitly includes charging a
fee. See Cal. Bus. & Prof. Code ' 2903. Under the "medicine"
licensing law, however, a physician's or surgeon's certificate is needed
for someone to treat any disease, including mental conditions, regardless
of whether a fee is charged. See id. ' 2051. "Any person who practices
or attempts to practice, or who advertises or holds himself or herself out
as practicing, any system or mode of treating the sick or afflicted in this
state . . . is guilty of a misdemeanor." Id. ' 2052. In 1941, however,
then California Attorney General Earl Warren interpreted the "medicine"
licensing law to prohibit the unlicensed practice of psychoanalysis regardless
of whether any fee was charged. See Cal. Op. Atty. Gen. N835334 (May 22,
1941). Under the most logical reading of California's current statutory
scheme, however, psychoanalysis is no longer included in the medical licensing
scheme because it is explicitly referenced in the psychology licensing statute.
"Psychoanalyst" is included as an inappropriate title for an unlicensed
person under Cal. Bus. & Prof. Code ' 2902(c), which was amended as
recently as 1989. The Legislature could have made clear that psychoanalysis
was prohibited by the medical licensing laws, but it did not do so; instead,
it explicitly referenced psychoanalysis in the psychology licensing laws.
Cf. Russello v. United States, 464 U.S. 16, 23-24 (1983) ("[W]here
Congress includes language in one section of a statute but omits it in another
section of the same Act, it is generally presumed that Congress acts intentionally
and purposely in the disparate inclusion or exclusion." ) (citation
and internal quotation marks omitted).
|||*fn9 This case is also
different from Spiritual Psychic Science Church of Truth, Inc. v. City of
Azusa, 703 P.2d 1119, 1123-29 (Cal. 1985), in which the California Supreme
Court relied on federal case law to invalidate, under Article I, Section
2 of the California Constitution, a city ordinance that completely prohibited
the practice of fortune telling and palm reading for a fee. Here, California's
licensing scheme does not prohibit psychoanalysis, but merely regulates
who can engage in it for a fee.
|||*fn10 Plaintiffs concede
that, if the licensing scheme is otherwise valid, they have no viable commercial
speech claim for the right to use professional titles, such as "psychoanalyst"
and "analytical psychologist."
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