From Judge Timothy Kelly's order Monday in Brokamp v. D.C. (D.D.C.):
Plaintiff, a professional counselor in Virginia who seeks to counsel clients in the District of Columbia over internet video, challenges the District of Columbia's licensing requirement for professional counselors, claiming that the requirement (1) violates the First Amendment, (2) is unconstitutionally overbroad, and (3) is unconstitutionally vague….
[Plaintiff] has stated a viable claim under the First Amendment. The licensing requirement regulates counseling, which is speech, not conduct. And Defendant's "characterization of [the licensing requirement] as [a] professional regulation[] cannot lower that bar. The Supreme Court has consistently rejected attempts to set aside the dangers of content-based speech regulation in professional settings." Otto v. Boca Raton, 981 F.3d 854, 861 (11th Cir. 2020) (citing Nat'l Inst. of Fam. & Life Advocs. (NIFLA) v. Becerra, 138 S. Ct. 2361, 2374 (2018)).
The Circuit's decision in National Association for Advancement of Multijurisdiction Practice (NAAMJP) v. Howell does not counsel differently, 851 F.3d 12, 19 (D.C. Cir. 2017) ("[g]enerally, the government may 'license and regulate those who would provide services to their clients for compensation without running afoul of the First Amendment'" (emphasis added)), but in any event, it was decided before NIFLA. The licensing requirement is also content-based, given that it only applies to Plaintiff's speech if she speaks about certain topics, such as her clients' mental, emotional, or behavioral issues; meanwhile, she is able to discuss other topics with them without a license.
