"But You Have to Win Against the State in Court Before You Can Practice Without a License"

My last post covered Murdock v. Pennsylvania 319 U.S. 105 (1943), that no state may take a secured right under the Constitution and make you get a license and pay a fee to exercise that right.

But that puts us into a predicament, doesn't it?

It certainly seems like the states are in violation of the First Amendment of the Constitution, and in violation of the SCOTUS opinion in Murdock.

What do we do now? Don't we have to sue the states and get the court to side with us, overturning the seemingly unconstitutional state laws before we can practice without a license? Isn't that how it works?

Funny, the Supreme Court ruled on that too in Shuttlesworth v. City of Birmingham, 373 U.S. 262 (1963).

Mr. Shuttlesworth, "a Negro minister" and 52 others held "an orderly demonstration" on Good Friday in the City of Birmingham. He did so without first obtaining a permit from the city, as required by city ordinance. The court's job was to determine if the city ordinance was in violation of the Constitution of the United States.

"It is settled by a long line of recent decisions of this Court that an ordinance which, like this one, makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official – as by requiring a permit or license which may be granted or withheld in the discretion of such official – is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms." Staub v. Baxley, 355 U. S. 313, 355 U. S. 322. And our decisions have made clear that a person faced with such an unconstitutional licensing law may ignore it and engage with impunity in the exercise of the right of free expression for which the law purports to require a license.

Boom shaka-laka!

Did you see that?

"A person faced with such an unconstitutional licensing law may ignore it an engage with impunity in the exercise of the right of free expression for which the law purports to require a license."

To answer the question above: No, you don't have to go to court to fight the unconstitutional licensing schemes perpetrated on the people by regulatory boards across the nation. You continue engage in your right with impunity.

Tasty.

Some money quotes from Shuttlesworth:

"[a]lthough this Court has recognized that a statute may be enacted which prevents serious interference with normal usage of streets and parks, . . . we have consistently condemned licensing systems which vest in an administrative official discretion to grant or withhold a permit upon broad criteria unrelated to proper regulation of public places."

Further:

Here, by contrast, it is evident that the ordinance was administered so as, in the words of Chief Justice Hughes, "to deny or unwarrantedly abridge the right of assembly and the opportunities for the communication of thought . . . immemorially associated with resort to public places." The judgment is Reversed.

Two parts here to examine:

1. The right of assembly: Don't we as men and women have the right of assembly in our homes and offices with others who also wish to assemble with us? It seems the license and fee "required" by the state not only violate our right to free speech, but also our right of assembly, that we cannot meet with clients for the practice of mental health unless we have obtained a license and paid a fee.
2. ...the opportunities for the communication of thought..." That's what we do as mental health practitioners, right? We communicate a cornucopia of thought to our clients on the daily. MMPI2 is thought. CBT is thought. IFS is thought. Schema Therapy is thought.

The court here rightly declared that we have a right to free speech and right of assembly in public spaces. How much more protected are we in exercising those rights in the privacy of our own homes and offices? Absolutely. And other Amendments to the Constitution exist that further protect that right to speech and right of assembly. The Third Amendment - restricting the quartering of soldiers in private homes; the Fourth Amendment - prohibiting unreasonable searches and seizures; the Fifth Amendment - prohibiting any man (or woman) from being compelled to be a witness against himself (or herself). We'll talk more about these amendments in future posts.

To recap thus far:

Marbury v. Madison states that the Constitution of the United States is the supreme law of the land.

Murdock v. Pennsylvania states that the state (or city) does not have the power to license or tax a right secured under the Constitution.

Shuttlesworth v. City of Birmingham states that if the state (or city) does create any unconstitutional "law" that the person may ignore the law and exercise their right "with impunity".

Dang.

This is shaping up to be quite a solid deal, isn't it?

There's still more to come. Stay tuned.