Ask a licensed mental health counselor what they do for a living and there's a good chance they'll say some version of: "I do talk therapy." It's shorthand. It's accessible. It doesn't require a ten-minute explanation of evidence-based modalities. But that single word — talk — may be doing more damage to our profession than we've been willing to admit.
Two recent federal court cases have forced that question out of the realm of professional semantics and into constitutional law. Together, Brokamp v. James and Chiles v. Salazar reveal a legal landscape in which the language we use to describe our work is not just a branding choice — it is a determinant of whether our practice is protected as professional conduct or dismissed as mere conversation.
THREE CASES
AND A CIRCUIT SPLIT THAT SHOULD ALARM US ALL
Brokamp v. James (2nd Circuit, 2023) arose when Elizabeth Brokamp, a licensed professional counselor in Virginia, sought to provide online counseling to clients in New York without obtaining a New York license. She argued that New York's licensing requirement violated her First Amendment right to free speech — that counseling, at its core, is simply talking, and that the government cannot require a license to have a conversation.
The Second Circuit rejected that argument. The court held that professional counseling is not protected speech in the same way that ordinary conversation is. When a licensed professional provides services within a client relationship — diagnosing, assessing, and treating — that conduct is subject to state regulation. The court drew a clear line: the First Amendment protects what you say in the public square; it does not immunize professional practice from licensure requirements simply because that practice involves words. A win for professional regulation — but the story does not end there.
Brokamp v. District of Columbia (D.C. Circuit, 2024) involved the same plaintiff
Elizabeth Brokamp — but a different jurisdiction and a dramatically different outcome. When Brokamp challenged the District of Columbia's licensing requirement using the same First Amendment argument, the D.C. Circuit ruled in her favor. The court found that D.C.'s licensing law, as applied to out-of-state counselors providing services via telehealth, imposed an unconstitutional burden on protected speech. The D.C. Circuit reached the opposite conclusion from the Second Circuit on nearly identical facts.
This is a live circuit split. Two federal appellate courts have now looked at the same question
does requiring a license to provide counseling violate the First Amendment? — and reached opposite answers. That split creates the conditions for Supreme Court review. The outcome of that review will shape the legal foundation of our profession for a generation. And the argument at the center of it — the argument that has now prevailed in one of the nation's most influential federal circuits — is that what we do is just talking.
Chiles v. Salazar (10th Circuit, 2023) presented a related but distinct challenge. Kaley Chiles, a licensed professional counselor in Colorado, challenged the state's ban on conversion therapy for minors. She argued that the ban violated her free speech rights because her practice consisted entirely of verbal communication — and that the government was therefore regulating speech, not conduct.
The Tenth Circuit disagreed. The court held that professional speech
the speech of licensed practitioners operating within a professional relationship — occupies a different constitutional category than ordinary public discourse. States have a legitimate interest in regulating the practice of licensed professions, including the methods those professionals use, even when those methods are verbal. The court was explicit: the fact that therapy involves words does not transform it into protected speech immune from professional regulation.
Taken together, these three decisions do not give us a clean answer. They give us a profession whose legal standing is actively contested in federal court — with one circuit having already ruled that our work is constitutionally indistinguishable from a conversation. That is not a theoretical problem. It is an existential one.
THE PROBLEM WITH "TALK"
The phrase "talk therapy" has always been a simplification, but it has become a liability. When we describe our work as talking, we invite a category error — one that courts, insurance companies, policymakers, and the general public are all too willing to make. If therapy is just talking, then why does it require a license? Why does it warrant insurance reimbursement? Why should a state be permitted to regulate it at all?
These are not hypothetical questions. They are the exact arguments that have been made in federal court
and in the D.C. Circuit, they won. The fact that a federal appellate court has now held that counseling licensing requirements may violate the First Amendment is not an abstraction. It is a direct consequence of a legal theory that our own professional language has made easier to argue. We handed litigants that argument every time we called what we do "talk therapy."
Free speech and professional practice are not the same thing. A person has a constitutional right to share their opinions, offer advice to a friend, or write a book about mental health. None of that requires a license. But when a licensed clinician sits across from a client — or on a telehealth screen — and applies a structured, evidence-based intervention to assess and treat a diagnosable mental health condition, that is not a conversation. That is a clinical act. The distinction matters enormously, and we undermine it every time we reach for the word "talk."
WHAT WE ACTUALLY DO
Evidence-based psychotherapy produces measurable, replicable changes in brain structure and function. Cognitive Behavioral Therapy has been shown in neuroimaging studies to alter activity in the prefrontal cortex and amygdala in ways that parallel — and in some cases exceed — the effects of pharmacological intervention. EMDR produces documented changes in how traumatic memories are stored and retrieved. Prolonged Exposure therapy systematically reduces hyperactivation of the threat-response system. These are not outcomes you can achieve by having a good conversation.
Psychotherapy involves clinical assessment, differential diagnosis, treatment planning, ongoing risk evaluation, and the deliberate application of empirically validated techniques within a structured therapeutic relationship. It requires thousands of hours of supervised training, passage of rigorous licensing examinations, and ongoing continuing education. The verbal channel is the delivery mechanism — not the treatment itself.
Calling this "talk therapy" is a bit like calling surgery "cutting." Technically accurate at the most surface level. Profoundly misleading about everything that matters.
THE PROFESSIONAL STAKES
The language we use shapes how others perceive our work
and how we perceive it ourselves. When mental health counseling is framed as talking, it becomes easier to argue that it can be replaced by apps, chatbots, peer support, or unlicensed coaches. It becomes easier to underpay clinicians, deny insurance reimbursement, or resist telehealth licensure compacts on the grounds that "it's just a phone call."
The Brokamp and Chiles decisions are not uniformly victories for professional regulation. The D.C. Circuit's ruling in Brokamp v. District of Columbia is a direct loss — a federal court holding that our licensing requirements may be unconstitutional as applied to telehealth practice. That ruling is now in direct conflict with the Second Circuit. A Supreme Court case is not a remote possibility; it is a foreseeable outcome. When that case is argued, the justices will hear — again — that what we do is just talking. The strength of the counterargument will depend on how clearly and consistently our profession has articulated otherwise.
There is also a scope-of-practice dimension here. As licensed mental health counselors, we are trained to diagnose and treat the full range of mental health conditions — from adjustment disorders to complex trauma, from anxiety and depression to serious and persistent mental illness. That scope is grounded in our clinical training, our supervised hours, and our ethical obligations. It is not grounded in our ability to have a good conversation. When we minimize our work with casual language, we implicitly narrow our own scope — and we make it easier for others to do the same.
WHAT TO SAY INSTEAD
This is not a call for jargon. Clients do not need to hear about "empirically validated transdiagnostic protocols" in an intake session. Accessibility matters. But there is a meaningful difference between language that is accessible and language that is reductive.
Consider the alternatives. "Psychotherapy" is accurate, widely understood, and carries appropriate clinical weight. "Evidence-based therapy" signals rigor without being inaccessible. "Counseling" — the actual name of our profession — is both plain and precise. When speaking with clients, we can explain that therapy involves structured, research-backed techniques tailored to their specific concerns. That framing is honest, accessible, and does not invite the category error that "talk" creates.
With colleagues, in professional writing, in advocacy contexts, and especially in any legal or policy setting, the language should be unambiguous: we provide psychotherapy. We apply evidence-based treatment. We practice within a licensed, regulated profession that is distinct from coaching, advising, mentoring, or conversation.
THE BROADER OBLIGATION
The Brokamp and Chiles cases will not be the last time someone argues that psychotherapy is just speech. The D.C. Circuit has already agreed with that argument once. As telehealth expands, as AI-generated "therapy" tools proliferate, and as the line between coaching and clinical practice continues to blur in the public imagination, these arguments will return — and they will return with a favorable precedent already on the books. The strength of our profession's response will depend, in part, on how clearly we have articulated — to courts, to policymakers, to the public, and to ourselves — what we actually do.
We are not talking to our clients. We are treating them. The distinction is not semantic. It is the foundation of everything we are licensed to do — and everything we are obligated to protect.
Note: This post is written for mental health professionals and reflects the author's professional perspective. It does not constitute legal advice. Clinicians with questions about licensure, scope of practice, or professional speech doctrine should consult their state licensing board and, where appropriate, legal counsel.