July 2, 2018
There are significant differences between pro-life pregnancy resource centers that seek to provide pregnant women with alternatives to abortion and pro-family therapists or counselors that seek to provide people with unwanted same-sex attractions with an alternative to a homosexual identity and lifestyle. However, they have one thing in common—they are both loathed by the sexual revolutionaries. And in both cases, anti-faith “progressives” have tried to employ the machinery of government in an effort to legally stifle the work and message of these groups or individuals.
The recent Supreme Court ruling in NIFLA v. Becerra on the rights of pregnancy resource centers has given new legal hope to the practitioners of sexual orientation change efforts (SOCE), which legislators in several states have now banned for clients under age 18. (Others have written about this development here and here.)
NIFLA dealt with a California law, supported by abortion proponents, which required pregnancy resource centers to post specific, government-prescribed notices. Centers with a medical license were required to post a notice indicating how women could obtain abortions; unlicensed centers were required to post a prominent notice to the effect that they were not licensed to provide medical care. One network of pregnancy centers, the National Institute of Family and Life Advocates (NIFLA) sued.
In a 5-4 decision, the U.S. Supreme Court struck down that law, ruling that it compelled the pregnancy centers to proclaim a message they didn’t want to, in violation of the First Amendment.
Like NIFLA in the pregnancy center context, defenders of the right to seek counseling to overcome unwanted same-sex attractions (and of the right to offer such counseling) have argued that free speech also protects their activities. In challenges to laws banning sexual orientation change efforts (SOCE) with minors by licensed mental health providers in California and New Jersey, they argued that such laws in effect limit what a counselor or therapist may say to a client in the privacy of his or her office, and thus infringe upon the free speech of the care-giver.
Courts in two federal circuits rejected those arguments. But one of those decisions, Pickup v. Brown, came in for unfavorable attention in Justice Clarence Thomas’s majority opinion in the NIFLA case—thus raising serious doubts about whether these therapy bans could survive scrutiny by the Supreme Court.
California’s therapy ban was actually challenged in two separate lawsuits. In Welch v. Brown, a U.S. district court struck down the law, but in Pickup a district court judge upheld it. The Ninth Circuit consolidated the two cases on appeal, and a three-judge panel upheld the finding in Pickup and overturned the one in Welch.
The plaintiffs then appealed for en banc review by the full Ninth Circuit court, but they were rejected. However, three judges dissented from the denial of en banc review, backed by a strong opinion by Judge Diarmuid O’Scannlain.
The Pickup opinion rested in part on the assertion that speech engaged in by licensed professionals in the course of their work is somehow exempt from scrutiny under the First Amendment (“SB 1172, as a regulation of professional conduct, does not violate the free speech rights of SOCE practitioners . . .”). This is exactly the argument that Justice Thomas rejected in his majority opinion in NIFLA. What is particularly striking is how much Justice Thomas’s majority opinion in NIFLA resembles Judge O’Scannlain’s dissenting opinion in the Pickup appeal.
Check out the comparison (citations, except to the Pickup case, are omitted):
Justice Clarence Thomas, U.S. Supreme Court, NIFLA v. Becerra (majority opinion)
June 26, 2018
. . .
The First Amendment, applicable to the States through the Fourteenth Amendment, prohibits laws that abridge the freedom of speech. When enforcing this prohibition, our precedents distinguish between content-based and content-neutral regulations of speech. Content-based regulations “target speech based on its communicative content.” As a general matter, such laws “are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.” This stringent standard reflects the fundamental principle that governments have “‘no power to restrict expression because of its message, its ideas, its subject matter, or its content.’”
The licensed notice is a content-based regulation of speech. By compelling individuals to speak a particular message, such notices “alte[r] the content of [their]speech.”
. . .
Although the licensed notice is content based, the Ninth Circuit did not apply strict scrutiny because it concluded that the notice regulates “professional speech.” Some Courts of Appeals have recognized “professional speech” as a separate category of speech that is subject to different rules. See, e.g., . . . Pickup v. Brown, 740 F. 3d 1208, 1227–1229 (CA9 2014) . . . . These courts define “professionals” as individuals who provide personalized services to clients and who are subject to “a generally applicable licensing and regulatory regime.” . . . Pickup, supra, at 1230. “Professional speech” is then defined as any speech by these individuals that is based on “[their] expert knowledge and judgment,” or that is “within the confines of [the] professional relationship,” Pickup, supra, at 1228. So defined, these courts except professional speech from the rule that content-based regulations of speech are subject to strict scrutiny. See . . . Pickup, supra, at 1053– 1056 . . . .
But this Court has not recognized “professional speech” as a separate category of speech. Speech is not unprotected merely because it is uttered by “professionals.” This Court has “been reluctant to mark off new categories of speech for diminished constitutional protection.” And it has been especially reluctant to “exemp[t] a category of speech from the normal prohibition on content-based restrictions.” This Court’s precedents do not permit governments to impose content-based restrictions on speech without “‘persuasive evidence . . . of a long (if heretofore unrecognized) tradition’” to that effect.
This Court’s precedents do not recognize such a tradition for a category called “professional speech.”
Judge Diarmuid O'Scannlain, U.S. Court of Appeals for the Ninth Circuit, Pickup v. Brown (dissent from denial of en banc review)
January 29, 2014
. . .
The Federal courts have never recognized a freestanding exception to the First Amendment for state professional regulations. Indeed authoritative precedents have established that neither professional regulations generally, nor even a more limited subclass of such rules, remain categorically outside of the First Amendment’s reach.
. . .
The Supreme Court, however, has clearly warned us inferior courts against arrogating to ourselves “any ‘freewheeling authority to declare new categories of speech outside the scope of the First Amendment.’” The panel cites no case holding that speech, uttered by professionals to their clients, does not actually constitute “speech” for purposes of the First Amendment. And that should not surprise us—for the Supreme Court has not recognized such a category.
The Supreme Court has chastened us lower courts for creating, out of whole cloth, new categories of speech to which the First Amendment does not apply. But, that is exactly what the panel’s opinion accomplishes in this case, concealing its achievement by casually characterizing the communications prohibited by SB 1172 as nonexpressive conduct. Of course, this begs the question. The panel provides no authority to support its broad intimations that the words spoken by therapists and social workers, if they fall within the statutory language of SB 1172, should receive no protection at all from the First Amendment.
. . .
But as to the threshold issue—may California remove from the First Amendment’s ambit the speech of certain professionals when the State disfavors its content or its purpose?—the Supreme Court has definitively and unquestionably said “No.” It is no longer within our discretion to disagree.
The Supreme Court’s recent NIFLA case is not the first to question the reasoning of the 9th Circuit in upholding the California therapy ban in Pickup v. Brown. A 2017 en banc decision by the full 11th Circuit court struck down, on free speech grounds, a Florida law that barred doctors from asking patients whether they had guns in their home. In this decision (Wollschlaeger v. Governor of Florida, February 16, 2017), Judge Adalberto Jordan, writing for nine of the eleven judges, also questioned the 9th Circuit ruling in Pickup:
The Ninth Circuit also adopted Justice White’s approach, but in a case upholding a California law prohibiting mental health practitioners from providing sexual orientation change efforts (SOCE) therapy—meant to change a person’s sexual orientation from homosexual to heterosexual—to children under the age of 18. See Pickup v. Brown, 740 F.3d 1208, 1225–29 (9th Cir. 2013) (as amended on rehearing). . . .
There are serious doubts about whether Pickup was correctly decided. As noted earlier, characterizing speech as conduct is a dubious constitutional enterprise. See also id. at 1215–21 (O’Scannlain, J., dissenting from denial of rehearing en banc) (criticizing the Pickup panel for, among other things, not providing a “principled doctrinal basis” for distinguishing “between utterances that are truly ‘speech,’ on the one hand, and those that are, on the other hand, somehow ‘treatment’ or ‘conduct’”).
. . .
“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion . . . .” W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (Jackson, J.). Our decision applies this timeless principle to speech between doctors and patients, regardless of the content. The First Amendment requires the protection of ideas that some people might find distasteful because tomorrow the tables might be turned.
The Supreme Court precedent of NIFLA is clearly more significant, since it is binding nationwide. Of course, a key difference between the NIFLA (pregnancy center) case and the Pickup (therapy) case is that NIFLA involved what is called “compelled speech” (the government forcing a private entity to communicate the message favored by the government); whereas Pickup involves an actual prohibition by the government against private speech that is disfavored by the government (if its aim is helping a client to change sexual orientation). Nevertheless, by affirming that “professional speech” is protected by the First Amendment, the Supreme Court has cast serious doubt on the constitutionality of bans on sexual orientation change efforts.
This should give hope to clients seeking to overcome unwanted same-sex attractions and to the counselors and therapists who help them. And it should give pause to legislators, like those in California now considering an even more draconian therapy ban (AB 2943).
Bans on sexual orientation change efforts lack any merit to begin with. But legislators tempted to vote for them (and governors tempted to sign them) should realize that there is a good chance these bills are unconstitutional, and that they will draw a rebuke from the U.S. Supreme Court in the fairly near future.