No.

_________ ================================================================

In The

Supreme Court of the United States
-----------------------------------------------------------------DONALD WELCH, ANTHONY DUK, and AARON BITZER, Petitioners, v. EDMUND G. BROWN JR., Governor of the State of California, et al., Respondents. -----------------------------------------------------------------On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit -----------------------------------------------------------------PETITION FOR WRIT OF CERTIORARI -----------------------------------------------------------------KEVIN T. SNIDER Counsel of Record MICHAEL J. PEFFER MATTHEW B. MCREYNOLDS PACIFIC JUSTICE INSTITUTE PO Box 276600 Sacramento, CA 95823 Phone: (916) 857-6900 Fax: (916) 857-6902 E-mail: ksnider@pji.org Attorneys for Petitioners ================================================================
COCKLE LEGAL BRIEFS (800) 225-6964 WWW.COCKLELEGALBRIEFS.COM

i QUESTIONS PRESENTED The California Legislature passed a law which provides that “under no circumstances shall” mental health providers engage in “any practices” that “seek to change” a minor’s sexual orientation, gender identity or gender expression, or “eliminate or reduce sexual or romantic attractions or feelings towards individuals of the same sex.” Further, “[a]ny sexual orientation change efforts attempted” on a minor subjects a mental health provider to discipline by state licensing entities. But the statute specifies that it does not prohibit practices or efforts that provide acceptance and support of sexual identity exploration and development so long as the psychotherapy does not seek to change sexual orientation. On its face, the statute favors one viewpoint over the other. Notwithstanding this danger zone, the Ninth Circuit created a “continuum” of diminishing First Amendment protections and concluded the communications described in the law merited no First Amendment protection, because they consisted of professional conduct and not speech. The questions presented are: 1. Is professional mental health counseling a category of speech outside of First Amendment protection? 2. May a State exempt from First Amendment scrutiny its prohibition on certain types of counseling by designating such as conduct and not speech?

ii PARTIES The parties to this Petition are the three plaintiffs in Welch v. Brown, Donald Welch, Ph.D., Anthony Duk, M.D., and Aaron Bitzer.1 Collectively the Petitioners are referred to as “Welch.” Respondents are Edmund G. Brown, Jr., Governor of the State of California, Anna M. Caballero, Secretary of California State and Consumer Services, Denise Brown, Case Manager, Director of Consumer Affairs, Christine Wietlisbach, Patricia Lock-Dawson, Samara Ashley, Harry Douglas, Julia Johnson, Sarita Kohli, Renee Lonner, Karen Pines, and Christina Wong, in their official capacities as members of the California Board of Behavioral Sciences, Sharon Levine, Michael Bishop, Silvia Diego, Dev Gnanadev, Reginald Low, Denise Pines, Janet Salomonson, Gerrie Schipske, David Serrano Sewell, and Barbara Yaroslavsky, in their official capacities as members of the Medical Board of California. CORPORATE DISCLOSURE STATEMENT Pursuant to Fed. R. App. Proc. 26.1, there is no parent corporation or other entity owning 10% relative to Petitioners.
Parties also subject to the decision of the Ninth Circuit sought to be reviewed in case number 12-17681 include David Pickup, et al. These parties have separately petitioned this Court for a writ of certiorari and are not represented by counsel herein.
1

iii TABLE OF CONTENTS Page QUESTIONS PRESENTED .................................. PARTIES ................................................................. CORPORATE DISCLOSURE STATEMENT ........ TABLE OF CONTENTS......................................... TABLE OF AUTHORITIES ................................... OPINIONS BELOW ............................................... JURISDICTION ..................................................... CONSTITUTIONAL AND STATUTORY PROVISIONS.................................................................. INTRODUCTION AND SUMMARY OF ARGUMENT .................................................................. STATEMENT OF THE CASE ................................ A. Statutory Background ................................. B. C. I. Facts ............................................................. Proceedings Below ....................................... i ii ii iii vi 1 1 1 3 6 6 7 10 12

REASONS FOR GRANTING THE PETITION.....

The Decision Below Creates A New Category Of Unprotected Speech, Namely, Mental Health Counseling .................................. 12

II. Whether A Law Can Exempt From First Amendment Scrutiny Prohibitions On Certain Types Of Counseling By Designating Such Counseling As Conduct Should Be Decided By This Court................................. 15

iv TABLE OF CONTENTS – Continued Page A. The Ninth Circuit Constructed a New Doctrine Which Exempts Even Content and Viewpoint Based Speech from First Amendment Scrutiny ................... 15 1. The continuum revives the conduct versus speech dichotomy rejected by this Court in Humanitarian Law Project ............................................... 17 a. Inherent content and viewpoint restrictions in S.B. 1172 ............. 20 2. The Ninth Circuit announced that communications made during counseling are not “inherently expressive” ................................................... 23 B. The Ninth Circuit, Together with the Fourth and Eleventh Circuits, Are in Conflict with the Second and Eighth Circuits, as Well as the Court of Last Resort in Minnesota, as to the Protectability of Professional Speech ......... 26 C. The Ninth Circuit’s Ruling Undermines the Commercial Speech Doctrine by Inviting States to Skip Promotional Restrictions and Ban Directly the Viewpoints Being Promoted .................. 31 CONCLUSION ....................................................... 34

v TABLE OF CONTENTS – Continued Page APPENDIX Ninth Circuit Amended Opinion ......................... App. 1 District Court Opinion ...................................... App. 42 Ninth Circuit Order Denying Panel Rehearing or Rehearing En Banc and Amended Opinion ................................................................... App. 88 Dissent to Denial of Rehearing or Rehearing En Banc .......................................................... App. 90 California Senate Bill 1172 and Legislative Digest............................................................ App. 107

vi TABLE OF AUTHORITIES Page CASES Argello v. City of Lincoln, 143 F.3d 1135 (8th Cir. 1998) ...........................................................28, 32 Bd. of Trustees v. Fox, 492 U.S. 469 (1989) ........................................................... 26, 31, 32 Bigelow v. Va., 421 U.S. 809 (1975) ............................33 Bolger v. Young’s Drug Prods., 463 U.S. 60 (1983) .......................................................................34 Brandenburg v. Ohio, 395 U.S. 444 (1969) ................12 Brown v. Entertainment Merchants’ Ass’n, 131 S. Ct. 2729 (2011) ..............................................13, 23 Caronia v. U.S., 703 F.3d 149 (2d Cir. 2012) .......27, 28 Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980) ..............31 Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) .................................................................12, 23 Florida Bar v. Went For It Inc., 515 U.S. 618 (1995) .......................................................................33 Gentile v. Nevada State Bar, 501 U.S. 1030 (1991) .......................................................................33 Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949) ..........................................................12, 29 Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) ............................................................ passim King v. Christie, 2013 U.S. District LEXIS 160035 (D.N.J. 2013) ..............................................30

vii TABLE OF AUTHORITIES – Continued Page Lock v. Shore, 634 F.3d 1185 (11th Cir. 2011) ............27 Lowe v. S.E.C., 472 U.S. 181 (1985) .....................16, 26 Miller v. California, 413 U.S. 15 (1973) .....................12 Minnesota v. Melchert-el, 2014 Minn. LEXIS 108 (March 19, 2014) No. A11-0987 .......................29 Moore-King v. County of Chesterfield, 708 F.3d 560 (4th Cir. 2013) ..................................................27 NAACP v. Button, 371 U.S. 415 (1973) ......................34 Namrow v. Commissioner, 33 T.C. 419 (T.C. 1959) ........................................................................14 National Ass’n for Advancement of Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043 (9th Cir. 2000) ...................................................14, 25 Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931) .......................................................................13 Nefedro v. Montgomery County, Md., 414 Md. 585 (2010) ................................................................28 New York v. Ferber, 458 U.S. 747 (1982) ...................13 New York Times Co. v. Sullivan, 376 U.S. 254 (1964) .......................................................................12 Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447 (1978) ........................................................... 27, 32, 33 Planned Parenthood v. Casey, 505 U.S. 833 (1992) .......................................................................16 R.A.V. v. St. Paul, 505 U.S. 377 (1992) ......................18

viii TABLE OF AUTHORITIES – Continued Page Rumsfeld v. Forum for Academic and Institutional Rights, 547 U.S. 47 (2006) ............... 23, 24, 25 Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105 (1991) .......12 Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (2011) .................................................................25, 27 Texas v. Johnson, 491 U.S. 397 (1989) .......................18 U.S. v. Alvarez, 132 S. Ct. 2537 (2012) ................12, 13 U.S. v. O’Brien, 391 U.S. 367 (1968) ....................19, 22 U.S. v. Stevens, 559 U.S. 460 (2010) ....................12, 13 Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976) ...... 13, 31, 33 Watts v. United States, 394 U.S. 705, 89 S. Ct. 1399, 22 L. Ed. 2d 664 (1969) .................................13 Welch v. Brown, 740 F.3d 1208 (2014) .........................1 Welch v. Brown, 907 F.Supp.2d 1102 (2012) ................1 CONSTITUTIONAL PROVISIONS United States Const., Amend. I ......................... passim United States Const., Amend. XIV ..............................1 FEDERAL STATUTES AND RULES 18 U.S.C. § 2339B .......................................................18 28 U.S.C. § 1254(1) .......................................................1 Supreme Court Rule 11 ................................................1

ix TABLE OF AUTHORITIES – Continued Page CALIFORNIA STATUTES Cal. Bus. & Prof. Code § 865 ..................................2, 20 Cal. Bus. & Prof. Code § 865.1 .....................................3 Cal. Bus. & Prof. Code § 865.2 .....................................3 STATE BILLS FL S.B. 240 .................................................................30 MA Bill H.154188th ....................................................30 MD SF1727 .................................................................30 NY S4840 ....................................................................30 OH S.B. No. 188..........................................................30 PA H.B. 2691 ...............................................................30 VA House Bill 1135 .....................................................30 OTHER SOURCES CA S.B. Hist., 2011-2012 S.B. 1172 ................... passim

1 OPINIONS BELOW The opinion of the court of appeals is reported at 740 F.3d 1208 (2014) and is fully set forth in the Petitioners’ Appendix (Pet. App. 1-41). The opinion of the district court is reported at 907 F.Supp.2d 1102 (2012) (Pet. App. 42-87).
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JURISDICTION This Petition is filed pursuant to Supreme Court Rule 11. The court of appeals entered its judgment on August 29, 2013, and denied a panel rehearing and a rehearing en banc, amending its opinion, on January 29, 2014. This Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1).
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CONSTITUTIONAL AND STATUTORY PROVISIONS U.S. Constitution, Amendment I Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. U.S. Constitution, Amendment XIV, § 1 All persons born or naturalized in the United States, and subject to the jurisdiction thereof,

2 are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Cal. Bus. & Prof. Code § 865 (a) “Mental health provider” means a physician and surgeon specializing in the practice of psychiatry, a psychologist, a psychological assistant, intern, or trainee, a licensed marriage and family therapist, a registered marriage and family therapist, intern, or trainee, a licensed educational psychologist, a credentialed school psychologist, a licensed clinical social worker, an associate clinical social worker, a licensed professional clinical counselor, a registered clinical counselor, intern, or trainee, or any other person designated as a mental health professional under California law or regulation. (b)(1) “Sexual orientation change efforts” means any practices by mental health providers that seek to change an individual’s sexual orientation. This includes efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.

3 (2) “Sexual orientation change efforts” does not include psychotherapies that: (A) provide acceptance, support, and understanding of clients or the facilitation of clients’ coping, social support, and identity exploration and development, including sexual orientationneutral interventions to prevent or address unlawful conduct or unsafe sexual practices; and (B) do not seek to change sexual orientation. Cal. Bus. & Prof. Code § 865.1 Under no circumstances shall a mental health provider engage in sexual orientation change efforts with a patient under 18 years of age. Cal. Bus. & Prof. Code § 865.2 Any sexual orientation change efforts attempted on a patient under 18 years of age by a mental health provider shall be considered unprofessional conduct and shall subject a mental health provider to discipline by the licensing entity for that mental health provider.
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INTRODUCTION AND SUMMARY OF ARGUMENT “May the legislature avoid First Amendment judicial scrutiny by defining disfavored talk as ‘conduct’? That is what these cases are really about.” So begins the withering dissent to the decision by the

4 Ninth Circuit to deny the motion for rehearing en banc. This case will determine whether this Court will allow a lower court to unilaterally diminish the speech rights of mental health providers as they communicate while counseling. The court of appeals has announced a new category of unprotected speech, namely, mental health counseling. Along this line, the appellate court has determined that communications made during a counseling session are “not inherently expressive.” Review is necessary to determine whether counseling should join the confined list of unprotected communications, such as, defamation, obscenity, criminal incitement, etc. This merits the granting of certiorari. Further, the Petition should be granted to review the Ninth Circuit’s newly created continuum for free speech analysis involving professional communications. In sum, the court of appeals placed regulations, limiting disfavored messages during mental health counseling, under rational basis review by characterizing such communications as conduct. Under the continuum, a finding that a law addresses conduct precludes any analysis of whether the law addresses speech. Additionally, under this novel First Amendment formulation, a determination that a rule regulates professional conduct extinguishes any inquiry related to the legality of content and viewpoint restrictions. A succinct summation of the appellate court’s continuum follows.

5 The lower court placed the professional engaging in public discourse at one end of the continuum. Here, traditional strict scrutiny analysis applies. In the middle of the continuum rests communications within the confines of a professional relationship. There, speech rights become “somewhat diminished” such that “the First Amendment tolerates a substantial amount of speech regulation.” At the bottom end of the continuum, where S.B. 1172 lands, lies the regulation of professional conduct. Important in understanding the bottom end of the scale, the Ninth Circuit declared that communications within the counseling room equals “treatment” – treatment is conduct, not speech. Granting this Petition is warranted because this bottom end of the continuum arrives as one of first impression. But that is not all. The lower court’s opinion appears difficult to square with Holder v. Humanitarian Law Project, 561 U.S. 1 (2010). Humanitarian Law Project, at least the way that Welch reads it, stands for the proposition that conduct, no matter how labeled, can include speech if the conduct consists of communicating a message. The Ninth Circuit disagrees, holding that the rule in Humanitarian Law Project pertains to “(1) political speech (2) by ordinary citizens.” In view of that, the Petition should be granted in order either (1) to harmonize the bottom level of the appellate court’s newly announced continuum with Humanitarian Law Project or, (2) to find the lowest stratum in the continuum irreconcilable with that opinion.

6 Further, this is a matter of exceptional importance since lawmakers in other states have either passed, or are deliberating on, nearly identical bills that limit disfavored ideas in the mental health field. Like the Ninth Circuit’s dissenters, the Petitioners share profound concerns that politically unpopular and disfavored speech can be effectively prohibited using the bottom end of the lower court’s continuum. This part of the continuum provides lawmakers with a roadmap to pass laws that impose content and viewpoint prohibitions on professionals by labeling their communications as “conduct.” Because the lower court’s opinion provides legal cover for these copycat bills, the Petition should be granted in order to establish whether the restrictive end of the continuum is consistent with the free speech clause.
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STATEMENT OF THE CASE A. Statutory Background In early 2012, Equality California, an organization that lobbies for gay rights, drafted and submitted to lawmakers a bill prohibiting mental health professionals from engaging in any “efforts” or “practices” that “seek to change” or “reduce” same-sex attractions, gender expressions or related feelings of minor clients. The full text of Senate Bill (S.B.) 1172 is reproduced at Pet. App. 107-117. Following several months of spirited public debate, the Legislature passed S.B. 1172 on August 30,

7 2012. Governor Edmund G. Brown signed the bill on September 30, 2012, which was scheduled to take effect on January 1, 2013. B. Facts California lawmakers passed S.B. 1172 which provides that “under no circumstances shall” mental health providers engage in “any practices” that “seek to change” a minor’s sexual orientation, gender identity or gender expression, or to reduce sexual or romantic attractions or feelings towards individuals of the same sex. These are referred to variously as sexual orientation change efforts (SOCE), reparative therapy, or conversion therapy. In condemning SOCE, the Legislature pointed to a number of expressive practices such as prayer, religious conversion, individual and group counseling and “spiritual interventions.” However, S.B. 1172 does not prohibit psychotherapies that provide acceptance and support of sexual identity exploration and development so long as the treatment does not seek to change sexual orientation. “Any sexual orientation change efforts attempted” on a minor “shall be considered unprofessional conduct and shall subject a mental health provider to discipline by the licensing entity for that mental health provider.” The prohibition applies regardless of whether a minor, along with his or her parents, seeks such efforts. Concerning these Petitioners, the facts below are undisputed.

8 Dr. Welch is a licensed marriage and family therapist and an ordained minister. In addition to his private practice and teaching responsibilities as an adjunct professor, Dr. Welch also works part-time heading the counseling ministry at Skyline Wesleyan Church (“Skyline” or “Church”). Skyline teaches that “human sexuality . . . is to be expressed only in a monogamous, lifelong marriage between one man and one woman.” In his pastoral role, Dr. Welch is prohibited from encouraging, enabling or validating sexual beliefs or behaviors contrary to the teachings of the Church. Dr. Welch’s clientele includes minors who identify as gay, lesbian, bisexual, heterosexual and questioning youth. Some of these clients struggle with sexual attractions, and behaviors, as well as romantic feelings inconsistent with their moral convictions, and their family’s values. He does not attempt to change a teenager’s sexual orientation against their will. As a result of the restrictions on SOCE passed into law, Dr. Welch is subject to professional discipline by the California Board of Behavioral Sciences, whose board members are named as defendants. Dr. Duk, who is Roman Catholic, is a board certified psychiatrist in private practice who works with adults and minors over the age of sixteen, some of whom struggle with unwanted same-sex attractions. His declaration filed in support of the preliminary injunction, reads in part that sexual orientation “touches on the most personal issues in the human condition, including sex, family relationships, religion, culture,

9 and medical issues.” In view of this, some families seek his counsel because they share his Catholic beliefs which he integrates with psychiatric methods. With such patients, he discusses their common faith, including the view that “homosexuality is not a natural variant of human sexuality, it is changeable, and it is not predominantly determined by genetics.” In Dr. Duk’s experience, many of his minor patients seek to alter or reduce same-sex attraction in accordance with their religious, cultural, and family values. As a result of the restrictions on SOCE passed into law, Dr. Duk is subject to professional discipline by the Medical Board of California, whose board members are named as defendants. Aaron Bitzer has experienced same-sex attractions beginning in junior high school and was involved in SOCE as an adult. Despite having same-sex attractions, Mr. Bitzer found unconvincing “the message of the Gay Community, which states that we are born this way and should just live accordingly” because this view did not explain all of the dynamics in his own life. He found his experience with SOCE helpful and began pursuing a career path toward becoming a licensed practitioner of SOCE who could help other young people. The enactment of S.B. 1172 halted his plans. Due to the imminent prospect of professional and legal liability, Welch filed suit.

10 C. Proceedings Below After the bill was signed into law on September 30, 2012, the Petitioners filed a Complaint on October 1, 2012. In fact, two separate groups of plaintiffs filed suit to challenge the statute in the Eastern District of California in early October 2012. The first to file suit, and Petitioners herein, are Donald Welch, Ph.D., Anthony Duk, M.D., and Aaron Bitzer. Their claims include violations of speech,2 free exercise of religion, separation of church and state, association, privacy, and due process. Welch filed a motion for a preliminary injunction, heard and granted on December 2, 2012. Judge William Shubb only reached the speech claim. The very next day, Judge Kimberly Mueller of the same court denied an injunction sought by the other plaintiffs that had challenged S.B. 1172. Judges Shubb and Mueller reached opposite conclusions as to the applicability of First Amendment principles. Both the State and the other plaintiffs (David Pickup, et al.) appealed from the respective injunction rulings. The State filed its notice of appeal to the Ninth Circuit on January 2, 2013. A panel of the

The Welch Petitioners’ free speech claims include content and viewpoint discrimination, vagueness, and overbreadth.

2

11 Ninth Circuit then issued a stay which prevented S.B. 1172 from taking effect.3 On appeal, another Ninth Circuit panel4 reversed Judge Shubb and affirmed Judge Mueller, agreeing with the State that the statute did not implicate the First Amendment and thus is easily justifiable under rational basis review. In its first opinion, dated August 29, 2013, the panel undertook plenary review. The court of appeals determined the prohibition affected only conduct and not speech. On September 12, 2013, Welch filed combined Petitions for Rehearing and Rehearing En Banc. More than a year later, the Ninth Circuit withdrew its first opinion and issued an Amended Opinion and Order Denying Rehearing and Rehearing En Banc, on January 29, 2014. In the Amended Opinion, the Court again retained plenary review. Pet. App. 6. The panel declined to address the religion claim stating the “District Court may do so in the first instance.” Pet. App. 13. Judge O’Scannlain, joined by Judges Bea and Ikuta, issued a sharp dissent from the denial of rehearing en banc. Pet. App. 88-106. This Petition timely followed.
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3

Circuit Judges Goodwin, Levy and M. Smith ordered the

stay. The panel included Chief Judge Kozinski, and Circuit Judges Graber and Christen.
4

12 REASONS FOR GRANTING THE PETITION I. The Decision Below Creates A New Category Of Unprotected Speech, Namely, Mental Health Counseling.

By re-labeling counseling as non-speech and removing it from First Amendment consideration, the court of appeals effectively created a new category of unprotected communication. But categories beyond the reach of First Amendment protection remain few, with tidings of their birth ordinarily coming from this Court. There is good reason for this. The Constitution stands against “any ‘freewheeling authority to declare new categories of speech outside the scope of the First Amendment.’ ” U.S. v. Alvarez, 132 S. Ct. 2537, 2547 (2012). The plurality in Alvarez identified such unprotected speech as “confined to the few ‘historic and traditional categories [of expression] long familiar to the bar.’ ” Id. at 2544 citing U.S. v. Stevens, 559 U.S. 460 (2010) quoting Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105, 127 (1991) (Kennedy, J., concurring in judgment). These categories consist of “advocacy intended, and likely, to incite imminent lawless action, . . . ” see Brandenburg v. Ohio, 395 U.S. 444 (1969); obscenity, see, e.g., Miller v. California, 413 U.S. 15 (1973); defamation, see, e.g., New York Times Co. v. Sullivan, 376 U.S. 254 (1964); speech integral to criminal conduct, see, e.g., Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949); “fighting words,” see Chaplinsky v. New Hampshire, 315 U.S. 568 (1942); child pornography,

13 see New York v. Ferber, 458 U.S. 747, 102 S. Ct. 3348, 73 L. Ed. 2d 1113 (1982); fraud, see Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 771 (1976); true threats, see Watts v. United States, 394 U.S. 705, 89 S. Ct. 1399, 22 L. Ed. 2d 664 (1969) (per curiam); and speech presenting some grave and imminent threat the government has the power to prevent, see Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931). To this list the Ninth Circuit added communications made during counseling. But this Court has been disinclined to add new categories. For instance, in Brown v. Entertainment Merchants’ Ass’n, 131 S. Ct. 2729 (2011), this Court rejected California’s efforts to ban the sale of violent video games to minors. See also, e.g., U.S. v. Alvarez 132 S. Ct. 2537 (2012) (striking down Stolen Valor Act); U.S. v. Stevens, 559 U.S. 460 (2010) (rejecting prohibition on depiction of animal cruelty). The Ninth Circuit attempted to avoid a claim that it prohibited speech based upon two assertions. First, the appellate court proffers that S.B. 1172 leaves mental health providers free to say whatever they like regarding SOCE. “Plaintiffs may express their views to anyone, including minor patients and their parents, about any subject, including SOCE, insofar as S.B. 1172 is concerned. The only thing that a licensed professional cannot do is avoid professional discipline for practicing SOCE on a minor patient.” Pet. App. 26 (emphasis in original).

14 The second curious, if not incongruent, assertion provides that the law regulates only treatment, but not speech. “[A] regulation of only treatment itself – whether physical medicine or mental health treatment – implicates free speech interests only incidentally, if at all.” Pet. App. 28. Of note, the court of appeals use of the term “treatment” seems misplaced, for that word does not appear on the face of the bill. The rather obvious dilemma lies in the fact that the practice of mental health primarily consists of counseling which the courts have termed the “talking cure.” See Namrow v. Commissioner, 33 T.C. 419, 429 (T.C. 1959); National Ass’n for the Advancement of Psychoanalysis v. California Bd. of Psychology, 228 F.3d 1043, 1054 (9th Cir. 2000). It is self-evident that the “talking cure” is speech. The reality remains that treatment for the mental health provider under S.B. 1172 is what “expert advice” is to the legal professional under Holder v. Humanitarian Law Project, 561 U.S. 1 at 14 (2010). This Court found the expert advice as a type of speech. The inescapable conclusion is that the Ninth Circuit has in fact created a new category of unprotected speech. In view of the above, the Ninth Circuit’s pronouncement that communication occurring in the counseling room constitutes conduct (treatment) and thus enjoys no protection under the First Amendment should give the Court pause for concern. This Petition should be granted to determine whether the

15 expression of ideas during counseling should be added to the categories of unprotected speech. II. Whether A Law Can Exempt From First Amendment Scrutiny Prohibitions On Certain Types Of Counseling By Designating Such Counseling As Conduct Should Be Decided By This Court.

Whenever the court of appeals crafts an original test for analyzing free speech, it merits this Court’s attention. In this case, the Ninth Circuit cobbled together a continuum for professional communication for which a dissenting judge, joined by three others, made the following ominous observation: “If a state may freely regulate speech uttered by professionals in the course of their practice without implicating the First Amendment, then targeting disfavored moral and political expression may only be a matter of creative legislative draftsmanship.” Pet. App. 105. The section below elaborates on the dissenters’ concern, further highlighting the need for a grant of certiorari. A. The Ninth Circuit Constructed a New Doctrine Which Exempts Even Content and Viewpoint Based Speech from First Amendment Scrutiny. In the professional context, the appellate court created a continuum for professional communication in which the protection of speech decreases as it

16 slides from the top to the bottom. Pet. App. 19-24. The continuum looks like this. At the top of the continuum sits the professional engaged in public dialogue. In such instances, strict scrutiny review provides a safety net. “[A] doctor who publicly advocates . . . a treatment that the medical establishment considers outside the mainstream . . . is entitled to robust protection under the First Amendment – just as any person is – even though the state has the power to regulate medicine.” Pet. App. 22, citing Lowe v. S.E.C., 472 U.S. 181, 232 (1985) (White, J., concurring). Next, “[a]t the midpoint of the continuum” is the professional relationship in which “First Amendment protection of a professional’s speech is somewhat diminished.” Pet. App. 20, citing Planned Parenthood v. Casey, 505 U.S. 833, 884 (1992). The bottom of the continuum entails “regulation of professional conduct, where the state’s power is great, even though such regulation may have an incidental effect on speech.” Pet. App. 23, citing Lowe, 472 U.S. at 232 (emphasis in original). This lower level of the continuum is where the challenged bill was consigned by the court of appeals. An essential premise expressed by the lower court is that speech has protection but conduct (at the bottom of the continuum) does not. As applied to the challenged bill, the Ninth Circuit determined that counseling is treatment and treatment is conduct. The panel found when a law regulates counseling done solely through the spoken word, that oral communication receives no First Amendment protection. “SB

17 1172 regulates only . . . therapeutic treatment, not expressive speech.” Pet. App. 25. In sum, S.B. 1172 seeks to restrict the communication of disfavored ideas and messages in the counseling room. By reclassifying the prohibited communication as “conduct,” the panel placed it in the lowest ebb of its continuum. Therefore, the forbidden treatment finds itself entirely out of the First Amendment’s reach. By adopting this approach, the Ninth Circuit constructed a major new doctrine that invites scrutiny by this Court. 1. The continuum revives the conduct versus speech dichotomy rejected by this Court in Humanitarian Law Project. The district court determined that both the text of the statute and the State’s defense of it clashed with this Court’s decision in Holder v. Humanitarian Law Project, 561 U.S. 1 (2010). There, this Court rejected the federal government’s claim that it could restrict expression based on its content and viewpoint, so long as it did so under the rubric of conduct rather than speech. Id. at 28. Although Humanitarian Law Project was central to the district court’s granting of a preliminary injunction, on appeal, Humanitarian Law Project was strangely absent from the Ninth Circuit’s first opinion overturning the injunction. In response to the Plaintiffs’ filing of a Combined Petition for Rehearing

18 and Rehearing En Banc, as well as the dissenting opinion, the panel issued an amended opinion that added a begrudging discussion of Humanitarian Law Project, but denied its analysis of conduct versus speech held any relevance. Pet. App. 25-26. The Ninth Circuit read Humanitarian Law Project as confined to cases involving “(1) political speech (2) by ordinary citizens.” Pet. App. 26. In essence, the court of appeals interprets Humanitarian Law Project such that it does not apply to regulations of professional conduct. Pet. App. 25-26. As such, speech analysis has no relevance. Welch and the dissent find such a reading mystifying. For if the conduct consists of communicating a message, then the free speech clause ordinarily comes into play. R.A.V. v. St. Paul, 505 U.S. 377, 385-386 (1992); Texas v. Johnson, 491 U.S. 397, 403, 406-407 (1989); Humanitarian Law Project, 561 U.S. at 27. The appellate court views Humanitarian Law Project as a case involving the “regulation of political speech.” Pet. App. 26. But Welch reads the statute at issue to prohibit “training” and “expert advice or assistance.” 18 U.S.C. § 2339B. For the plaintiffs in Humanitarian Law Project this entailed “offering their legal expertise in negotiating peace agreements.” Humanitarian Law Project, 130 S. Ct. at 2716. In other words, plaintiffs practiced law. Further, Welch does not understand Humanitarian Law Project as confined to “ordinary citizens.” Indeed, neither did the plaintiffs in that case. Id. at 2720-2721. The plaintiffs in Humanitarian Law Project

19 comprised legal professionals rendering “expert advice” in the area of humanitarian rights. Humanitarian Law Project, 561 U.S. at 24. Importantly, the federal government argued that the statute regulated conduct, not speech. Id. at 2723. Thus, the government urged the application of intermediate scrutiny under U.S. v. O’Brien, 391 U.S. 367 (1968). This Court rebuffed the government’s attempts to label the plaintiffs’ activities as conduct and not speech, because the targeted activities consisted of communicating a message. Id. at 2725. Here, it is undisputed that the Petitioners’ activities are inseparable from communication of their beliefs. Dr. Welch is an ordained member of the clergy who heads the counseling ministry at his Church. In his practice, SOCE consists of counseling, namely, listening and talking to clients. Likewise, the district court noted that Dr. Duk’s practice of SOCE includes counseling that incorporates the teachings of his church with clients of like faith. Under S.B. 1172 California’s lawmakers deem such communications as verboten between mental health providers and minors. In its more candid moments, the State submitted evidence that it believes SOCE proscribable precisely because this counseling reinforces the “message” that same-sex attraction is wrong. Indeed, the Ninth Circuit’s amended opinion never claimed that the language of the statute was neutral as to content or viewpoint. Though this is not a brief on the merits, a

20 short discussion to set aside all doubt that S.B. 1172 is both content and viewpoint based follows. a. Inherent content and viewpoint restrictions in S.B. 1172 The Legislature made no pretense about its objective. The plain text of the statute unapologetically targets ideology. After banning any “sexual orientation change efforts” for minors, S.B. 1172 clarifies that it only proscribes one set of viewpoints: (2) “Sexual orientation change efforts” does not include psychotherapies that: (A) provide acceptance, support, and understanding of clients or the facilitation of clients’ coping, social support, and identity exploration and development, including sexual orientationneutral interventions to prevent or address unlawful conduct or unsafe sexual practices; and (B) do not seek to change sexual orientation. Section 865(b). In addition to the statutory text, one finds illuminating examples from the legislative findings and legislative history. Accompanying the operative text of S.B. 1172, the California Legislature invoked a number of findings selected from professional organizations critical of the belief that same-sex attraction and gender identity can or should be changed. These findings are replete with the language of political and social disagreement over underlying beliefs. According to these findings and declarations, SOCE is proscribable as a means of combating “therapist

21 alignment with societal prejudices against homosexuality.” Pet. App. 109 at Section 1(d). The Legislature expresses its preference that therapy be used to help gays and lesbians “become comfortable with their sexual orientation and understand societal responses to it.” Pet. App. 111 at Section 1(g). Additionally, lawmakers decried “social stigmatization” as a driving force behind SOCE and denounced its philosophical underpinnings, stating, “Sexual orientation conversion therapies assume homosexual orientation is both pathological and freely chosen.” Pet. App. 111 Section 1(h). The legislative history further evinced the Legislature’s intent to suppress disfavored communication and ideas. Far from the Ninth Circuit’s attempt to recast the statute as simply governing “treatment,” the legislators acknowledged that reparative therapy often includes prayer, small group discussions, and spiritual interventions. In other words, Sacramento lawmakers suffered from no illusions regarding speech. Legislators simply sought to ban what they considered dangerous ideas. Not surprisingly, several of the judges examining the full statutory text and record below found its speech-restrictive implications impossible to ignore, and impossible to square with the reasoning of Humanitarian Law Project. As a result, Judge Shubb enjoined the statute, and Judge O’Scannlain, joined by Judges Bea and Ikuta, issued a blistering dissent. Yet without this Court’s intervention, a revitalized

22 and repackaged conduct-versus-speech dichotomy will emerge in the Ninth Circuit under the guise of “treatment.” The opinion penned by this Court in Humanitarian Law Project will suffer as a dead letter in the western states. Notwithstanding the undisputed evidence, the court of appeals insisted that S.B. 1172 affected only treatment and not protected speech. “Senate Bill 1172 regulates conduct. It bans a form of treatment for minors. . . .” Pet. App. 24. To the Ninth Circuit, SOCE does not constitute speech because that court placed it on the bottom shelf of the continuum. Under the Ninth Circuit’s continuum, regulation of professional conduct that constitutes the communication of a message, does not even rise to the level of intermediate scrutiny under O’Brien. The essence of the bottom of the Ninth Circuit’s continuum is this: if a regulation relates to conduct (e.g., treatment) a court undertakes no inquiry as to the presence of content or viewpoint in the communication. The court of appeals reasoned that a regulation of treatment “implicates free speech interests only incidentally, if at all.” Pet. App. 28. Welch views this bottom level of the court of appeals’ continuum difficult to square with his understanding of Humanitarian Law Project. That case stands for the proposition that intermediate scrutiny applies if the conduct involves a content-neutral regulation. However, if the regulation restricts the expression of an idea, then O’Brien’s intermediate scrutiny does not apply, but

23 rather strict scrutiny. Humanitarian Law Project, 130 S. Ct. at 2723-2724. Stated otherwise, the court of appeals’ continuum starts with the inquiry of whether the law touches on conduct or speech, instead of looking to whether the law attempts to foreclose an unwanted topic or message. Hence, under the new standard crafted by the Ninth Circuit, a constricting communication based upon content or viewpoint does not even rise to intermediate scrutiny, much less strict scrutiny, because it is conduct. Unlike the court of appeals, Welch contends the cases require the state to prove the existence of a narrowly tailored compelling state interest to justify content-based restrictions, regardless of whether the communication is conduct. Humanitarian Law Project, 130 S. Ct. at 2724; see also Brown, 131 S. Ct. at 2738, quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572 (1942). In light of this, the Petition should be granted to determine whether the continuum on professional communications created by the appellate court can be reconciled with Humanitarian Law Project. 2. The Ninth Circuit announced that communications made during counseling are not “inherently expressive.” In establishing its new doctrine of First Amendment diminution, the Ninth Circuit pointed to Rumsfeld v. Forum for Academic and Institutional Rights, 547

24 U.S. 47, 62 (2006) (FAIR II). Pet. App. 26. The court of appeals asserted that “[l]ike the conduct in FAIR II, the administration of psychotherapy is not inherently expressive.” Pet. App. 27. In FAIR II, this Court upheld federal funding restrictions that mandated access for military recruiters to college campuses receiving certain types of federal aid. Central to this Court’s decision were both the enumerated power of Congress to raise an army, and the fact that the rule did not bar the law schools from advocating their own, contrary messages. Indeed, these institutions remained free to protest the presence of military recruiters and post disclaimers denouncing policies of the armed services. Here, by contrast, the State seeks to prevent mental health professionals from advancing specific views contrary to government orthodoxy on sexual orientation. Rather than preserving access to professionals with certain viewpoints, the State restricts access. The Ninth Circuit utilizes FAIR II to assert that restricting disfavored views during counseling merely regulates professional conduct. Pet. App. 26. As treatment, the court of appeals simply asserts that counseling is not “inherently expressive.” Pet. App. 27. This begs the question as to whether communications involved in SOCE during counseling constitute speech. Hence it puts at issue whether the appellate court’s newly crafted continuum rightly reads the discussion in Humanitarian Law Project regarding conduct that communicates a message.

25 Additionally, the court of appeals divines from FAIR II support for the notion that content and viewpoint discrimination in a statute need not be addressed if the statute can be read creatively as only incidentally affecting speech. Because the Ninth Circuit had previously stated in NAAP that psychotherapy equals “treatment,” it believed that pronouncement foreclosed any consideration of the content and viewpoint discrimination inherent in S.B. 1172. Yet this approach is nearly the opposite of this Court’s holding in Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (2011). There this Court soundly rejected the State of Vermont’s argument that regulations on pharmaceutical representatives affected public health and only incidentally affected speech. Unlike the Ninth Circuit, this Court looked first for content and viewpoint discrimination. Finding that the State’s intent was to promote certain messages and censor others, the Court held that the effect on speech could not be “incidental.” In other words, the court of appeals looks first for indications of conduct whereas this Court looks for traces of prohibited content. The Ninth Circuit’s contrary approach juxtaposes FAIR II and Sorrell against each other in ways that seem utterly inconsistent with this Court’s intent.

26 B. The Ninth Circuit, Together with the Fourth and Eleventh Circuits, Are in Conflict with the Second and Eighth Circuits, as Well as the Court of Last Resort in Minnesota, as to the Protectability of Professional Speech. While Petitioners believe this Court’s precedents provide clear guidance for handling professional speech regulations, so as to obviate the creation of new tests or categorical exclusions, federal appellate courts, as well as at least one state court of last resort, find themselves in conflict on the important issue of whether and to what extent professional speech receives protection under the First Amendment. The Ninth Circuit was led astray (as other courts have been, discussed infra) by a view that has never been adopted as a holding of this Court – the concurrence of Justice White in Lowe v. S.E.C., 472 U.S. 181 (1985). While the Court in Lowe held that an investor sending out an investment newsletter did not need to register with the SEC, Justice White drew a sharp distinction between public advocacy and personal advice given by professionals. Justice White’s view has been contradicted by decisions such as Bd. of Trustees v. Fox, 492 U.S. 469 (1989) (noting that job counseling, tutoring, legal advice and medical consultation were noncommercial, highly protectable speech). This concurrence nevertheless continues to provide the lower courts with a basis on which to construct speech-restrictive doctrines that run counter to this Court’s most recent precedents.

27 The Ninth Circuit builds on the flawed reasoning of the Eleventh Circuit in Lock v. Shore, 634 F.3d 1185 (11th Cir. 2011). There, the appellate court rejected First Amendment and other constitutional arguments against Florida’s licensing scheme for commercial interior designers. The Eleventh Circuit relied on the Lowe concurrence, Ohralich v. Ohio State Bar Ass’n, 436 U.S. 447 (1978), and additional authorities for the proposition that regulations on occupational conduct only incidentally affect speech, and that “[t]here is a difference, for First Amendment purposes” between speech directed to the public at large and speech directed at clients. The Eleventh Circuit, like the Ninth Circuit, believed the latter deserved only a passing glance from the First Amendment. The Fourth Circuit has also struggled with application of professional speech doctrines. In MooreKing v. County of Chesterfield, 708 F.3d 560 (4th Cir. 2013), the court relied heavily on the Lowe concurrence to foreclose First Amendment protections to a “spiritual counselor” or psychic. The Fourth Circuit adopted Justice White’s demarcation of public versus one-on-one professional speech. Further, no unanimity lies in the approach to professional speech across the country. The Second and Eighth Circuits have rejected the view, embraced by the Fourth, Ninth and Eleventh Circuits, that merely labeling certain speech as professional conduct thereby places such speech outside First Amendment protections. In Caronia v. U.S., relying on Sorrell, the Second Circuit

28 overturned the conviction of a pharmaceutical representative who had been charged with “misbranding” for discussing off-label uses of a drug with doctors. The Second Circuit held it necessary to construe the statute so as to not criminalize the defendant’s speech, in order to avoid what seemed to the Second Circuit obvious First Amendment problems. Id., 703 F.3d 149, 161-162 (2d Cir. 2012). The Eighth Circuit first found that speech restrictions disguised as business and professional regulations necessitated First Amendment scrutiny. Argello v. City of Lincoln, 143 F.3d 1135 (8th Cir. 1998). There, the court struck down a city ordinance that banned both the promotion and practice of fortune-telling. The court staunchly defended the right of individuals to believe in mind-reading or magic, and to seek out practitioners of the same. The court’s assessment of the fortune-telling ordinance under a traditional First Amendment analysis, through which it deemed the ordinance content-based and lacking a compelling interest, stands in sharp contrast to the Ninth Circuit’s approach in this case. Likewise, the Maryland Court of Appeals rejected a claimed professional conduct-versus-speech distinction. Nefedro v. Montgomery County, Md., 414 Md. 585 (2010). In striking down a prohibition on the receipt of payment for fortune-telling, the County’s position that accepting money for fortune-telling had no First Amendment relevance because such a transaction only involved conduct, found no buyers with that court.

29 Of course, Petitioners believe the counseling they offer considerably more effective than the “spiritual counseling” or mind-reading of psychics. But depending on the jurisdiction, very differing First Amendment analysis occurs. Review by this Court is needed to resolve the conflict among the Circuit Courts and state courts of last resort as to whether one-on-one professional speech loses all protection when labeled “professional conduct.” The opinion below also conflicts, in its’ application of Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949), with the Supreme Court of Minnesota’s recent reading of that case. The Ninth Circuit interprets Giboney to extend to speech regulations related to professional conduct. “Under Giboney, 336 U.S. at 502, the fact that speech may be used to carry out those therapies does not turn the regulation of conduct into a regulation of speech.” Pet. App. at 29. Therefore, the court of appeals used Giboney to support S.B. 1172 based upon California’s police power. In sharp contrast, Minnesota’s high court confined Giboney to situations in which speech is integral to criminal conduct. Minnesota v. Melchert-el, 2014 Minn. LEXIS 108 (March 19, 2014) No. A11-0987. Thus, absent the prerequisite of a valid criminal statute, that court refused to entertain an exception to the free speech clause. Granting this Petition is warranted to resolve the conflict between the Ninth Circuit and the Minnesota Supreme Court. Finally, if the Ninth Circuit’s opinion below stood merely as an outlier and bore little chance of

30 mustering a following, the need for alarm would be diminished. Legislation nearly identical to S.B. 1172 has also been introduced in numerous states, including Florida, Massachusetts, Maryland, Minnesota, New York, Ohio, Pennsylvania, and Virginia.5 By way of example, following California’s lead, New Jersey enacted a copycat law in 2013. The federal district court denied issuing a preliminary injunction against this law based in large part on the Ninth Circuit’s reasoning. King v. Christie, 2013 U.S. District LEXIS 160035 (D.N.J. 2013). The judge stated, “I do not start with a blank slate. Last year, California passed a law, S.B. 1172, that is virtually identical to A3371 in both language and purpose.” King v. Christie, 2013 U.S. District LEXIS 160035 (D.N.J. 2013). Without this Court’s intervention, professional speech stands unprotected in California and now New Jersey. In view of the similar restrictions imminent in other jurisdictions, this Petition compels serious consideration.

FL S.B. 240, MA Bill H.154188th, MD SF1727, NY S4840, OH S.B. No. 188, PA H.B. 2691, VA House Bill 1135.

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31 C. The Ninth Circuit’s Ruling Undermines the Commercial Speech Doctrine by Inviting States to Skip Promotional Restrictions and Ban Directly the Viewpoints Being Promoted. Another negative consequence of the Ninth Circuit’s new continuum concerns the danger of the potential obsolescence of this Court’s extensive commercial speech doctrine, whenever states can bypass promotional activities and target speech-centric professions directly. This Court articulated its commercial speech doctrine in Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976). While the test has been refined over time, see, e.g., Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980) the essence of the doctrine is that restrictions on commercial speech are entitled to some First Amendment protection. But because speech promoting commercial transactions occupy a subordinate place in the hierarchy of First Amendment values, regulations in the area generally fall under to intermediate-level scrutiny. To be sure, the communication targeted by S.B. 1172 was non-commercial speech. In Bd. of Trustees v. Fox, 492 U.S. 469 (1989), this Court explained that commercial speech encompasses speech that proposes a commercial transaction. The Court specifically noted that job counseling, tutoring, legal advice, and

32 medical consultation even when offered for a fee, would be considered noncommercial speech (and thus deserving greater protection than commercial speech). Id. at 473. In California, the Legislature did not target the advertising or promotion of “talk therapy,” but the “talk” itself. In other words, the banned speech component of SOCE is not ancillary; it is the very essence of what these professionals are offering. See Argello (rejecting application of commercial speech doctrine, where clients were paying for speech itself). Since many states regulate promotional activities as professional conduct, the cases tend to overlap, giving the decision below an outsized influence over both areas. In creating its continuum and placing SOCE below even commercial speech, the Ninth Circuit greatly misapprehended many of this Court’s precedents and achieved the exact opposite of what this Court has intended. In Fox, this Court explained that different tests for commercial and noncommercial speech exist to ensure the importance of noncommercial speech is not diluted. The opposite is happening here. Representative of the authorities relied upon by the court below is Ohralich v. Ohio State Bar Ass’n. There, this Court upheld professional regulations restricting in-person solicitation of legal services. At issue in that case was an attorney who subjected to professional discipline for aggressively pursuing two teenage accident victims. While an extended

33 discussion of this Court’s many decisions concerning lawyer speech and advertising lies beyond the scope of this Petition, it must briefly be noted that Ohralich cannot be properly understood apart from its predecessors, companion cases, and progeny. Although the Court has upheld some restrictions on attorney speech and advertising, see, e.g., Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995) (upholding restrictions on mail advertising by lawyers directed at accident victims); and Gentile v. Nevada State Bar, 501 U.S. 1030 (1991), the Court also struck down a number of restrictions. This Court’s careful balancing of competing considerations involving professional and promotional speech have been swept aside by the Ninth Circuit’s continuum, under which it avoided wrestling with First Amendment values by simply declaring that communication in the counseling room is not protectable. The Ninth Circuit’s continuum also slides the opposite direction of this Court’s valuation of professional and commercial speech that implicates sensitive areas of national debate. In contrast to the Ninth Circuit’s premise that political advocacy is at the top, and professional speech like SOCE at the bottom, of First Amendment value, this Court has noted that many Americans might actually think it more important to have access to information affecting their health than political rhetoric. Virginia Bd. of Pharmacy, 425 U.S. at 763. Further, the Court has had special concern for commercial speech with broader societal implications. See, e.g., Bigelow v. Va., 421

34 U.S. 809 (1975) (invalidating restrictions on advertising of abortion services); Bolger v. Young’s Drug Prods., 463 U.S. 60 (1983) (striking down restrictions on mail advertising of contraceptives); NAACP v. Button, 371 U.S. 415 (1973) (civil rights advocacy). In sum, the Ninth Circuit has given itself license to disregard this Court’s many precedents as to conduct and speech, creating a sizable new category of unprotected speech and even eroding the commercial speech doctrine.
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CONCLUSION Creation of a new category of forbidden speech – mental health counseling – always merits this Court’s attention. When as here, the motivation for the forbidden communication derives from disapproval of an idea, review becomes compelling. In addition, the newly manufactured continuum for evaluating professional speech by labeling it as conduct so that it escapes judicial scrutiny also counsels urgent review. For all of the foregoing reasons, the Petition should be granted. Date: April 22, 2014. Respectfully submitted, KEVIN T. SNIDER MICHAEL J. PEFFER MATTHEW B. MCREYNOLDS Attorneys for Petitioners

App. 1 Pickup v. Brown United States Court of Appeals for the Ninth Circuit April 17, 2013, Argued and Submitted, San Francisco, California; January 29, 2014, Amended No. 12-17681, No. 13-15023 DAVID H. PICKUP; CHRISTOPHER H. ROSICK; JOSEPH NICOLOSI; ROBERT VAZZO; NATIONAL ASSOCIATION FOR RESEARCH AND THERAPY OF HOMOSEXUALITY, a Utah non-profit organization; AMERICAN ASSOCIATION OF CHRISTIAN COUNSELORS, a Virginia non-profit association; JACK DOE 1, Parent of John Doe 1; JANE DOE 1, Parent of John Doe 1; JOHN DOE 1, a minor, guardian ad litem Jane Doe, guardian ad litem JACK DOE; Jack Doe 2, Parent of John Doe 2; JANE DOE 2, Parent of John Doe 2; JOHN DOE 2, a minor, guardian ad litem Jack Doe, guardian ad litem Jane Doe, Plaintiffs-Appellants, v. EDMUND G. BROWN, JR., Governor of the State of California, in his official capacity; ANNA M. CABALLERO, Secretary of the California State and Consumer Services Agency, in her official capacity; SHARON LEVINE, President of the Medical Board of California, in her official capacity; KIM MADSEN, Executive Officer of the California Board of Behavioral Sciences, in her official capacity; MICHAEL ERICKSON, President of the California Board of Psychology, in his official capacity, Defendants-Appellees, and EQUALITY CALIFORNIA, Intervenor-Defendant-Appellee.DONALD WELCH; ANTHONY DUK; AARON BITZER, PlaintiffsAppellees, v. EDMUND G. BROWN, JR., Governor of

App. 2 the State of California, in his official capacity; ANNA M. CABALLERO, Secretary of California State and Consumer Services Agency, in her official capacity; DENISE BROWN, Case Manager, Director of Consumer Affairs, in her official capacity; CHRISTINE WIETLISBACH, PATRICIA LOCK DAWSON, SAMARA ASHLEY, HARRY DOUGLAS, JULIA JOHNSON, SARITA KOHLI, RENEE LONNER, KAREN PINES, CHRISTINA WONG, in their official capacities as members of the California Board of Behavioral Sciences; SHARON LEVINE, MICHAEL BISHOP, SILVIA DIEGO, DEV GNANADEV, REGINALD LOW, DENISE PINES, JANET SALOMONSON, GERRIE SCHIPSKE, DAVID SERRANO SEWELL, BARBARA YAROSLAVSKY, in their official capacities as members of the Medical Board of California, Defendants-Appellants. Counsel: Mathew D. Staver (argued) and Anita L. Staver, Liberty Counsel, Maitland, Florida; Mary E. McAlister, Stephen M. Crampton, and Daniel J. Schmid, Liberty Counsel, Lynchburg, Virginia, for Plaintiffs-Appellants David H. Pickup et al. Alexandra Robert Gordon (argued), Deputy Attorney General, Kamala D. Harris, Attorney General of California, Douglas J. Woods, Senior Assistant Attorney General, Tamar Pachter, Supervising Deputy Attorney General, and Daniel J. Powell and Rei R. Onishi, Deputy Attorneys General, San Francisco, California, for Defendants-Appellees Edmund G. Brown, Jr., et al.

App. 3 Shannon P. Minter (argued), National Center for Lesbian Rights, San Francisco, California; David C. Dinielli, Munger, Tolles & Olson LLP, Los Angeles, California, for Intervenor/Defendant-Appellee. Robert P. Taylor, Arnold & Porter LLP, San Francisco, California, for Amici Curiae American Association for Marriage and Family Therapy-California Division, et al.; Elizabeth O. Gill, ACLU Foundation of Northern California, Inc., San Francisco, California, for Amicus Curiae American Civil Liberties Union Foundation of Northern California; Eric Alan Isaacson, San Diego, California, and Stacey M. Kaplan, San Francisco, California, for Amici Curiae California Faith for Equality, et al.; Brad W. Seiling, Benjamin G. Shatz, and Justin Jones Rodriquez, Manatt, Phelps & Phillips, LLP, Los Angeles, California, and Hayley Gorenberg, Lambda Legal Defense and Education Fund, Inc., New York, New York, and Shelbi D. Day, Lambda Legal Defense and Education Fund, Inc., Los Angeles, California, for Amici Curiae Children’s Law Center of California, et al.; Jay Rapaport, Covington & Burling LLP, San Francisco, California, for Amicus Curiae Dr. Jack Drescher, M.D.; Jon B. Eisenberg and Barry R. Levy, Encino, California, for Amicus Curiae First Amendment Scholars; Eileen R. Ridley, Thomas F. Carlucci, Patrick T. Wong, and Kristy K. Marino, Foley & Lardner LLP, San Francisco, California, for Amicus Curiae Health Law Scholars; Adam L. Gray and James Maxwell Cooper, Kirkland & Ellis LLP, San Francisco, California, for Amici Curiae Medical Professionals Tonya Chaffee, MD, MPH, et al.; Tara

App. 4 M. Steeley, Deputy City Attorney, and Dennis J. Herrera, City Attorney, and Therese Stewart, Mollie Lee, and Sara Eisenberg, Deputy City Attorneys, San Francisco, California, for Amicus Curiae The City and County of San Francisco; and Sanford Jay Rosen, Rosen Bien Galvan & Grunfeld LLP, San Francisco, California, for Amicus Curiae Survivors of Sexual Orientation Change Efforts. Alexandra Robert Gordon (argued), Deputy Attorney General, Kamala D. Harris, Attorney General of California, Douglas J. Woods, Senior Assistant Attorney General, Tamar Pachter, Supervising Deputy Attorney General, and Daniel J. Powell and Rei R. Onishi, Deputy Attorneys General, and Craig J. Konnoth, Deputy Solicitor General, San Francisco, California, for Defendants-Appellants Edmund G. Brown, Jr., et al. Kevin T. Snider (argued), Matthew B. McReynolds, and Michael J. Peffer, Pacific Justice Institute, Sacramento, California, for Plaintiffs-Appellees Donald Welch et al. Elizabeth O. Gill, ACLU Foundation of Northern California, Inc., San Francisco, California, for Amicus Curiae American Civil Liberties Union Foundation of Northern California; Peter D. Lepiscopo, William P. Morrow, James M. Griffiths, and Michael W. Healy, Lepiscopo & Associates Law Firm, San Diego, California, for Amicus Curiae American College of Pediatricians; Eric Alan Isaacson, San Diego, California, and Stacey M. Kaplan, San Francisco, California, for

App. 5 Amici Curiae California Faith for Equality, et al.; Brad W. Seiling and Benjamin G. Shatz, Manatt, Phelps & Phillips, LLP, Los Angeles, California, and Hayley Gorenberg, Lambda Legal Defense and Education Fund, Inc, New York, New York, and Shelbi D. Day, Lambda Legal Defense and Education Fund, Inc., Los Angeles, California, for Amici Curiae Children’s Law Center of California, et al.; Shannon P. Minter, National Center for Lesbian Rights, San Francisco, California, and David C. Dinielli, Munger, Tolles & Olson LLP, Los Angeles, California, for Amicus Curiae Equality California; Jon B. Eisenberg and Barry R. Levy, Encino, California, for Amicus Curiae First Amendment Scholars; John A. Eidsmoe and Joshua M. Pendergrass, Foundation for Moral Law, Montgomery, Alabama, for Amicus Curiae Foundation for Moral Law; Eileen R. Ridley, Thomas F. Carlucci, Patrick T. Wong, and Kristy K. Marino, Foley & Lardner LLP, San Francisco, California, for Amicus Curiae Health Law Scholars; Dean R. Broyles, The National Center for Law & Policy, Escondido, California, for Amicus Curiae Parents and Friends of Ex-Gays & Gays; and Sanford Jay Rosen, Rosen Bien Galvan & Grunfeld LLP, San Francisco, California, for Amicus Curiae Survivors of Sexual Orientation Change Efforts. Judges: Before: Alex Kozinski, Chief Judge, and Susan P. Graber, and Morgan Christen, Circuit Judges. Opinion by Judge Graber. Opinion by: GRABER

App. 6 Opinion AMENDED OPINION GRABER, Circuit Judge: The California legislature enacted Senate Bill 1172 to ban state-licensed mental health providers from engaging in “sexual orientation change efforts” (“SOCE”) with patients under 18 years of age. Two groups of plaintiffs sought to enjoin enforcement of the law, arguing that SB 1172 violates the First Amendment and infringes on several other constitutional rights. In Welch v. Brown, No. 13-15023, the district court ruled that Plaintiffs were likely to succeed on the merits of their First Amendment claim and that the balance of the other preliminary-injunction factors tipped in their favor; thus, the court granted a preliminary injunction. In Pickup v. Brown, No. 1217681, the district court ruled that Plaintiffs were unlikely to succeed on the merits of any of their claims and denied preliminary relief. The losing parties timely appealed. We address both appeals in this opinion. Although we generally review for abuse of discretion a district court’s decision to grant or deny a preliminary injunction, we may undertake plenary review of the issues if a district court’s ruling “ ‘rests solely on a premise as to the applicable rule of law, and the facts are established or of no controlling relevance.’ ” Gorbach v. Reno, 219 F.3d 1087, 1091 (9th Cir. 2000) (en banc) (quoting Thornburgh v. Am.

App. 7 Coll. of Obstetricians & Gynecologists, A1, 476 U.S. 747, 755-57, 106 S. Ct. 2169, 90 L. Ed. 2d 779 (1986)). Because those conditions are met here, we undertake plenary review and hold that SB 1172, as a regulation of professional conduct, does not violate the free speech rights of SOCE practitioners or minor patients, is neither vague nor overbroad, and does not violate parents’ fundamental rights. Accordingly, we reverse the order granting preliminary relief in Welch and affirm the denial of preliminary relief in Pickup. FACTUAL AND PROCEDURAL BACKGROUND A. Sexual Orientation Change Efforts (“SOCE”) SOCE, sometimes called reparative or conversion therapy, began at a time when the medical and psychological community considered homosexuality an illness. SOCE encompasses a variety of methods, including both aversive and non-aversive treatments, that share the goal of changing an individual’s sexual orientation from homosexual to heterosexual. In the past, aversive treatments included inducing nausea, vomiting, or paralysis; providing electric shocks; or having an individual snap an elastic band around the wrist when aroused by same-sex erotic images or thoughts. Even more drastic methods, such as castration, have been used. Today, some non-aversive treatments use assertiveness and affection training with physical and social reinforcement to increase othersex sexual behaviors. Other non-aversive treatments attempt “to change gay men’s and lesbians’ thought patterns by reframing desires, redirecting thoughts,

App. 8 or using hypnosis, with the goal of changing sexual arousal, behavior, and orientation.” American Psychological Association, Appropriate Therapeutic Responses to Sexual Orientation 22 (2009). The plaintiff mental health providers in these cases use only nonaversive treatments. In 1973, homosexuality was removed from the Diagnostic and Statistical Manual of Mental Disorders. Shortly thereafter the American Psychological Association declared that homosexuality is not an illness. Other major mental health associations followed suit. Subsequently, many mental health providers began questioning and rejecting the efficacy and appropriateness of SOCE therapy. Currently, mainstream mental health professional associations support affirmative therapeutic approaches to sexual orientation that focus on coping with the effects of stress and stigma. But a small number of mental health providers continue to practice, and advocate for, SOCE therapy. B. Senate Bill 1172 Senate Bill 1172 defines SOCE as “any practices by mental health providers1 that seek to change an
California Business and Professions Code section 865(a) defines “mental health provider” as a physician and surgeon specializing in the practice of psychiatry, a psychologist, a psychological assistant, intern, or trainee, a licensed marriage and family therapist, a registered marriage and family therapist, (Continued on following page)
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App. 9 individual’s sexual orientation[,] . . . includ[ing] efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.” Cal. Bus. & Prof. Code § 865(b)(1). SOCE, however, does not include psychotherapies that: (A) provide acceptance, support, and understanding of clients or the facilitation of clients’ coping, social support, and identity exploration and development, including sexual orientationneutral interventions to prevent or address unlawful conduct or unsafe sexual practices; and (B) do not seek to change sexual orientation. Id. § 865(b)(2). A licensed mental health provider’s use of SOCE on a patient under 18 years of age is “considered unprofessional conduct,” which will subject that provider to “discipline by the licensing entity for that mental health provider.” Id. § 865.2. Importantly, SB 1172 does not do any of the following: • Prevent mental health providers from communicating with the public about SOCE
intern, or trainee, a licensed educational psychologist, a credentialed school psychologist, a licensed clinical social worker, an associate clinical social worker, a licensed professional clinical counselor, a registered clinical counselor, intern, or trainee, or any other person designated as a mental health professional under California law or regulation.

App. 10 • Prevent mental health providers from expressing their views to patients, whether children or adults, about SOCE, homosexuality, or any other topic • Prevent mental health providers from recommending SOCE to patients, whether children or adults • Prevent mental health providers from administering SOCE to any person who is 18 years of age or older • Prevent mental health providers from referring minors to unlicensed counselors, such as religious leaders • Prevent unlicensed providers, such as religious leaders, from administering SOCE to children or adults • Prevent minors from seeking SOCE from mental health providers in other states Instead, SB 1172 does just one thing: it requires licensed mental health providers in California who wish to engage in “practices . . . that seek to change a [minor’s] sexual orientation” either to wait until the minor turns 18 or be subject to professional discipline. Thus, SB 1172 regulates the provision of mental treatment, but leaves mental health providers free to discuss or recommend treatment and to express their views on any topic. The legislature’s stated purpose in enacting SB 1172 was to “protect[ ] the physical and psychological well-being of minors, including lesbian, gay, bisexual,

App. 11 and transgender youth, and [to] protect[ ] its minors against exposure to serious harms caused by sexual orientation change efforts.” 2012 Cal. Legis. Serv. ch. 835, § 1(n). The legislature relied on the welldocumented, prevailing opinion of the medical and psychological community that SOCE has not been shown to be effective and that it creates a potential risk of serious harm to those who experience it. Specifically, the legislature relied on position statements, articles, and reports published by the following organizations: the American Psychological Association, the American Psychiatric Association, the American School Counselor Association, the American Academy of Pediatrics, the American Medical Association, the National Association of Social Workers, the American Counseling Association, the American Psychoanalytic Association, the American Academy of Child and Adolescent Psychiatry, and the Pan American Health Organization. In particular, the legislature relied on a report created by a Task Force of the American Psychological Association. That report resulted from a systematic review of the scientific literature on SOCE. Methodological problems with some of the reviewed studies limited the conclusions that the Task Force could draw. Nevertheless, the report concluded that SOCE practitioners have not demonstrated the efficacy of SOCE and that anecdotal reports of harm raise serious concerns about the safety of SOCE.

App. 12 C. Procedural History Plaintiffs in Welch include two SOCE practitioners and an aspiring SOCE practitioner. Plaintiffs in Pickup include SOCE practitioners, organizations that advocate SOCE, children undergoing SOCE, and their parents. All sought a declaratory judgment that SB 1172 is unconstitutional and asked for injunctive relief to prohibit enforcement of the law.2 In Welch, Plaintiffs moved for preliminary injunctive relief, arguing that SB 1172 violates their free speech and privacy rights. They also argued that the law violates the religion clauses and is unconstitutionally vague and overbroad under the First Amendment. The Welch court held that SB 1172 is subject to strict scrutiny because it would restrict the content of speech and suppress the expression of particular viewpoints. It reasoned that the fact that the law is a professional regulation does not change the level of scrutiny. The court granted preliminary relief because

In Pickup, Equality California, an advocacy group for gay rights, sought and received intervenor status to defend SB 1172. Pickup Plaintiffs argue that the Supreme Court’s recent decision in Hollingsworth v. Perry, 133 S. Ct. 2652, 186 L. Ed. 2d 768 (2013), means that Equality California does not have standing to defend the statute. We need not resolve that question, however, because the State of California undoubtedly has standing to defend its statute, and “the presence in a suit of even one party with standing suffices to make a claim justiciable.” Brown v. City of Los Angeles, 521 F.3d 1238, 1240 n.1 (9th Cir. 2008) (per curiam).

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App. 13 it determined that the state was unlikely to satisfy strict scrutiny, Plaintiffs would suffer irreparable harm in the absence of an injunction, the balance of the equities tipped in their favor, and the injunction was in the public interest. Because the district court granted relief on their free speech claim, it did not reach Plaintiffs’ other constitutional challenges.3 In Pickup, Plaintiffs moved for preliminary injunctive relief, arguing that SB 1172 violates the First and Fourteenth Amendments by infringing on SOCE practitioners’ right to free speech, minors’ right to receive information, and parents’ right to direct the upbringing of their children. They also argued that SB 1172 is unconstitutionally vague.

The Welch Plaintiffs’ response brief contains a single paragraph asserting that SB 1172 violates the religion clauses of the First Amendment. That paragraph, which cites neither the record nor any case, is part of Plaintiffs’ argument that SB 1172 is not narrowly tailored to achieve a compelling government purpose, as required by the Free Speech Clause, because it contains no clergy exemption. The religion claim, however, is not “specifically and distinctly argued,” as ordinarily required for us to consider an issue on appeal. Thompson v. Runnels, 705 F.3d 1089, 1099-1100 (9th Cir.) (internal quotation marks omitted), cert. denied, 134 S. Ct. 234, 187 L. Ed. 2d 174 (2013); see also Maldonado v. Morales, 556 F.3d 1037, 1048 n.4 (9th Cir. 2009) (“Arguments made in passing and inadequately briefed are waived.”). Moreover, although the Welch Plaintiffs raised the claim in the district court, the court did not rule on it because it granted relief on their free speech claim. In these circumstances, we decline to address the religion claim. The district court may do so in the first instance.

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App. 14 The Pickup court denied Plaintiffs’ motion because it determined that they were unlikely to prevail on the merits of any of their claims. It reasoned that, because the plain text of SB 1172 bars only treatment, but not discussions about treatment, the law regulates primarily conduct rather than speech. Applying the rational basis test, the court ruled that Plaintiffs were unlikely to show a violation of the SOCE practitioners’ free speech rights or the minors’ right to receive information. As for vagueness, the court ruled that the text of the statute is clear enough to put mental health providers on notice of what is prohibited. Finally, the court ruled that SB 1172 does not implicate parents’ right to control the upbringing of their children because that right does not encompass the right to choose a specific mental health treatment that the state has reasonably deemed harmful to minors. DISCUSSION A. Free Speech Rights At the outset, we must decide whether the First Amendment requires heightened scrutiny of SB 1172. As explained below, we hold that it does not. The first step in our analysis is to determine whether SB 1172 is a regulation of conduct or speech. “[W]ords can in some circumstances violate laws directed not against speech but against conduct. . . .” R.A.V. v. City of St. Paul, 505 U.S. 377, 389, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992). “Congress,

App. 15 for example, can prohibit employers from discriminating in hiring on the basis of race. The fact that this will require an employer to take down a sign reading ‘White Applicants Only’ hardly means that the law should be analyzed as one regulating the employer’s speech rather than conduct.” Rumsfeld v. Forum for Academic & Institutional Rights, Inc. (“FAIR II”), 547 U.S. 47,62, 126 S. Ct. 1297, 164 L. Ed. 2d 156 (2006). The Supreme Court has made clear that First Amendment protection does not apply to conduct that is not “inherently expressive.” Id. at 66. In identifying whether SB 1172 regulates conduct or speech, two of our cases guide our decision: National Association for the Advancement of Psychoanalysis v. California Board of Psychology (“NAAP”), 228 F.3d 1043 (9th Cir. 2000), and Conant v. Walters, 309 F.3d 629 (9th Cir. 2002). In NAAP, 228 F.3d at 1053, psychoanalysts who were not licensed in California brought a First Amendment challenge to California’s licensing scheme for mental health providers. The licensing scheme required that persons who provide psychological services to the public for a fee obtain a license, which in turn required particular educational and experiential credentials. Id. at 1047. The plaintiffs alleged that the licensing scheme violated their First Amendment right to freedom of speech because the license examination tested only certain psychological theories and required certain training; plaintiffs had studied and trained under different psychoanalytic theories. Id. at 1055. We were equivocal about whether, and to what

App. 16 extent, the licensing scheme in NAAP implicated any free speech concerns. Id. at 1053 (“We conclude that, even if a speech interest is implicated, California’s licensing scheme passes First Amendment scrutiny.” (emphasis added)); id. at 1056 (“Although some speech interest may be implicated, California’s contentneutral mental health licensing scheme is a valid exercise of its police power. . . . ” (emphasis added)). We reasoned that prohibitions of conduct have “ ‘never been deemed an abridgement of freedom of speech . . . merely because the conduct was in part initiated, evidenced, or carried out by means of language.’ ” See id. at 1053 (ellipsis in original) (quoting Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502, 69 S. Ct. 684, 93 L. Ed. 834 (1949)). And, importantly, we specifically rejected the argument that “because psychoanalysis is the ‘talking cure,’ it deserves special First Amendment protection because it is ‘pure speech.’ ” Id. at 1054. We reasoned: “[T]he 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.” Id. (internal quotation marks and ellipsis omitted). Nevertheless, we concluded that the “communication that occurs during psychoanalysis is entitled to constitutional protection, but it is not immune from regulation.” Id. But we neither decided how much protection that communication should receive nor considered whether the level of protection might vary

App. 17 depending on the function of the communication. Given California’s strong interest in regulating mental health, we held that the licensing scheme at issue in NAAP was a valid exercise of its police power. Id. at 1054-55. We went on to conclude that, even if the licensing scheme in NAAP regulated speech, it did not trigger strict scrutiny because it was both content neutral and viewpoint neutral. Id. at 1055. We reasoned that the licensing laws did not “dictate what can be said between psychologists and patients during treatment.” Id. Further, we observed that those laws were “not adopted because of any disagreement with psychoanalytical theories” but for “the important purpose of protecting public health, safety, and welfare.” Id. at 1056 (internal quotation marks omitted). We again concluded that the laws were a valid exercise of California’s police power. Id. In Conant, 309 F.3d at 633-34, we affirmed a district court’s order granting a permanent injunction that prevented the federal government from revoking a doctor’s DEA registration or initiating an investigation if he or she recommended medical marijuana. The federal government had adopted a policy that a doctor’s “recommendation” of marijuana would lead to revocation of his or her license. Id. at 632. But the government was “unable to articulate exactly what speech [the policy] proscribed, describing it only in terms of speech the patient believes to be a recommendation of marijuana.” Id. at 639. Nevertheless, the demarcation between conduct and speech in

App. 18 Conant was clear. The policy prohibited doctors from prescribing or distributing marijuana, and neither we nor the parties disputed the government’s authority to prohibit doctors from treating patients with marijuana. Id. at 632, 635-36. Further, the parties agreed that “revocation of a license was not authorized where a doctor merely discussed the pros and cons of marijuana use.” Id. at 634 (emphasis added). We ruled that the policy against merely “recommending” marijuana was both content- and viewpoint-based. Id. at 637. It was content-based because it covered only doctor-patient speech “that include[d] discussions of the medical use of marijuana,” and it was viewpoint-based because it “condemn[ed] expression of a particular viewpoint, i.e., that medical marijuana would likely help a specific patient.” Id. We held that the policy did not withstand heightened First Amendment scrutiny because it lacked “the requisite narrow specificity” and left “doctors and patients no security for free discussion.” Id. at 639 (internal quotation marks omitted). We distill the following relevant principles from NAAP and Conant: (1) doctor-patient communications about medical treatment receive substantial First Amendment protection, but the government has more leeway to regulate the conduct necessary to administering treatment itself; (2) psychotherapists are not entitled to special First Amendment protection merely because the mechanism used to deliver mental health treatment is the spoken word; and (3) nevertheless, communication that occurs during

App. 19 psychotherapy does receive some constitutional protection, but it is not immune from regulation. Because those principles, standing alone, do not tell us whether or how the First Amendment applies to the regulation of specific mental health treatments, we must go on to consider more generally the First Amendment rights of professionals, such as doctors and mental health providers. In determining whether SB 1172 is a regulation of speech or conduct, we find it helpful to view this issue along a continuum. At one end of the continuum, where a professional is engaged in a public dialogue, First Amendment protection is at its greatest. Thus, for example, a doctor who publicly advocates a treatment that the medical establishment considers outside the mainstream, or even dangerous, is entitled to robust protection under the First Amendment – just as any person is – even though the state has the power to regulate medicine. See Lowe v. SEC, 472 U.S. 181, 232, 105 S. Ct. 2557, 86 L. Ed. 2d 130 (1985) (White, J., concurring) (“Where the personal nexus between professional and client does not exist, and a speaker does not purport to be exercising judgment on behalf of any particular individual with whose circumstances he is directly acquainted, government regulation ceases to function as legitimate regulation of professional practice with only incidental impact on speech; it becomes regulation of speaking or publishing as such, subject to the First Amendment’s command that ‘Congress shall make no law . . . abridging the freedom of speech, or of the press.’ ”); Robert Post,

App. 20 Informed Consent to Abortion: A First Amendment Analysis of Compelled Physician Speech, 2007 U. Ill. L. Rev. 939, 949 (2007) (“When a physician speaks to the public, his opinions cannot be censored and suppressed, even if they are at odds with preponderant opinion within the medical establishment.”); cf. Bailey v. Huggins Diagnostic & Rehab. Ctr., Inc., 952 P.2d 768, 773 (Colo. Ct. App. 1997) (holding that the First Amendment does not permit a court to hold a dentist liable for statements published in a book or made during a news program, even when those statements are contrary to the opinion of the medical establishment). That principle makes sense because communicating to the public on matters of public concern lies at the core of First Amendment values. See, e.g., Snyder v. Phelps, 131 S. Ct. 1207, 1215, 179 L. Ed. 2d 172 (2011) (“Speech on matters of public concern is at the heart of the First Amendment’s protection.” (internal quotation markets, brackets, and ellipsis omitted)). Thus, outside the doctor-patient relationship, doctors are constitutionally equivalent to soapbox orators and pamphleteers, and their speech receives robust protection under the First Amendment. At the midpoint of the continuum, within the confines of a professional relationship, First Amendment protection of a professional’s speech is somewhat diminished. For example, in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 884, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992), the plurality upheld a requirement that doctors disclose

App. 21 truthful, nonmisleading information to patients about certain risks of abortion: All that is left of petitioners’ argument is an asserted First Amendment right of a physician not to provide information about the risks of abortion, and childbirth, in a manner mandated by the State. To be sure, the physician’s First Amendment rights not to speak are implicated, but only as part of the practice of medicine, subject to reasonable licensing and regulation by the State. We see no constitutional infirmity in the requirement that the physician provide the information mandated by the State here.4 (Citations omitted; emphasis added.) Outside the professional relationship, such a requirement would almost certainly be considered impermissible compelled speech. Cf. Wooley v. Maynard, 430 U.S. 705, 717, 97 S. Ct. 1428, 51 L. Ed. 2d 752 (1977) (holding that a state could not require a person to display the state motto on his or her license plate). Moreover, doctors are routinely held liable for giving negligent medical advice to their patients, without serious suggestion that the First Amendment protects their right to give advice that is not
Although the plurality opinion garnered only three votes, four additional justices would have upheld the challenged law in its entirety. Casey, 505 U.S. at 944 (Rehnquist, C.J., concurring in the judgment in part and dissenting in part). Thus, there were seven votes to uphold the disclosure requirement.
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App. 22 consistent with the accepted standard of care. A doctor “may not counsel a patient to rely on quack medicine. The First Amendment would not prohibit the doctor’s loss of license for doing so.” Conant v. McCaffrey, No. C 97-00139 WHA, 2000 U.S. Dist. LEXIS 13024, 2000 WL 1281174, at *13 (N.D. Cal. Sept. 7, 2000) (order) (unpublished); see also Shea v. Bd. of Med. Exam’rs, 81 Cal. App. 3d 564, 146 Cal. Rptr. 653, 662 (Ct. App. 1978) (“The state’s obligation and power to protect its citizens by regulation of the professional conduct of its health practitioners is well settled. . . . [T]he First Amendment . . . does not insulate the verbal charlatan from responsibility for his conduct; nor does it impede the State in the proper exercise of its regulatory functions.” (citations omitted)); cf. Post, 2007 U. Ill. L. Rev. at 949 (“[W]hen a physician speaks to a patient in the course of medical treatment, his opinions are normally regulated on the theory that they are inseparable from the practice of medicine.”). And a lawyer may be disciplined for divulging confidences of his client, even though such disclosure is pure speech. See, e.g., In re Isaacson, State Bar Court of California, Case No. 08-O-10684, 2012 Calif. Op. LEXIS 22, 2012 WL 6589666, at *4-5 (Dec. 6, 2012) (unpublished) (noting prior suspension of bar license for failure to preserve client confidences). Thus, the First Amendment tolerates a substantial amount of speech regulation within the professionalclient relationship that it would not tolerate outside of it. And that toleration makes sense: When professionals, by means of their state-issued licenses, form relationships with clients, the purpose of those

App. 23 relationships is to advance the welfare of the clients, rather than to contribute to public debate. Cf. Lowe, 472 U.S. at 232 (White, J., concurring) (“One who takes the affairs of a client personally in hand and purports to exercise judgment on behalf of the client in the light of the client’s individual needs and circumstances is properly viewed as engaging in the practice of a profession.”). At the other end of the continuum, and where we conclude that SB 1172 lands, is the regulation of professional conduct, where the state’s power is great, even though such regulation may have an incidental effect on speech. See id. (“Just as offer and acceptance are communications incidental to the regulable transaction called a contract, the professional’s speech is incidental to the conduct of the profession.”). Most, if not all, medical and mental health treatments require speech, but that fact does not give rise to a First Amendment claim when the state bans a particular treatment. When a drug is banned, for example, a doctor who treats patients with that drug does not have a First Amendment right to speak the words necessary to provide or administer the banned drug. Cf. Conant, 309 F.3d at 634-35 (noting the government’s authority to ban prescription of marijuana). Were it otherwise, then any prohibition of a particular medical treatment would raise First Amendment concerns because of its incidental effect on speech. Such an application of the First Amendment would restrict unduly the states’ power to regulate licensed professions and would be inconsistent with the

App. 24 principle 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, 336 U.S. at 502. Senate Bill 1172 regulates conduct. It bans a form of treatment for minors; it does nothing to prevent licensed therapists from discussing the pros and cons of SOCE with their patients. Senate Bill 1172 merely prohibits licensed mental health providers from engaging in SOCE with minors. It is the limited reach of SB 1172 that distinguishes the present cases from Conant, in which the government’s policy prohibited speech wholly apart from the actual provision of treatment. Pursuant to its police power, California has authority to regulate licensed mental health providers’ administration of therapies that the legislature has deemed harmful. Under Giboney, 336 U.S. at 502, the fact that speech may be used to carry out those therapies does not turn the regulation of conduct into a regulation of speech. In fact, the Welch Plaintiffs concede that the state has the power to ban aversive types of SOCE. And we reject the position of the Pickup Plaintiffs – asserted during oral argument – that even a ban on aversive types of SOCE requires heightened scrutiny because of the incidental effect on speech.5 Here, unlike in Conant, 309 F.3d at 639,
We do not mean to suggest that any Plaintiff here conducts aversive SOCE therapy. The record shows that Plaintiffs (Continued on following page)
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App. 25 the law allows discussions about treatment, recommendations to obtain treatment, and expressions of opinions about SOCE and homosexuality. Plaintiffs contend that Holder v. Humanitarian Law Project, 561 U.S. 1, 130 S. Ct. 2705, 177 L. Ed. 2d 355 (2010), supports their position. It does not. As we have explained, SB 1172 regulates only (1) therapeutic treatment, not expressive speech, by (2) licensed mental health professionals acting within the confines of the counselor-client relationship. The statute does not restrain Plaintiffs from imparting information or disseminating opinions; the regulated activities are therapeutic, not symbolic. And an act that “symbolizes nothing,” even if employing language, is not “an act of communication” that transforms conduct into First Amendment speech. Nev. Comm’n on Ethics v. Carrigan, 131 S. Ct. 2343, 2350, 180 L. Ed. 2d 150 (2011). Indeed, it is well recognized that a state enjoys considerable latitude to regulate the conduct of its licensed health care professionals in administering treatment. See, e.g., Gonzales v. Carhart, 550 U.S. 124, 157, 127 S. Ct. 1610, 167 L. Ed. 2d 480 (2007) (“Under our precedents it is clear the State has a significant role to play in regulating the medical profession.”).

who are licensed mental health providers practice SOCE only through talk therapy. We mention aversive techniques merely to highlight the state’s legitimate power to regulate professional conduct.

App. 26 In sharp contrast, Humanitarian Law Project pertains to a different issue entirely: the regulation of (1) political speech (2) by ordinary citizens. The plaintiffs there sought to communicate information about international law and advocacy to a designated terrorist organization. The federal statute at issue barred them from doing so, because it considered the plaintiffs’ expression to be material support to terrorists. As the Supreme Court held, the material support statute triggered rigorous First Amendment review because, even if that statute “generally functions as a regulation of conduct . . . as applied to plaintiffs the conduct triggering coverage under the statute consists of communicating a message.” Humanitarian Law Project, 130 S. Ct. at 2724 (second emphasis added).6 Again, SB 1172 does not prohibit Plaintiffs from “communicating a message.” Id. It is a state regulation governing the conduct of state-licensed professionals, and it does not pertain to communication in the public sphere. Plaintiffs may express their views to anyone, including minor patients and their parents, about any subject, including SOCE, insofar as SB 1172 is concerned. The only thing that a licensed professional cannot do is avoid professional discipline for practicing SOCE on a minor patient. This case is more akin to FAIR II. There, the Supreme Court emphasized that it “extended First Amendment protection only to conduct that is
We also note that Plaintiffs here bring a facial, not an asapplied, challenge to SB 1172.
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App. 27 inherently expressive.” 547 U.S. at 66 (emphasis added). The Court upheld the Solomon Amendment, which conditioned federal funding for institutions of higher education on their offering military recruiters the same access to campus and students that they provided to nonmilitary recruiters. The Court held that the statute did not implicate First Amendment scrutiny, even as applied to law schools seeking to express disagreement with military policy by limiting military recruiters’ access, reasoning that the law schools’ “actions were expressive only because the law schools accompanied their conduct with speech explaining it.” Id. at 51, 66. Like the conduct at issue in FAIR II, the administration of psychotherapy is not “inherently expressive.” Nor does SB 1172 prohibit any speech, either in favor of or in opposition to SOCE, that might accompany mental health treatment. Because SB 1172 regulates a professional practice that is not inherently expressive, it does not implicate the First Amendment. We further conclude that the First Amendment does not prevent a state from regulating treatment even when that treatment is performed through speech alone. As we have already held in NAAP, talk therapy does not receive special First Amendment protection merely because it is administered through speech. 228 F.3d at 1054. That holding rested on the understanding of talk therapy as “the treatment of emotional suffering and depression, not speech.” Id. (internal quotation marks omitted) (first emphasis added). Thus, under NAAP, to the extent that talk

App. 28 therapy implicates speech, it stands on the same First Amendment footing as other forms of medical or mental health treatment. Senate Bill 1172 is subject to deferential review just as are other regulations of the practice of medicine. Our conclusion is consistent with NAAP’s statement that “communication that occurs during psychoanalysis is entitled to constitutional protection, but it is not immune from regulation.” Id. Certainly, under Conant, content- or viewpoint-based regulation of communication about treatment must be closely scrutinized. But a regulation of only treatment itself – whether physical medicine or mental health treatment – implicates free speech interests only incidentally, if at all. To read NAAP otherwise would contradict its holding that talk therapy is not entitled to “special First Amendment protection,” and it would, in fact, make talk therapy virtually “immune from regulation.” Id. Nor does NAAP’s discussion of content and viewpoint discrimination change our conclusion. There, we used both a belt and suspenders. In addition to holding that the licensing scheme at issue was a permissible regulation of conduct, we reasoned that even if California’s licensing requirements implicated First Amendment interests, the requirements did not discriminate on the basis of content or viewpoint. Id. at 1053, 1055-56. But here, SB 1172 regulates only treatment, and nothing in NAAP requires us to

App. 29 analyze a regulation of treatment in terms of content and viewpoint discrimination.7 Because SB 1172 regulates only treatment, while leaving mental health providers free to discuss and recommend, or recommend against, SOCE, we conclude that any effect it may have on free speech interests is merely incidental. Therefore, we hold that SB 1172 is subject to only rational basis review and must be upheld if it bears a rational relationship to a legitimate state interest. See Casey, 505 U.S. at 884, 967-68 (a plurality of three justices, plus four additional justices concurring in part and dissenting in part, applied a reasonableness standard to the regulation of medicine where speech may be implicated incidentally). According to the statute, SB 1172 advances California’s interest in “protecting the physical and psychological well-being of minors, including lesbian, gay, bisexual and transgender youth, and in protecting its minors against exposure to serious harms caused by sexual orientation change efforts.” 2012 Cal. Legis. Serv. ch. 835, § 1(n). Without a doubt, protecting the well-being of minors is a legitimate state interest. And we need not decide whether SOCE actually causes “serious harms”; it is enough that it

We acknowledge that Plaintiffs ask us to apply strict scrutiny, but they have not cited any case in which a court has applied strict scrutiny to the regulation of a medical or mental health treatment. Nor are we aware of any.

7

App. 30 could “reasonably be conceived to be true by the governmental decisionmaker.” NAAP, 228 F.3d at 1050 (internal quotation marks omitted). The record demonstrates that the legislature acted rationally when it decided to protect the wellbeing of minors by prohibiting mental health providers from using SOCE on persons under 18.8 The legislature relied on the report of the Task Force of the American Psychological Association, which concluded that SOCE has not been demonstrated to be effective and that there have been anecdotal reports of harm, including depression, suicidal thoughts or actions, and substance abuse. The legislature also relied on the opinions of many other professional organizations. Each of those organizations opposed the use of SOCE, concluding, among other things, that homosexuality is not an illness and does not require treatment (American School Counselor Association), SOCE therapy can provoke guilt and anxiety (American Academy of Pediatrics), it may be harmful (National Association of Social Workers), and it may contribute to an enduring sense of stigma and selfcriticism (American Psychoanalytic Association). Although the legislature also had before it some
8

We need not and do not decide whether the legislature would have acted rationally had it banned SOCE for adults. One could argue that children under the age of 18 are especially vulnerable with respect to sexual identity and that their parents’ judgment may be clouded by this emotionally charged issue as well. The considerations with respect to adults may be different.

App. 31 evidence that SOCE is safe and effective, the overwhelming consensus was that SOCE was harmful and ineffective. On this record, we have no trouble concluding that the legislature acted rationally by relying on that consensus. Plaintiffs argue that the legislature acted irrationally when it banned SOCE for minors because there is a lack of scientifically credible proof of harm. But, under rational basis review, “[w]e ask only whether there are plausible reasons for [the legislature’s] action, and if there are, our inquiry is at an end.” Romero-Ochoa v. Holder, 712 F.3d 1328, 1331 (9th Cir. 2013) (internal quotation marks omitted). Therefore, we hold that SB 1172 is rationally related to the legitimate government interest of protecting the well-being of minors.9 B. Expressive Association We also reject the Pickup Plaintiffs’ argument that SB 1172 implicates their right to freedom of association because the First Amendment protects

The foregoing discussion relates as well to the Pickup Plaintiffs’ claim that SB 1172 violates minors’ right to receive information. See Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1027 n.5 (9th Cir. 1998) (recognizing the “wellestablished rule that the right to receive information is an inherent corollary of the rights of free speech and press”).

9

App. 32 their “choices to enter into and maintain the intimate human relationships between counselors and clients.”10 First, SB 1172 does not prevent mental health providers and clients from entering into and maintaining therapeutic relationships. It prohibits only “practices . . . that seek to change [a minor] individual’s sexual orientation.” Cal. Bus. & Prof. Code § 865(b)(1). Therapists are free, but not obligated, to provide therapeutic services, as long as they do not “seek to change [the] sexual orientation” of minor clients. Moreover, the therapist-client relationship is not the type of relationship that the freedom of association has been held to protect. The Supreme Court’s decisions “have referred to constitutionally protected ‘freedom of association’ in two distinct senses.” Roberts v. U.S. Jaycees, 468 U.S. 609, 617, 104 S. Ct. 3244, 82 L. Ed. 2d 462 (1984). The first type of protected association concerns “intimate human relationships,” which are implicated in personal decisions about
The Pickup Plaintiffs arguably waived their expressive association argument by not raising it in the district court. But “the rule of waiver is a discretionary one.” Ruiz v. Affinity Logistics Corp., 667 F.3d 1318, 1322 (9th Cir. 2012) (internal quotation marks omitted). We have discretion to address an argument that otherwise would be waived “when the issue presented is purely one of law and either does not depend on the factual record developed below, or the pertinent record has been fully developed.” Id. (internal quotation marks omitted). Whether SB 1172 violates the right to expressive association is such an issue, and we exercise our discretion to address it.
10

App. 33 marriage, childbirth, raising children, cohabiting with relatives, and the like. Id. at 617-19. That type of freedom of association “receives protection as a fundamental element of personal liberty.” Id. at 618. The second type protects association “for the purpose of engaging in those activities protected by the First Amendment – speech, assembly, petition for the redress of grievances, and the exercise of religion.” Id. at 618. Plaintiffs in Pickup claim an infringement of only the first type of freedom of association. Although we have not specifically addressed the therapist-client relationship in terms of freedom of association, we have explained why the therapistclient relationship is not protected by the Due Process Clause of the Fourteenth Amendment: “The relationship between a client and psychoanalyst lasts only as long as the client is willing to pay the fee. 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.” NAAP, 228 F.3d at 1050 (internal quotation marks and citation omitted). Because the type of associational protection that the Pickup Plaintiffs claim is rooted in “personal liberty,” U.S. Jaycees, 468 U.S. at 618, and because we have already determined that the therapist-client relationship does not “implicate the fundamental rights associated with . . . close-knit relationships,” NAAP, 228 F.3d at 1050, we conclude that the freedom of association also does not encompass the therapist-client relationship.

App. 34 C. Vagueness We next hold that SB 1172 is not void for vagueness. “It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.” Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972). Nevertheless, “perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity.” Ward v. Rock Against Racism, 491 U.S. 781, 794, 109 S. Ct. 2746, 105 L. Ed. 2d 661 (1989). “[U]ncertainty at a statute’s margins will not warrant facial invalidation if it is clear what the statute proscribes ‘in the vast majority of its intended applications.’ ” Cal. Teachers Ass’n v. State Bd. of Educ., 271 F.3d 1141, 1151 (9th Cir. 2001) (quoting Hill v. Colorado, 530 U.S. 703, 733, 120 S. Ct. 2480, 147 L. Ed. 2d 597 (2000)). “A defendant is deemed to have fair notice of an offense if a reasonable person of ordinary intelligence would understand that his or her conduct is prohibited by the law in question.” United States v. Weitzenhoff, 35 F.3d 1275, 1289 (9th Cir. 1994) (internal quotation marks omitted). But, “if the statutory prohibition involves conduct of a select group of persons having specialized knowledge, and the challenged phraseology is indigenous to the idiom of that class, the standard is lowered and a court may uphold a statute which uses words or phrases having a technical or other special meaning, well enough known to enable those within its reach to

App. 35 correctly apply them.” Id. (internal quotation marks omitted). Although the Pickup Plaintiffs argue that they cannot ascertain where the line is between what is prohibited and what is permitted – for example, they wonder whether the mere dissemination of information about SOCE would subject them to discipline – the text of SB 1172 is clear to a reasonable person. Discipline attaches only to “practices” that “seek to change” a minor “patient[’s]” sexual orientation. Cal. Bus. & Prof. Code §§ 865-865.1. A reasonable person would understand the statute to regulate only mental health treatment, including psychotherapy, that aims to alter a minor patient’s sexual orientation. Although Plaintiffs present various hypothetical situations to support their vagueness challenge, the Supreme Court has held that “speculation about possible vagueness in hypothetical situations not before the Court will not support a facial attack on a statute when it is surely valid in the vast majority of its intended applications.” Hill, 530 U.S. at 733 (internal quotation marks omitted). Moreover, considering that SB 1172 regulates licensed mental health providers, who constitute “a select group of persons having specialized knowledge,” the standard for clarity is lower. Weitzenhoff, 35 F.3d at 1289. Indeed, it is hard to understand how therapists who identify themselves as SOCE practitioners can credibly argue that they do not understand what practices qualify as SOCE.

App. 36 Neither is the term “sexual orientation” vague. Its meaning is clear enough to a reasonable person and should be even more apparent to mental health providers. In fact, several provisions in the California Code – though not SB 1172 itself – provide a simple definition: “heterosexuality, homosexuality, or bisexuality.” Cal. Educ. Code §§ 212.6, 66262.7; Cal. Gov’t Code § 12926(s); Cal. Penal Code §§ 422.56(h), 11410(b)(7). Moreover, courts have repeatedly rejected vagueness challenges that rest on the term “sexual orientation.” E.g., United States v. Jenkins, 909 F. Supp. 2d 758, 778-79 (E.D. Ky. 2012); Hyman v. City of Louisville, 132 F. Supp. 2d 528, 546 (W.D. Ky. 2001), vacated on other grounds, 53 F. App’x 740 (6th Cir. 2002) (unpublished). D. Overbreadth We further hold that SB 1172 is not overbroad.11 Overbreadth doctrine permits the facial invalidation of laws that prohibit “a substantial amount of constitutionally protected speech.” City of Houston v.
Intervenor Equality California argues that the Pickup Plaintiffs waived their overbreadth challenge by failing to raise it adequately in the district court. Although they did not argue overbreadth with specificity, they did allege it in their complaint and in their memorandum in support of preliminary injunctive relief. Moreover, whether the statute is overbroad is a question of law that “does not depend on the factual record developed below.” Ruiz, 667 F.3d at 1322. Therefore, we exercise our discretion to address Plaintiffs’ overbreadth challenge.
11

App. 37 Hill, 482 U.S. 451, 466, 107 S. Ct. 2502, 96 L. Ed. 2d 398 (1987). “[T]he mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge.” Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 800, 104 S. Ct. 2118, 80 L. Ed. 2d 772 (1984). Rather, “particularly where conduct and not merely speech is involved, . . . the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973). Senate Bill 1172’s plainly legitimate sweep includes SOCE techniques such as inducing vomiting or paralysis, administering electric shocks, and performing castrations. And, as explained above, it also includes SOCE techniques carried out solely through words. As with any regulation of a particular medical or mental health treatment, there may be an incidental effect on speech. Any incidental effect, however, is small in comparison with the “plainly legitimate sweep” of the law. Broadrick, 413 U.S. at 615. Thus, SB 1172 is not overbroad. E. Parents’ Fundamental Rights The Pickup Plaintiffs also argue that SB 1172 infringes on their fundamental parental right to make important medical decisions for their children. The state does not dispute that parents have a fundamental right to raise their children as they see fit,

App. 38 but argues that Plaintiffs “cannot compel the State to permit licensed mental health [professionals] to engage in unsafe practices, and cannot dictate the prevailing standard of care in California based on their own views.” Because Plaintiffs argue for an affirmative right to access SOCE therapy from licensed mental health providers, the precise question at issue is whether parents’ fundamental rights include the right to choose for their children a particular type of provider for a particular medical or mental health treatment that the state has deemed harmful. See Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S. Ct. 2258, 117 S. Ct. 2302, 138 L. Ed. 2d 772 (1997) (holding that courts should precisely define purported substantive due process rights to direct and restrain exposition of the Due Process Clause). Parents have a constitutionally protected right to make decisions regarding the care, custody, and control of their children, but that right is “not without limitations.” Fields v. Palmdale Sch. Dist., 427 F.3d 1197, 1204 (9th Cir. 2005). States may require school attendance and mandatory school uniforms, and they may impose curfew laws applicable only to minors. See id. at 1204-05 (collecting cases demonstrating the “wide variety of state actions that intrude upon the liberty interest of parents in controlling the upbringing and education of their children”). In the health arena, states may require the compulsory vaccination of children (subject to some exceptions), see Prince v. Massachusetts, 321 U.S. 158, 166, 64 S. Ct. 438, 88 L. Ed. 645 (1944), and states may intervene when a

App. 39 parent refuses necessary medical care for a child, see Jehovah’s Witnesses v. King Cnty. Hosp., 278 F. Supp. 488, 504 (W.D. Wash. 1967) (three judge panel) (per curiam), aff ’d, 390 U.S. 598, 88 S. Ct. 1260, 20 L. Ed. 2d 158 (1968) (per curiam). “[A] state is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized.” Parham v. J.R., 442 U.S. 584, 603, 99 S. Ct. 2493, 61 L. Ed. 2d 101 (1979). We are unaware of any case that specifically addresses whether a parent’s fundamental rights encompass the right to choose for a child a particular type of provider for a particular treatment that the state has deemed harmful, but courts that have considered whether patients have the right to choose specific treatments for themselves have concluded that they do not. For example, we have held that “substantive due process rights do not extend to the choice of type of treatment or of a particular health care provider.” NAAP, 228 F.3d at 1050. Thus, we concluded that “there is no fundamental right to choose a mental health professional with specific training.” Id. The Seventh Circuit has also 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). Moreover, courts have held that there is no substantive due process right to obtain drugs that the FDA has not approved, Carnohan v.

App. 40 United States, 616 F.2d 1120, 1122 (9th Cir. 1980) (per curiam), even when those drugs are sought by terminally ill cancer patients, see Rutherford v. United States, 616 F.2d 455, 457 (10th Cir. 1980) (“It is apparent in the context with which we are here concerned that the decision by the patient whether to have a treatment or not is a protected right, but his selection of a particular treatment, or at least a medication, is within the area of governmental interest in protecting public health.”). Those cases cut against recognizing the right that Plaintiffs assert; it would be odd if parents had a substantive due process right to choose specific treatments for their children – treatments that reasonably have been deemed harmful by the state – but not for themselves. It would be all the more anomalous because the Supreme Court has recognized that the state has greater power over children than over adults. Prince, 321 U.S. at 170 (stating that “the power of the state to control the conduct of children reaches beyond the scope of its authority over adults”). Further, our decision in Fields counsels against recognizing the right that Plaintiffs assert. In that case, parents of school children argued that a school violated their parental rights when it administered to students a survey that contained several questions about sex. Fields, 427 F.3d at 1203. We rejected that argument, holding that, although parents have the right to inform their children about sex when and as they choose, they do not have the right to “compel public schools to follow their own idiosyncratic views

App. 41 as to what information the schools may dispense.” Id. at 1206. Similarly, here, to recognize the right Plaintiffs assert would be to compel the California legislature, in shaping its regulation of mental health providers, to accept Plaintiffs’ personal views of what therapy is safe and effective for minors. The aforementioned cases lead us to conclude that the fundamental rights of parents do not include the right to choose a specific type of provider for a specific medical or mental health treatment that the state has reasonably deemed harmful. Therefore, SB 1172 does not infringe on the fundamental rights of parents. CONCLUSION Senate Bill 1172 survives the constitutional challenges presented here. Accordingly, the order granting preliminary relief in Welch, No. 13-15023, is REVERSED, and the order denying preliminary relief in Pickup, No. 12-17681, is AFFIRMED. We remand both cases for further proceedings consistent with this opinion.

App. 42 Welch v. Brown United States District Court for the Eastern District of California December 3, 2012, Decided; December 3, 2012, Filed NO. CIV. 2:12-2484 WBS KJN Reporter: 907 F. Supp. 2d 1102; 2012 U.S. Dist. LEXIS 172029; 2012 WL 6020122 DONALD WELCH, ANTHONY DUK, AARON BITZER, Plaintiffs, v. EDMUND G. BROWN, JR., Governor of the State of California, In His Official Capacity, ANNA M. CABALLERO, Secretary of California State and Consumer Services Agency, In Her Official Capacity, DENISE BROWN, Director of Consumer Affairs, In Her Official Capacity, CHRISTINE WIETLISBACH, PATRICIA LOCKDAWSON, SAMARA ASHLEY, HARRY DOUGLAS, JULIA JOHNSON, SARITA KOHLI, RENEE LONNER, KAREN PINES, CHRISTINA WONG, In Their Official Capacities as Members of the California Board of Behavioral Sciences, SHARON LEVINE, MICHAEL BISHOP, SILVIA DIEGO, DEV GNANADEV, REGINALD LOW, DENISE PINES, JANET SALOMONSON, GERRIE SCHIPSKE, DAVID SERRANO SEWELL, BARBARA YAROSLAYSKY, In Their Official Capacities as Members of the Medical Board of California, Defendants. Counsel: For Donald Welch, Anthony Duk, Aaron Bitzer, Plaintiffs: Kevin Trent Snider, Matthew Brown McReynolds, LEAD ATTORNEYS, Pacific Justice Institute, Sacramento, CA; Michael John Peffer, LEAD ATTORNEY, Pacific Justice Institute, Santa Ana, CA.

App. 43 For Edmund G. Brown, Jr., Governor, State of California, Defendant: Alexandra Robert Gordon, LEAD ATTORNEY, CA. Dept. of Justice, Office of the Attorney General, San Francisco, CA; Paul Evan Stein, LEAD ATTORNEY, California Office of the Attorney General San Francisco, Department of Justice, San Francisco, CA. For Denise Brown, Director, Consumer Affairs, Harry Douglas, Member of the Board, California Board of Behavioral Sciences, Julia Johnson, Member of the Board, California Board of Behavioral Sciences, Sarita Kohli, Member of the Board, California Board of Behavioral Sciences, Renee Lonner, Member of the Board, California Board of Behavioral Sciences, Karen Pines, Member of the Board, California Board of Behavioral Sciences, Christina Wong, Member of the Board, California Board of Behavioral Sciences, Sharon Levine, President of the California Medical Board, Michael Bishop, Member of the California Medical Board, Reginald Low, Member of the California Medical Board, Denise Pines, Member of the California Medical Board, Anna M. Caballero, Secretary, California State and Consumer Services Agency, Christine Wietlisbach, Chair of the Board, California Board of Behavioral Sciences, Patricia Lock-Dawson, Vice Chair of the Board, California Board of Behavioral Sciences, Samara Ashley, Member of the Board, California Board of Behavioral Sciences, Silvia Diego, Member of the California Medical Board, Dev Gnana, Member of the California Medical Board, Janet Salomonson, Member of the California Medical

App. 44 Board, Gerrie Schipske, Member of the California Medical Board, David Serrano Sewell, Member of the California Medical Board, Barbara Yaroslaysky, Member of the California Medical Board, Defendants: Alexandra Robert Gordon, LEAD ATTORNEY, CA. Dept. of Justice, Office of the Attorney General, San Francisco, CA. For Equality California, Amicus: David C Dinielli, LEAD ATTORNEY, Bram Marshall Alden, Lika Cynthia Miyake, Munger Tolles and Olson LLP, Los Angeles, CA; Michelle Friedland, Munger Tolles and Olson LLP, San Francisco, CA; Christopher Francis Stoll, National Center for Lesbian Rights, San Francisco, CA; Shannon Price Minter, National Center for Lesbian Rights, San Francisco, CA. Judges: WILLIAM B. SHUBB, UNITED STATES DISTRICT JUDGE. Opinion by: WILLIAM B. SHUBB Opinion MEMORANDUM AND ORDER RE: MOTION FOR PRELIMINARY INJUNCTION Plaintiffs Donald Welch, Anthony Duk, and Aaron Bitzer seek to enjoin enforcement of Senate Bill 1172 (“SB 1172”), which if it goes into effect on January 1, 2013, will prohibit mental health providers from engaging in sexual orientation change efforts (“SOCE”) with minors.

App. 45 Because the court finds that SB 1172 is subject to strict scrutiny and is unlikely to satisfy this standard, the court finds that plaintiffs are likely to succeed on the merits of their 42 U.S.C. § 1983 claims based on violations of their rights to freedom of speech under the First Amendment. Because plaintiffs have also shown that they are likely to suffer irreparable harm in the absence of an injunction, that the balance of equities tips in their favor, and that an injunction is in the public interest, the court grants plaintiffs’ motion for a preliminary injunction.1 I. Factual and Procedural Background

On September 29, 2013, defendant Governor Edmund G. Brown, Jr., signed SB 1172. SB 1172 prohibits a “mental health provider” from engaging in “sexual orientation change efforts with a patient under 18 years of age” under all circumstances. Cal. Stats. 2012, ch. 835, at 91 (“SB 1172”) (to be codified at Cal. Bus. & Prof. Code §§ 865(a), 865.1). It further provides that “[a]ny sexual orientation change efforts attempted on a patient under 18 years of age by a mental health provider shall be considered unprofessional conduct and shall subject a mental health provider to discipline by the licensing entity for that
The court accordingly does not reach plaintiffs’ remaining constitutional challenges, namely, that SB 1172 violates any rights to privacy, violates the First Amendment Free Exercise and Establishment Clauses, or is unconstitutionally vague and overbroad under the First Amendment.
1

App. 46 mental health provider.” Id. (to be codified at Cal. Bus. & Prof. Code § 865.2). SB 1172 defines “sexual orientation change efforts” as “any practices by mental health providers that seek to change an individual’s sexual orientation. This includes efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.” Id. (to be codified at Cal. Bus. & Prof. Code § 865(b)(1)). From this definition, SB 1172 excludes “psychotherapies that: (A) provide acceptance, support, and understanding of clients or the facilitation of clients’ coping, social support, and identity exploration and development, including sexual orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices; and (B) do not seek to change sexual orientation.” Id. (to be codified at Cal. Bus. & Prof. Code § 865(b)(2)). The bill defines “mental health provider” as: a physician and surgeon specializing in the practice of psychiatry, a psychologist, a psychological assistant, intern, or trainee, a licensed marriage and family therapist, a registered marriage and family therapist, intern, or trainee, a licensed educational psychologist, a credentialed school psychologist, a licensed clinical social worker, an associate clinical social worker, a licensed professional clinical counselor, a registered clinical counselor, intern, or trainee, or any other person

App. 47 designated as a mental health professional under California law or regulation. Id. (to be codified at Cal. Bus. & Prof. Code § 865(a)). Plaintiff Donald Welch is a licensed marriage and family therapist in California and an ordained minister. (Welch Decl. ¶ 1 (Docket No. 11).) He is currently the president of a non-profit professional counseling center, the owner and director of a for-profit counseling center, and an adjunct professor at two universities. (Id. ¶ 4.) Welch is also employed part-time as a Counseling Pastor for Skyline Wesleyan Church, which teaches that “human sexuality . . . is to be expressed only in a monogamous lifelong relationship between one man and one woman within the framework of marriage.” (Id. ¶ 5, Ex. A at 3.) Welch provides treatment that qualifies as SOCE under SB 1172 and his “compliance with SB 1172 will jeopardize [his] employment” at Skyline Wesleyan Church. (Id. ¶¶ 5, 8-9, 11, 17.) Plaintiff Anthony Duk is a medical doctor and board certified psychiatrist in full-time private practice who works with adults and children over the age of sixteen. (Duk Decl. ¶ 1 (Docket No. 13).) His current patients include minors “struggling with” homosexuality and bisexuality. (Id. ¶ 6.) In his practice, Duk utilizes treatment that qualifies as SOCE under SB 1172. (Id.) Plaintiff Aaron Bitzer is an adult who has had same-sex attractions beginning in his childhood and was “involved in sexual orientation efforts commonly

App. 48 called ‘SOCE’ ” as an adult in 2011 and 2012. (Bitzer Decl. ¶¶ 1-11, 15 (Docket No. 12).) Bitzer “had been planning on becoming a therapist specifically to work” with individuals having same-sex attractions and to help men like himself. (Id. ¶ 26.) He explains that, “[b]ecause of SB 1172, [he has] had to reorder all of [his] career plans and [is] trying to pursue a doctorate so as to also contribute research to this field.”2 (Id.) On October 1, 2012, plaintiffs initiated this action under 42 U.S.C. § 1983 against various state defendants to challenge the constitutionality of SB 1172. (See Docket No. 1.) In their Complaint, plaintiffs seek declaratory relief and preliminary and permanent injunctions. Presently before the court is plaintiffs’ motion for a preliminary injunction in which they seek to enjoin enforcement of SB 1172 before the new law goes into effect on January 1, 2013.3 The court granted Equality Justice permission
Neither defendants nor amicus challenged whether Bitzer has Article III standing. 3 Defendants submitted numerous evidentiary objections to the declarations of Duk, Welch, and Bitzer “to the extent that they are offered as scientific opinion evidence on the efficacy or safety of [SOCE] generally, or on minors in particular, or on the nature and/or causes of homosexuality, bisexuality, or heterosexuality.” (See Docket No. 37.) The court neither considers nor relies on these declarations for such purposes and discusses plaintiffs’ statements in the declarations only to provide background information and to identify how Duk and Welch perform SOCE. The court therefore need not resolve defendants’ evidentiary objections.
2

App. 49 to submit briefs and present oral argument as an amicus curiae in this case. (See Docket No. 30.) II. Analysis

To succeed on a motion for a preliminary injunction, plaintiffs must establish that (1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) an injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); Perfect 10, Inc. v. Google, Inc., 653 F.3d 976, 979 (9th Cir. 2011). The Supreme Court has repeatedly emphasized that “injunctive relief [i]s an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter, 555 U.S. at 22. “The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395, 101 S. Ct. 1830, 68 L. Ed. 2d 175 (1981). “ ‘A preliminary injunction . . . is not a preliminary adjudication on the merits but rather a device for preserving the status quo and preventing the irreparable loss of rights before judgment.’ ” U.S. Philips Corp. v. KBC Bank N.V., 590 F.3d 1091, 1094 (9th Cir. 2010) (quoting Sierra OnLine, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984)) (omission in original).

App. 50 A. Plaintiffs May Not Assert the Rights of Parents and Minors “As a prudential matter, even when a plaintiff has Article III standing, [federal courts] do not allow third parties to litigate on the basis of the rights of others.” Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 917 (9th Cir. 2004). The Supreme Court has “adhered to the rule that a party ‘generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.’ ” Kowalski v. Tesmer, 543 U.S. 125, 129, 125 S. Ct. 564, 160 L. Ed. 2d 519 (2004) (quoting Warth v. Seldin, 422 U.S. 490, 499, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975)). This limitation on prudential standing is not “absolute,” and the Court has recognized “that there may be circumstances where it is necessary to grant a third party standing to assert the rights of another.” Id. at 129-30. Specifically, a litigant may bring an action on behalf of a third party if “three important criteria are satisfied”: “The litigant must have suffered an ‘injury in fact,’ thus giving him or her a ‘sufficiently concrete interest’ in the outcome of the issue in dispute; the litigant must have a close relation to the third party; and there must exist some hindrance to the third party’s ability to protect his or her own interests.” Powers v. Ohio, 499 U.S. 400, 41011, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991); accord Coalition of Clergy, Lawyers, & Professors v. Bush, 310 F.3d 1153, 1163 (9th Cir. 2002).

App. 51 Third-party standing for physicians asserting the rights of their patients first developed in the abortion context. For example, in Singleton v. Wulff, 428 U.S. 106, 96 S. Ct. 2868, 49 L. Ed. 2d 826 (1976), the Supreme Court concluded that “it generally is appropriate to allow a physician to assert the rights of women patients as against governmental interference with the abortion decision.”4 Singleton, 428 U.S. at 118 (plurality opinion); see also Planned Parenthood of Idaho, Inc., 376 F.3d at 917 (“Since at least Singleton v. Wulff, [ ] it has been held repeatedly that physicians may acquire jus tertii standing to assert their

Only three justices joined in Justice Blackmun’s rationale as to why the physicians could assert the rights of their patients. Singleton, 428 U.S. at 108 (plurality opinion). Justice Stevens, the fifth vote in the outcome, concluded that the doctors had standing because they “have a financial stake in the outcome of the litigation” and “claim that the statute impairs their own constitutional rights.” Singleton, 428 U.S. at 121 (Stevens, J., concurring in part). Despite only three justices having joined Justice Blackmun’s analysis, “[m]any cases nonetheless speak of the court in Singleton as having ‘held’ that the physician had third-party standing.” Aid for Women v. Foulston, 441 F.3d 1101, 1113 n.13 (10th Cir. 2006); see also Singleton, 428 U.S. at 122 (Powell, J., dissenting) (“The Court further holds that . . . respondents may assert, in addition to their own rights, the constitutional rights of their patients. . . . I dissent from this holding.”). In Singleton, the physicians had alleged that the statute at issue violated their “constitutional rights to practice medicine.” Singleton, 428 U.S. at 113 (internal quotation marks and citation omitted). Justice Brennan stated that the Court had “no occasion to decide whether such a right exists.” Id.

4

App. 52 patients’ due process rights in facial challenges to abortion laws.”). Even assuming plaintiffs can satisfy the first two criteria, plaintiffs cannot credibly suggest that parents of minor children who seek SOCE and minors who desire SOCE face a hindrance in asserting their own rights. Three days after plaintiffs initiated this action, a second case challenging SB 1172 was filed in this court. The plaintiffs in that case include parents of minor children seeking SOCE for their minor children and minor children seeking SOCE, and the plaintiffs in that case have similarly sought a preliminary injunction. (See Pickup v. Brown, Civ. No. 2:122497 KJM EFB (E.D. Cal.) Compl. ¶¶ 2-6 (Docket No. 1).) Not only is it clear that parents and minors do not face a hindrance in challenging SB 1172 as it relates to their rights, determining whether the statute will violate their rights is more appropriately addressed in the case in which they are plaintiffs. Accordingly, plaintiffs in this case may not assert the third-party rights of parents of minor children or minors and the court’s analysis of SB 1172 will be limited to challenges based on plaintiffs’ own rights. Cf. Smith v. Jefferson Cnty. Bd. of Sch. Comm’rs, 641 F.3d 197, 208-09 (6th Cir. 2011) (finding that teachers lacked prudential standing to assert the rights of their students when, even though the teachers had a sufficiently close relationship to their students, “[t]here is no evidence that the students or their parents might be deterred from suing,” “that the

App. 53 claims of the students would be imminently moot,” or “that the students face systemic practical challenges to filing suit”). B. Plaintiffs’ Right of Free Speech under the First Amendment “The First Amendment applies to state laws and regulations through the Due Process Clause of the Fourteenth Amendment.” Nat’l Ass’n for the Advancement of Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043, 1053 (9th Cir. 2000) (hereinafter “NAAP”). “The Supreme Court has recognized that physician speech is entitled to First Amendment protection because of the significance of the doctorpatient relationship.” Conant v. Walters, 309 F.3d 629, 636 (9th Cir. 2002) (citing Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 884, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992) (plurality opinion); Rust v. Sullivan, 500 U.S. 173, 200, 111 S. Ct. 1759, 114 L. Ed. 2d 233 (1991)). The Ninth Circuit has also “recognized that communication that occurs during psychoanalysis is entitled to First Amendment protection.” Conant, 309 F.3d at 637.

App. 54 1. Because SB 1172 Would Restrict the Content of Speech and Prohibit the Expression of Particular Viewpoints It Is Subject to Strict Scrutiny Review a. The Fact that SB 1172 Is a Professional Regulation Does Not Exempt It from Strict Scrutiny Defendants and amicus first argue that, even though physician speech receives First Amendment protection, SB 1172 is subject only to rational basis or a reasonableness level of review because it is a regulation of professional conduct. In a concurring opinion in Lowe v. SEC, 472 U.S. 181, 105 S. Ct. 2557, 86 L. Ed. 2d 130 (1985), Justice White, joined by two other justices, stated that “[r]egulations on entry into a profession, as a general matter, are constitutional if they ‘have a rational connection with the applicant’s fitness or capacity to practice’ the profession.” Lowe, 472 U.S. at 228 (White, J., concurring) (quoting Schware v. Bd. of Bar Examiners, 353 U.S. 232, 239, 77 S. Ct. 752, 1 L. Ed. 2d 796 (1957)). Relying on Lowe, the Fourth Circuit held that “[a] statute that governs the practice of an occupation is not unconstitutional as an abridgment of the right to free speech, so long as any inhibition of that right is merely the incidental effect of observing an otherwise legitimate regulation.” Accountant’s Soc. of Va. v.

App. 55 Bowman, 860 F.2d 602, 604 (4th Cir. 1988) (internal quotation marks and citation omitted).5 In a brief paragraph of the plurality decision in Casey, Justice O’Connor, with little analysis and joined by only two justices, addressed plaintiffs’ “asserted First Amendment right of a physician not to provide information about the risks of abortion, and childbirth, in a manner mandated by the State.” Casey, 505 U.S. at 884 (plurality opinion). Justice O’Connor rejected this claim, stating, “To be sure, the physician’s First Amendment rights not to speak are implicated, but only as part of the practice of medicine, subject to reasonable licensing and regulation by the State.” Id. (internal citation omitted). In Lowe, Justice White recognized that, “[a]t some point, a measure is no longer a regulation of a profession but a regulation of speech or of the press; beyond that point, the statute must survive the level of scrutiny demanded by the First Amendment.” Lowe, 472 U.S. at 230 (White, J., concurring). The
In Dittman v. California, 191 F.3d 1020 (9th Cir. 1999), the Ninth Circuit rejected the plaintiff ’s substantive due process challenge to a regulation requiring disclosure of his social security number to renew his acupuncturist license. In doing so, the court quoted Lowe for “the fundamental principle that ‘[r]egulations on entry into a profession, as a general matter, are constitutional if they “have a rational connection with the applicant’s fitness or capacity to practice” the profession.’ ” Dittman, 191 F.3d at 1030 (quoting Lowe, 472 U.S. at 228). Unlike Lowe and Dittman, SB 1172 is not a regulation “on entry into a profession,” Lowe, 472 U.S. at 228.
5

App. 56 Ninth Circuit has also stated that the plurality opinion in Casey “did not uphold restrictions on speech itself.” Conant, 309 F.3d at 638. The lower levels of review contemplated in Lowe and Casey thus do not appear to apply if a law imposes restrictions on a professional’s speech. Some courts have nonetheless applied a lower level of review to professional regulations addressing the speech of a professional. See, e.g., Shultz v. Wells, Civ. No. 2:09-646, 2010 U.S. Dist. LEXIS 26984, 2010 WL 1141452, at *9-10 (M.D. Ala. Mar. 3, 2010) (upholding discipline of licensed chiropractor who advised patient to stop taking prescriptions as a reasonable regulation of speech in the doctor-patient relationship); see generally Wollschlaeger v. Farmer, 880 F. Supp. 2d 1251, 2012 U.S. Dist. LEXIS 107731, 2012 WL 3064336, at *9 (S.D. Fla. June 29, 2012).6
In Wollschlaeger, the Southern District of Florida cites Conant as requiring that professional regulations “must have the requisite ‘narrow specificity.’ ” Wollschlaeger, 2012 U.S. Dist. LEXIS 107731, WL at *9 (quoting Conant, 309 F.3d at 639). The Ninth Circuit’s reference to “narrow specificity” derives from Supreme Court jurisprudence addressing vagueness, and the court ultimately upheld the injunction against the federal policy because “the government has been unable to articulate exactly what speech is proscribed, describing it only in terms of speech the patient believes to be a recommendation of marijuana.” Conant, 309 F.3d at 639. In NAACP v. Button, 371 U.S. 415, 433, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963), which the Ninth Circuit cited as authority for the “narrow specificity” standard, the Supreme Court addressed an allegedly vague statute and concluded, “Because First Amendment freedoms need breathing space to survive, (Continued on following page)
6

App. 57 The Ninth Circuit, however, has explained that a content- or viewpoint-based professional regulation is subject to strict scrutiny. In NAAP, the Ninth Circuit held that California’s mental health licensing laws, which prohibited the plaintiffs from practicing psychoanalysis in California, did not violate the First Amendment. NAAP, 228 F.3d at 1056. Assuming that the licensing scheme implicated speech,7 the Ninth Circuit rejected the plaintiffs’ argument that psychoanalysis deserved unique First Amendment protection because it is the “talking cure.” Id. at 1054. The
government may regulate in the area only with narrow specificity.” Button, 371 U.S. at 433 (citing Cantwell v. Connecticut, 310 U.S. 296, 311, 60 S. Ct. 900, 84 L. Ed. 1213 (1940)); see also Cantwell, 310 U.S. at 311 (“[I]n the absence of a statute narrowly drawn to define and punish specific conduct as constituting a clear and present danger to a substantial interest of the State, the petitioner’s communication, considered in the light of the constitutional guarantees, raised no such clear and present menace to public peace and order as to render him liable to conviction of the common law offense in question.”). 7 The Ninth Circuit did not determine whether First Amendment rights to speech were in fact implicated by the challenged licensing scheme. See NAAP, 228 F.3d at 1053 (“We conclude that, even if a speech interest is implicated, California’s licensing scheme passes First Amendment scrutiny.”) (emphasis added); id. at 1056 (“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.”) (emphasis added). Two years later in Conant, however, the Ninth Circuit stated that, in NAAP, “we recognized that communication that occurs during psychoanalysis is entitled to First Amendment protection.” Conant, 309 F.3d at 637.

App. 58 court agreed with the district court’s conclusion that “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.” Id. (internal quotation marks omitted). The Ninth Circuit then explained that “[t]he communication that occurs during psychoanalysis is entitled to constitutional protection, but it is not immune from regulation.” Id. at 1054-55. After concluding that “the licensing scheme is a valid exercise of California’s police power,” the Ninth Circuit held that it was not subject to strict scrutiny because it was content- and viewpoint-neutral. Id. at 1055. The court specifically stated, “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.” ’ ” Id. (quoting Black v. Arthur, 201 F.3d 1120, 1123 (9th Cir. 2000)) (alteration in original). The court neither suggested nor held that a lower standard governed California’s mental health licensing laws regardless of content simply because they were professional regulations. See id. at 1055 (emphasizing that, “[a]lthough the California laws and regulations may require certain training, speech is not being suppressed based on its message”). It therefore follows under NAAP that a professional regulation would be subject to strict scrutiny if it is not content- and viewpoint-neutral.

App. 59 Since NAAP, the Ninth Circuit has continued to adhere to the traditional standards governing content- or viewpoint-based regulations. In finding that a federal policy prohibiting physicians from recommending marijuana to patients violated the First Amendment, the Ninth Circuit recognized that “[b]eing a member of a regulated profession does not, as the government suggests, result in a surrender of First Amendment rights” and found that the federal policy was content- and viewpoint-based. Conant, 309 F.3d at 637. The Conant court explained how the constitutional regulations in NAAP were contentneutral, id. at 637, and emphasized that “contentbased restrictions on speech are ‘presumptively invalid.’ ” Id. at 637-38. In 2008, the Ninth Circuit cited NAAP as authority for the rule that “both viewpoint-based and content-based speech restrictions trigger strict scrutiny.” Jacobs v. Clark Cnty. Sch. Dist., 526 F.3d 419, 431 (9th Cir. 2008). Accordingly, even if SB 1172 is viewed as a professional regulation, it is subject to strict scrutiny if it is content- or viewpoint-based. b. SB 1172 Is Not Exempt from Strict Scrutiny Review as a Statute Regulating Conduct Defendants and amicus next contend that 1) SB 1172 is not subject to review under the First Amendment because it regulates conduct, not speech; and 2) even if SB 1172 is subject to First Amendment review, it is reviewed under intermediate scrutiny. Under

App. 60 Supreme Court First Amendment jurisprudence, “ ‘it has never been deemed an abridgment 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.’ ” Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456, 98 S. Ct. 1912, 56 L. Ed. 2d 444 (1978) (quoting Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502, 69 S. Ct. 684, 93 L. Ed. 834 (1949)); see also Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 604, 121 S. Ct. 2404, 150 L. Ed. 2d 532 (2001) (Stevens, J., concurring) (“This Court has long recognized the need to differentiate between legislation that targets expression and legislation that targets conduct for legitimate nonspeech-related reasons but imposes an incidental burden on expression.”). SB 1172 defines SOCE as “any practices by mental health providers that seek to change an individual’s sexual orientation. This includes efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.” SB 1172 (to be codified at Cal. Bus. & Prof. Code § 865(b)(1)). A review of the bill analyses leading up to the passage of SB 1172 illustrates that there is not a single method of performing SOCE. For example, a Senate Judiciary Committee bill analysis explains that “SOCE techniques may include aversive treatments such as electric shock or nausea inducing drugs administered simultaneously with the presentation of homoerotic

App. 61 stimuli. Practitioners may also try to alter a patient’s sexuality with visualization, social skills training, psychoanalytic therapy, and spiritual interventions.” S. Judiciary Comm., Comm. Analysis of SB 1172, at 3 (May 8, 2012). Joseph Nicolosi, “one of the founders of modern reparative therapy,” promotes SOCE intervention plans that “involve conditioning a man to a traditional masculine gender role via participation in sports activities, avoidance of the other sex unless for romantic contact, avoiding contact with homosexuals, increasing time spent with heterosexuals, engaging in group therapy, marrying a person of the opposite sex and fathering children.” S. Comm. on Bus., Professions & Econ. Dev., Comm. Analysis of SB 1172, at 8 (Apr. 19, 2012). “Others, particularly conservative Christian transformational ministries, use the term conversion therapy to refer to the utilization of prayer, religious conversion, individual and group counseling to change a person’s sexual orientation.” Id. In the 2009 “Report of the American Psychological Association Task Force on Appropriate Therapeutic Responses to Sexual Orientation” (“2009 APA Report”), the array of treatments used in SOCE, many of which do not include speech, are described as follows: Behavior therapists tried a variety of aversion treatments, such as inducing nausea, vomiting, or paralysis; providing electric shocks; or having the individual snap an elastic band around the wrist when the individual became aroused to same-sex erotic

App. 62 images or thoughts. Other examples of aversive behavioral treatments included covert sensitization, shame aversion, systematic desensitization, orgasmic reconditioning, and satration therapy. Some nonaversive treatments used an educational process of dating skills, assertiveness, and affection training with physical and social reinforcement to increase other-sex sexual behaviors. Cognitive therapists attempted to change gay men’s and lesbians’ thought patterns by reframing desires, redirecting thoughts, or using hypnosis, with the goal of changing sexual arousal, behavior, and orientation. (Stein Decl. Ex. 1 (“2009 APA Report”) at 22 (Docket No. 34-1).) From the myriad of explanations about the various SOCE treatments, it is clear that there is not a single method for a mental health provider to engage in SOCE. The Ninth Circuit has also recognized that “the key component of psychoanalysis is the treatment of emotional suffering and depression, not speech.” NAAP, 228 F.3d at 1054 (internal quotation marks omitted). Nonetheless, at least some forms of SOCE, such as “talk therapy,” involve speech and the Ninth Circuit has stated that the “communication that occurs during psychoanalysis is entitled to First Amendment protection.” Conant, 309 F.3d at 637. Therefore, even if SB 1172 is characterized as primarily aimed at regulating conduct, it also extends to forms of SOCE that utilize speech

App. 63 and, at a minimum, regulates conduct that has an incidental effect on speech. In United States v. O’Brien, 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968), the Supreme Court explained that, “when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.” O’Brien, 391 U.S. at 376. In such circumstances, “a government regulation is sufficiently justified [1] if it is within the constitutional power of the Government; [2] if it furthers an important or substantial governmental interest; [3] if the governmental interest is unrelated to the suppression of free expression; and [4] if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” Id. at 377. In O’Brien, the Court rejected a First Amendment free speech challenge to a law criminalizing the knowing destruction of draft registration certificates when O’Brien claimed he burned his certificate as a demonstration against the war. After concluding that the law satisfied the four-part test, the Court reasoned that “[t]he case at bar is therefore unlike one where the alleged governmental interest in regulating conduct arises in some measure because the communication allegedly integral to the conduct is itself thought to be harmful.” Id. at 382. The intermediate scrutiny standard from O’Brien therefore “does not provide the applicable standard for

App. 64 reviewing a content-based regulation of speech.” Holder v. Humanitarian Law Project, ___ U.S. ___, 130 S. Ct. 2705, 2723, 177 L. Ed. 2d 355 (2010). In Humanitarian Law Project, the Supreme Court addressed a preenforcement challenge to the federal material-support statute and held that it could not be assessed under the O’Brien test. The material-support statute “makes it a federal crime to ‘knowingly provid[e] material support or resources to a foreign terrorist organization.’ ” Id. at 2713 (quoting 18 U.S.C. § 2339B). The Court recognized that the “material support” the statute prohibited “most often does not take the form of speech at all,” but that the plaintiffs in the case intended to provide material support through speech. Id. at 2723. After concluding that the statute was content-based and therefore subject to strict scrutiny, the Court rejected the government’s argument that it should nonetheless be subject to intermediate scrutiny “because it generally functions as a regulation of conduct.” Id. at 2724. In rejecting the government’s position, the Court emphasized, “The law here may be described as directed at conduct, . . . but as applied to plaintiffs the conduct triggering coverage under the statute consists of communicating a message” because the plaintiffs intended to “provide material support to the PKK and LTTE in the form of speech.” Id. Similar to Humanitarian Law Project, plaintiffs in this case have indicated that they wish to engage in SOCE through speech. Moreover, even if the court assumes that most SOCE is performed through

App. 65 conduct and that SOCE generally functions to regulate conduct, it is not automatically subject to review under the O’Brien test. As the Court made clear in O’Brien and has repeatedly confirmed since that decision, a law regulating conduct that incidentally affects speech is subject to strict scrutiny if it is content or viewpoint-based. Accordingly, even assuming SB 1172 is properly characterized as a statute regulating conduct, because it has at least an incidental effect on speech and plaintiffs intend to engage in SOCE through speech, intermediate scrutiny applies only if SB 1172 is content- and viewpointneutral. c. SB 1172 Lacks Content and Viewpoint Neutrality Because SB 1172 cannot be reviewed under a lower level of review as a professional regulation or a regulation of conduct if it is content- or viewpointbased, the court must assess its neutrality to determine the appropriate level of review. “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.” NAAP, 228 F.3d at 1055 (internal quotation marks omitted) (alterations and omission in original); accord Fla. Bar v. Went For It, Inc., 515 U.S. 618, 642, 115 S. Ct. 2371, 132 L. Ed. 2d 541 (1994); see also Berger v. City of Seattle, 569 F.3d 1029, 1051 (9th Cir. 2009) (“A regulation is content-based if either the

App. 66 underlying purpose of the regulation is to suppress particular ideas or if the regulation, by its very terms, singles out particular content for differential treatment.”). “Viewpoint discrimination is [ ] an egregious form of content discrimination” and occurs “when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.” Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829, 115 S. Ct. 2510, 132 L. Ed. 2d 700 (1995). In Conant, the Ninth Circuit relied on the First Amendment to uphold a permanent injunction enjoining the federal government from revoking a physician’s license to prescribe controlled substances or initiating an investigation of the physician on the sole ground that the physician recommended medical marijuana to a patient. Conant, 309 F.3d at 631. The Ninth Circuit emphasized that “[t]he government’s policy . . . seeks to punish physicians on the basis of the content of doctor-patient communications” because “[o]nly doctor-patient conversations that include discussions of the medical use of marijuana trigger the policy.” Id. at 637. The court further explained that “the policy does not merely prohibit the discussion of marijuana; it condemns expression of a particular viewpoint, i.e., that medical marijuana would likely help a specific patient.” Id. at 639; cf. Rust, 500 U.S. at 200 (explaining that the challenged regulations “do not significantly impinge upon the doctor-patient relationship” in violation of the First Amendment because they do not “require[ ] a doctor

App. 67 to represent as his own any opinion that he does not in fact hold”). Defendants argue that SB 1172 is distinguishable from Conant because it does not extend as far as the challenged federal policy against a physician recommending marijuana for a patient. SB 1172’s ban is limited to prohibiting mental health providers from engaging in SOCE with minor patients. SB 1172 (to be codified at Cal Bus. & Prof. Code § 865.1). The bill defines SOCE as “any practices by mental health providers that seek to change an individual’s sexual orientation[, including] . . . efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.” Id. (to be codified at Cal. Bus. & Prof. Code § 865(b)(1)). Based on SB 1172’s definition of SOCE, defendants argue that the new law would not preclude a mental health provider from expressing his or her views to a minor patient that the minor’s sexual orientation could be changed, informing a minor about SOCE, recommending that a minor pursue SOCE, providing a minor with contact information for an individual who could perform SOCE, or sharing his or her views about the morality of homosexuality.8 Assuming defendants’ interpretation is correct, SB
Plaintiffs disagree, arguing that such statements would come with SB 1172’s prohibition because such statements could be viewed as seeking to change a patient’s sexual orientation.
8

App. 68 1172 would still allow mental health providers to exercise their medical judgment to recommend SOCE, see Conant, 309 F.3d at 638, and would preclude them only from providing a minor with SOCE. This distinction, however, addresses only whether SB 1172 is viewpoint-based. The Ninth Circuit’s analysis in NAAP and Supreme Court precedent render it difficult to conclude that SB 1172 is contentneutral simply because it is limited to prohibiting SOCE. In NAAP, the Ninth Circuit concluded that the challenged licensing laws were content-neutral because “they do not dictate what can be said between psychologists and patients during treatment” or “the content of what is said in therapy” and “[n]othing in the statutes prevents licensed therapists from utilizing psychoanalytical methods.” NAAP, 228 F.3d at 1055-56. The court emphasized that “speech is not being suppressed based on its message” and that the scheme “was not adopted because of any disagreement with psychoanalytical theories.” Id. Humanitarian Law Project, in which the Supreme Court held that the material support statute was content-based and therefore subject to strict scrutiny, provides further guidance. In that case, the Court recognized that the statute did not “suppress ideas or opinions in the form of ‘pure political speech’ ” because plaintiffs could “say anything they wish on any topic” and independently advocate for or join one of the terrorists organizations. Humanitarian Law Project, 130 S. Ct. at 2722-23. Nonetheless, the court concluded that the statute “regulates speech on

App. 69 the basis of its content” because whether the plaintiffs’ speech to a foreign terrorist organization would be barred by the statute depended on what the plaintiffs said. See id. at 2723-24. Under NAAP and Humanitarian Law Project, the fact that SB 1172 may allow mental health providers to “say anything they wish” about the value or benefits of SOCE or advocate for it does not render SB 1172 content-neutral. SB 1172 draws a line in the sand governing a therapy session and the moment that the mental health provider’s speech “seek[s] to change an individual’s sexual orientation,” including a patient’s behavior, gender expression, or sexual or romantic attractions or feelings toward individuals of the same sex, the mental health provider can no longer speak. Regardless of the breathing room SB 1172 may leave for speech about SOCE, when applied to SOCE performed through “talk therapy,” SB 1172 will give rise to disciplinary action solely on the basis of what the mental health provider says or the message he or she conveys. There is also little question that the Legislature enacted SB 1172 at least in part because it found that SOCE was harmful to minors and disagreed with the practice. For example, in SB 1172, the Legislature enacted findings and declarations based on the conclusions of numerous studies about the purported harmful effects and ineffectiveness of SOCE: The [American Psychological Association] task force concluded that sexual orientation

App. 70 change efforts can pose critical health risks to lesbian, gay, and bisexual people, including confusion, depression, guilt, helplessness, hopelessness, shame, social withdrawal, suicidality, substance abuse, stress, disappointment, self-blame, decreased self-esteem and authenticity to others, increased selfhatred, hostility and blame toward parents, feelings of anger and betrayal, loss of friends and potential romantic partners, problems in sexual and emotional intimacy, sexual dysfunction, high-risk sexual behaviors, a feeling of being dehumanized and untrue to self, a loss of faith, and a sense of having wasted time and resources. . . . The American Psychiatric Association published a position statement in March of 2000 in which it stated: “Psychotherapeutic modalities to convert or ‘repair’ homosexuality are based on developmental theories whose scientific validity is questionable.” . . . The National Association of Social Workers prepared a 1997 policy statement in which it stated: . . . “No data demonstrates that reparative or conversion therapies are effective, and, in fact, they may be harmful.” . . . The American Academy of Child and Adolescent Psychiatry in 2012 published an article . . . stating: “Clinicians should be aware that there is no evidence that sexual orientation can be altered through therapy, and that attempts to do so may be harmful.” . . . The Pan American Health Organization . . . noted that reparative therapies “lack medical justification and

App. 71 represent a serious threat to the health and well-being of affected people.” SB 1172 (Findings & Decls. §§ 1(b), 1(d), 1(h), 1(k), 1(l)).9 The Legislature’s findings and declarations convey a consistent and unequivocal message that the Legislature found that SOCE is ineffective and harmful. Such findings bring SB 1172 within the contentbased exception in O’Brien when intermediate scrutiny does not apply because “the alleged governmental interest in regulating conduct arises in some measure because the communication allegedly integral to the conduct is itself thought to be harmful.” O’Brien, 391 U.S. at 382; see NAAP, 228 F.3d at 1055-56 (explaining that the challenged regulations were contentneutral because they were “not adopted because of any disagreement with psychoanalytical theories”). Especially with plaintiffs in this case, it is also difficult to conclude that just because SOCE utilizing speech is a type of treatment, that the treatment can be separated from a mental health provider’s viewpoint or message. Duk has explained that the SOCE treatment he provides to his minor patients includes
The court is relying only on findings and declarations that the Legislature enacted in SB 1172, not statements in the legislative history or bill analyses. Cf. O’Brien, 391 U.S. at 383 (“[The] Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.”); see generally Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (explaining why, in the context of Free Exercise claims, whether a court can consider legislative history is an “unsettled” area of law).
9

App. 72 counseling. (Duk Decl. ¶ 6.) Duk is a Catholic and, with patients that share his faith, he discusses tenants of the Catholic faith, including that “homosexuality is not a natural variant of human sexuality, it is changeable, and it is not predominantly determined by genetics.” (Id. ¶¶ 11-13.) Similarly, Welch has explained that he shares the views of his church that homosexual behavior is a sin and that SB 1172 will “disallow [his] clients from choosing to execute biblical truths as a foundation for their beliefs about their sexual orientation.” (Welch Decl. ¶¶ 5, 8, Ex. 14.) When a mental health provider’s pursuit of SOCE is guided by the provider’s or patient’s views of homosexuality, it is difficult, if not impossible, to view the conduct of performing SOCE as anything but integrally intertwined with viewpoints, messages, and expression about homosexuality. Expert declarations defendants submitted in opposition to plaintiffs’ motion are consistent with this conclusion. (See Haldeman Decl. ¶ 8 (Docket No. 40) (“A review of the literature relating to SOCE reflects that the premise underlying treatments designed to change homosexual orientation is that homosexuality is a mental disorder that needs to be ‘cured.’ ”); Beckstead Decl. ¶ 8 (Docket No. 36) (“A review of the literature in the field of [SOCE] reveals that the premise underlying SOCE is that homosexuality is a mental disorder, and that it is counter to some practitioners’ religious and/or personal beliefs.”).) Although it does not appear that the Legislature intended to suppress the spectrum of messages that

App. 73 may be intertwined with SOCE, such as whether homosexuality is innate or immutable, its enacted finding “that [b]eing lesbian, gay, or bisexual is not a disease, disorder, illness, deficiency, or shortcoming” strongly suggests that the Legislature at least sought to suppress the performance of SOCE that contained a message contrary to this finding. SB 1172 (Findings & Decls. § 1(a)); see Rosenberger, 515 U.S. at 829 (“The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.”). That messages about homosexuality can be inextricably intertwined with SOCE renders it likely that, along with SOCE treatment, SB 1172 bans a mental health provider from expressing his or her viewpoints about homosexuality as part of SOCE treatment. Cf. City of Erie v. Pap’s A.M., 529 U.S. 277, 293, 120 S. Ct. 1382, 146 L. Ed. 2d 265 (2000) (plurality opinion) (“[T]here may be cases in which banning the means of expression so interferes with the message that it essentially bans the message.”). Against the backdrop of NAAP, Conant, and Humanitarian Law Project, this court would be hardpressed to conclude that SB 1172 is content-and viewpoint-neutral. Accordingly, because it appears that SB 1172 lacks content and viewpoint neutrality, it is likely that it must ultimately be assessed under strict scrutiny.

App. 74 2. SB 1172 Is Unlikely to Withstand Strict Scrutiny If a statute “imposes a restriction on the content of protected speech, it is invalid unless California can demonstrate that it passes strict scrutiny – that is, unless it is justified by a compelling government interest and is narrowly drawn to serve that interest.” Brown v. Entm’t Merchants Ass’n, ___ U.S. ___, 131 S. Ct. 2729, 2738, 180 L. Ed. 2d 708 (2011). Strict scrutiny is a “demanding standard” and “ ‘[i]t is rare that a regulation restricting speech because of its content will ever be permissible.’ ” Id. (quoting United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 818, 120 S. Ct. 1878, 146 L. Ed. 2d 865 (2000)). To overcome strict scrutiny, “[t]he State must specifically identify an ‘actual problem’ in need of solving, and the curtailment of free speech must be actually necessary to the solution.” Brown, 131 S. Ct. at 2738. The state’s burden on strict scrutiny is substantial, especially when contrasted to the lowest level of review, which does “not require that the government’s action actually advance its stated purposes, but merely look[s] 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). In Brown, the Supreme Court held that California’s law banning the sale of violent video games to minors without parental consent did not pass strict scrutiny. The state recognized that it could not “show

App. 75 a direct causal link between violent video games and harm to minors,” but argued that strict scrutiny could be satisfied based on the Legislature’s “predictive judgment that such a link exists, based on competing psychological studies.” Brown, 131 S. Ct. at 2738-39. The Court rejected this argument, explaining that, under strict scrutiny, the state “bears the risk of uncertainty” and “ambiguous proof will not suffice.” Id. at 2739. Although the state submitted studies of research psychologists “purport[ing] to show a connection between exposure to violent video games and harmful effects on children,” the Court held that the studies did not satisfy strict scrutiny because the studies had “been rejected by every court to consider them” and did not “prove that violent video games cause minors to act aggressively.” Id.10

For the first time at oral argument, counsel for amicus cited three cases for the proposition that the court must defer to the Legislature’s determination in matters of “uncertain science.” The Supreme Court, however, does not appear to have been applying strict scrutiny in any of those cases. See Gonzales v. Carhart, 550 U.S. 124, 146, 161-64, 127 S. Ct. 1610, 167 L. Ed. 2d 480 (2007) (“[W]e must determine whether the [challenged abortion] Act furthers the legitimate interest of the Government in protecting the life of the fetus that may become a child,” which was resolved, in part, by determining “whether the Act creates significant health risks for women”); Kansas v. Hendricks, 521 U.S. 346, 357-60, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997) (upholding a civil commitment statute because it was not contrary to “our understanding of ordered liberty”); Jones v. United States, 463 U.S. 354, 364-66, 103 S. Ct. 3043, 77 L. Ed. 2d 694 (1983) (holding that a civil commitment statute was not unconstitutional under the Due Process Clause because (Continued on following page)

10

App. 76 The Court similarly criticized evidence of harm that the government submitted in support of a regulation that sought to prevent children from seeing “signal bleed” on sexually-oriented programming in Playboy Entertainment Group, Inc. In that case, the Court explained, There is little hard evidence of how widespread or how serious the problem of signal bleed is. Indeed, there is no proof as to how likely any child is to view a discernible explicit image, and no proof of the duration of the bleed or the quality of the pictures or sound. To say that millions of children are subject to a risk of viewing signal bleed is one thing; to avoid articulating the true nature and extent of the risk is quite another. Playboy Entm’t Grp., Inc., 529 U.S. at 819. The Court concluded that the “First Amendment requires a more careful assessment and characterization of an evil in order to justify a regulation as sweeping” as the one at issue in the case. Id. at 819, 822-23. It further emphasized that the government was required to present more than “anecdote and supposition” to prove an “actual problem.” Id.
Congress’s determination was not “unreasonable”). Amicus’s argument is also inconsistent with Brown, which applied strict scrutiny, was decided after the three cited cases, and specifically rejected the state’s argument that strict scrutiny could be satisfied based on the Legislature’s “predictive judgment . . . based on competing psychological studies.” Brown, 131 S. Ct. at 2738-39.

App. 77 In the findings and declarations of SB 1172, the California Legislature found that “California has a compelling interest in protecting the physical and psychological well-being of minors, including lesbian, gay, bisexual, and transgender youth, and in protecting its minors against exposure to serious harms caused by sexual orientation change efforts.” SB 1172 (Findings & Decls. § 1(n)). The court does not doubt that the state has a compelling interest in “protecting the physical and psychological well-being of minors.” See Nunez by Nunez v. City of San Diego, 114 F.3d 935, 946 (9th Cir. 1997) (“The City’s interest in protecting the safety and welfare of its minors is [ ] a compelling interest.”). In its opposition brief, defendants also identified a compelling interest in “protecting all of society from harmful, risky, or unproven, medical health treatments.” (Defs.’ Opp’n at 28:1415); cf. NAAP, 228 F.3d at 1054 (“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.”); see Nunez, 114 F.3d at 947 (recognizing the “ostensible purposes of the ordinance identified by the City in its brief ” when determining whether it demonstrated a compelling interest). As the Brown Court explained, SB 1172 cannot withstand strict scrutiny unless the state demonstrates an “ ‘actual problem’ in need of solving” and “a direct causal link” between SOCE and harm to minors. Brown, 131 S. Ct. at 2738-39. At most, however, defendants have shown that SOCE may cause harm

App. 78 to minors. For example in the 2009 APA Report, the APA states: We conclude that there is a dearth of scientifically sound research on the safety of SOCE. Early and recent research studies provide no clear indication of the prevalence of harmful outcomes among people who have undergone efforts to change their sexual orientation or the frequency of occurrence of harm because no study to date of adequate scientific rigor has been explicitly designed to do so. Thus, we cannot conclude how likely it is that harm will occur from SOCE. However, studies from both periods indicate that attempts to change sexual orientation may cause or exacerbate distress and poor mental health in some individuals, including depression and suicidal thoughts. (2009 APA Report at 42.) The report further explains: A central issue in the debates regarding efforts to change same-sex sexual attractions concerns the risk of harm to people that may result from attempts to change their sexual orientation. . . . Although the recent studies do not provide valid causal evidence of the efficacy of SOCE or of its harm, some recent studies document that there are people who perceive that they have been harmed through SOCE. (Id. at 41-42; see also Herek Decl. ¶¶ 39, 45 (“[E]vidence exists that [SOCE] may cause harm . . . [and] such interventions may be psychologically

App. 79 harmful in an unknown number of cases.”) (emphasis added).) Additionally, the studies discussed and criticized as incomplete in the 2009 APA Report do not appear to have focused on harms to minors, and the 2009 APA Report indicates that “[t]here is a lack of published research on SOCE among children.” (See 2009 APA Report at 41-43, 72.) It is therefore unclear whether the reports of harm referenced in the 2009 APA Report were made exclusively by adults. In Nunez, the Ninth Circuit similarly criticized reliance on national statistics regarding a rising juvenile crime rate to demonstrate that a juvenile curfew was a narrowly tailored solution for a particular city. Nunez, 114 F.3d at 947. In expert declarations defendants and amicus submitted, individuals opined that SOCE causes harm.11 (See Beckstead Decl. ¶ 16; Haldeman Decl. ¶ 7; Ryan Decl. ¶ 21 (Docket No. 41).) None of the experts, however, identify or rely on comprehensive studies that adhere to scientific principles or address the inadequacies of the studies discussed in the 2009 APA Report. For example, Ryan’s opinion primarily relies on analysis performed of “LGBT young adults, ages 21-25” and her personal interviews with LGBT
Plaintiffs submitted lengthy evidentiary objections to the declarations defendants and amicus submitted. (See Dockets Nos. 50, 51.) The court cites to these declarations only to demonstrate the insufficiency of the evidence defendants submitted and therefore need not resolve plaintiffs’ evidentiary objections.
11

App. 80 youth who underwent SOCE. (Ryan Decl. ¶¶ 14-16.) “Although the Constitution does not require the government to produce ‘scientifically certain criteria of legislation,’ ” Nunez, 114 F.3d at 947 (quoting Ginsberg v. New York, 390 U.S. 629, 642-43, 88 S. Ct. 1274, 20 L. Ed. 2d 195 (1968)), the Brown Court rejected “research [ ] based on correlation, not evidence of causation” that “suffer[ed] from significant, admitted flaws in methodology,” Brown, 131 S. Ct. at 2739 (internal quotation marks omitted). Here, evidence that SOCE “may” cause harm to minors based on questionable and scientifically incomplete studies that may not have included minors is unlikely to satisfy the demands of strict scrutiny. The Brown Court was also concerned with the state’s inability to prove that harm to minors was caused by video games as opposed to other sources of media. See Brown, 131 S. Ct. at 2739-40. Here, defendants face a similar inability to distinguish between harm caused by SOCE versus other factors. For example, in his declaration, Herek details the harms homosexual individuals experience as a result of societal stigmas, harassment and bullying, discrimination, and rejection.12 (See Herek Decl. ¶¶ 18-21; see
In its findings and declarations, it appears that the California Legislature sought to help end some of that stigma, finding, “Being lesbian, gay, or bisexual is not a disease, disorder, illness, deficiency, or shortcoming.” No matter how worthy this effort may be, it cannot override First Amendment protections. Cf. Brown, 131 S. Ct. at 2739 n.8 (“But there are all sorts of ‘problems’ – some of them surely more serious than this one – (Continued on following page)
12

App. 81 also Ryan Decl. ¶¶ 12-14, 20 (describing the harms that her research shows are caused by parents’ and caregivers’ “rejecting behaviors” to LGBT youth).) The few and arguably incomplete studies addressing harms of SOCE do not appear to have assessed whether the harms reported after undergoing SOCE were caused by SOCE as opposed to other internal or external factors and thus would have been sustained regardless of SOCE. Lastly, the Brown Court also explained that, even when statutes pursue legitimate interests, “when they affect First Amendment rights they must be pursued by means that are neither seriously underinclusive nor seriously overinclusive.” Brown, 131 S. Ct. at 2741-42. In Brown, the Court found California’s legislation to be “seriously underinclusive, not only because it excludes portrayals other than video games, but also because it permits a parental or avuncular veto.” Id. at 2742. At the same time, “as a means of assisting concerned parents it is seriously overinclusive because it abridges the First Amendment rights of young people whose parents (and aunts and uncles) think violent video games are a harmless pastime.” Id. Here, SB 1172 prohibits only mental health providers from engaging in SOCE and, as defendants
that cannot be addressed by governmental restriction of free expression: for example, the problem of encouraging antiSemitism.”).

App. 82 have pointed out, unlicensed individuals who do not qualify as “mental health providers” under the bill can engage in SOCE. If SOCE is harmful and ineffective, the harm minors will endure at the hands of unlicensed individuals performing SOCE is equal, if not greater, than the harm they would endure from mental health providers performing SOCE. In fact, the California Legislature has previously “recognized the actual and potential consumer harm that can result from the unlicensed, unqualified or incompetent practice of psychology.” NAAP, 228 F.3d at 1047. The limited scope of SB 1172 therefore suggests that it is likely underinclusive in its application only to mental health providers. The Ninth Circuit has observed that regulations subject to strict scrutiny “almost always violate the First Amendment.” DISH Network Corp. v. FCC, 653 F.3d 771, 778 (9th Cir. 2011). In light of the heavy burden strict scrutiny imposes on defendants, the lack of evidence demonstrating “actual harm” and a causal relationship between SOCE and harm to minors, and the underinclusiveness of SB 1172, the court finds at this preliminary stage that SB 1172 is not likely to withstand strict scrutiny. Accordingly, because it appears that SB 1172 is content- and viewpoint-based and unlikely to withstand strict scrutiny, plaintiffs have established that they are likely to prevail on the merits of their claim that SB 1172 violates their rights to freedom of speech under the First Amendment.

App. 83 C. Remaining Preliminary Injunction Considerations The Ninth Circuit “and the Supreme Court have repeatedly held that ‘[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.’ ” Klein v. City of San Clemente, 584 F.3d 1196, 1207-08 (9th Cir. 2009) (quoting Elrod v. Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976)). Plaintiffs have therefore shown that they are likely to suffer irreparable harm in the absence of an injunction. In determining whether plaintiffs have shown that the balance of equities tips in their favor, “the district court has a ‘duty . . . to balance the interests of all parties and weigh the damage to each.’ ” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1138 (9th Cir. 2009) (quoting L.A. Mem’l Coliseum Comm’n v. Nat’l Football League, 634 F.2d 1197, 1203 (9th Cir. 1980)). Having proven that they are likely to succeed on their First Amendment free speech challenge to SB 1172, the most significant hardship to Welch and Duk is that SB 1172 will likely infringe on their First Amendment rights because it will restrict them from engaging in SOCE with their minor patients. Any harm to Bitzer is more remote and less significant because he is not currently a “mental health provider” and thus his speech would not be governed by SB 1172. Although he has explained that SB 1172 would require him to change his career plans, even if SB 1172 is not enjoined, he could engage in SOCE with

App. 84 the various religious groups he has described because SB 1172 would not extend to him. If defendants are enjoined from enforcing SB 1172 against plaintiffs, a law that the California Legislature enacted would be, at least until this case is resolved on the merits, unenforceable as against these three plaintiffs.13 The Supreme Court has recognized that, “any time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.” Maryland v. King, ___ U.S. ___, 133 S. Ct. 1, 3, 183 L. Ed. 2d 667 (2012) (internal quotation marks and citation omitted). The state also has an interest in protecting the health and welfare of minor children, and the Legislature found that SOCE causes harm to minor children. Cf. Brown, 131 S. Ct. at 2736 (“No doubt a State possesses legitimate power to protect children from harm, but that does not include a free-floating power to restrict the ideas to which children may be exposed.”) (internal citation omitted).

A preliminary injunction in this case would be limited to plaintiffs. See generally Zepeda v. INS, 753 F.2d 719, 727-28 (9th Cir. 1984) (“A federal court may issue an injunction if it has personal jurisdiction over the parties and subject matter jurisdiction over the claim; it may not attempt to determine the rights of persons not before the court. . . . The district court must, therefore, tailor the injunction to affect only those persons over which it has power.”).

13

App. 85 The harm to the state in being unable to enforce SB 1172 against plaintiffs is not as substantial as it may initially appear. California has arguably survived 150 years without this law and it would be a stretch of reason to conclude that it would suffer significant harm having to wait a few more months to know whether the law is enforceable as against the three plaintiffs in this case. When balanced against the risk of infringing on plaintiffs’ First Amendment rights, forcing the state to preserve the long-standing status quo so that the case can be resolved on the merits and through the appellate process confirms that any harm the state faces is de minimis. The final consideration in determining whether to grant a preliminary injunction is the public interest. Although the Ninth Circuit has “at times subsumed this inquiry into the balancing of the hardships, it is better seen as an element that deserves separate attention in cases where the public interest may be affected.” Sammartano v. First Judicial Dist. Ct., in & for Cnty. of Carson, 303 F.3d 959, 974 (9th Cir. 2002) (internal citation omitted). “The public interest inquiry primarily addresses impact on non-parties rather than parties” and “[c]ourts considering requests for preliminary injunctions have consistently recognized the significant public interest in upholding First Amendment principles.” Id.; see, e.g., Homans v. Albuquerque, 264 F.3d 1240, 1244 (10th Cir. 2001) (“[W]e believe that the public interest is better served by following binding Supreme Court precedent and protecting the core First Amendment

App. 86 right of political expression.”). “The public interest in maintaining a free exchange of ideas, though great, has in some cases been found to be overcome by a strong showing of other competing public interests, especially where the First Amendment activities of the public are only limited, rather than entirely eliminated.” Sammartano, 303 F.3d at 974. Here, the public has an interest in the protection and mental well-being of minors, and the court does not take lightly the possible harm SOCE may cause minors, especially when forced on minors who did not choose to undergo SOCE. See Stormans, Inc., 586 F.3d at 1139 (“The ‘general public has an interest in the health’ of state residents.”). Countered against this is the public’s interest in preserving First Amendment rights. Given the limited scope and duration of a preliminary injunction in this case, the court has no difficulty in concluding that protecting an individual’s First Amendment rights outweighs the public’s interest in rushing to enforce an unprecedented law. That public perception in favor of this law may be heightened because “it appears that homosexuality has gained greater societal acceptance . . . is scarcely an argument for denying First Amendment protection to those who refuse to accept these views. The First Amendment protects expression, be it of the popular variety or not.” Boy Scouts of Am. v. Dale, 530 U.S. 640, 660 (2000). Accordingly, because plaintiffs have made an adequate showing under each of the four

App. 87 factors discussed in Winter, the court will grant their motion for a preliminary injunction. IT IS THEREFORE ORDERED that plaintiffs’ motion for a preliminary injunction be, and the same hereby is, GRANTED. Pending final resolution of this action, defendants are hereby enjoined from enforcing the provisions of SB 1172 (to be codified at Cal. Bus. & Prof. Code §§ 865-865.2) as against plaintiffs Donald Welch, Anthony Duk, and Aaron Bitzer. DATED: December 3, 2012

/s/ William B. Shubb WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE

App. 88 Pickup v. Brown United States Court of Appeals for the Ninth Circuit January 29, 2014, Decided No. 12-17681, No. 13-15023 David H. Pickup; Christopher H. Rosick; Joseph Nicolosi; Robert Vazzo; National Association for Research and Therapy of Homosexuality, a Utah non-profit organization; AMERICAN Association of Christian COUNSELORS, a Virginia non-profit association; JACK DOE 1, Parent of John Doe 1; JANE DOE 1, Parent of John Doe 1; JOHN DOE 1, a minor, guardian ad litem Jane Doe, guardian ad litem Jack Doe; Jack Doe 2, Parent of John Doe 2; JANE DOE 2, Parent of John Doe 2; JOHN DOE 2, a minor, guardian ad litem Jack Doe, guardian ad litem Jane Doe, Plaintiffs-Appellants, v. Edmund G. Brown, Jr., Governor of the State of California, in his official capacity; ANNA M. CABALLERO, Secretary of the California State and Consumer Services Agency, in her official capacity; SHARON LEVINE, President of the Medical Board of California, in her official capacity; KIM MADSEN, Executive Officer of the California Board of Behavioral Sciences, in her official capacity; Michael Erickson, President of the California Board of Psychology, in his official capacity, DefendantsAppellees, and EQUALITY CALIFORNIA, IntervenorDefendant-Appellee. Donald Welch; Anthony Duk; Aaron Bitzer, Plaintiffs-Appellees, v. Edmund G. Brown, Jr., Governor of the State of California, in his official capacity; ANNA M. CABALLERO, Secretary of California State and Consumer Services Agency,

App. 89 in her official capacity; DENISE Brown, Case Manager, Director of Consumer Affairs, in her official capacity; CHRISTINE WIETLISBACH, PATRICIA LOCK DAWSON, Samara Ashley, Harry Douglas, Julia Johnson, Sarita Kohli, Renee Lonner, Karen Pines, Christina Wong, in their official capacities as members of the California Board of Behavioral Sciences; SHARON LEVINE, MICHAEL Bishop, Silvia Diego, Dev Gnanadev, Reginald Low, Denise Pines, Janet Salomonson, Gerrie Schipske, David Serrano Sewell, Barbara Yaroslavsky, in their official capacities as members of the Medical Board of California, Defendants-Appellants. Judges: Before: Alex Kozinski, Chief Judge, and Susan P. Graber, and Morgan Christen, Circuit Judges. O’SCANNLAIN, Circuit Judge, joined by BEA and IKUTA, Circuit Judges, dissenting from the denial of rehearing en banc. Opinion ORDER The opinion filed on August 29, 2013, and published at 728 F.3d 1042, is replaced by the amended opinion filed concurrently with this order. With these amendments, the panel has voted to deny the petitions for panel rehearing and petitions for rehearing en banc. The full court has been advised of the petitions for rehearing en banc. A judge of the court called for a vote on whether to rehear the matter en banc.

App. 90 On such vote, a majority of the nonrecused active judges failed to vote in favor of en banc rehearing. The petitions for panel rehearing and petitions for rehearing en banc are DENIED. No further petitions for panel rehearing or petitions for rehearing en banc shall be entertained.

Dissent O’SCANNLAIN, Circuit Judge, joined by BEA and IKUTA, Circuit Judges, dissenting from the denial of rehearing en banc: May the legislature avoid First Amendment judicial scrutiny by defining disfavored talk as “conduct”? That is what these cases are really about. The State of California, in the statute at issue here, has prohibited licensed professionals from saying certain words to their clients. By labeling such speech as “conduct,” the panel’s opinion has entirely exempted such regulation from the First Amendment. In so doing, the panel contravenes recent Supreme Court precedent, ignores established free speech doctrine, misreads our cases, and thus insulates from First Amendment scrutiny California’s prohibition – in the guise of a professional regulation – of politically unpopular expression. I respectfully dissent from our court’s regrettable failure to rehear these cases en banc.

App. 91 I California enacted Senate Bill 1172 (“SB 1172”), which subjects state-licensed “mental health providers”1 to professional discipline for engaging in “sexual orientation change efforts” with clients who are minors. Cal. Bus. & Prof. Code §§ 865.1, 865.2. The statute defines such change efforts to include “any practices . . . that seek to change an individual’s sexual orientation.” Id. § 865(b)(1). Explicitly exempted from the regulation are “psychotherapies that provide acceptance, support, and understanding of clients’ coping, social support, and identity exploration and development.” Id. § 865(b)(2). The law does not expressly prohibit professionals from discussing change efforts with patients, from referring patients to unlicensed practitioners of change efforts, or otherwise from offering opinions on the subject of homosexuality. Amended op. at 26. In Welch, the district court granted plaintiffs an injunction against SB 1172, but a different judge in Pickup denied a similar request. Plaintiffs in these cases include licensed professionals who provide change efforts exclusively through speech – i.e.,
According to the statute, “mental health providers” consist not only of the medical doctor and trained psychologist, but also “psychological assistant, intern, or trainee, a licensed marriage and family therapist, a registered marriage and family therapist, intern, or trainee, . . . a licensed clinical social worker, an associate clinical social worker, a licensed professional clinical counselor, a registered clinical counselor, intern, or trainee.” Cal. Bus. & Prof. Code § 865(a).
1

App. 92 methods such as counseling and prayer.2 Cf. id. at 39 n.5. According to the panel the words proscribed by SB 1172 consist entirely of medical “treatment,” which although effected by verbal communication nevertheless constitutes “professional conduct” entirely unprotected by the First Amendment. See amended op. at 37-39. Unlike a professional’s opinions, theories, recommendations, or advocacy, such “conduct” effected through speech would receive no constitutional safeguards against state suppression. Id. The panel provides no principled doctrinal basis for its dichotomy: by what criteria do we distinguish between utterances that are truly “speech,” on the one hand, and those that are, on the other hand, somehow “treatment” or “conduct”? The panel, contrary to common sense and without legal authority, simply asserts that some spoken words – those prohibited by SB 1172 – are not speech. Empowered by this ruling of our court, government will have a new and powerful tool to silence expression based on a political or moral judgment about the content and purpose of the communications. The First Amendment precisely forbids government from punishing speech on such grounds.
In surveying the history of “sexual orientation change efforts,” the panel also catalogues various “aversive” treatments, some barbaric and many archaic, employed by psychologists of a bygone era. See amended op. at 23-24. Such anachronisms are not at issue here.
2

App. 93 II Our precedents do not suggest that laws prohibiting “conduct” effected exclusively by means of speech escape First Amendment scrutiny. In fact, the Supreme Court, in its most recent relevant case, flatly refused to countenance the government’s purported distinction between “conduct” and “speech” for constitutional purposes when the activity at issue consisted of talking and writing. The plaintiffs in Holder v. Humanitarian Law Project, 561 U.S. 1, 130 S. Ct. 2705, 177 L. Ed. 2d 355 (2010), had challenged a Federal statute forbidding “material support” to terrorist organizations for criminalizing protected verbal communications. Id. at 2716-17. The Supreme Court upheld the statute, but only after applying First Amendment scrutiny. Specifically, the Court rejected the government’s argument that the statute only punished “conduct”: for, in this situation, the “conduct triggering coverage under the statute consists of communicating a message.” Id. at 2724. In other words, the government’s ipse dixit cannot transform “speech” into “conduct” that it may more freely regulate.3
Undoubtedly the State possesses an important interest in regulating the professions in the interest of public health, safety, and morals; but presumably the governmental interest in proscribing criminal activity, and especially support of terrorism, is similarly substantial – if not more so. Yet the Supreme Court declined to declare speech uttered in just such a context as categorically outside of the First Amendment’s protections.
3

App. 94 The panel attempts, vainly, to distinguish Humanitarian Law Project from the facts of this case by emphasizing that the change efforts prohibited by SB 1172 are “therapeutic treatment, not expressive speech” and that the practitioners to whom the law applies are “licensed mental health professionals acting within the confines of the counselor-client relationship.” Amended op. at 39. In purported contrast is the issue in Humanitarian Law Project, which according to the panel dealt with “political speech . . . by ordinary citizens.” Id. at 40. These supposedly distinguishing characteristics find no support in the Supreme Court’s holding and do not even fairly characterize the facts of the case. In the first place, the panel’s vague invocation of “ordinary citizens” misses the mark. What exactly the panel means by this locution – more redolent of campaign sound bites or generic political press releases than the customarily more precise language of judicial opinions – is unclear. To the extent that “ordinary citizens” encompass non-professionals, this dichotomy is self-evidently irrelevant on the facts of Humanitarian Law Project. The plaintiffs in that case included a nonprofit human-rights organization with consultative status to the United Nations, 130 S. Ct. at 2713-14; the activities in which they had contemplated engaging included offering their professional expertise and advice on various international and humanitarian issues, id. at 2716-17. Such plaintiffs may not have been doctors or psychoanalysts, but certainly purported to be offering professional services of

App. 95 another sort; the Supreme Court, at least, did not treat them as mere lay people. If that is the distinction the panel perceives in the “ordinary citizens” of Humanitarian Law Project, it is illusory. Furthermore, the Supreme Court in Humanitarian Law Project explicitly rejected the plaintiffs’ argument that the expression in question consisted of “pure political speech.” Id. at 2722; see also id. at 2724 (“The First Amendment issue before us is . . . not whether the Government may prohibit pure political speech.”). In explanation, the Court proceeded to enumerate various sorts of political expression that the statute did not abridge – just as the panel’s opinion does with respect to SB 1172. The material support statute permitted “plaintiffs . . . to say anything they wish on any topic[; t]hey may speak and write freely[;]. . . . [t]hey may advocate before the United Nations.” Id. at 2722-23; cf. amended op. at 26 (“SB 1172 does not . . . [p]revent mental health providers from communicating with the public about SOCE[; p]revent mental health providers from expressing their views to patients, whether children or adults, about SOCE, homosexuality, or any other topic[; p]revent mental health providers from recommending SOCE to patients, whether children or adults. . . .”). Such classical “political speech,” Chief Justice Roberts concluded, did not fall within the statute’s strictures; nevertheless, the Court ruled that the First Amendment still applied to the sort of speech in which the plaintiffs contemplated engaging and which they claimed the statute forbade. See id. at

App. 96 2724-27. The reasoning of Humanitarian Law Project specifically forecloses courts from approving a statutory restriction on speech simply because it still permits various and extensive political expression. The cases here present an analogous situation: professionals – including but not limited to doctors and psychologists – desire to “communicate a message” that the law in question does not permit. This court accordingly should subject SB 1172 to some level of scrutiny under the First Amendment. It bears noting, further, that the Court in Humanitarian Law Project did not examine the content or purpose of the “message” the plaintiffs desired to communicate. Thus the panel’s attempt to validate SB 1172, on the basis that the speech – the communicated “message” – it proscribes is not “expressive” or “symbolic,” amended op. at 39, finds no support in Humanitarian Law Project itself. Whether the prohibited communications in any given situation qualify as pure political speech or, for example, commercial speech will affect only the level of scrutiny, not whether the First Amendment applies at all. The Supreme Court has not required that speech, as a threshold matter, be “expressive” or “symbolic” before deigning to extend to it constitutional protection.4

The panel’s reliance on the Supreme Court’s opinion in Rumsfeld v. Forum for Academic & Institutional Rights (“FAIR II”), 547 U.S. 47, 126 S. Ct. 1297, 164 L. Ed. 2d 156 (2006), consequently, begs the question. See amended op. at 40. That (Continued on following page)

4

App. 97 The Supreme Court’s implication in Humanitarian Law Project is clear: legislatures cannot nullify the First Amendment’s protections for speech by playing this labeling game. SB 1172 prohibits certain “practices,” just as the statute in Humanitarian Law Project prohibited “material support”; but with regard to those plaintiffs as well as the plaintiffs here, those laws targeted speech. Thus, the First Amendment still applies. III The Federal courts have never recognized a freestanding exception to the First Amendment for state professional regulations.5 Indeed authoritative precedents have established that neither professional regulations generally, nor even a more limited subclass of such rules, remain categorically outside of the
case “extended First Amendment protection only to conduct that is inherently expressive,” id. at 66; but the panel’s insufficiently grounded assertion that change efforts constitute “conduct” is precisely what is at issue. FAIR II would only control if the panel first correctly determined that change efforts comprise not speech but conduct for the purposes of the First Amendment – a determination that, on these facts, Humanitarian Law Project forecloses. 5 The panel places professionals’ free-speech rights along a “continuum,” on one end of which, “where a professional is engaged in a public dialogue,” he enjoys extensive protections under the First Amendment. And, “[a]t the midpoint of the continuum, . . . First Amendment protection . . . is somewhat diminished” but apparently not obliterated. See amended op. at 34-37.

App. 98 First Amendment’s reach.6 To justify its purported speech/conduct dichotomy in the context of the professions, the panel instead invokes our decisions in National Association for the Advancement of Psychoanalysis v. California Board of Psychology
See, e.g., Fla. Bar v. Went For It, Inc., 515 U.S. 618, 62224, 115 S. Ct. 2371, 132 L. Ed. 2d 541 (1995) (applying the First Amendment to state bar rules forbidding certain direct attorney advertising); Edenfield v. Fane, 507 U.S. 761, 765-67, 113 S. Ct. 1792, 123 L. Ed. 2d 543 (1993) (applying the First Amendment to state professional regulation of accountants); Ohralik v. Ohio St. Bar Ass’n, 436 U.S. 447, 454-59, 98 S. Ct. 1912, 56 L. Ed. 2d 444 (1978) (applying a balancing test under the First Amendment to state professional regulation that prohibited attorney in-person solicitation); Bates v. St. Bar of Ariz., 433 U.S. 350, 363-66, 97 S. Ct. 2691, 53 L. Ed. 2d 810 (1977) (applying First Amendment to state professional regulation that prohibited attorney advertising); Va. St. Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 758-61, 96 S. Ct. 1817, 48 L. Ed. 2d 346 (1975) (applying First Amendment to state professional regulation that prohibited pharmacists from advertising prices). Most precedents addressing the application of the First Amendment to professional regulations have occurred in the context of rules against advertising. The Supreme Court has subjected such “commercial speech” to a lower degree of scrutiny under the First Amendment than classical political expression, respecting the state’s traditional “power to regulate commercial activity deemed harmful.” Ohralik, 436 U.S. at 456. Unlike advertising – or the “exchange of information about securities, corporate proxy statements, the exchange of price and production information, and employers’ threats of retaliation for the labor activities of employees,” id. – change efforts do not have a necessarily commercial focus. Indeed, SB 1172 does not simply prohibit licensed practitioners from engaging in change efforts for a fee, but subjects them to professional discipline for doing so even absent any commercial relationship – such as, for example, in connection with a church’s ministry.
6

App. 99 (“NAAP”), 228 F.3d 1043 (9th Cir. 2000), and Conant v. Walters, 309 F.3d 629 (9th Cir. 2002), as well as scattered citations of non-authoritative cases. Supreme Court precedent, however, as well as NAAP and Conant themselves, do not dictate such conclusion – rather, they counsel against it. A NAAP confronted the question whether California may regulate the psychoanalytical professions at all. We concluded, indeed, that psychoanalysts, simply by dint of theirs being the “talking cure,” do not receive “special First Amendment protection.” See NAAP, 228 F.3d at 1054 (emphasis added). But such statement does not in any way support the novel principle, discerned by the panel, that such “talk therapy” receives no First Amendment protection at all. In fact NAAP explicitly affirmed that the “communication that occurs during psychoanalysis is entitled to constitutional protection,” even if it “is not immune from regulation.” Id. Although the panel implies otherwise, NAAP did not hold that psychotherapy administered solely through the spoken word constitutes wholly unprotected speech.7
Plaintiffs in that case had challenged California’s general licensing scheme for certain mental health professionals, which required practitioners to possess certain educational credentials but otherwise did not “dictate what can be said between psychologists and patients during treatment.” NAAP, 228 F.3d at 1055. Unlike NAAP, this case does not involve simply a general licensing scheme or educational requirements, but rather the (Continued on following page)
7

App. 100 Rather we stated in NAAP that mental health professionals do not lose all of their First Amendment immunities once their counseling sessions begin.8 B Conant likewise offers no terra firma for the panel’s unprecedented distinction. In that case, the Ninth Circuit invalidated a Federal regulation that prohibited physicians from recommending medicinal marijuana to their patients. In so doing, we affirmed that doctors’ speech to their patients “may be entitled to the strongest protection our Constitution has to offer.” Conant, 309 F.3d at 637 (internal quotation marks omitted). Conant furthermore explained that NAAP stated that “communication that occurs during psychoanalysis is entitled to First Amendment protection” and summarized its holding that the regulation at issue in that case passed muster because the “content-neutral” law “did not attempt to dictate the content of what is said in therapy and did not prevent licensed therapists from utilizing particular psychoanalytical methods.” Id. (internal quotation marks omitted). On its face, this language from Conant seems to apply more directly and more strongly to SB
substantive regulation of the speech uttered between practitioners and patients. 8 It merits repeating here that SB 1172’s reach extends much more broadly than the psychoanalytical professions: it also regulates marriage therapists, social workers, and clinical counselors. See supra note 4.

App. 101 1172 than to the Federal restriction considered in that case. Indeed, SB 1172 explicitly bans speech with a certain content or uttered with a certain intent, and unequivocally prohibits not only “particular psychoanalytical methods” but also particular purposes that both doctor and patient may have for preferring such methods. The panel, however, claims to find support for its conduct/speech distinction in Conant’s contrast of recommending medicinal marijuana with actually prescribing the controlled substance. See id. at 635. Because SB 1172 purportedly permits professionals freely to discuss change efforts with – and even recommend change efforts to – their patients, but simply forbids them from engaging in change efforts themselves, the panel asserts that the regulation does not fail under Conant’s logic. See amended op. at 3839. Such a conclusion depends on an analogy between change efforts and “speak[ing] the words necessary to provide or administer the banned drug.” Id. at 37-38. But by writing a prescription, a physician’s words have an independent legal effect: ordinarily, it entitles the patient to a controlled chemical substance he otherwise would have no right to possess. When the State prohibits a doctor from prescribing a drug, it simply refuses to accord his written words this additional legal significance.9 Rather, like the regulation
For a similar reason, the State may also punish a doctor for purporting to prescribe an illegal drug or otherwise writing a prescription he is not qualified or permitted to write. In such a (Continued on following page)
9

App. 102 challenged and invalidated in Conant, SB 1172 prohibits the doctor from speaking to his patient with certain words and in a certain way.10

situation, the doctor is attempting fraudulently to arrogate to his writing a legal significance to which it is not entitled. A psychologist or a social worker who undertakes change efforts on his patient, on the other hand, is not investing, or attempting to invest, his words with any legal effect. 10 Although it quotes, word for word, the statutory definition of “mental health provider,” amended op. at 25 n.1, the panel finds no problem characterizing as “medical treatment” the services provided by nonmedical professionals such as marriage therapists, social workers, and clinical counselors – all of whom SB 1172 forbids from engaging in change efforts. The panel emphasizes the “medical” nature of the regulation at issue. It describes change efforts as “therapeutic treatment” and “activities [that] are therapeutic,” and classifies change efforts as analogous for relevant purposes alongside medical procedures. Id. at 39-40. Although the panel expressly invokes the statutory language when arguing that SB 1172 regulates conduct, it does not attend as closely to the legislative text in attempting to characterize change efforts as “medicine.” Indeed, as emphasized above, SB 1172 extends much more broadly than just to the medical or even the psychoanalytical professions. SB 1172 likewise forbids licensed marriage and family therapists as well as social workers, among others, from engaging in change efforts. See Cal. Bus. & Prof. Code § 865(a). It strains credulity to depict the counseling services – socially invaluable as they are – provided by marriage counselors and social workers as “medicine” or “treatment.” If the panel’s presumption that all change efforts, whether administered by doctors and psychologists, or by social workers and marriage counselors, are necessarily “medicine” is based on scientific or other objective technical expertise, they do not say so. For certainly the text of the statute does not suggest, let alone compel, such a broad proclamation.

App. 103 C Perhaps what really shapes the panel’s reasoning in these cases is not the principles supposedly distilled from the case law, but rather problematic and potentially unavoidable implications of an alternative conclusion. By subjecting SB 1172 to any First Amendment scrutiny at all, the panel may fear it will open Pandora’s box: heretofore uncontroversial professional regulations proscribing negligent, incompetent, or harmful advice will now attract meritless challenges merely on the basis that such provisions prohibit speech. Alluding to these concerns, the panel notes that “doctors are routinely held liable for giving negligent medical advice to their patients, without serious suggestion that the First Amendment protects their right to give advice that is not consistent with the accepted standard of care.” Amended op. at 36. But the panel nevertheless fails to develop this argument, and cites no authoritative precedent that protects such regulations from First Amendment scrutiny. In the first place, Humanitarian Law Project has effectively neutralized this ground of reasoning. The material-support statute in that case attempted, with respect to those plaintiffs, just what SB 1172 proposes to do to Drs. Welch and Pickup: prohibit the provision of certain professional services delivered solely through speech. The statute in Humanitarian Law Project survived – but it did not escape – First Amendment scrutiny.

App. 104 Subjecting regulations of professionals’ speech to some degree of scrutiny under the First Amendment indeed does not necessarily call their legitimacy into question. But perhaps the panel’s common sense would afford more deferential treatment to such traditional regulations as, for example, the ethical rules forbidding attorneys from divulging client confidences. Accordingly, the panel intimates a potentially broad exception to the First Amendment for certain categories of speech. 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.’ ” United States v. Alvarez, 132 S. Ct. 2537,2547, 183 L. Ed. 2d 574 (2012) (quoting United States v. Stevens, 559 U.S. 460, 472, 130 S. Ct. 1577, 176 L. Ed. 2d 435 (2010)).11 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.12

Notwithstanding my vigorous dissent from our court’s denial of en banc rehearing, the Supreme Court ratified the Alvarez panel’s “novel theory that ‘we presumptively protect all speech. . . .’ ” United States v. Alvarez, 638 F.3d 666, 679 (9th Cir. 2011) (O’Scannlain, J., dissenting from denial of rehearing). We may not reopen now this settled question. 12 Although the panel fears the implications of overprotecting professional speech, it does not consider the potential effects of underprotection. If a state may freely regulate speech uttered (Continued on following page)

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App. 105 III 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. The regulation at issue may very well constitute a valid exercise of California’s police power: I take no view as to the merits of SB 1172, either as a matter of policy or on the question whether it would withstand strict or some intermediate level of scrutiny. 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.

by professionals in the course of their practice without implicating the First Amendment, then targeting disfavored moral and political expression may only be a matter of creative legislative draftsmanship.

App. 106 For the foregoing reasons I respectfully dissent from the court’s decision not to rehear these cases en banc.

App. 107 Senate Bill No. 1172 CHAPTER 835 An act to add Article 15 (commencing with Section 865) to Chapter 1 of Division 2 of the Business and Professions Code, relating to healing arts. [Approved by Governor September 30, 2012. Filed with Secretary of State September 30, 2012.] LEGISLATIVE COUNSEL’S DIGEST SB 1172, Lieu. Sexual orientation change efforts. Existing law provides for licensing and regulation of various professions in the healing arts, including physicians and surgeons, psychologists, marriage and family therapists, educational psychologists, clinical social workers, and licensed professional clinical counselors. This bill would prohibit a mental health provider, as defined, from engaging in sexual orientation change efforts, as defined, with a patient under 18 years of age. The bill would provide that any sexual orientation change efforts attempted on a patient under 18 years of age by a mental health provider shall be considered unprofessional conduct and shall subject the provider to discipline by the provider’s licensing entity. The bill would also declare the intent of the Legislature in this regard.

App. 108 Vote: Majority Appropriation: No tee: Yes Local Program: No Fiscal Commit-

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. The Legislature finds and declares all of the following: (a) Being lesbian, gay, or bisexual is not a disease, disorder, illness, deficiency, or shortcoming. The major professional associations of mental health practitioners and researchers in the United States have recognized this fact for nearly 40 years. (b) The American Psychological Association convened a Task Force on Appropriate Therapeutic Responses to Sexual Orientation. The task force conducted a systematic review of peer-reviewed journal literature on sexual orientation change efforts, and issued a report in 2009. The task force concluded that sexual orientation change efforts can pose critical health risks to lesbian, gay, and bisexual people, including confusion, depression, guilt, helplessness, hopelessness, shame, social withdrawal, suicidality, substance abuse, stress, disappointment, self-blame, decreased self-esteem and authenticity to others, increased selfhatred, hostility and blame toward parents, feelings of anger and betrayal, loss of friends and potential romantic partners, problems in sexual and emotional intimacy, sexual dysfunction, high-risk sexual behaviors, a feeling of being dehumanized and untrue to self, a loss of faith, and a sense of having wasted time and resources.

App. 109 (c) The American Psychological Association issued a resolution on Appropriate Affirmative Responses to Sexual Orientation Distress and Change Efforts in 2009, which states: “[T]he [American Psychological Association] advises parents, guardians, young people, and their families to avoid sexual orientation change efforts that portray homosexuality as a mental illness or developmental disorder and to seek psychotherapy, social support, and educational services that provide accurate information on sexual orientation and sexuality, increase family and school support, and reduce rejection of sexual minority youth.” (d) The American Psychiatric Association published a position statement in March of 2000 in which it stated: “Psychotherapeutic modalities to convert or ‘repair’ homosexuality are based on developmental theories whose scientific validity is questionable. Furthermore, anecdotal reports of ‘cures’ are counterbalanced by anecdotal claims of psychological harm. In the last four decades, ‘reparative’ therapists have not produced any rigorous scientific research to substantiate their claims of cure. Until there is such research available, [the American Psychiatric Association] recommends that ethical practitioners refrain from attempts to change individuals’ sexual orientation, keeping in mind the medical dictum to first, do no harm.

App. 110 The potential risks of reparative therapy are great, including depression, anxiety and self-destructive behavior, since therapist alignment with societal prejudices against homosexuality may reinforce selfhatred already experienced by the patient. Many patients who have undergone reparative therapy relate that they were inaccurately told that homosexuals are lonely, unhappy individuals who never achieve acceptance or satisfaction. The possibility that the person might achieve happiness and satisfying interpersonal relationships as a gay man or lesbian is not presented, nor are alternative approaches to dealing with the effects of societal stigmatization discussed. Therefore, the American Psychiatric Association opposes any psychiatric treatment such as reparative or conversion therapy which is based upon the assumption that homosexuality per se is a mental disorder or based upon the a priori assumption that a patient should change his/her sexual homosexual orientation.” (e) The American School Counselor Association’s position statement on professional school counselors and lesbian, gay, bisexual, transgendered, and questioning (LGBTQ) youth states: “It is not the role of the professional school counselor to attempt to change a student’s sexual orientation/gender identity but instead to provide support to LGBTQ students to promote student achievement and personal wellbeing. Recognizing that sexual orientation is not an illness and does not require treatment, professional

App. 111 school counselors may provide individual student planning or responsive services to LGBTQ students to promote self-acceptance, deal with social acceptance, understand issues related to coming out, including issues that families may face when a student goes through this process and identify appropriate community resources.” (f) The American Academy of Pediatrics in 1993 published an article in its journal, Pediatrics, stating: “Therapy directed at specifically changing sexual orientation is contraindicated, since it can provoke guilt and anxiety while having little or no potential for achieving changes in orientation.” (g) The American Medical Association Council on Scientific Affairs prepared a report in 1994 in which it stated: “Aversion therapy (a behavioral or medical intervention which pairs unwanted behavior, in this case, homosexual behavior, with unpleasant sensations or aversive consequences) is no longer recommended for gay men and lesbians. Through psychotherapy, gay men and lesbians can become comfortable with their sexual orientation and understand the societal response to it.” (h) The National Association of Social Workers prepared a 1997 policy statement in which it stated: “Social stigmatization of lesbian, gay and bisexual people is widespread and is a primary motivating factor in leading some people to seek sexual orientation changes. Sexual orientation conversion therapies assume that homosexual orientation is both pathological

App. 112 and freely chosen. No data demonstrates that reparative or conversion therapies are effective, and, in fact, they may be harmful.” (i) The American Counseling Association Governing Council issued a position statement in April of 1999, and in it the council states: “We oppose ‘the promotion of “reparative therapy” as a “cure” for individuals who are homosexual.’ ” (j) The American Psychoanalytic Association issued a position statement in June 2012 on attempts to change sexual orientation, gender, identity, or gender expression, and in it the association states: “As with any societal prejudice, bias against individuals based on actual or perceived sexual orientation, gender identity or gender expression negatively affects mental health, contributing to an enduring sense of stigma and pervasive self-criticism through the internalization of such prejudice. Psychoanalytic technique does not encompass purposeful attempts to ‘convert,’ ‘repair,’ change or shift an individual’s sexual orientation, gender identity or gender expression. Such directed efforts are against fundamental principles of psychoanalytic treatment and often result in substantial psychological pain by reinforcing damaging internalized attitudes.” (k) The American Academy of Child and Adolescent Psychiatry in 2012 published an article in its journal, Journal of the American Academy of Child and Adolescent Psychiatry, stating: “Clinicians should be aware that there is no evidence that sexual orientation

App. 113 can be altered through therapy, and that attempts to do so may be harmful. There is no empirical evidence adult homosexuality can be prevented if gender nonconforming children are influenced to be more gender conforming. Indeed, there is no medically valid basis for attempting to prevent homosexuality, which is not an illness. On the contrary, such efforts may encourage family rejection and undermine selfesteem, connectedness and caring, important protective factors against suicidal ideation and attempts. Given that there is no evidence that efforts to alter sexual orientation are effective, beneficial or necessary, and the possibility that they carry the risk of significant harm, such interventions are contraindicated.” (l) The Pan American Health Organization, a regional office of the World Health Organization, issued a statement in May of 2012 and in it the organization states: “These supposed conversion therapies constitute a violation of the ethical principles of health care and violate human rights that are protected by international and regional agreements.” The organization also noted that reparative therapies “lack medical justification and represent a serious threat to the health and well-being of affected people.” (m) Minors who experience family rejection based on their sexual orientation face especially serious health risks. In one study, lesbian, gay, and bisexual young adults who reported higher levels of family rejection during adolescence were 8.4 times more likely to report having attempted suicide, 5.9 times

App. 114 more likely to report high levels of depression, 3.4 times more likely to use illegal drugs, and 3.4 times more likely to report having engaged in unprotected sexual intercourse compared with peers from families that reported no or low levels of family rejection. This is documented by Caitlin Ryan et al. in their article entitled Family Rejection as a Predictor of Negative Health Outcomes in White and Latino Lesbian, Gay, and Bisexual Young Adults (2009) 123 Pediatrics 346. (n) California has a compelling interest in protecting the physical and psychological well-being of minors, including lesbian, gay, bisexual, and transgender youth, and in protecting its minors against exposure to serious harms caused by sexual orientation change efforts. (o) Nothing in this act is intended to prevent a minor who is 12 years of age or older from consenting to any mental health treatment or counseling services, consistent with Section 124260 of the Health and Safety Code, other than sexual orientation change efforts as defined in this act. SEC. 2. Article 15 (commencing with Section 865) is added to Chapter 1 of Division 2 of the Business and Professions Code, to read: Article 15. Sexual Orientation Change Efforts 865. For the purposes of this article, the following terms shall have the following meanings: (a) “Mental health provider” means a physician and surgeon specializing in the practice of psychiatry, a

App. 115 psychologist, a psychological assistant, intern, or trainee, a licensed marriage and family therapist, a registered marriage and family therapist, intern, or trainee, a licensed educational psychologist, a credentialed school psychologist, a licensed clinical social worker, an associate clinical social worker, a licensed professional clinical counselor, a registered clinical counselor, intern, or trainee, or any other person designated as a mental health professional under California law or regulation. (b) (1) “Sexual orientation change efforts” means any practices by mental health providers that seek to change an individual’s sexual orientation. This includes efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex. (2) “Sexual orientation change efforts” does not include psychotherapies that: (A) provide acceptance, support, and understanding of clients or the facilitation of clients’ coping, social support, and identity exploration and development, including sexual orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices; and (B) do not seek to change sexual orientation. 865.1. Under no circumstances shall a mental health provider engage in sexual orientation change efforts with a patient under 18 years of age. 865.2. Any sexual orientation change efforts attempted on a patient under 18 years of age by a mental

App. 116 health provider shall be considered unprofessional conduct and shall subject a mental health provider to discipline by the licensing entity for that mental health provider.

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