728 F.3d 1042
9th Cir.2013Background
- California enacted SB 1172 banning licensed mental-health providers from engaging in “sexual orientation change efforts” (SOCE) with patients under 18; violations constitute unprofessional conduct subject to licensing discipline.
- SB 1172 preserves: public discussion, recommendations, referrals to unlicensed counselors, SOCE for adults, and out-of-state treatment; it targets the provision of treatment to minors.
- Legislature relied on professional medical/psychological consensus (notably an APA Task Force report) that SOCE lacks demonstrated efficacy and poses risks (depression, suicidality, substance abuse, stigma).
- Two consolidated challenges: Welch plaintiffs obtained a preliminary injunction (district court applied strict scrutiny); Pickup plaintiffs were denied preliminary relief (district court treated the law as regulation of conduct under rational-basis review).
- Ninth Circuit granted plenary review and considered whether SB 1172 is a speech regulation (triggering strict scrutiny) or a regulation of professional conduct (subject to rational-basis review).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether SB 1172 is a regulation of speech triggering strict scrutiny | Pickup/Welch: SB 1172 restricts speech because SOCE is administered via talk therapy; it suppresses viewpoint and content | Brown: SB 1172 regulates professional conduct (treatment), not speech; discussion/recommendation remain permitted | Regulates conduct (treatment); incidental effect on speech only → rational-basis review applies |
| Whether SB 1172 violates First Amendment rights of providers/minors (free speech/receive information) | Plaintiffs: bans therapists from communicating certain viewpoints to minor patients; chills speech and minors’ right to receive information | State: speech about SOCE is allowed; the ban targets the provision of a therapy the legislature found harmful | No First Amendment violation; regulation of treatment is permissible and rationally related to protecting minors |
| Vagueness/Overbreadth challenge | Plaintiffs: statute is vague about what constitutes SOCE; may chill permissible speech and legitimate therapies | State: text reasonably clear to licensed mental-health professionals; legitimate sweep (banning harmful treatments) predominates | Statute is not unconstitutionally vague or overbroad given its focus and the lower clarity standard for regulated professionals |
| Parents’ fundamental right to choose SOCE for their children | Plaintiffs: parents have a liberty interest to direct children’s medical care and access SOCE from licensed providers | State: parental rights are limited; state may bar treatments it reasonably deems harmful to minors | No substantive due process violation; parents do not have a right to require licensed providers to offer treatments the state has banned as harmful |
Key Cases Cited
- National Ass’n for the Advancement of Psychoanalysis v. California Bd. of Psychology, 228 F.3d 1043 (9th Cir. 2000) (professional talk therapy implicates speech but is regulable as conduct; no special First Amendment immunity)
- Conant v. Walters, 309 F.3d 629 (9th Cir. 2002) (government policy banning physician recommendations of medical marijuana implicated content/viewpoint discrimination and required close scrutiny)
- Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949) (conduct may be prohibited even if carried out in part by speech)
- Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) (physician’s speech in clinical context may be subject to regulation as part of medical practice)
- Broadrick v. Oklahoma, 413 U.S. 601 (1973) (overbreadth doctrine requires substantial infringement of protected speech judged against the statute’s legitimate sweep)