783 F.3d 150
3rd Cir.2015Background
- This case challenges New Jersey’s SOCE prohibition for minors, A3371 (N.J. Stat. Ann. §§ 45:1-54, 55).
- Plaintiffs are a fifteen-year-old minor (John Doe) and his parents who seek ongoing SOCE counseling.
- District Court dismissed the complaint, holding SOCE counseling is conduct, not speech, and that the statute passes rational basis review.
- The Third Circuit in King v. Governor of N.J., 767 F.3d 216 (3d Cir. 2014), upheld A3371 as constitutionally permissible against counselors’ First Amendment and free exercise challenges.
- This opinion affirms the District Court’s dismissal, applying the King framework to the Does’ challenges, including a new theory about the right to receive information and parental rights concerns.
- A3371 bans provision of SOCE to minors but contains exemptions and is intended to protect minors from harms found in the legislative record; the state has a substantial interest in minor welfare.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is A3371 constitutional as applied to free speech by counselors? | Appellants claim A3371 violates counselors’ First Amendment speech. | State argues A3371 satisfies intermediate scrutiny for professional speech. | A3371 survives intermediate scrutiny; no First Amendment violation. |
| Does A3371 violate the Does’ First Amendment right to receive information? | Appellants contend recipient information is restricted by A3371. | State maintains no violation since speech restriction is permissible; listener rights do not override holding. | No violation; right to receive information not infringed where A3371 is upheld as to speech. |
| Does A3371 violate the Does’ Free Exercise rights? | Appellants argue free exercise should invalidate A3371. | State asserts neutral, generally applicable statute subject to rational basis review. | No free exercise violation; statute passes scrutiny under King framework. |
| Does A3371 infringe parents’ fundamental right to direct upbringing? | Parents argue substantive due process right to choose treatments for child. | State may regulate treatments deemed harmful; not a right to a specific provider. | Fundamental parental right not extended to compel availability of a specific treatment; affirmed dismissal. |
Key Cases Cited
- King v. Governor of N.J., 767 F.3d 216 (3d Cir. 2014) (upheld A3371 against counselors’ First Amendment challenges; intermediate scrutiny for professional speech)
- Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2014) (state may prohibit SOCE; parents do not have right to compel specific treatments)
- Va. State Bd. of Pharm. v. Va. Citizens Consumer Council, Inc., 425 U.S. 748 (1976) (reciprocity of right to speak and to receive information)
- Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853 (1982) (right to receive ideas follows sender’s First Amendment right to send them)
- Troxel v. Granville, 530 U.S. 57 (2000) (parental rights are not unlimited; state may protect child well-being)
- Prince v. Massachusetts, 321 U.S. 158 (1944) (state interest in child welfare can override parental discretion)
- Parham v. J.R., 442 U.S. 584 (1979) (state may intervene in care of minors for health/well-being)