King v. Governor of the State of New Jersey
767 F.3d 216
3rd Cir.2014Background
- New Jersey enacted A3371 (N.J. Stat. Ann. §§ 45:1-54, 55), banning licensed counselors from performing “sexual orientation change efforts” (SOCE) with clients under 18; violation can lead to professional discipline.
- Plaintiffs: two New Jersey licensed counselors (King, Newman) and organizations (NARTH, American Association of Christian Counselors) who provide SOCE (described as verbal "talk therapy" often informed by religious beliefs) sued state officials claiming First Amendment free speech and free exercise violations; they also asserted third-party claims on behalf of minor clients and parents.
- District Court held A3371 regulated conduct (not speech), rejected Plaintiffs’ First Amendment and free exercise claims, found Plaintiffs lacked third-party standing, and allowed Garden State Equality to intervene as a defendant; Plaintiffs appealed.
- Third Circuit: held SOCE verbal communications are speech but constitute professional speech entitled to diminished First Amendment protection; applied intermediate scrutiny (Central Hudson standard adapted to professional speech).
- Court concluded A3371 survives intermediate scrutiny because New Jersey presented substantial evidence (professional associations, reports including APA materials) that SOCE is ineffective and potentially harmful to minors, and the statute is sufficiently tailored to protect minors; also rejected vagueness/overbreadth and free exercise challenges; affirmed denial of third-party standing and permissive intervention.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether SOCE counseling is protected speech | SOCE is verbal "talk therapy"; thus it is speech fully protected by the First Amendment | A3371 regulates professional conduct/treatment, not speech; any speech effect is incidental | Verbal SOCE is speech but falls into "professional speech" category with diminished protection |
| Standard of review for regulation of professional speech | Strict scrutiny or full protection because statute restricts content/viewpoint | Deferential review (rational basis) because regulation targets professional conduct | Intermediate scrutiny (Central Hudson intermediate test adapted): regulation must directly advance substantial state interest and be no more extensive than necessary |
| Whether A3371 survives scrutiny | Plaintiffs: statute is overbroad, not narrowly tailored; legislature lacked conclusive empirical evidence | Defendants: legislature relied on substantial evidence from reputable professional bodies showing SOCE is ineffective/harmful to minors; protecting minors is a substantial interest | A3371 directly advances the State’s interest in protecting minors from harmful/ineffective practices and is sufficiently tailored; statute upheld |
| Free exercise, vagueness, overbreadth, and third-party standing | Free exercise: statute targets religiously informed counseling; Vagueness/Overbreadth: "sexual orientation change efforts" is vague; Standing: counselors may sue for clients | Defendants: statute is neutral and generally applicable; definition gives adequate guidance; counselors lack requisite hindrance to assert clients’ claims | Free exercise claim fails (neutral, generally applicable, rational basis); statute is not unconstitutionally vague or overbroad; plaintiffs lack third-party standing; intervention by Garden State permissible |
Key Cases Cited
- Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) (verbal/written professional assistance can constitute speech subject to First Amendment analysis)
- Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) (physician speech in the practice of medicine is subject to reasonable licensing and regulation)
- Central Hudson Gas & Electric Corp. v. Public Serv. Comm'n, 447 U.S. 557 (1980) (intermediate scrutiny test for commercial-speech restrictions: directly advance substantial interest and not more extensive than necessary)
- Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976) (commercial speech has First Amendment value and may receive diminished protection)
- Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978) (professional solicitation and certain professional speech may receive reduced protection)
- R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (content-based restrictions ordinarily trigger strict scrutiny, but permissible where basis for content discrimination aligns with the reason the speech class is less protected)
- Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) (plurality) (legislature must show harms are real, not conjectural, to satisfy heightened scrutiny)
- Dent v. West Virginia, 129 U.S. 114 (1889) (state police power extends to licensing and regulating professions to protect public health)