353 F. Supp. 3d 1237
S.D. Fla.2019Background
- Two ordinances (City of Boca Raton and Palm Beach County, 2017) prohibit licensed providers from administering “conversion therapy”/SOCE to minors; non‑licensed clergy and adult therapy are not banned.
- Plaintiffs Dr. Robert Otto and Dr. Julie Hamilton are licensed talk‑therapists who provide exclusively speech‑based SOCE and seek a preliminary injunction to bar enforcement.
- Defendants relied on consensus position statements and reports from major medical and mental health organizations finding SOCE ineffective and potentially harmful to minors.
- Procedural posture: Renewed motion for preliminary injunction; Court held full briefing, amicus briefs, and oral argument; denied the preliminary injunction.
- Claims asserted (in Complaint): First Amendment free speech and right to receive information, free exercise, Florida constitutional claims, vagueness, prior restraint, ultra vires (preemption/state law) and Patient Bill of Rights claims; the PI motion focused on free speech and ultra vires grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ordinances implicate First Amendment speech | Otto/Hamilton: ordinances ban purely speech‑based therapy and thus abridge protected speech and are viewpoint/content discriminatory | City/County: ordinances regulate professional conduct (therapy) or at most incidentally burden speech to protect minors' health | Court: ordinances likely regulate protected speech (speech‑based therapy) and thus require heightened review; not limited to mere conduct |
| Proper level of scrutiny (rational basis, intermediate, strict) | Plaintiffs: content‑based measure demands strict scrutiny; viewpoint discrimination defeats law | Defendants: at most professional conduct/regulation of medical practice—rational basis or intermediate scrutiny applies | Court: unsettled; found law likely > rational basis; intermediate scrutiny appropriate under professional‑speech principles, strict scrutiny not foreclosed but harder for plaintiffs |
| Whether the ordinances survive scrutiny (fit/narrow tailoring / least‑restrictive means) | Plaintiffs: ordinances are not narrowly tailored; less‑restrictive alternatives (informed consent, ban only aversive techniques) exist | Defendants: compelling/substantial interest in protecting minors from harms of SOCE; professional consensus and other jurisdictions support ban; alternatives inadequate to prevent harms | Court: Defendants showed a legitimate/substantial/compelling interest; ordinances survive rational basis and intermediate review; strict scrutiny closer but plaintiffs failed to show substantial likelihood of success |
| Viewpoint discrimination and prior restraint/vagueness/ultra vires claims | Plaintiffs: ordinance favors certain viewpoints (allows supportive gender‑transition counseling) and functions as an unconstitutional prior restraint; terms are vague; ordinances conflict with state authority | Defendants: ordinance targets practice/treatment (not viewpoint), is not a licensing permit prior restraint, uses readily understood terms, and falls within local police powers | Court: ordinances likely viewpoint neutral (target practice, not views); not a prior restraint; not unconstitutionally vague; plaintiffs failed to show irreparable harm on ultra vires claim — PI denied |
Key Cases Cited
- American Booksellers Ass'n v. Webb, 919 F.2d 1493 (11th Cir. 1990) (balancing free expression and governmental interest in protecting minors)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (standing requirements)
- Wollschlaeger v. Governor of Fla., 848 F.3d 1293 (11th Cir. 2017) (speech by licensed professionals is still speech; content‑based restrictions on professionals not subject to mere rational basis)
- Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2014) (California SOCE ban viewed as regulation of professional conduct; rational basis review)
- King v. Governor of N.J., 767 F.3d 216 (3d Cir. 2014) (SOCE ban regulates professional speech; intermediate scrutiny applied and upheld)
- Reed v. Town of Gilbert, 135 S. Ct. 2218 (content‑based regulation normally triggers strict scrutiny)
- Nat'l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361 (compelled speech and limits on professional‑speech categorization)
- Sorrell v. IMS Health Inc., 564 U.S. 552 (viewpoint/content discrimination principles)
- Planned Parenthood v. Casey, 505 U.S. 833 (States may regulate professional medical practice; physician speech implicated but subordinated to regulation)
- McCullen v. Coakley, 573 U.S. 464 (narrow tailoring/least‑restrictive means in speech‑related regulations)
- Winter v. Natural Res. Def. Council, 555 U.S. 7 (standard for preliminary injunction; extraordinary remedy)
- Wreal, LLC v. Amazon.com, Inc., 840 F.3d 1244 (11th Cir. 2016) (four‑factor preliminary injunction standard)