981 F.3d 854
11th Cir.2020Background
- Boca Raton and Palm Beach County enacted substantially identical ordinances banning licensed therapists from providing sexual orientation change efforts (SOCE) to minors; both ordinances expressly permit counseling that "provides support and assistance to a person undergoing gender transition."
- Plaintiffs (two licensed marriage and family therapists) provide speech-only, client-directed SOCE to minors and sued, seeking a permanent injunction and moved for a preliminary injunction on First Amendment and state-preemption grounds.
- The district court denied the preliminary injunction; plaintiffs appealed immediately to the Eleventh Circuit.
- The Eleventh Circuit majority held the ordinances are content- and viewpoint-based restrictions on speech, not merely regulation of conduct or a protected-professional exception, and thus trigger strict scrutiny.
- Applying strict-scrutiny principles, the majority found the record insufficient to show the ordinances are narrowly tailored to a compelling interest and reversed to direct entry of a preliminary injunction; the court treated continued enforcement as per se irreparable injury.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ordinances are content- or viewpoint-based speech restrictions | Ordinances regulate pure speech in therapy and target particular messages (SOCE), so they are content- and viewpoint-based | Ordinances regulate professional conduct/medical practice, not speech; any speech burden is incidental | Court: Ordinances are content- and viewpoint-based restrictions of speech (strict scrutiny applies) |
| Whether "professional speech" or conduct doctrine removes full First Amendment protection | Otto/Hamilton: therapy here is speech-only and must be treated as protected speech | Localities: professional-regulation power permits more intrusive regulation of professional practice | Court: Declined to create or apply a diminished "professional speech" category; speech is protected and labeling it conduct cannot evade scrutiny |
| Whether the ordinances survive strict scrutiny (compelling interest and narrow tailoring) | Plaintiffs: government cannot justify viewpoint/content bans; record does not show narrow tailoring re: speech-only SOCE | Defendants: protecting minors from harm is compelling; professional and public-health findings justify the ordinances and the carveouts are reasonable | Court: Protecting minors is compelling, but record (esp. as to speech-only SOCE) is insufficiently narrow/tailored; professional consensus and equivocal evidence do not meet strict-scrutiny burden |
| Preliminary injunction / irreparable harm and preemption claim | Plaintiffs: enforcement is a direct penalization of protected speech causing per se irreparable harm; local ordinances also may be preempted by state licensure law | Defendants: district court found plaintiffs not likely to prevail and preemption claim insufficiently shown for irreparable harm | Court: Continued enforcement of unconstitutional speech restriction is per se irreparable harm; reversed and remanded for entry of preliminary injunction; preemption issue not dispositive on appeal |
Key Cases Cited
- Reed v. Town of Gilbert, 576 U.S. 155 (2015) (content-based speech restrictions trigger strict scrutiny)
- R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (content- and viewpoint-based regulation presumptively invalid)
- National Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361 (2018) (rejected broad professional-speech exception to ordinary First Amendment rules)
- Wollschlaeger v. Governor, Fla., 848 F.3d 1293 (11th Cir. 2017) (invalidating speaker-focused, content-based professional-speech restrictions by doctors)
- Cohen v. California, 403 U.S. 15 (1971) (conduct as pretext where the punished act is communication)
- McCullen v. Coakley, 573 U.S. 464 (2014) (examining whether enforcement requires content examination)
- Brown v. Entertainment Merchants Ass'n, 564 U.S. 786 (2011) (government cannot broadly restrict minors’ access to protected expression)
- Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995) (viewpoint discrimination is an egregious form of content discrimination)
- United States v. Stevens, 559 U.S. 460 (2010) (some content-based criminal restrictions are invalid despite social cost)
- Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) (prohibition that disfavored speech based on content/target speaker was unconstitutional)