41 F.4th 1271
11th Cir.2022Background
- Local ordinances (City of Boca Raton and Palm Beach County) banned licensed therapists from providing sexual-orientation change efforts (SOCE) or therapy aiming to change minors’ sexual orientation or gender identity, while allowing transition-related support.
- Plaintiffs challenged the ordinances on First Amendment grounds; the district court denied a preliminary injunction (Otto I); the panel reversed (Otto II), applying heightened First Amendment review to strike the speech restrictions.
- The Eleventh Circuit denied rehearing en banc. Three-judge concurrence (Grant, joined by Branch and Lagoa) defended the panel’s strict-scrutiny First Amendment analysis; two dissents (Jordan and Rosenbaum, joined by others) argued for en banc review and urged deference to district-court factfinding and to states’ regulatory power over professional medical practice.
- Key disputed factual/legal questions: whether SOCE is speech or conduct; whether professional speech can be regulated under lesser scrutiny; what standard of appellate review applies to district-court factual findings in First Amendment preliminary-injunction appeals.
- The concurrence emphasized plenary (de novo) review of constitutional facts in First Amendment cases and held that the ordinances are content-based speech restrictions that fail strict scrutiny. The dissents argued the panel ignored the clear-error standard for factual findings, and that talk therapy is a medical treatment subject to traditional professional regulation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ordinances regulate speech or conduct (i.e., is SOCE "just talk") | Plaintiffs: therapy is protected speech; bans are content- and viewpoint-based restrictions on therapists’ speech | Defendants: SOCE is a form of medical treatment/regulated professional conduct, not pure speech | Panel & concurrence: SOCE is speech (words are the treatment); courts must analyze it under speech doctrine; the ordinances are content-based and subject to strict scrutiny; en banc denial affirms that view |
| Proper standard of appellate review for underlying facts in a First Amendment preliminary-injunction appeal | Plaintiffs: constitutional facts (core First Amendment questions) warrant plenary review | Defendants: factual findings underlying PI denials should be reviewed for clear error; deference to district court | Concurrence: plenary review appropriate for constitutional facts; panel applied de novo review correctly; Jordan dissent: panel failed to apply clear-error for ordinary facts and improperly reweighed evidence |
| Whether professional-speech doctrine or other exceptions permit content-based regulation of therapists | Plaintiffs: Supreme Court disavowed a broad "professional speech" exception (NIFLA); content-based regulation requires persuasive historical tradition or strict scrutiny | Defendants (dissents): long tradition of state regulation of licensed professionals and standard-of-care enforcement allows content-based regulation of therapy; states may restrict life-threatening or inefficacious treatments for vulnerable populations | Concurrence: NIFLA forecloses creating a new professional-speech loophole; content-based bans here fail strict scrutiny. Rosenbaum dissent: a narrow, historically grounded exception exists for healthcare-treatment speech and regulations protecting minors from dangerous, inefficacious therapies would be permissible |
| Whether the ordinances survive strict scrutiny (or other test) | Plaintiffs: city/county evidence (studies, professional statements) was insufficient to show a narrowly tailored, compelling interest justifying content-based bans | Defendants: protecting minors’ health and safety is compelling; deference to public-health/regulatory judgments; informed-consent and standard-of-care doctrines justify regulation | Panel & concurrence: evidence in record was equivocal and did not meet strict-scrutiny burden; ordinances likely unconstitutional; dissents argue such regulations could survive under a professional-regulation framework and that the panel misapplied standards of review |
Key Cases Cited
- Otto v. City of Boca Raton, 981 F.3d 854 (11th Cir. 2020) (panel decision applying First Amendment scrutiny to conversion-therapy ordinances)
- Wollschlaeger v. Governor of Florida, 848 F.3d 1293 (11th Cir. 2017) (en banc) (content-based restrictions on professional speech by physicians merit heightened review)
- National Institute of Family & Life Advocates v. Becerra, 138 S. Ct. 2361 (2018) (Supreme Court: no broad professional-speech category; content-based regulations disfavored absent persuasive historical tradition)
- Reed v. Town of Gilbert, 576 U.S. 155 (2015) (content-based speech restrictions trigger strict scrutiny)
- Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557 (1995) (courts must decide whether conduct falls within constitutional protection)
- United States v. Alvarez, 567 U.S. 709 (2012) (discussion on creating new categories of unprotected speech and historical tradition requirement)
- Brown v. Entertainment Merchs. Ass’n, 564 U.S. 786 (2011) (strict scrutiny for content-based speech restrictions)
- Planned Parenthood v. Casey, 505 U.S. 833 (1992) (informed-consent framework for medical regulation; reasonableness inquiry for certain medical speech regulations)
- Washington v. Glucksberg, 521 U.S. 702 (1997) (state interest in protecting vulnerable populations and the integrity of medicine; historical analysis of prohibitions on life-threatening practices)
- NAACP v. Button, 371 U.S. 415 (1963) (skepticism toward broad prophylactic speech restrictions)
- Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985) (permissibility of certain disclosure requirements for professional practice)