Case Information
*1 FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT D AVID H. P ICKUP ; C HRISTOPHER H. No. 12-17681 R OSICK ; J OSEPH N ICOLOSI ; R OBERT V AZZO ; N ATIONAL A SSOCIATION D.C. No. FOR R ESEARCH AND T HERAPY OF 2:12-CV-02497- H OMOSEXUALITY , a Utah non-profit KJM-EFB organization; A MERICAN
A SSOCIATION OF C HRISTIAN
C OUNSELORS , a Virginia non-profit association; J ACK D OE 1, Parent of John Doe 1; J ANE D OE 1, Parent of John Doe 1; J OHN D OE 1, a minor, guardian ad litem Jane Doe, guardian ad litem Jack Doe; J ACK D OE 2, Parent of John Doe 2; J ANE D OE 2, Parent of John Doe 2; J OHN D OE 2, a minor, guardian ad litem Jack Doe, guardian ad litem Jane Doe,
Plaintiffs-Appellants , v.
E DMUND G. B ROWN , J R ., Governor of the State of California, in his official capacity; A NNA M.
C ABALLERO , Secretary of the California State and Consumer Services Agency, in her official capacity; S HARON L EVINE , President of the Medical Board of California, in her official capacity; K IM
M ADSEN , Executive Officer of the California Board of Behavioral Sciences, in her official capacity; M ICHAEL E RICKSON , President of the *2 California Board of Psychology, in his official capacity,
Defendants-Appellees , and
E QUALITY C ALIFORNIA ,
Intervenor-Defendant-Appellee . Appeal from the United States District Court for the Eastern District of California Kimberly J. Mueller, District Judge, Presiding D ONALD W ELCH ; A NTHONY D UK ; No. 13-15023 A ARON B ITZER ,
Plaintiffs-Appellees , D.C. No. 2:12-CV-02484- v. WBS-KJN E DMUND G. B ROWN , J R ., Governor of the State of California, in his OPINION official capacity; A NNA M.
C ABALLERO , Secretary of California State and Consumer Services Agency, in her official capacity; D ENISE B ROWN , Case Manager, Director of Consumer Affairs, in her official capacity; C HRISTINE
P B W IETLISBACH , P ATRICIA L OCK - D AWSON , S AMARA A SHLEY , H ARRY D OUGLAS , J ULIA J OHNSON , S ARITA K OHLI , R ENEE L ONNER , K AREN P INES , C HRISTINA W ONG , in their official capacities as members of the California Board of Behavioral Sciences; S HARON L EVINE , M ICHAEL B ISHOP , S ILVIA D IEGO , D EV
G NANADEV , R EGINALD L OW , D ENISE INES , J ANET S ALOMONSON , G ERRIE S CHIPSKE , D AVID S ERRANO S EWELL , ARBARA Y AROSLAVSKY , in their official capacities as members of the Medical Board of California,
Defendants-Appellants . *3 Appeal from the United States District Court for the Eastern District of California William B. Shubb, Senior District Judge, Presiding Argued and Submitted April 17, 2013—San Francisco, California Filed August 29, 2013 Before: Alex Kozinski, Chief Judge, and Susan P. Graber,
and Morgan Christen, Circuit Judges. Opinion by Judge Graber
SUMMARY [*]
Civil Rights
Reversing an order granting preliminary injunctive relief in Welch v. Brown , 13-15023, and affirming the denial of preliminary injunctive relief in Pickup v. Brown , 12-17681, the panel held that California Senate Bill 1172, which bans state-licensed mental health providers from engaging in “sexual orientation change efforts” with patients under 18 years of age, does not violate the free speech rights of practitioners or minor patients, is neither vague nor overbroad, and does not violate parents’ fundamental rights.
*4 The panel held that Senate Bill 1172 regulates professional conduct, not speech and therefore was subject only to a rational basis review. The panel held that under its police power, California has authority to prohibit licensed mental health providers from administering therapies that the legislature has deemed harmful, and the fact that speech may be used to carry out those therapies does not turn the prohibitions of conduct into prohibitions of speech. The panel further concluded that the First Amendment does not prevent a state from regulating treatment even when that treatment is performed through speech alone. The panel concluded that the record demonstrated that the legislature acted rationally when it decided to protect the well-being of minors by prohibiting mental health providers from using “sexual orientation change efforts” on persons under 18. [*] This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. The panel further held that: (1) SB 1172 did not implicate the right to freedom of association because freedom of association does not encompass the therapist-client relationship; (2) SB 1172 was neither void for vagueness nor overbroad because the text of SB 1172 was clear to a reasonable person and any incidental effect that the ban had on speech was small in comparison to its legitimate sweep; and (3) the ban did not infringe on the fundamental rights of parents because parents do not have the right to choose a specific type of provider for a specific medical or mental health treatment that the state has reasonably deemed harmful.
COUNSEL No. 12-17681 Mathew D. Staver (argued) and Anita L. Staver, Liberty Counsel, Maitland, Florida; Mary E. McAlister, Stephen M. Crampton, and Daniel J. Schmid, Liberty Counsel, Lynchburg, Virginia, for Plaintiffs-Appellants David H. Pickup et al.
Alexandra Robert Gordon (argued), Deputy Attorney General, Kamala D. Harris, Attorney General of California, Douglas J. Woods, Senior Assistant Attorney General, Tamar Pachter, Supervising Deputy Attorney General, and Daniel J. Powell and Rei R. Onishi, Deputy Attorneys General, San Francisco, California, for Defendants-Appellees Edmund G. Brown, Jr., et al.
6 P ICKUP V . B ROWN Shannon P. Minter (argued), National Center for Lesbian Rights, San Francisco, California; David C. Dinielli, Munger, Tolles & Olson LLP, Los Angeles, California, for Intervenor/Defendant-Appellee.
Robert P. Taylor, Arnold & Porter LLP, San Francisco, California, for Amici Curiae American Association for Marriage and Family Therapy-California Division, et al.; Elizabeth O. Gill, ACLU Foundation of Northern California, Inc., San Francisco, California, for Amicus Curiae American Civil Liberties Union Foundation of Northern California; Eric Alan Isaacson, San Diego, California, and Stacey M. Kaplan, San Francisco, California, for Amici Curiae California Faith for Equality, et al.; Brad W. Seiling, Benjamin G. Shatz, and Justin Jones Rodriquez, Manatt, Phelps & Phillips, LLP, Los Angeles, California, and Hayley Gorenberg, Lambda Legal Defense and Education Fund, Inc., New York, New York, and Shelbi D. Day, Lambda Legal Defense and Education Fund, Inc., Los Angeles, California, for Amici Curiae Children’s Law Center of California, et al.; Jay Rapaport, Covington & Burling LLP, San Francisco, California, for Amicus Curiae Dr. Jack Drescher, M.D.; Jon B. Eisenberg and Barry R. Levy, Encino, California, for Amicus Curiae First Amendment Scholars; Eileen R. Ridley, Thomas F. Carlucci, Patrick T. Wong, and Kristy K. Marino, Foley & Lardner LLP, San Francisco, California, for Amicus Curiae Health Law Scholars; Adam L. Gray and James Maxwell Cooper, Kirkland & Ellis LLP, San Francisco, California, for Amici Curiae Medical Professionals Tonya Chaffee, MD, MPH, et al.; Tara M. Steeley, Deputy City Attorney, and Dennis J. Herrera, City Attorney, and Therese Stewart, Mollie Lee, and Sara Eisenberg, Deputy City Attorneys, San Francisco, California, for Amicus Curiae The City and County of San Francisco; and Sanford Jay Rosen, Rosen Bien Galvan & Grunfeld LLP, San Francisco, California, for Amicus Curiae Survivors of Sexual Orientation Change Efforts.
No. 13-15023
Alexandra Robert Gordon (argued), Deputy Attorney General, Kamala D. Harris, Attorney General of California, *6 Douglas J. Woods, Senior Assistant Attorney General, Tamar Pachter, Supervising Deputy Attorney General, and Daniel J. Powell and Rei R. Onishi, Deputy Attorneys General, and Craig J. Konnoth, Deputy Solicitor General, San Francisco, California, for Defendants-Appellants Edmund G. Brown, Jr., et al.
Kevin T. Snider (argued), Matthew B. McReynolds, and Michael J. Peffer, Pacific Justice Institute, Sacramento, California, for Plaintiffs-Appellees Donald Welch et al. Elizabeth O. Gill, ACLU Foundation of Northern California, Inc., San Francisco, California, for Amicus Curiae American Civil Liberties Union Foundation of Northern California; Peter D. Lepiscopo, William P. Morrow, James M. Griffiths, and Michael W. Healy, Lepiscopo & Associates Law Firm, San Diego, California, for Amicus Curiae American College of Pediatricians; Eric Alan Isaacson, San Diego, California, and Stacey M. Kaplan, San Francisco, California, for Amici Curiae California Faith for Equality, et al.; Brad W. Seiling and Benjamin G. Shatz, Manatt, Phelps & Phillips, LLP, Los Angeles, California, and Hayley Gorenberg, Lambda Legal Defense and Education Fund, Inc, New York, New York, and Shelbi D. Day, Lambda Legal Defense and Education Fund, Inc., Los Angeles, California, for Amici Curiae Children’s Law Center of California, et al.; Shannon P. Minter, National Center for Lesbian Rights, San Francisco, California, and David C. Dinielli, Munger, Tolles & Olson LLP, Los Angeles, California, for Amicus Curiae Equality California; Jon B. Eisenberg and Barry R. Levy, Encino, California, for Amicus Curiae First Amendment Scholars; John A. Eidsmoe and Joshua M. Pendergrass, Foundation for Moral Law, Montgomery, Alabama, for Amicus Curiae Foundation for Moral Law; Eileen R. Ridley, Thomas F. Carlucci, Patrick T. Wong, and Kristy K. Marino, Foley & Lardner LLP, San Francisco, California, for Amicus Curiae Health Law Scholars; Dean R. Broyles, The National Center for Law & Policy, Escondido, California, for Amicus Curiae Parents and Friends of Ex-Gays & Gays; and Sanford Jay Rosen, Rosen Bien Galvan & Grunfeld LLP, San Francisco, California, for Amicus Curiae Survivors of Sexual Orientation Change Efforts.
OPINION
GRABER, Circuit Judge:
The California legislature enacted Senate Bill 1172 to ban state-licensed mental health providers from engaging in “sexual orientation change efforts” (“SOCE”) with patients under 18 years of age. Two groups of plaintiffs sought to enjoin enforcement of the law, arguing that SB 1172 violates the First Amendment and infringes on several other constitutional rights.
In Welch v. Brown , No. 13-15023, the district court ruled that Plaintiffs were likely to succeed on the merits of their First Amendment claim and that the balance of the other preliminary-injunction factors tipped in their favor; thus, the court granted a preliminary injunction. In Pickup v. Brown , No. 12-17681, the district court ruled that Plaintiffs were unlikely to succeed on the merits of any of their claims and denied preliminary relief. The losing parties timely appealed. We address both appeals in this opinion.
Although we generally review for abuse of discretion a
district court’s decision to grant or deny a preliminary
injunction, we may undertake plenary review of the issues if
a district court’s ruling “‘rests solely on a premise as to the
applicable rule of law, and the facts are established or of no
controlling relevance.’”
Gorbach v. Reno
,
FACTUAL AND PROCEDURAL BACKGROUND A. Sexual Orientation Change Efforts (“SOCE”)
SOCE, sometimes called reparative or conversion therapy, began at a time when the medical and psychological community considered homosexuality an illness. SOCE encompasses a variety of methods, including both aversive and non-aversive treatments, that share the goal of changing an individual’s sexual orientation from homosexual to heterosexual. In the past, aversive treatments included *8 10 P ICKUP V . B ROWN inducing nausea, vomiting, or paralysis; providing electric shocks; or having an individual snap an elastic band around the wrist when aroused by same-sex erotic images or thoughts. Even more drastic methods, such as castration, have been used. Today, some non-aversive treatments use assertiveness and affection training with physical and social reinforcement to increase other-sex sexual behaviors. Other non-aversive treatments attempt “to change gay men’s and lesbians’ thought patterns by reframing desires, redirecting thoughts, or using hypnosis, with the goal of changing sexual arousal, behavior, and orientation.” American Psychological Association, Appropriate Therapeutic Responses to Sexual Orientation 22 (2009). The plaintiff mental health providers in these cases use only non-aversive treatments.
In 1973, homosexuality was removed from the Diagnostic and Statistical Manual of Mental Disorders. Shortly thereafter the American Psychological Association declared that homosexuality is not an illness. Other major mental health associations followed suit. Subsequently, many mental health providers began questioning and rejecting the efficacy and appropriateness of SOCE therapy. Currently, mainstream mental health professional associations support affirmative therapeutic approaches to sexual orientation that focus on coping with the effects of stress and stigma. But a small number of mental health providers continue to practice, and advocate for, SOCE therapy.
*9 B. Senate Bill 1172
Senate Bill 1172 defines SOCE as “any practices by mental health providers[ [1] ] that seek to change an individual’s sexual orientation[,] . . . includ[ing] efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.” Cal. Bus. & Prof. Code § 865(b)(1). SOCE, however,
does not include psychotherapies that: (A) provide acceptance, support, and understanding of clients or the facilitation of clients’ coping, social support, and identity exploration and development, including sexual orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices; and (B) do not seek to change sexual orientation.
[1] California Business and Professions Code section 865(a) defines “mental health provider” as
a physician and surgeon specializing in the practice of psychiatry, a psychologist, a psychological assistant, intern, or trainee, a licensed marriage and family therapist, a registered marriage and family therapist, intern, or trainee, a licensed educational psychologist, a credentialed school psychologist, a licensed clinical social worker, an associate clinical social worker, a licensed professional clinical counselor, a registered clinical counselor, intern, or trainee, or any other person designated as a mental health professional under California law or regulation.
Id. § 865(b)(2). A licensed mental health provider’s use of SOCE on a patient under 18 years of age is “considered unprofessional conduct,” which will subject that provider to “discipline by the licensing entity for that mental health provider.” Id. § 865.2.
Importantly, SB 1172 does not do any of the following: • Prevent mental health providers from communicating with the public about SOCE • Prevent mental health providers from expressing their *10 views to patients, whether children or adults, about SOCE, homosexuality, or any other topic • Prevent mental health providers from recommending SOCE to patients, whether children or adults • Prevent mental health providers from administering SOCE to any person who is 18 years of age or older • Prevent mental health providers from referring minors to unlicensed counselors, such as religious leaders • Prevent unlicensed providers, such as religious leaders, from administering SOCE to children or adults
• Prevent minors from seeking SOCE from mental health providers in other states Instead, SB 1172 does just one thing: it requires licensed mental health providers in California who wish to engage in “practices . . . that seek to change a [minor’s] sexual orientation” either to wait until the minor turns 18 or be subject to professional discipline. Thus, SB 1172 regulates the provision of medical treatment, but leaves mental health providers free to discuss or recommend treatment and to express their views on any topic.
The legislature’s stated purpose in enacting SB 1172 was to “protect[] the physical and psychological well-being of minors, including lesbian, gay, bisexual, and transgender youth, and [to] protect[] its minors against exposure to serious harms caused by sexual orientation change efforts.” 2012 Cal. Legis. Serv. ch. 835, § 1(n). The legislature relied on the well documented, prevailing opinion of the medical and psychological community that SOCE has not been shown to be effective and that it creates a potential risk of serious harm to those who experience it. Specifically, the legislature relied on position statements, articles, and reports published by the following organizations: the American Psychological Association, the American Psychiatric Association, the American School Counselor Association, the American Academy of Pediatrics, the American Medical Association, the National Association of Social Workers, the American Counseling Association, the American Psychoanalytic Association, the American Academy of Child and Adolescent Psychiatry, and the Pan American Health Organization.
In particular, the legislature relied on a report created by a Task Force of the American Psychological Association. That report resulted from a systematic review of the scientific literature on SOCE. Methodological problems with some of the reviewed studies limited the conclusions that the Task Force could draw. Nevertheless, the report concluded that SOCE practitioners have not demonstrated the efficacy of 14
SOCE and that anecdotal reports of harm raise serious concerns about the safety of SOCE.
C. Procedural History
Plaintiffs in Welch include two SOCE practitioners and an aspiring SOCE practitioner. Plaintiffs in Pickup include SOCE practitioners, organizations that advocate SOCE, children undergoing SOCE, and their parents. All sought a declaratory judgment that SB 1172 is unconstitutional and asked for injunctive relief to prohibit enforcement of the law.
In Welch , Plaintiffs moved for preliminary injunctive relief, arguing that SB 1172 violates their free speech and privacy rights. They also argued that the law violates the religion clauses and is unconstitutionally vague and overbroad under the First Amendment.
The
Welch
court held that SB 1172 is subject to strict
scrutiny because it would restrict the content of speech and
suppress the expression of particular viewpoints. It reasoned
that the fact that the law is a professional regulation does not
change the level of scrutiny. The court granted preliminary
relief because it determined that the state was unlikely to
satisfy strict scrutiny, Plaintiffs would suffer irreparable harm
[2]
In
Pickup
, Equality California, an advocacy group for gay rights,
sought and received intervenor status to defend SB 1172.
Pickup
Plaintiffs argue that the Supreme Court’s recent decision in
Hollingsworth
v. Perry
,
P ICKUP V . B ROWN 15 in the absence of an injunction, the balance of the equities tipped in their favor, and the injunction was in the public interest. Because the district court granted relief on their free speech claim, it did not reach Plaintiffs’ other constitutional challenges. [3]
In Pickup , Plaintiffs moved for preliminary injunctive relief, arguing that SB 1172 violates the First and Fourteenth Amendments by infringing on SOCE practitioners’ right to free speech, minors’ right to receive information, and parents’ right to direct the upbringing of their children. They also argued that SB 1172 is unconstitutionally vague.
The
Pickup
court denied Plaintiffs’ motion because it
determined that they were unlikely to prevail on the merits of
any of their claims. It reasoned that, because the plain text of
SB 1172 bars only treatment, but not discussions about
treatment, the law regulates primarily conduct rather than
speech. Applying the rational basis test, the court ruled that
[3]
The
Welch
Plaintiffs’ response brief contains a single paragraph
asserting that SB 1172 violates the religion clauses of the First
Amendment. That paragraph, which cites neither the record nor any case,
is part of Plaintiffs’ argument that SB 1172 is not narrowly tailored to
achieve a compelling government purpose, as required by the Free Speech
Clause, because it contains no clergy exemption. The religion claim,
however, is not “specifically and distinctly argued,” as ordinarily required
for us to consider an issue on appeal.
Thompson v. Runnels
, 705 F.3d
1089, 1099–1100 (9th Cir. 2013) (internal quotation marks omitted),
petition for cert. filed
, __ U.S.L.W. __ (U.S. June 28, 2013) (No.
13-5127);
see also Maldonado v. Morales
,
DISCUSSION
A. Free Speech Rights
At the outset, we must decide whether the First Amendment requires heightened scrutiny of SB 1172. As explained below, we hold that it does not.
The first step in our analysis is to determine whether SB
1172 is a regulation of conduct or speech. Two of our cases
guide our decision:
National Association for the
Advancement of Psychoanalysis v. California Board of
Psychology
,
In
NAAP
,
Nevertheless, we concluded that the “communication that occurs during psychoanalysis is entitled to constitutional protection, but it is not immune from regulation.” Id. But we neither decided how much protection that communication should receive nor considered whether the level of protection might vary depending on the function of the communication. Given California’s strong interest in regulating mental health, we held that the licensing scheme at issue in NAAP was a valid exercise of its police power. Id. at 1054–55.
We went on to conclude that, even if the licensing scheme in NAAP regulated speech, it did not trigger strict scrutiny because it was both content neutral and viewpoint neutral. Id. at 1055. We reasoned that the licensing laws did not “dictate what can be said between psychologists and patients during treatment.” Id. Further, we observed that those laws were “not adopted because of any disagreement with psychoanalytical theories” but for “the important purpose of protecting public health, safety, and welfare.” Id. at 1056 (internal quotation marks omitted). We again concluded that the laws were a valid exercise of California’s police power. Id.
In Conant , 309 F.3d at 633–34, we affirmed a district court’s order granting a permanent injunction that prevented the federal government from revoking a doctor’s DEA registration or initiating an investigation if he or she recommended medical marijuana. The federal government had adopted a policy that a doctor’s “recommendation” of marijuana would lead to revocation of his or her license. Id. at 632. But the government was “unable to articulate exactly what speech [the policy] proscribed, describing it only in terms of speech the patient believes to be a recommendation of marijuana.” Id. at 639. Nevertheless, the demarcation between conduct and speech in Conant was clear. The policy prohibited doctors from prescribing or distributing marijuana, and neither we nor the parties disputed the government’s *15 authority to prohibit doctors from treating patients with marijuana. Id. at 632, 635–36. Further, the parties agreed that “revocation of a license was not authorized where a doctor merely discussed the pros and cons of marijuana use.” Id. at 634 (emphasis added).
We ruled that the policy against merely “recommending” marijuana was both content- and viewpoint-based. Id. at 637. It was content-based because it covered only doctor-patient speech “that include[d] discussions of the medical use of marijuana,” and it was viewpoint-based because it “condemn[ed] expression of a particular viewpoint, i.e., that medical marijuana would likely help a specific patient.” Id. We held that the policy did not withstand heightened First Amendment scrutiny because it lacked “the requisite narrow specificity” and left “doctors and patients no security for free discussion.” Id. at 639 (internal quotation marks omitted).
We distill the following relevant principles from NAAP and Conant : (1) doctor-patient communications about medical treatment receive substantial First Amendment protection, but the government has more leeway to regulate the conduct necessary to administering treatment itself; (2) psychotherapists are not entitled to special First Amendment protection merely because the mechanism used to deliver mental health treatment is the spoken word; and (3) nevertheless, communication that occurs during psychotherapy does receive some constitutional protection, but it is not immune from regulation.
Because those principles, standing alone, do not tell us whether or how the First Amendment applies to the regulation of specific mental health treatments, we must go on to consider more generally the First Amendment rights of professionals, such as doctors and mental health providers. In determining whether SB 1172 is a regulation of speech or *16 20 P ICKUP V . B ROWN conduct, we find it helpful to view this issue along a continuum.
At one end of the continuum, where a professional is
engaged in a public dialogue, First Amendment protection is
at its greatest. Thus, for example, a doctor who publicly
advocates a treatment that the medical establishment
considers outside the mainstream, or even dangerous, is
entitled to robust protection under the First Amendment—just
as any person is—even though the state has the power to
regulate medicine.
See Lowe v. SEC
, 472 U.S. 181, 232
(1985) (White, J., concurring) (“Where the personal nexus
between professional and client does not exist, and a speaker
does not purport to be exercising judgment on behalf of any
particular individual with whose circumstances he is directly
acquainted, government regulation ceases to function as
legitimate regulation of professional practice with only
incidental impact on speech; it becomes regulation of
speaking or publishing as such, subject to the First
Amendment’s command that ‘Congress shall make no
law . . . abridging the freedom of speech, or of the press.’”);
Robert Post,
Informed Consent to Abortion: A First
Amendment Analysis of Compelled Physician Speech
,
2007 U. Ill. L. Rev. 939, 949 (2007) (“When a physician
speaks to the public, his opinions cannot be censored and
suppressed, even if they are at odds with preponderant
opinion within the medical establishment.”);
cf. Bailey v.
Huggins Diagnostic & Rehab. Ctr., Inc.
,
At the midpoint of the continuum, within the confines of a professional relationship, First Amendment protection of a professional’s speech is somewhat diminished. For example, in Planned Parenthood of Southeastern Pennsylvania v. Casey , 505 U.S. 833, 884 (1992), the plurality upheld a requirement that doctors disclose truthful, nonmisleading information to patients about certain risks of abortion:
All that is left of petitioners’ argument is
an asserted First Amendment right of a
physician not to provide information about the
risks of abortion, and childbirth, in a manner
mandated by the State. To be sure, the
physician’s First Amendment rights not to
speak are implicated, but only as part of the
practice of medicine,
subject to reasonable
licensing and regulation by the State
. We see
no constitutional infirmity in the requirement
that the physician provide the information
mandated by the State here.[
[4]
]
[4]
Although the plurality opinion garnered only three votes, four
additional justices would have upheld the challenged law in its entirety.
Casey
,
Moreover, doctors are routinely held liable for giving
negligent medical advice to their patients, without serious
suggestion that the First Amendment protects their right to
give advice that is not consistent with the accepted standard
of care. A doctor “may not counsel a patient to rely on quack
medicine. The First Amendment would not prohibit the
doctor’s loss of license for doing so.”
Conant v. McCaffrey
,
No. C 97-00139 WHA,
(unpublished) (noting prior suspension of bar license for
failure to preserve client confidences). Thus, the First
Amendment tolerates a substantial amount of speech
regulation within the professional-client relationship that it
would not tolerate outside of it. And that toleration makes
sense: When professionals, by means of their state-issued
licenses, form relationships with clients, the purpose of those
relationships is to advance the welfare of the clients, rather
than to contribute to public debate.
Cf. Lowe
,
At the other end of the continuum, and where we
conclude that SB 1172 lands, is the regulation of professional
conduct
, where the state’s power is great, even though such
regulation may have an incidental effect on speech.
See id.
(“Just as offer and acceptance are communications incidental
to the regulable transaction called a contract, the
professional’s speech is incidental to the conduct of the
profession.”). Most, if not all, medical treatment requires
speech, but that fact does not give rise to a First Amendment
claim when the state bans a particular treatment. When a
drug is banned, for example, a doctor who treats patients with
that drug does not have a First Amendment right to speak the
words necessary to provide or administer the banned drug.
Cf. Conant
, 309 F.3d at 634–35 (noting the government’s
authority to ban prescription of marijuana). Were it
otherwise, then any prohibition of a particular medical
treatment would raise First Amendment concerns because of
its incidental effect on speech. Such an application of the
First Amendment would restrict unduly the states’ power to
*19
24
P ICKUP V . B ROWN
regulate the medical profession and would be inconsistent
with the principle that “it has never been deemed an
abridgement of freedom of speech or press to make a course
of conduct illegal merely because the conduct was in part
initiated, evidenced, or carried out by means of language,
either spoken, written, or printed.”
Giboney
,
Senate Bill 1172 regulates conduct. It bans a form of
medical treatment for minors; it does nothing to prevent
licensed therapists from discussing the pros and cons of
SOCE with their patients. Senate Bill 1172 merely prohibits
licensed mental health providers from engaging in SOCE
with minors. It is the limited reach of SB 1172 that
distinguishes the present cases from
Conant
, in which the
government’s policy prohibited speech
wholly apart
from the
actual provision of treatment. Under its police power,
California has authority to prohibit licensed mental health
providers from administering therapies that the legislature has
deemed harmful and, under
Giboney
,
*20 obtain treatment, and expressions of opinions about SOCE and homosexuality.
We further conclude that the First Amendment does not prevent a state from regulating treatment even when that treatment is performed through speech alone. As we have already held in NAAP , talk therapy does not receive special First Amendment protection merely because it is administered through speech. 228 F.3d at 1054. That holding rested on the understanding of talk therapy as “the treatment of emotional suffering and depression, not speech.” Id. (internal quotation marks omitted) (first emphasis added). Thus, under NAAP , to the extent that talk therapy implicates speech, it stands on the same First Amendment footing as other forms of medical or mental health treatment. Senate Bill 1172 is subject to deferential review just as are other regulations of the practice of medicine.
Our conclusion is consistent with NAAP ’s statement that “communication that occurs during psychoanalysis is entitled to constitutional protection, but it is not immune from regulation.” Id. Certainly, under Conant , content- or viewpoint-based regulation of communication about treatment must be closely scrutinized. But a regulation of only treatment itself —whether physical medicine or mental health treatment—implicates free speech interests only incidentally, if at all. To read NAAP otherwise would contradict its holding that talk therapy is not entitled to “special First Amendment protection,” and it would, in fact, make talk therapy virtually “immune from regulation.” Id.
Nor does NAAP ’s discussion of content and viewpoint discrimination change our conclusion. There, we used both a belt and suspenders. In addition to holding that the 26
licensing scheme at issue was a permissible regulation of conduct, we reasoned that even if California’s licensing requirements implicated First Amendment interests, the requirements did not discriminate on the basis of content or viewpoint. Id. at 1053, 1055–56. But here, SB 1172 regulates only treatment, and nothing in NAAP requires us to analyze a regulation of treatment in terms of content and viewpoint discrimination.
Because SB 1172 regulates only treatment, while leaving mental health providers free to discuss and recommend, or recommend against, SOCE, we conclude that any effect it *21 may have on free speech interests is merely incidental. Therefore, we hold that SB 1172 is subject to only rational basis review and must be upheld if it “bear[s] . . . a rational relationship to a legitimate state interest.” [7] Id. at 1049.
According to the statute, SB 1172 advances California’s interest in “protecting the physical and psychological well- being of minors, including lesbian, gay, bisexual and transgender youth, and in protecting its minors against exposure to serious harms caused by sexual orientation change efforts.” 2012 Cal. Legis. Serv. ch. 835, § 1(n). Without a doubt, protecting the well-being of minors is a legitimate state interest. And we need not decide whether [6] We acknowledge that Plaintiffs ask us to apply strict scrutiny, but they have not cited any case in which a court has applied strict scrutiny to the regulation of a medical or mental health treatment. Nor are we aware of any.
[7] The parties dispute whether we are limited to the legislative record in assessing the constitutionality of SB 1172. We need not resolve that dispute because, whether or not we restrict our review to the legislative record, we conclude that the legislature acted rationally.
SOCE actually causes “serious harms”; it is enough that it could “reasonably be conceived to be true by the governmental decisionmaker.” NAAP , 228 F.3d at 1050 (internal quotation marks omitted).
The record demonstrates that the legislature acted rationally when it decided to protect the well-being of minors by prohibiting mental health providers from using SOCE on persons under 18. [8] The legislature relied on the report of the Task Force of the American Psychological Association, which concluded that SOCE has not been demonstrated to be effective and that there have been anecdotal reports of harm, including depression, suicidal thoughts or actions, and substance abuse. The legislature also relied on the opinions of many other professional organizations. Each of those organizations opposed the use of SOCE, concluding, among other things, that homosexuality is not an illness and does not require treatment (American School Counselor Association), SOCE therapy can provoke guilt and anxiety (American Academy of Pediatrics), it may be harmful (National Association of Social Workers), and it may contribute to an enduring sense of stigma and self-criticism (American Psychoanalytic Association). Although the legislature also had before it some evidence that SOCE is safe and effective, the overwhelming consensus was that SOCE was harmful and *22 ineffective. On this record, we have no trouble concluding [8] We need not and do not decide whether the legislature would have acted rationally had it banned SOCE for adults. One could argue that children under the age of 18 are especially vulnerable with respect to sexual identity and that their parents’ judgment may be clouded by this emotionally charged issue as well. The considerations with respect to adults may be different.
28
that the legislature acted rationally by relying on that consensus.
Plaintiffs argue that the legislature acted irrationally when it banned SOCE for minors because there is a lack of scientifically credible proof of harm. But, under rational basis review, “[w]e ask only whether there are plausible reasons for [the legislature’s] action, and if there are, our inquiry is at an end.” Romero-Ochoa v. Holder , 712 F.3d 1328, 1331 (9th Cir. 2013) (internal quotation marks omitted).
Therefore, we hold that SB 1172 is rationally related to the legitimate government interest of protecting the well- being of minors. [9]
B. Expressive Association
We also reject the Pickup Plaintiffs’ argument that SB 1172 implicates their right to freedom of association because the First Amendment protects their “choices to enter into and maintain the intimate human relationships between counselors and clients.”
[9]
The foregoing discussion relates as well to the
Pickup
Plaintiffs’ claim
that SB 1172 violates minors’ right to receive information.
See Monteiro
v. Tempe Union High Sch. Dist.
,
[10]
The
Pickup
Plaintiffs arguably waived their expressive association
argument by not raising it in the district court. But “the rule of waiver is
a discretionary one.”
Ruiz v. Affinity Logistics Corp.
,
P ICKUP V . B ROWN 29 First, SB 1172 does not prevent mental health providers and clients from entering into and maintaining therapeutic relationships. It prohibits only “practices . . . that seek to change an individual’s sexual orientation.” Cal. Bus. & Prof. Code § 865(b)(1). Therapists are free, but not obligated, to provide therapeutic services, as long as they do not “seek to change sexual orientation.”
Moreover, the therapist-client relationship is not the type
of relationship that the freedom of association has been held
to protect. The Supreme Court’s decisions “have referred to
constitutionally protected ‘freedom of association’ in two
distinct senses.”
Roberts v. U.S. Jaycees
,
address an argument that otherwise would be waived “when the issue presented is purely one of law and either does not depend on the factual record developed below, or the pertinent record has been fully developed.” Id. (internal quotation marks omitted). Whether SB 1172 violates the right to expressive association is such an issue, and we exercise our discretion to address it.
Although we have not specifically addressed the
therapist-client relationship in terms of freedom of
association, we have explained why the therapist-client
*24
relationship is not protected by the Due Process Clause of the
Fourteenth Amendment: “The relationship between a client
and psychoanalyst lasts only as long as the client is willing to
pay the fee. Even if analysts and clients meet regularly and
clients reveal secrets and emotional thoughts to their analysts,
these relationships simply do not rise to the level of a
fundamental right.”
NAAP
, 228 F.3d at 1050 (internal
quotation marks and citation omitted). Because the type of
associational protection that the
Pickup
Plaintiffs claim is
rooted in “personal liberty,”
U.S. Jaycees
,
We next hold that SB 1172 is not void for vagueness.
“It is a basic principle of due process that an enactment is
void for vagueness if its prohibitions are not clearly defined.”
Grayned v. City of Rockford
, 408 U.S. 104, 108 (1972).
Nevertheless, “perfect clarity and precise guidance have
never been required even of regulations that restrict
expressive activity.”
Ward v. Rock Against Racism
, 491 U.S.
781, 794 (1989). “[U]ncertainty at a statute’s margins will
not warrant facial invalidation if it is clear what the statute
proscribes ‘in the vast majority of its intended applications.’”
Cal. Teachers Ass’n v. State Bd. of Educ.
,
Although the
Pickup
Plaintiffs argue that they cannot
ascertain where the line is between what is prohibited and
*25
what is permitted—for example, they wonder whether the
mere dissemination of information about SOCE would
subject them to discipline—the text of SB 1172 is clear to a
reasonable person. It prohibits “mental health providers”
from engaging in “practices” that “seek to change” a minor
“patient[’s]” sexual orientation. Cal. Bus. & Prof. Code
§§ 865–865.1. A reasonable person would understand the
statute to prohibit only mental health treatment, including
psychotherapy, that aims to alter a minor patient’s sexual
orientation. Although Plaintiffs present various hypothetical
situations to support their vagueness challenge, the Supreme
Court has held that “speculation about possible vagueness in
hypothetical situations not before the Court will not support
a facial attack on a statute when it is surely valid in the vast
majority of its intended applications.”
Hill
,
32
Moreover, considering that SB 1172 regulates licensed
mental health providers, who constitute “a select group of
persons having specialized knowledge,” the standard for
clarity is lower.
Weitzenhoff
,
Neither is the term “sexual orientation” vague. Its
meaning is clear enough to a reasonable person and should be
even more apparent to mental health providers. In fact,
several provisions in the California Code—though not SB
1172 itself—provide a simple definition: “heterosexuality,
homosexuality, or bisexuality.” Cal. Educ. Code §§ 212.6,
66262.7; Cal. Gov’t Code § 12926®; Cal. Penal Code
§§ 422.56(h), 11410(b)(7). Moreover, courts have repeatedly
rejected vagueness challenges that rest on the term “sexual
orientation.”
E.g.
,
United States v. Jenkins
, 909 F. Supp. 2d
758, 778–79 (E.D. Ky. 2012);
Hyman v. City of Louisville
,
We further hold that SB 1172 is not overbroad.
[11]
Intervenor Equality California argues that the
Pickup
Plaintiffs waived
*26
their overbreadth challenge by failing to raise it adequately in the district
court. Although they did not argue overbreadth with specificity, they did
allege it in their complaint and in their memorandum in support of
preliminary injunctive relief. Moreover, whether the statute is overbroad
is a question of law that “does not depend on the factual record developed
below.”
Ruiz
,
Overbreadth doctrine permits the facial invalidation of
laws that prohibit “a substantial amount of constitutionally
protected speech.”
City of Houston v. Hill
,
Senate Bill 1172’s plainly legitimate sweep includes the
prohibition of SOCE techniques such as inducing vomiting or
paralysis, administering electric shocks, and performing
castrations. And, as explained above, it also includes SOCE
techniques carried out solely through words. As with any ban
on a particular medical treatment, there may be an incidental
effect on speech. Any incidental effect, however, is small in
comparison with the “plainly legitimate sweep” of the ban.
Broadrick
,
Thus, SB 1172 is not overbroad. E. Parents’ Fundamental Rights
The Pickup Plaintiffs also argue that SB 1172 infringes on their fundamental parental right to make important medical decisions for their children. The state does not dispute that parents have a fundamental right to raise their children as they see fit, but argues that Plaintiffs “cannot compel the State to permit licensed mental health [professionals] to engage in unsafe practices, and cannot dictate the prevailing *27 34 P ICKUP V . B ROWN standard of care in California based on their own views.” Because Plaintiffs argue for an affirmative right to access SOCE therapy from licensed mental health providers, the precise question at issue is whether parents’ fundamental rights include the right to choose for their children a particular type of provider for a particular medical or mental health treatment that the state has deemed harmful. See Washington v. Glucksberg , 521 U.S. 702, 720–21 (1997) (holding that courts should precisely define purported substantive due process rights to direct and restrain exposition of the Due Process Clause).
Parents have a constitutionally protected right to make
decisions regarding the care, custody, and control of their
children, but that right is “not without limitations.”
Fields v.
Palmdale Sch. Dist.
,
We are unaware of any case that specifically addresses
whether a parent’s fundamental rights encompass the right to
choose for a child a particular type of provider for a particular
treatment that the state has deemed harmful, but courts that
have considered whether patients have the right to choose
specific treatments for
themselves
have concluded that they
do not. For example, we have held that “substantive due
*28
process rights do not extend to the choice of type of treatment
or of a particular health care provider.”
NAAP
,
Further, our decision in
Fields
counsels against
recognizing the right that Plaintiffs assert. In that case,
parents of school children argued that a school violated their
parental rights when it administered to students a survey that
contained several questions about sex.
Fields
,
Therefore, SB 1172 does not infringe on the fundamental rights of parents.
CONCLUSION
Senate Bill 1172 survives the constitutional challenges presented here. Accordingly, the order granting preliminary relief in Welch , No. 13-15023, is REVERSED , and the order denying preliminary relief in Pickup , No. 12-17681, is AFFIRMED . We remand both cases for further proceedings consistent with this opinion.