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Local ordinances in two South Florida jurisdictions prohibiting any therapy that has the goal of changing a minor’s sexual orientation or gender identity were struck down by the U.S. Court of Appeals for the Eleventh Circuit on First Amendment grounds. A two-judge majority of the three-judge panel found the ordinances banning what is sometimes referred to as conversion therapy or Sexual Orientation Change Efforts (SOCE) were “content-based regulations of speech that cannot survive strict scrutiny.” [Otto v City of Boca Raton, Florida, 11th U.S. Circuit Court of Appeals, No. 19-10604 (2020)] The defendants/appellees have filed a petition for a rehearing en banc (that is, by the entire panel of 11th Circuit judges), joined by a number of amici curiae (organizations seeking to file a brief in support of the petition) who also supported their original appeal.

According to Forbes, 20 states and dozens of localities have enacted their own bans on conversion therapy and a number of these have been upheld by the courts. Because this decision conflicts with those of other federal Courts of Appeal upholding similar laws, the case may be headed to the U.S. Supreme Court. This could give the Supreme Court an opportunity to clarify the confusion surrounding the degree to which compensated advice from state-regulated professionals like mental health therapists, physicians, and lawyers is protected by the First Amendment.

The ordinances, in Palm Beach County and the city of Boca Raton, Florida, expressly prohibited licensed counselors from treating minors with ‘”any counseling, practice or treatment performed with the goal of changing an individual’s sexual orientation or gender identity” due to the health risk such treatment poses. Two local licensed marriage and family therapists, as the majority in the 11th Circuit opinion describes it, “provide counseling to minors who have unwanted same-sex attraction or gender identity issues” through “talk therapy” which, the therapists claim, “can reduce same-sex behavior and attraction and eliminate what they term confusion over gender identity” although they deny they seek to actually “change” the minor’s sexual orientation.

Arguing that the ordinances infringed on their First Amendment right to speak freely with their clients, the therapists sought to enjoin their enforcement. The district court denied their request and the therapists appealed to the 11th Circuit, which reversed the district court’s ruling.

The licensed therapists who brought suit were being paid to give their professional mental health advice on a matter within their scope of practice. The ordinances were designed to prohibit a particular form of mental health advice – conversion therapy – that the local governments found harmful to children, a conclusion supported by, among others, the American Psychological Association (APA) and the American Academy of Pediatrics.

Yet , instead of seeing this as a matter of professional regulation, the court treated the therapists’ advice as garden-variety speech, a “viewpoint” no different than if you or I expressed a layperson’s opinion on a mental health issue.

The APA issued a strongly-worded rebuke to the decision:

“Sexual orientation change therapy is highly unlikely to change a patient’s sexual orientation and there is real evidence of harm, according to a 2009 study of the peer-reviewed scientific literature conducted by the American Psychological Association,” said APA President Sandra L. Shullman, PhD. “The scientific research since 2009 has greatly increased the evidence that participants in such efforts believe they were harmful. Although these results came mostly from studies of adults, APA shared with the court our concern about the likely harmful effects on minors who cannot legally consent to such procedures. The presumption behind these treatments is that any sexual orientation other than heterosexuality is inherently flawed and must be fixed. Based on the available research, APA rejects the presumption that a gay or lesbian young person must change.” . . .

“The conclusion that talk therapy is merely a viewpoint expression denigrates psychotherapy and ignores the fact that licensed practicing psychologists base their professional activities on scientific evidence,” Shullman said. “This ruling is wrong-headed and may well result in harm to patients, especially minors who are often subjected to this type of therapy against their will.”

In treating spoken professional advice, such as talk therapy, as pure speech, the court creates, in my view, an artificial distinction between two forms of paid professional judgment: if you are paying, say, a physician, to give you his best medical judgment, verbal advice (e.g., “you need to exercise more and eat less”) is treated as speech protected by the First Amendment. If, however, that medical judgment comes in the form of conduct – for example, a diagnostic procedure or surgery – the First Amendment is not implicated because no speech is involved.

Some courts and legal scholars view both of these forms of expression of paid professional advice – one delivered via speech and the other delivered via conduct – as the same thing, treating state regulation of both solely as one of professional regulation that does not implicate First Amendment rights. Other courts make a distinction between professional speech and professional conduct but apply a more lenient standard of review when deciding whether a state restriction of professional speech violates the speaker’s First Amendment rights.

The majority in this case was having none of it. Basically, speech is speech, they say, and any restriction on it must pass the “strict scrutiny” test, the toughest standard of judicial review:

The local governments’ characterization of their ordinances as professional regulations cannot lower that bar. The Supreme Court has consistently rejected attempts to set aside the dangers of content-based speech regulation in professional settings: “As with other kinds of speech, regulating the content of professionals’ speech ‘pose[s] the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information.'”

The majority opinion is quoting from a recent Supreme Court case, National Institute of Family & Life Advocates v. Becerra (2018) (“NIFLA“) in which the Court struck down a California law that mandated licensed pregnancy crisis centers disclose options relating to pregnancies, such as abortion, when the centers did not provide those services. The state argued that the law was a valid regulation of professional speech. That argument was rejected by the Court, which made clear that, under the First Amendment, there is no differentiation between professional speech and other types of speech. However, the Court agreed that states have the authority to regulate professional conduct through licensing requirements and acknowledged that differentiating between professional speech and professional conduct can be difficult. The lower courts are now struggling in applying NIFLA to similar cases before them.

Decision’s effect on regulating pseudoscience

Whether to treat verbal professional advice and professional conduct the same, or to recognize it as a special category of speech (“professional speech”), or to treat it as any other speech, has enormous consequences for professional regulation. In the first case, the First Amendment is not implicated. In the second, the courts review the government’s restriction on speech to determine if it has a “rational basis” for the law. In the third, the restriction on speech must pass the highest level of court review, strict scrutiny, which means any government content-based restrictions on verbal professional advice are “presumptively unconstitutional” and can be justified “only if the government proves that they are narrowly tailored to serve compelling state interests”, a standard that is rarely met.

A quick word about “content-based speech” in case you’re wondering what that means. Laws regulating content-based speech regulate that speech based on the substance of what it communicates. This is as opposed to content-neutral laws, which apply to expression without regard to its substance. For example, a local ordinance prohibiting outdoor rock concerts between midnight and 6 AM is content-based and would probably violate the First Amendment because other types of concerts are not affected. (Yes, music is a protected form of speech.) A local ordinance prohibiting any outdoor concerts between midnight and 6 AM is content-neutral, and is constitutionally permissible under the First Amendment if the government can show a rational basis for it (e.g., noise control when most people are sleeping).

In this case, the 11th Circuit decided that “because the ordinances depend on what is said, they are content-based restrictions that must receive strict scrutiny”. Based on this, I find it hard to imagine any verbal professional advice that wouldn’t be “content-based” in this court’s view.

Returning to the court’s review of the local governments’ anti-conversion therapy ordinances, we can see how application of the strict scrutiny standard to the regulation of professional advice might hinder government attempts to control pseudoscience and quackery in health care. The court, substituting its own evaluation of the evidence against conversion therapy for that of the local governments and professional organizations, gave short shrift to their determination that the ordinances “safeguard[] the physical and psychological well-being of minors”. The documents put into evidence by the local jurisdictions and their amici curiae were dismissed by the court as “assertions rather than evidence” in part due to the lack of “rigorous research” on the type of SOCE used by the therapists in this case. [As the dissenting opinion correctly points out, it would be unethical to conduct studies, such as randomized controlled trials, that subjected children to SOCE.]

Those amici curiae included, in addition to the American Academy of Pediatrics and the APA, the National Association of Social Workers and the American Association for Marriage and Family Therapy, as well as LGBTQ rights and suicide prevention groups, all of whom urged the court to uphold the ordinances. The court rejected the professional organizations’ opposition to SOCE as “just another way of arguing that majority preference can justify a speech restriction”. Relying on anecdotal evidence to support its conclusions, the court noted that “there are individuals who perceive they have been harmed and others who perceive they have benefitted from nonaversive SOCE”.

Lack of rigorous research, conflict with mainstream medical opinion (which is merely “majority preference” in the court’s view), and anecdotal evidence are all hallmarks of quackery. Will application of this court’s analysis in cases challenging government regulation of quack “medical” advice, no matter how lacking in evidence or how dangerous, hamstring the states’ ability to protect the public? Let’s put it this way: if I were the attorney for the quacks, I would most certainly cite this case.

Even more troubling, in a statement I find startling, the court said

None of this is meant to suggest that the ordinances could necessarily be saved with just one more appropriately scoped, double-blind, peer-reviewed study. Because the ordinances discriminate based on viewpoint, their problems may go beyond insufficient evidence. As we mentioned earlier, viewpoint-based restrictions may be unconstitutional per se. But we need not decide that here [implying they might very well decide this in the future] because the ordinances are plainly unconstitutional under the ordinary test for content-based speech restrictions.

[Remember in reading this that the court considers paid professional advice a “viewpoint”.]

In other words, any content-based regulation of verbal professional advice might be unconstitutional under the First Amendment no matter how much scientific evidence supports it. Let’s parse this via a couple of hypotheticals. Suppose a state law specifically prohibited physicians from giving medical advice that falls below the standard of care. Assuming this advice is spoken or written, according to the above dictum the law would be unconstitutional per se. Or, suppose a state Medical Board disciplined a physician for substandard medical practice that took the form of spoken advice. For example, imagine that the physician told a patient not to see her oncologist anymore for treatment of her cancer, but instead to take dietary supplements, which would cure her. Would this violate the physician’s First Amendment rights as unconstitutional per se, ignoring the obvious lack of evidence and danger to health behind the physicians’ recommendations?

Sadly, the court could have avoided deciding the First Amendment issues altogether by holding that local governments are preempted from regulating the practice of mental health therapists because the State of Florida regulates this profession. (A decision, by the way, I would have agreed with.)

In my opinion, a dispositive Supreme Court decision following the 11th Circuit’s reasoning and treating all professional advice as speech subject to strict scrutiny by the courts would be debilitating to the states’ efforts to regulate professional conduct, and therefore pseudoscience and quackery in health care. (Not that they do such a great job in the first place, but still.) It also creates, as mentioned, a nonsensical distinction between a professional’s judgment executed via verbal advice and one executed via conduct. The Court could decide that such advice is outside the realm of the First Amendment altogether or, at the least, create a special category of “professional speech” (as it has with commercial speech) that is subject to a less strict standard of review.

Unfortunately, either of these results may be foreclosed by the decision in NILFA, although the Court may try to back off that decision when confronted with this little problem (links found in original):

It would be too easy to say that a religious conservative supermajority Supreme Court will, of course, declare that conversion therapy — which is derived from a far-right religious view of homosexuality — has First Amendment protection. The problem for conservatives is that using this reasoning puts into question the conservative policy of government compelling doctors to make religious antichoice speech and desired conduct in cases of abortion. For those who may not be aware, religious conservative legislatures have passed laws compelling doctors to make women undergo unnecessary, emotionally disturbing, and downright humiliating procedures in cases of abortion. It is difficult to square how the government compelling doctors to declare anti-abortion viewpoints does not disturb First Amendment guarantees, yet so-called bans on “conversion therapy” amount to government impermissibly compelling a viewpoint.

[I agree with the author’s description of this conundrum, although I totally disagree with his conclusion that the 11th Circuit’s decision was correct.]

This is not to say, by any means, that I believe all state regulation of professional speech is beyond the reach of the First Amendment. If, for example, as outlined above, a state legislature requires a physician to recite certain information to women before performing an abortion and that information is medically incorrect or unnecessary to good medical practice, it would most certainly implicate physicians’ First Amendment rights and deserve strict scrutiny by the courts. That is because it is not professional advice at all; it is the legislature’s moral judgment masquerading as such.

Happy New Year!

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Posted by Jann Bellamy

Jann J. Bellamy is a Florida attorney and lives in Tallahassee. She is one of the founders and Board members of the Society for Science-Based Medicine (SfSBM) dedicated to providing accurate information about CAM and advocating for state and federal laws that incorporate a science-based standard for all health care practitioners. She tracks state and federal bills that would allow pseudoscience in health care for the SfSBM website.  Her posts are archived here.