11th Circuit: Strict Scrutiny for Professional Speech Ban

Counseling services designed to get people to change their sexual orientation or gender identity have a deservedly gross reputation. Grosser still is their predominant orientation toward children, who frequently aren’t the ones choosing to undertake such counseling. 

In response, a number of jurisdictions have imposed laws prohibiting conversion therapy (or “sexual orientiation change efforts” – SOCE) with respect to minors. Among these were Boca Raton and Palm Beach County, Florida. 

It’s fairly well-recognized that any such ban as applied to adults would be unconstitutional. However, bans of SOCE for minors have had more success in the courts. Not so for these Florida jurisdictions. On November 20th, the 11th Circuit issued its decision in Otto v. City of Boca Raton, finding that these ordinances violated the First Amendment rights of the SOCE practitioners who challenged the ordinances. 

My interest in the case is primarily how deep a dive it takes into the interplay between the First Amendment and professional speech regulation. As the court notes, a ban on SOCE is clearly a content-based speech regulation, so strict scrutiny would normally apply. But what of the idea that this is a “professional speech” regulation, subject to some lower standard of review? The court makes short work of this:

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.'” Nat’l Inst. of Fam. & Life Advocs. v. Becerra, 138 S. Ct. 2361, 2374 (2018) (alteration in original) (quoting Turner, 512 U.S. at 641).

Okay, but what about if we approach the professional-speech-is-special thesis from behind, with the argument that this kind of speech — speech that is instrumental to the professional service being delivered — is not expression, but rather simply conduct? 

No chance. 

We can understand why they would make this claim; if the ordinances restricted only non-expressive conduct, and not speech, then they would not implicate the First Amendment at all. Our Court, though, has already rejected the practice of relabeling controversial speech as conduct. In a case quite similar to this one, we laid down an important marker: “the enterprise of labeling certain verbal or written communications `speech’ and others `conduct’ is unprincipled and susceptible to manipulation.” Wollschlaeger, 848 F.3d at 1308 (quotation omitted). 

LOL; that’s an understatement! Wollschlaeger was the much litigated “Docs & Glocks” case, involving a Florida statute that restricted the rights of doctors to ask questions about patients’ gun ownership.

The court goes on to note:

The local governments are not entirely wrong when they characterize speech-based SOCE as a course of conduct. SOCE, after all, is a therapy, and plaintiffs say they want to “engage” in it. But plaintiffs have the better of the argument. What the governments call a “medical procedure” consists—entirely— of words. As the district court itself recognized, plaintiffs’ therapy “is not just carried out in part through speech: the treatment provided by Drs. Otto and Hamilton is entirely speech.” If SOCE is conduct, the same could be said of teaching or protesting—both are activities, after all. Debating? Also an activity. Book clubs? Same answer. But the law does not require us to flip back and forth between perspectives until our eyes hurt. Our precedent says the opposite: “Speech is speech, and it must be analyzed as such for purposes of the First Amendment.” Wollschlaeger, 848 F.3d at 1307 (alteration omitted).

Those who closely follow the Supreme Court’s First Amendment jurisprudence will recall that in NIFLA the Court stopped just short of finding that professional speech regulations must pass strict scrutiny. The 11th Circuit felt no such constraint:

And because NIFLA directly criticized Pickup and King—cases with very close facts to this one—we do not think there is much question that, even if some type of professional speech might conceivably fall outside the First Amendment, the speech at issue here does not. But to whatever extent NIFLA failed to bind us with a direct holding on that point, we now make that holding ourselves. These ordinances are content-based regulations of speech and must satisfy strict scrutiny. (emphasis added)

I think this is the first affirmative statement from a federal appellate court that core professional speech is fully protected by the First Amendment; I doubt it will be the last.

Going on to apply strict scrutiny to the regulation at issue, the court — unsurprisingly — found that the statute did not pass muster. For despite the strong feelings on this particular topic, the state had marshaled little evidence that SOCE is actually harmful. The centerpiece report, from the American Psychological Association, concluded that it had “no clear indication of the prevalence of harmful outcomes” among those who had undergone such counseling. And as the court noted, the fact that most psychological professional associations are opposed to such counseling is not, in itself, evidence that the restriction is appropriate:

But that is, really, just another way of arguing that majority preference can justify a speech restriction. The “point of the First Amendment,” however, “is that majority preferences must be expressed in some fashion other than silencing speech on the basis of its content.” R.A.V., 505 U.S. at 392. Strict scrutiny cannot be satisfied by professional societies’ opposition to speech. Although we have no reason to doubt that these groups are composed of educated men and women acting in good faith, their institutional positions cannot define the boundaries of constitutional rights. They may hit the right mark—but they may also miss it.

By way of one obvious example, the American Psychiatric Association long considered homosexuality a mental disorder. As the court observes:

The Association’s abandoned position is, to put it mildly, broadly disfavored today. But the change itself shows why we cannot rely on professional organizations’ judgments—it would have been horribly wrong to allow the old professional consensus against homosexuality to justify a ban on counseling that affirmed it. Neutral principles work both ways, so we cannot allow a new consensus to justify restrictions on speech. Professional opinions and cultural attitudes may have changed, but the First Amendment has not.

Note the emphasis on neutral principles. It’s easy to get outraged about a particular practice, to advocate in favor of seeing it banned, but in such times it’s particularly important to seek neutral principles. Because if “subjective disfavor” is the guiding rule, the shoe can easily be on the other foot:

If the speech restrictions in these ordinances can stand, then so can their inverse. Local communities could prevent therapists from validating a client’s same-sex attractions if the city council deemed that message harmful. And the same goes for gender transition—counseling supporting a client’s gender identification could be banned. It comes down to this: if the plaintiffs’ perspective is not allowed here, then the defendants’ perspective can be banned elsewhere. People have intense moral, religious, and spiritual views about these matters—on all sides. And that is exactly why the First Amendment does not allow communities to determine how their neighbors may be counseled about matters of sexual orientation or gender. (emphasis added)

Given my interests, I can’t help but see the parallels between the regulation struck down in this case and lawyer speech restrictions. Sure, “lawyer speech” isn’t likely to drive the intensity of feeling that “counseling on matters of sexual orientation or gender” does. But both areas of regulation have a strong theme in common. They both feature a class of professionals who have formed strongly-held opinions about what members of the profession can and cannot say — and those opinions are typically based on little more than conjecture.

Applying the neutral principles of the First Amendment doesn’t always result in popular outcomes. But the more we do so, the more we can re-examine long-held beliefs that constrain the ability of members of society to exchange and access ideas. There’s a whole universe of professional speech restrictions that remains unexplored; I’m looking forward to more cases — like this one — that unapologetically take them on.

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