King v. Governor of the State of New Jersey
767 F.3d 216, 2014 WL 4455009 (2014)
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Rule of Law:
A state may prohibit licensed professionals from engaging in a specific practice, even if that practice consists of verbal communication, if the prohibition is narrowly tailored to directly advance the state's substantial interest in protecting the public from harmful or ineffective professional services.
Facts:
- Plaintiffs Dr. Tara King, Dr. Ronald Newman, and their professional organizations are licensed counselors in New Jersey who provide counseling to minors seeking to reduce or eliminate same-sex attractions.
- The counseling provided by the Plaintiffs is described as 'talk therapy,' administered exclusively through verbal communication.
- This therapy may involve discussing potential 'root causes' of homosexuality, exploring 'gender-appropriate behaviors,' and integrating religious perspectives into sessions.
- On August 19, 2013, New Jersey enacted Assembly Bill A3371, which prohibits any person licensed to provide professional counseling from engaging in 'sexual orientation change efforts' (SOCE) with a person under 18 years of age.
- A violation of the law exposes a licensed counselor to professional discipline from the state's licensing board.
- The New Jersey legislature supported the law with findings that major professional mental health organizations consider SOCE to be ineffective and to pose serious health risks to minors, including depression, guilt, shame, and suicidality.
Procedural Posture:
- Dr. King, Dr. Newman, and their organizations (Plaintiffs) sued New Jersey executive officials in the U.S. District Court for the District of New Jersey.
- The complaint alleged that Assembly Bill A3371 violated Plaintiffs' First and Fourteenth Amendment rights to free speech and free exercise of religion.
- Plaintiffs' motion for a preliminary injunction was converted into a motion for summary judgment.
- The District Court granted a motion for Garden State Equality to intervene as a defendant.
- The District Court granted summary judgment for the Defendants, concluding that A3371 regulates conduct, not speech, and thus does not violate the First Amendment.
- The District Court also dismissed Plaintiffs' free exercise claim and held that they lacked standing to bring claims on behalf of their minor clients.
- Plaintiffs (as appellants) appealed the District Court's judgment to the U.S. Court of Appeals for the Third Circuit.
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Issue:
Does a state law prohibiting licensed counselors from engaging in 'sexual orientation change efforts' with minors violate the counselors' First Amendment right to free speech?
Opinions:
Majority - Smith, Circuit Judge
No, the state law does not violate the counselors' First Amendment right to free speech. The verbal communication that occurs during SOCE counseling is speech protected by the First Amendment, not unprotected conduct. However, when a licensed professional is speaking as part of providing personalized services to a client, that communication qualifies as 'professional speech,' which receives a diminished level of constitutional protection. Such regulations are subject to intermediate scrutiny, which requires the law to directly advance a substantial government interest and be no more extensive than necessary to serve that interest. New Jersey has a substantial interest in protecting the physical and psychological well-being of minors. The legislature reasonably relied on substantial evidence from reputable professional organizations indicating that SOCE is harmful and ineffective, thus the ban directly advances that interest. The law is also narrowly tailored because a less restrictive alternative like an informed consent requirement would be inadequate to protect vulnerable minors from familial and social pressure. The law only prohibits the professional practice of SOCE on minors; it does not prevent counselors from expressing their personal viewpoints on the subject to clients or the public.
Analysis:
This decision carves out 'professional speech' as a category of speech receiving intermediate scrutiny, moving away from the speech-versus-conduct analysis used by other circuits. By analogizing professional speech to commercial speech, the court created a framework that balances the state's strong regulatory interest in protecting the public from harmful professional practices against the First Amendment rights of practitioners. This precedent strengthens the ability of states to regulate medical and psychological therapies based on evidence of potential harm, particularly for vulnerable populations like minors, without giving legislatures a blank check under rational basis review or making such regulations nearly impossible under strict scrutiny.
