Pickup v. Brown
740 F.3d 1208 (2013)
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Rule of Law:
A state may regulate professional conduct, including medical or psychological treatments performed exclusively through speech, without triggering heightened First Amendment scrutiny, provided the regulation targets the administration of the treatment itself and not the discussion or advocacy of it.
Facts:
- California enacted Senate Bill 1172 (SB 1172), which classifies engaging in 'sexual orientation change efforts' (SOCE) with a patient under 18 years of age as unprofessional conduct for licensed mental health providers.
- The law defines SOCE as any practice by a licensed provider that seeks to change an individual's sexual orientation.
- SB 1172 does not prohibit providers from discussing or expressing their views on SOCE, nor does it prevent them from recommending it to patients or practicing it on adults.
- The law also does not apply to unlicensed individuals, such as religious counselors.
- The plaintiffs are licensed mental health providers who practice SOCE on minors using non-aversive, speech-based therapies like counseling.
- The California legislature stated its purpose for the law was to protect minors from the potential harms of SOCE, relying on reports from numerous major medical and psychological associations.
- These professional organizations largely concluded that SOCE is ineffective and poses a risk of serious harm, including depression and suicidal ideation.
Procedural Posture:
- Two groups of plaintiffs, including SOCE practitioners and patients' families, filed separate lawsuits in U.S. District Court seeking to enjoin enforcement of California's SB 1172.
- In the first case, Welch v. Brown, the district court granted a preliminary injunction, concluding the law likely violated the First Amendment.
- In the second case, Pickup v. Brown, a different judge in the same district denied a preliminary injunction, finding the law regulated conduct, not speech.
- The losing party in each case filed an appeal with the U.S. Court of Appeals for the Ninth Circuit.
- The Ninth Circuit consolidated the two appeals for hearing and decision.
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Issue:
Does a California law prohibiting licensed mental health providers from engaging in sexual orientation change efforts (SOCE) with minors violate the First Amendment's protection of free speech?
Opinions:
Majority - Graber, J.
No. The law regulates professional conduct, not protected speech, and therefore does not violate the First Amendment. States have broad power to regulate medical treatments to protect public health and safety, and this power is not diminished simply because a treatment is administered through speech. The court distinguished between regulating the practice of a therapy and regulating communication about the therapy. Because SB 1172 only prohibits the act of performing SOCE on minors while leaving providers free to discuss, recommend, or hold any viewpoint on the practice, it is a regulation of professional conduct. This is different from prior cases like Conant, which struck down a policy that barred doctors from merely recommending a treatment. As a regulation of conduct with only an incidental effect on speech, SB 1172 is subject only to rational basis review. The law easily passes this test because it is rationally related to the legitimate government interest of protecting the physical and psychological well-being of minors, based on the overwhelming evidence from professional organizations presented to the legislature.
Dissenting - O'Scannlain, J. (from denial of rehearing en banc)
Yes. The law violates the First Amendment by suppressing disfavored speech. The majority allows the legislature to evade First Amendment scrutiny simply by labeling prohibited speech as 'conduct.' When a 'treatment' consists exclusively of verbal communication, a ban on that treatment is a ban on speech. Citing Holder v. Humanitarian Law Project, the dissent argues that the government’s ipse dixit cannot transform speech into unprotected conduct. The statute is a content-based regulation because it prohibits professionals from communicating a particular message with a particular purpose. There is no freestanding 'professional regulation' exception to the First Amendment; such regulations must still withstand constitutional scrutiny. By creating one, the majority opinion provides the government a powerful new tool to silence politically unpopular expression under the guise of professional discipline.
Analysis:
This decision establishes a significant precedent for the regulation of therapeutic practices that are based entirely on speech. By characterizing 'talk therapy' as professional conduct rather than protected speech, the court grants states considerable authority to ban treatments they deem harmful, so long as the ban is narrowly targeted at the treatment itself and not at related discussion. This creates a clear, though controversial, line between the regulable act of providing therapy and the protected speech of advocating for it. The ruling provides a roadmap for future state legislation on controversial medical and psychological practices, while the dissent highlights the inherent risk that this 'conduct' label could be used to suppress disfavored viewpoints and ideas within the professions.
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