Robert W. Otto v. City of Boca Raton, Florida
USCA11 Case: 19-10604 (2020)
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Rule of Law:
Content-based regulations of speech, including professional speech, are presumptively unconstitutional and violate the First Amendment unless the government proves they are narrowly tailored to serve compelling state interests.
Facts:
- In late 2017, Palm Beach County, Florida, and the City of Boca Raton passed ordinances prohibiting therapists from engaging in sexual orientation change efforts (SOCE) with minors.
- The ordinances define SOCE as any counseling, practice, or treatment performed with the goal of changing an individual’s sexual orientation or gender identity, including efforts to change behaviors, gender identity, or expression, or to reduce same-sex attractions.
- The ordinances specifically permit counseling that provides support and assistance to a person undergoing gender transition.
- Robert W. Otto and Julie H. Hamilton are licensed marriage and family therapists who practice in Palm Beach County, including within the City of Boca Raton.
- Drs. Otto and Hamilton provide 'talk therapy' to minor clients who present with unwanted same-sex attraction or unwanted gender identity issues.
- Plaintiffs state their therapy is voluntary, client-directed, and helps clients align their identity, attractions, and behaviors with sincerely held religious beliefs conflicting with homosexuality.
- The City and County assert that SOCE, in any form, poses serious health risks to children and adolescents, specifically citing an increased risk of depression and suicide.
Procedural Posture:
- Plaintiffs Robert W. Otto and Julie H. Hamilton filed suit in the United States District Court for the Southern District of Florida, seeking a permanent injunction against the enforcement of two ordinances.
- Plaintiffs subsequently moved for a preliminary injunction, asserting violations of the First Amendment and state law preemption.
- The District Court for the Southern District of Florida denied the motion for a preliminary injunction, finding that Plaintiffs failed to demonstrate a substantial likelihood of success on the merits for their First Amendment claim, and irreparable harm for their state preemption claim.
- Plaintiffs appealed the denial of the preliminary injunction to the United States Court of Appeals for the Eleventh Circuit.
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Issue:
Does a municipal ordinance that prohibits licensed therapists from engaging in purely speech-based sexual orientation change efforts (SOCE) with minor clients violate the First Amendment by constituting a content-based restriction on speech that cannot survive strict scrutiny?
Opinions:
Majority - Grant, Circuit Judge
Yes, the challenged ordinances violate the First Amendment because they are content-based regulations of speech that cannot survive strict scrutiny. The ordinances are content-based because they regulate speech based on the topic discussed and the message expressed, requiring enforcement authorities to examine the content of the message conveyed. They are also viewpoint-based, as they explicitly allow counseling for gender transition support but prohibit counseling aimed at changing gender identity or sexual orientation, thereby codifying a particular viewpoint and suppressing opposing perspectives. The court rejected the district court's characterization of the ordinances as regulating 'professional speech' deserving less protection, citing National Institute of Family & Life Advocates v. Becerra and Wollschlaeger v. Governor, Fla., which established that speech does not lose First Amendment protection merely because it is uttered by a professional. The majority emphasized that purely speech-based therapy is speech, not conduct, and the government cannot re-label speech as conduct to evade First Amendment scrutiny. Applying strict scrutiny, the court acknowledged the compelling state interest in safeguarding the well-being of minors, but found that the defendants failed to provide sufficiently rigorous evidence to prove the ordinances are narrowly tailored to further this interest. The court noted that the American Psychological Association report, relied upon by the defendants, conceded that 'nonaversive and recent approaches to SOCE have not been rigorously evaluated' and found a 'complete lack' of rigorous recent prospective research. The majority concluded that 'equivocal conclusions' and 'ambiguous proof' are insufficient to satisfy strict scrutiny, and that professional organizations' judgments, while respected, cannot define constitutional rights or justify speech restrictions, especially given historical shifts in professional consensus (e.g., on homosexuality).
Dissenting - Martin, Circuit Judge
No, the ordinances do not violate the First Amendment because they are narrowly tailored to serve a compelling government interest in protecting minors from harmful professional practices and therefore satisfy strict scrutiny. The dissenting opinion argues that the ordinances primarily regulate a medical practice, even if it incidentally involves speech. Judge Martin contended that the ordinances do not discriminate based on viewpoint, as the allowance for gender transition support does not prohibit counseling for detransitioning, nor does it prevent therapists from discussing SOCE or recommending it to minor patients or adults. The dissent emphasized the compelling government interest in protecting minors from harmful professional practices, citing New York v. Ferber and Locke v. Shore. Substantial evidence supports the harm caused by SOCE, according to Judge Martin, including reports from numerous medical and public health organizations (such as the APA, American Academy of Pediatrics, and WHO) which consistently identify SOCE as harmful, potentially leading to depression, anxiety, and suicidal ideation. The dissent criticized the majority's demand for more 'rigorous' studies, arguing that such research on vulnerable minors would be unethical given the known risks. Finally, the ordinances are deemed narrowly tailored because they reasonably exclude religious counselors to avoid Establishment Clause issues and allow ample avenues for discussion about SOCE. Furthermore, alternatives like banning only aversive therapies or implementing informed consent requirements would be ineffective given the established harms of nonaversive SOCE and the particular vulnerability of minors to familial and societal pressures.
Analysis:
This case significantly reinforces the high bar of strict scrutiny for content-based speech restrictions, particularly within professional contexts. By rejecting the 'professional speech' doctrine as a basis for lesser protection, the Eleventh Circuit aligns with the Supreme Court's NIFLA decision and broadens First Amendment protections for licensed professionals' communications with clients. The ruling implies that even with a compelling state interest (like protecting minors), governments must demonstrate concrete and rigorous evidence of harm directly attributable to the specific speech being regulated, not just general concerns or institutional consensus. This could make it more challenging for states and municipalities to regulate therapeutic practices, potentially shifting the focus to malpractice torts or other conduct-based regulations rather than speech bans.
