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Pickup v. Brown

United States Court of Appeals, Ninth Circuit

August 29, 2013

David H. PICKUP; Christopher H. Rosick; Joseph Nicolosi; Robert Vazzo; National Association for Research and Therapy of Homosexuality, a Utah non-profit organization; American Association of Christian Counselors, a Virginia non-profit association; Jack Doe 1, Parent of John Doe 1; Jane Doe 1, Parent of John Doe 1; John Doe 1, a minor, guardian ad litem Jane Doe, guardian ad litem Jack Doe; Jack Doe 2, Parent of John Doe 2; Jane Doe 2, Parent of John Doe 2; John Doe 2, a minor, guardian ad litem Jack Doe, guardian ad litem Jane Doe, Plaintiffs-Appellants,
v.
Edmund G. BROWN, Jr., Governor of the State of California, in his official capacity; Anna M. Caballero, Secretary of the California State and Consumer Services Agency, in her official capacity; Sharon Levine, President of the Medical Board of California, in her official capacity; Kim Madsen, Executive Officer of the California Board of Behavioral Sciences, in her official capacity; Michael Erickson, President of the California Board of Psychology, in his official capacity, Defendants-Appellees, and Equality California, Intervenor-Defendant-Appellee. Donald Welch; Anthony Duk; Aaron Bitzer, Plaintiffs-Appellees,
v.
Edmund G. Brown, Jr., Governor of the State of California, in his official capacity; Anna M. Caballero, Secretary of California State and Consumer Services Agency, in her official capacity; Denise Brown, Case Manager, Director of Consumer Affairs, in her official capacity; Christine Wietlisbach, Patricia Lock Dawson, Samara Ashley, Harry Douglas, Julia Johnson, Sarita Kohli, Renee Lonner, Karen Pines, Christina Wong, in their official capacities as members of the California Board of Behavioral Sciences; Sharon Levine, Michael Bishop, Silvia Diego, Dev Gnanadev, Reginald Low, Denise Pines, Janet Salomonson, Gerrie Schipske, David Serrano Sewell, Barbara Yaroslavsky, in their official capacities as members of the Medical Board of California, Defendants-Appellants.

Argued and Submitted April 17, 2013.

Amended Jan. 29, 2014.

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Mathew D. Staver (argued) and Anita L. Staver, Liberty Counsel, Maitland, FL; Mary E. McAlister, Stephen M. Crampton, and Daniel J. Schmid, Liberty Counsel, Lynchburg, VA, for Plaintiffs-Appellants David H. Pickup et al.

Alexandra Robert Gordon (argued), Deputy Attorney General, Kamala D. Harris, Attorney General of California, Douglas J. Woods, Senior Assistant Attorney General, Tamar Pachter, Supervising Deputy Attorney General, and Daniel J. Powell and Rei R. Onishi, Deputy Attorneys General, San Francisco, CA, for Defendants-Appellees Edmund G. Brown, Jr., et al.

Shannon P. Minter (argued), National Center for Lesbian Rights, San Francisco, CA; David C. Dinielli, Munger, Tolles & Olson LLP, Los Angeles, CA, for Intervenor/Defendant-Appellee.

Robert P. Taylor, Arnold & Porter LLP, San Francisco, CA, for Amici Curiae American Association for Marriage and Family Therapy-California Division, et al.; Elizabeth O. Gill, ACLU Foundation of Northern California, Inc., San Francisco, CA, for Amicus Curiae American Civil Liberties Union Foundation of Northern California; Eric Alan Isaacson, San Diego, CA, and Stacey M. Kaplan, San Francisco, CA, for Amici Curiae California Faith for Equality, et al.; Brad W. Seiling, Benjamin G. Shatz, and Justin Jones Rodriquez, Manatt, Phelps & Phillips, LLP, Los Angeles, CA, and Hayley Gorenberg, Lambda Legal Defense and Education Fund, Inc., New York, NY, and Shelbi D. Day, Lambda Legal Defense and Education Fund, Inc., Los Angeles, CA, for Amici Curiae Children's Law Center of California, et al.; Jay Rapaport, Covington & Burling LLP, San Francisco, CA, for Amicus Curiae Dr. Jack Drescher, M.D.; Jon B. Eisenberg and Barry R. Levy, Encino, CA, for Amicus Curiae First Amendment Scholars; Eileen R. Ridley, Thomas F. Carlucci, Patrick T. Wong, and Kristy K. Marino, Foley & Lardner LLP, San Francisco, CA, for Amicus Curiae Health Law Scholars; Adam L. Gray and James Maxwell Cooper, Kirkland & Ellis LLP, San Francisco, CA, for Amici Curiae Medical Professionals Tonya Chaffee, MD, MPH, et al.; Tara M. Steeley, Deputy City Attorney, and Dennis J. Herrera, City Attorney, and Therese Stewart, Mollie Lee, and Sara Eisenberg, Deputy City Attorneys, San Francisco, CA, for Amicus Curiae The City and County of San Francisco; and Sanford Jay Rosen, Rosen Bien Galvan & Grunfeld LLP, San Francisco, CA, for Amicus Curiae Survivors

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of Sexual Orientation Change Efforts.

Alexandra Robert Gordon (argued), Deputy Attorney General, Kamala D. Harris, Attorney General of California, Douglas J. Woods, Senior Assistant Attorney General, Tamar Pachter, Supervising Deputy Attorney General, and Daniel J. Powell and Rei R. Onishi, Deputy Attorneys General, and Craig J. Konnoth, Deputy Solicitor General, San Francisco, CA, for Defendants-Appellants Edmund G. Brown, Jr., et al.

Kevin T. Snider (argued), Matthew B. McReynolds, and Michael J. Peffer, Pacific Justice Institute, Sacramento, CA, for Plaintiffs-Appellees Donald Welch et al.

Elizabeth O. Gill, ACLU Foundation of Northern California, Inc., San Francisco, CA, for Amicus Curiae American Civil Liberties Union Foundation of Northern California; Peter D. Lepiscopo, William P. Morrow, James M. Griffiths, and Michael W. Healy, Lepiscopo & Associates Law Firm, San Diego, CA, for Amicus Curiae American College of Pediatricians; Eric Alan Isaacson, San Diego, CA, and Stacey M. Kaplan, San Francisco, CA, for Amici Curiae California Faith for Equality, et al.; Brad W. Seiling and Benjamin G. Shatz, Manatt, Phelps & Phillips, LLP, Los Angeles, CA, and Hayley Gorenberg, Lambda Legal Defense and Education Fund, Inc, New York, NY, and Shelbi D. Day, Lambda Legal Defense and Education Fund, Inc., Los Angeles, CA, for Amici Curiae Children's Law Center of California, et al.; Shannon P. Minter, National Center for Lesbian Rights, San Francisco, CA, and David C. Dinielli, Munger, Tolles & Olson LLP, Los Angeles, CA, for Amicus Curiae Equality California; Jon B. Eisenberg and Barry R. Levy, Encino, CA, for Amicus Curiae First Amendment Scholars; John A. Eidsmoe and Joshua M. Pendergrass, Foundation for Moral Law, Montgomery, AL, for Amicus Curiae Foundation for Moral Law; Eileen R. Ridley, Thomas F. Carlucci, Patrick T. Wong, and Kristy K. Marino, Foley & Lardner LLP, San Francisco, CA, for Amicus Curiae Health Law Scholars; Dean R. Broyles, The National Center for Law & Policy, Escondido, CA, for Amicus Curiae Parents and Friends of Ex-Gays & Gays; and Sanford Jay Rosen, Rosen Bien Galvan & Grunfeld LLP, San Francisco, CA, for Amicus Curiae Survivors of Sexual Orientation Change Efforts.

Appeal from the United States District Court Appeal from the United States District Court for the Eastern District of California, William B. Shubb, Senior District Judge, Presiding. D.C. No. 2:12-CV-02497-KJM-EFB, D.C. No. 2:12-CV-02484-WBS-KJN.

Before: ALEX KOZINSKI, Chief Judge, and SUSAN P. GRABER, and MORGAN CHRISTEN, Circuit Judges.

Dissent to Order by Judge O'SCANNLAIN; Opinion by Judge GRABER.

ORDER

The opinion filed on August 29, 2013, and published at 728 F.3d 1042, is replaced by the amended opinion filed concurrently with this order. With these amendments, the panel has voted to deny the petitions for panel rehearing and petitions for rehearing en banc.

The full court has been advised of the petitions for rehearing en banc. A judge of the court called for a vote on whether to rehear the matter en banc. On such vote, a majority of the nonrecused active judges failed to vote in favor of en banc rehearing.

The petitions for panel rehearing and petitions for rehearing en banc are DENIED. No further petitions for panel rehearing

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or petitions for rehearing en banc shall be entertained.

O'SCANNLAIN, Circuit Judge, joined by BEA and IKUTA, Circuit Judges, dissenting from the denial of rehearing en banc:

May the legislature avoid First Amendment judicial scrutiny by defining disfavored talk as " conduct" ? That is what these cases are really about.

The State of California, in the statute at issue here, has prohibited licensed professionals from saying certain words to their clients. By labeling such speech as " conduct," the panel's opinion has entirely exempted such regulation from the First Amendment. In so doing, the panel contravenes recent Supreme Court precedent, ignores established free speech doctrine, misreads our cases, and thus insulates from First Amendment scrutiny California's prohibition— in the guise of a professional regulation— of politically unpopular expression.

I respectfully dissent from our court's regrettable failure to rehear these cases en banc.

I

California enacted Senate Bill 1172 (" SB 1172" ), which subjects state-licensed " mental health providers" [1] to professional discipline for engaging in " sexual orientation change efforts" with clients who are minors. Cal. Bus. & Prof.Code §§ 865.1, 865.2. The statute defines such change efforts to include " any practices ... that seek to change an individual's sexual orientation." Id. § 865(b)(1). Explicitly exempted from the regulation are " psychotherapies that provide acceptance, support, and understanding of clients' coping, social support, and identity exploration and development." Id. § 865(b)(2). The law does not expressly prohibit professionals from discussing change efforts with patients, from referring patients to unlicensed practitioners of change efforts, or otherwise from offering opinions on the subject of homosexuality. Amended op. at 26.

In Welch, the district court granted plaintiffs an injunction against SB 1172, but a different judge in Pickup denied a similar request. Plaintiffs in these cases include licensed professionals who provide change efforts exclusively through speech— i.e., methods such as counseling and prayer. [2] Cf. id. at 39 n. 5.

According to the panel the words proscribed by SB 1172 consist entirely of medical " treatment," which although effected by verbal communication nevertheless constitutes " professional conduct " entirely unprotected by the First Amendment. See amended op. at 37-39. Unlike a professional's opinions, theories, recommendations, or advocacy, such " conduct" effected through speech would receive no constitutional safeguards against state suppression. Id. The panel provides no principled doctrinal basis for its dichotomy: by what criteria do we distinguish

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between utterances that are truly " speech," on the one hand, and those that are, on the other hand, somehow " treatment" or " conduct" ? The panel, contrary to common sense and without legal authority, simply asserts that some spoken words— those prohibited by SB 1172— are not speech.

Empowered by this ruling of our court, government will have a new and powerful tool to silence expression based on a political or moral judgment about the content and purpose of the communications. The First Amendment precisely forbids government from punishing speech on such grounds.

II

Our precedents do not suggest that laws prohibiting " conduct" effected exclusively by means of speech escape First Amendment scrutiny. In fact, the Supreme Court, in its most recent relevant case, flatly refused to countenance the government's purported distinction between " conduct" and " speech" for constitutional purposes when the activity at issue consisted of talking and writing.

The plaintiffs in Holder v. Humanitarian Law Project, 561 U.S. 1, 130 S.Ct. 2705, 177 L.Ed.2d 355 (2010), had challenged a Federal statute forbidding " material support" to terrorist organizations for criminalizing protected verbal communications. Id. at 2716-17. The Supreme Court upheld the statute, but only after applying First Amendment scrutiny. Specifically, the Court rejected the government's argument that the statute only punished " conduct" : for, in this situation, the " conduct triggering coverage under the statute consists of communicating a message." Id. at 2724. In other words, the government's ipse dixit cannot transform " speech" into " conduct" that it may more freely regulate.[3]

The panel attempts, vainly, to distinguish Humanitarian Law Project from the facts of this case by emphasizing that the change efforts prohibited by SB 1172 are " therapeutic treatment, not expressive speech" and that the practitioners to whom the law applies are " licensed mental health professionals acting within the confines of the counselor-client relationship." Amended op. at 39. In purported contrast is the issue in Humanitarian Law Project, which according to the panel dealt with " political speech ... by ordinary citizens." Id. at 40. These supposedly distinguishing characteristics find no support in the Supreme Court's holding and do not even fairly characterize the facts of the case.

In the first place, the panel's vague invocation of " ordinary citizens" misses the mark. What exactly the panel means by this locution— more redolent of campaign sound bites or generic political press releases than the customarily more precise language of judicial opinions— is unclear. To the extent that " ordinary citizens" encompass non-professionals, this dichotomy is self-evidently irrelevant on the facts of Humanitarian Law Project. The plaintiffs in that case included a nonprofit human-rights organization with consultative status to the United Nations, 130 S.Ct. at 2713-14; the activities in which they had contemplated engaging included offering their professional expertise and advice on various

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international and humanitarian issues, id. at 2716-17. Such plaintiffs may not have been doctors or psychoanalysts, but certainly purported to be offering professional services of another sort; the Supreme Court, at least, did not treat them as mere lay people. If that is the distinction the panel perceives in the " ordinary citizens" of Humanitarian Law Project, it is illusory.

Furthermore, the Supreme Court in Humanitarian Law Project explicitly rejected the plaintiffs' argument that the expression in question consisted of " pure political speech." Id. at 2722; see also id. at 2724 (" The First Amendment issue before us is ... not whether the Government may prohibit pure political speech." ). In explanation, the Court proceeded to enumerate various sorts of political expression that the statute did not abridge— just as the panel's opinion does with respect to SB 1172. The material support statute permitted " plaintiffs ... to say anything they wish on any topic[; t]hey may speak and write freely[; ].... [t]hey may advocate before the United Nations." Id. at 2722-23; cf. amended op. at 26 (" SB 1172 does not ... [p]revent mental health providers from communicating with the public about SOCE [; p]revent mental health providers from expressing their views to patients, whether children or adults, about SOCE, homosexuality, or any other topic [; p]revent mental health providers from recommending SOCE to patients, whether children or adults...." ). Such classical " political speech," Chief Justice Roberts concluded, did not fall within the statute's strictures; nevertheless, the Court ruled that the First Amendment still applied to the sort of speech in which the plaintiffs contemplated engaging and which they claimed the statute forbade. See id. at 2724-27. The reasoning of Humanitarian Law Project specifically forecloses courts from approving a statutory restriction on speech simply because it still permits various and extensive political expression.

The cases here present an analogous situation: professionals— including but not limited to doctors and psychologists— desire to " communicate a message" that the law in question does not permit. This court accordingly should subject SB 1172 to some level of scrutiny under the First Amendment.

It bears noting, further, that the Court in Humanitarian Law Project did not examine the content or purpose of the " message" the plaintiffs desired to communicate. Thus the panel's attempt to validate SB 1172, on the basis that the speech— the communicated " message" — it proscribes is not " expressive" or " symbolic," amended op. at 39, finds no support in Humanitarian Law Project itself. Whether the prohibited communications in any given situation qualify as pure political speech or, for example, commercial speech will affect only the level of scrutiny, not whether the First Amendment applies at all. The Supreme Court has not required that speech, as a threshold matter, be " expressive" or " symbolic" before deigning to extend to it constitutional protection.[4]

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The Supreme Court's implication in Humanitarian Law Project is clear: legislatures cannot nullify the First Amendment's protections for speech by playing this labeling game. SB 1172 prohibits certain " practices," just as the statute in Humanitarian Law Project prohibited " material support" ; but with regard to those plaintiffs as well as the plaintiffs here, those laws targeted speech. Thus, the First Amendment still applies.

III

The Federal courts have never recognized a freestanding exception to the First Amendment for state professional regulations.[5] Indeed authoritative precedents have established that neither professional regulations generally, nor even a more limited subclass of such rules, remain categorically outside of the First Amendment's reach.[6] To justify its purported speech/conduct dichotomy in the context of the professions, the panel instead invokes our decisions in National Association for the Advancement of Psychoanalysis v. California Board of Psychology (" NAAP" ), 228 F.3d 1043 (9th Cir.2000), and Conant v. Walters, 309 F.3d 629 (9th Cir.2002), as well as scattered citations of non-authoritative cases. Supreme Court precedent, however, as well as NAAP and Conant themselves, do not dictate such conclusion— rather, they counsel against it.

A

NAAP confronted the question whether California may regulate the psychoanalytical professions at all. We concluded, indeed, that psychoanalysts, simply by dint of theirs being the " talking cure," do not receive " special First Amendment protection." See NAAP, 228 F.3d at 1054 (emphasis added). But ...


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