11th Circuit: A Ban On Therapy For An Unwanted Sexual Attraction Is Unconstitutional

We understand and appreciate that the therapy is highly controversial. But the First Amendment has no carveout for controversial speech. We hold that the challenged ordinances violate the First Amendment because they are content-based regulations of speech that cannot survive strict scrutiny.

…In late 2017, Palm Beach County, Florida and the City of Boca Raton joined a growing list of states and municipalities that prohibit controversial therapies called sexual orientation change efforts (SOCE).1 The City and the County both passed ordinances based on legislative findings that SOCE poses a serious health risk to minors. These findings cited various studies and the position papers of numerous medical and public health organizations.

…The First Amendment prohibits the political restriction of speech in simple but definite terms: “Congress shall make no law . . . abridging the freedom of speech.” U.S. Const. amend. I. Those same terms, and their guarantee of free speech, now apply to states and municipalities as well as to the federal government. See Cruz v. Ferre, 755 F.2d 1415, 1418 (11th Cir. 1985). At the heart of that guarantee is “the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence.” Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641 (1994).

…This is a case about what speech the First Amendment allows the government to ban, and under what circumstances. So the first question we need to consider is whether the ordinances are content-based regulations. If they are, we analyze them under strict scrutiny; if not, they receive the lighter touch of intermediate scrutiny or perhaps even rational basis review.

…The answer to the content-based-or-not question turns out to be as easy here as it was in Wollschlaeger: because the ordinances depend on what is said, they are content-based restrictions that must receive strict scrutiny.

The local governments’ characterization of their ordinances as professional regulations cannot lower that bar. 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).

Nor can the local governments evade the First Amendment’s ordinary presumption against content-based speech restrictions by saying that the plaintiffs’ speech is actually conduct.

…Forbidding the government from choosing favored and disfavored messages is at the core of the First Amendment’s free-speech guarantee. See Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 96 (1972).

…One reliable way to tell if a law restricting speech is content-based is to ask whether enforcement authorities must “examine the content of the message that is conveyed” to know whether the law has been violated.

…We cannot see how the regulations here can be applied without considering the content of the banned speech. Indeed, and as we said in Wollschlaeger, “this is not a hard case in that respect.” 848 F.3d at 1307. The regulations are plainly “speaker-focused and content-based restrictions on speech”: they limit a category of people—therapists—from communicating a particular message.

…So the ordinances discriminate on the basis of content—at a minimum. They also discriminate on the basis of viewpoint. After all, the plaintiffs’ counseling practices are grounded in a particular viewpoint about sex, gender, and sexual ethics. The defendant governments obviously hold an opposing viewpoint—one that they surely have the right to promote. Pleasant Grove City v. Summum, 555 U.S. 460, 467 (2009) (the Free Speech Clause “does not regulate government speech”); see also Mech v. Sch. Bd. of Palm Beach Cnty., 806 F.3d 1070, 1074 (11th Cir. 2015). But they cannot engage in “bias, censorship or preference regarding [another] speaker’s point of view.” Messer v. City of Douglasville, 975 F.2d 1505, 1509 (11th Cir. 1992).

…Viewpoint-based regulations like these are “an egregious form of content discrimination.” Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819, 829 (1995). Indeed, there is an argument that such regulations are unconstitutional per se; the Supreme Court has said that “the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others.”

…The district court and the defendants suggest that the ordinances here—even
if based on the content of a therapist’s speech—fall into a kind of twilight zone of “professional speech” or “professional conduct.” To be sure, certain types of speech receive either less protection or no protection under the First Amendment.

…As for “incidental speech swept up in the regulation of conduct,” the ordinances are direct, not incidental, regulations of speech.

…Still, they say, our confidence should not be shaken: the “relative lack of empirical studies on SOCE is not evidence of lack of harm . . . . If anything, the lack of studies on SOCE may be indicative of the risk of harm.” The district court agreed: “Requiring Defendants to produce specific evidence that engaging in SOCE through talk therapy is as harmful as aversive techniques would likely be futile when so many professional organizations have declared their opposition to SOCE.” In other words, evidence is not necessary when the relevant professional organizations are united.

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.

…One final point. We do understand the temptation to say that some speech goes too far and is too risky to permit. But the First Amendment requires that content-based speech restrictions satisfy strict scrutiny. Id. at 799. And unless restrictions meet that “demanding standard,” whether the speech they target should be tolerated is simply not a question that we are allowed to consider, or a choice that we are allowed to make. Id. “The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.” Stevens, 559 U.S. at 470.

…This decision allows speech that many find concerning—even dangerous. But consider the alternative. 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.

GRANT, Circuit Judge, Otto and Hamilton v. City of Boca Raton and County of Palm Beach (Nov, 20, 2020).


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  • R. Scott Clark
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    R.Scott Clark is the President of the Heidelberg Reformation Association, the author and editor of, and contributor to several books and the author of many articles. He has taught church history and historical theology since 1997 at Westminster Seminary California. He has also taught at Wheaton College, Reformed Theological Seminary, and Concordia University. He has hosted the Heidelblog since 2007.

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    • Nathan,

      The court decision is linked. There’s a summary of the issues. Check it out.

      There are unconstitutional laws across the country prohibiting people from getting help and threatening punishment for those who seek to help. This would include pastors.

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