Free speech: Court of Appeals converts District Court ruling

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Recently, the First Amendment has provided the basis for challenges to mental health practice with plaintiffs arguing that professional practice is not conduct but rather speech protected by the First Amendment. These cases continue to matriculate through the judicial system.

Counsel's column

photograph of Dale Atkinson
Dale Atkinson is a partner with the Illinois law firm that is counsel to ASWB.

Freedom of speech is a fundamental right in our society that recognizes and embraces dialogue and debate as a means of allowing exploration of thought. In the United States, the First Amendment of the Constitution establishes and protects the freedom of expression. Section 2 of the Canadian Charter of Rights and Freedoms affords similar protections. In the United States, with very few exceptions (related to criminal activities, defamation, perjury, and violations of intellectual interests), the freedom of expression is encouraged and protected. Indeed, the right to disagree is importantly protected from government interference. Recently, the First Amendment has provided the basis for challenges to mental health practice with plaintiffs arguing that professional practice is not conduct but rather speech protected by the First Amendment. These cases continue to matriculate through the judicial system.

In addition to the speech vs. conduct challenge, recent cases have addressed statutes that prohibit conversion therapy (sometimes referred to as sexual orientation and gender identity and expression change efforts [SOGIECE]) in the practice of mental health services. (Acknowledgment is made to the controversies surrounding the labels placed on these laws; conversion therapy will be used here for ease of reference.)

Approximately one-half of the states and the District of Columbia and Puerto Rico prohibit conversion therapy to some degree. These cases also address the First Amendment rights of practitioners to exercise free speech in therapy. The linchpin of the argument is whether laws can restrict such activities under a First Amendment analysis, thereby limiting the treatment options of therapists. The cases to date have specifically addressed statutes prohibiting conversion therapy to minors.

Related to the case reviewed below is the question of what role local municipalities play in adopting ordinances that restrict or prohibit the use of these conversion therapies. Generally, regulation of the professions is a statewide issue, and the relevant legislation is intended to completely occupy the field. This intent to fully occupy the field would restrict the ability of municipalities to address scope of practice issues and thereby create an intrastate patchwork of professional regulation. That is, state law would preempt local ordinances. Approximately 107 municipalities across the United States prohibit conversion therapy to some degree. Consider the following.

In 2017, Palm Beach County and the City of Boca Raton passed ordinances that prohibited “any counseling, practice, or treatment performed with the goal of changing an individual’s sexual orientation or gender identity… .” These ordinances are limited to the treatment of minors and apply to any person licensed by the state of Florida to provide professional counseling (except for clergy). Both ordinances expressly allow “counseling that provides support and assistance to a person undergoing gender transition.”

Two licensed marriage and family therapists (Plaintiffs) with practices in Palm Beach County and specifically within the City of Boca Raton filed suit in federal court seeking preliminary (effective immediately) and permanent injunctions against the enforcement of both ordinances. The Plaintiffs argued that their therapy is voluntary and client directed and that their clients have “sincerely held religious beliefs conflicting with homosexuality and voluntarily seek [conversion therapy] counseling in order to live in congruence with their faith and to conform their identity, concept of self, attractions, and behaviors to their sincerely held religious beliefs.” The County and City (Defendants) argued that [conversion therapy] “in any form, poses serious health risks to children and adolescents.” They specifically referred to risks of depression and suicide. Both Plaintiffs and Defendants agreed that the practices consisted entirely of speech and not conduct.

The District Court denied the motion for a preliminary injunction, finding that the Plaintiffs failed to demonstrate a likelihood of success (one of the requirements of awarding a preliminary injunction). The Plaintiffs appealed. The 11th U.S. Circuit Court of Appeals addressed its standard of review and noted that a preliminary injunction is an extraordinary and drastic remedy. The court next reviewed the First Amendment and noted that at the heart of the guaranteed free speech rights is the principle that “each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence.” The First Amendment exists for the very reason that speakers with unpopular ideas do not have to lobby government for permission to speak.

Finding that the speech in question is content-based speech, the court cited judicial precedence that requires a strict scrutiny standard to survive a legal challenge. Strict scrutiny is the highest standard that must be met to uphold government restrictions on speech. This higher standard is premised upon the inherent risk that the “government seeks to not advance a legitimate regulatory goal, but to suppress unpopular ideas or information.”

Content speech is one that applies to particular speech because of the “topic discussed or the idea or message expressed.” The First Amendment prohibits the government from restricting expression because of its message, its ideas, its subject matter, or its content. A noted by the 11th Circuit, “[f]ew categories of regulation have been as disfavored as content-based speech restrictions which are ‘presumptively invalid’.”

Adding to the concerns of the 11th Circuit was the exception permitted in both ordinances. The exception allowed “counseling that provides support and assistance to a person undergoing gender transition.” No such carveout exists for sexual orientation. Thus, counseling efforts related to sexual orientation remains prohibited while gender falls under an exception. The ordinances codify a particular viewpoint. Even if there is widespread professional agreement on this perspective, the question is whether a counselor’s viewpoint determines authority to speak. As noted by the court, the answer is a definite Yes.

The court engaged in an extensive analysis of speech vs. conduct. Speech vs. conduct is currently being litigated related to teletherapy and whether state-based licensing laws that require out-of-state practitioners to be licensed can withstand a First Amendment challenge. There is no consensus yet on this issue. In this current case, the court found that “speech is speech” and the arbitrary distinction does not negate the application of the First Amendment. Emphasizing its opinion and related to the activities of counselors, the court noted that “[I]f speaking to clients is not speech, the world is truly upside down.”

Under a strict scrutiny analysis, content restrictions are presumed to be unconstitutional and will only be upheld if the government proves that the restrictions are narrowly tailored to serve a compelling state interest. In this matter, the court was not persuaded. It referenced that the American Psychological Association noted there to be a “complete lack” of “rigorous recent perspective research on [conversion therapy]” and that the results have mixed reviews. Despite this lack of research, the Defendants argued that the united opinions of relevant professional associations identify this therapy to be harmful. Rejecting this approach, the court emphasized that the majority preference has no bearing on the First Amendment analysis. In fact, the very nature of free speech is that the “majority preferences must be expressed in some fashion other than silencing speech on the basis of its content.”

The 11th Circuit reversed the lower court and remanded the matter for the entry of a preliminary injunction prohibiting enforcement of the ordinances. On July 20, 2022, the petition for rehearing was denied in a comprehensive opinion. As readers can imagine, numerous friends of the court (amicus curiae) briefs were filed. With the number of statutes and ordinances restricting such therapy, this issue is likely headed to the United States Supreme Court. Stay tuned.

Otto v. City of Boca Raton, 981 F. 3d 654 (11th Cir. 2020), rehearing denied Otto v. City of Boca Raton, 2022 U.S. App. LEXIS 20047 (July 20, 2022)