Case Summary and Outcome

The United States Court of Appeals for the Eleventh Circuit held that county and city ordinances in Florida which banned the use of a controversial therapy practice infringed the First Amendment’s protection of free speech. The ordinances which prohibited licensed therapists and counselors from administering speech-based SOCE (sexual orientation change efforts) therapy to minor patients had been challenged by two therapists. The District Court denied their motion for an injunction on the grounds that they had failed to demonstrate a substantial likelihood of success on the merits and failed to show irreparable harm would result if an injunction was not granted. The Court of Appeals overturned the District Court’s decision, holding that as the ordinances were content-based restrictions of speech they had to pass strict scrutiny and that they did not meet this standard. The Court emphasized that the government cannot regulate unpopular viewpoints and impose the majority view on controversial issues such as SOCE therapy, and that “[f]orbidding the government from choosing favored and disfavored messages is at the core of the First Amendment’s free-speech guarantee” [p. 7].

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Facts

In 2017, both the Palm Beach County of Florida and the City of Boca Raton passed ordinances which prohibited the use of controversial Sexual Orientation Change Efforts (SOCE) therapy, colloquially known as “conversion therapy”. The ordinances were motivated by the County and City’s belief that SOCE therapy endangers the health of minors by increasing risks of depression and suicide. The City ordinance applied to “any person who is licensed by the State of Florida to provide professional counseling” and banned treatment of minors with “any counseling, practice or treatment performed with the goal of changing an individual’s sexual orientation or gender identity, including, but not limited to, efforts to change behaviors, gender identity, or gender expression, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same gender or sex” [p. 3]. The County ordinance had a similar definition of providers, and banned “the practice of seeking to change an individual’s sexual orientation or gender identity, including but not limited to efforts to change behaviors, gender identity, or gender expressions or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same gender or sex” [p. 3]. The ordinances did allow for counselling which would provide “support and assistance to a person undergoing gender transition” [p. 3].

Robert W. Otto and Julie H. Hamilton, two licensed family and marriage therapists who practiced in Palm Beach County, including in Boca Raton, worked with counselling minors who had “unwanted same-sex attraction or unwanted gender identity issues” through purely speech-based therapy [p. 3]. Otto and Hamilton argued that their practice did not seek to “change” a person’s sexual orientation but to help those who experienced depression or anxiety about their sexuality or gender in order to reduce their same-sex behaviour and attraction if they wanted to do so, and to dispel confusion regarding gender identity. Such therapy was supposed to be “voluntary and client-directed” [p. 4].

Otto and Hamilton filed a suit in the District Court of the Southern District of Florida for a permanent enjoinment of the enforcement of the ordinances. They also moved for a preliminary injunction on the grounds of a violation of their First Amendment rights, and the pre-emption of the ordinance by state law [p. 4].

The District Court denied their motion for an injunction, finding that Otto and Hamilton had failed to demonstrate both a substantial likelihood of success on the merits of the case and irreparable harm. With respect to the Free Speech Clause of the First Amendment, the Court noted that the law was unsettled on whether the facts of the case had to be reviewed on a rational basis review, through a demonstration of the irrationality or unreasonableness of the enactment of the ordinances, or by a standard of immediate scrutiny (where it would be examined if the government was protecting a compelling public interest and the restrictions were narrowly tailored to achieve that). The Court held that the ordinances were not typical content-based restrictions as there were no public forum restrictions, and speech was regulated only if it fell within the bounds of a specified type of therapy. The Court also found that a compelling public interest existed in the protection of the well-being of minors, and the evidence of risks of harm in SOCE therapy. It observed that it was not bound to determine or apply the appropriate standard of scrutiny at the stage of considering a preliminary injunction because the plaintiffs bore the burden of demonstrating a substantial likelihood of success on the merits at the trial stage, and they had failed to do this. The District Court further found that Otto and Hamilton had not shown a substantial likelihood of success on their claims of prior restraint and vagueness, and had not proved the possibility of irreparable injury if an injunction was not granted.

Otto and Hamilton then filed an interlocutory appeal with the Eleventh Circuit Court of Appeals.

The First Amendment to the US Constitution states that “Congress shall make no law … abridging the freedom of speech”.

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Decision Overview

Judge Grant delivered the judgment on behalf of the majority for the Court of Appeals for the Eleventh Circuit. Judge Martin delivered a dissenting judgment. The central issue before the Court was to review the District Court’s denial of a preliminary injunction, and the Court noted that this case turned on what the First Amendment allowed the government to ban and under what circumstances.

Otto and Hamilton argued that the ordinances infringed the First Amendment because they restrict “speech-based therapy because the local governments disagree with the message, ideas, subject matter, and content of the words spoken during their clients’ therapy” and so violate the principle that “each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence” [p. 5-6].

The governments of Palm Beach County and the City of Boco Rotan argued that “their only intention is to protect minors from the harm that is surely caused by that speech” and submitted that because the speech-based therapy constitutes profession speech or conduct they are empowered to limit that speech [p. 6].

The Court noted that a preliminary injunction is an “extraordinary and drastic remedy” and the party moving the application should demonstrate that “(1) it has a substantial likelihood of success on the merits; (2) irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest.” [p. 5]. The Court made three kinds of examinations under the First Amendment Claims: whether the ordinances were content-based regulations; whether the ordinances were regulations for professional conduct; and whether the ordinances met a strict standard of scrutiny.

In respect of Otto and Hamilton’s First Amendment claim, the Court stated that it had to first determine if the ordinances were content-based regulations, and if they were then they would be subjected to strict scrutiny (and not intermediate scrutiny or rational basis review). The Court held that “because the ordinances depend on what is said, they are content-based restrictions that must receive strict scrutiny” [p. 6]. The Court rejected the governments’ arguments that the ordinances constituted professional regulations and noted that “[t]he Supreme Court has consistently rejected attempts to set aside the dangers of content-based speech regulation in professional settings” [p. 6]. The Court also rejected the governments’ argument that the ordinances regulated conduct and not speech, and stated that “[o]ur Court, though, has already rejected the practice of relabeling controversial speech as conduct” [p. 7].

The Court referred to the case of Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015) in noting that by applying strict scrutiny to a content-based restriction requires the Court asking whether the restrictions are “narrowly tailored to serve compelling state interests” [p. 7]. It noted that government laws seldom pass this test and commented that “[f]orbidding the government from choosing favored and disfavored messages is at the core of the First Amendment’s free-speech guarantee” [p. 7].

In examining whether the ordinances were content-based regulations, the Court emphasized that content-based regulations are “presumptively invalid” because the First Amendment takes away power from the government to restrict expressions based on their message, ideas, subject-matter or content. It noted that the purpose of the restriction is not relevant, and that Courts must instead examine the effect – “whether it restricts or penalizes speech on the basis of that speech’s content” [p. 8]. The Court referred to the case of McCullen v. Coakley, 573 U.S. 464, 479 (2014), and commented that one way to determine if the restriction 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” [p. 9]. In the present case, the Court held the regulations could not be applied without examining the content of the speech as therapists were prohibited from sharing certain messages during therapy. Accordingly, the Court held that the ordinances were discriminatory on the grounds of content and viewpoint on sex, gender and sexual ethics. It explained that the governments had to promote their differing viewpoint without showing “bias, censorship or preference regarding [another] speaker’s point of view” [p.12]. The Court identified that the ordinances had an exception allowing for counseling for those undergoing gender transitions, but did not have an exception for therapies directed at sexual orientation which demonstrated that the governments viewed that sexual orientation was immutable but not gender, and was denying speech contrary to this viewpoint.

The Court dismissed as irrelevant the contention by the governments that therapists could express this message about SOCE through public descriptions or recommendations that clients receive such therapy in other places, because the First Amendment was supposed to protect speech and not “the right to speak about banned speech” [p. 11]. It noted that it would be of no use to a therapist to advise a client on the helpfulness of a therapy but be constrained from administering the therapy. The Court also dismissed the District Court’s observation that Otto and Hamilton still had a “right and prerogative to seek greater acceptance of SOCE”, and observed that the First Amendment existed so that permission would not be needed from the government before sharing unpopular ideas [p. 11-12].

Accordingly, the Court held that the ordinances were content-based and viewpoint-based restrictions on speech.

In examining the governments’ arguments that the ordinances were regulations for professional conduct and so constituted “less protected speech” under the First Amendment, the Court noted that the governments were not permitted to re-characterize the speech as conduct (which would then make the First Amendment inapplicable), because “the enterprise of labeling certain verbal or written communications ‘speech’ and others ‘conduct’ is unprincipled and susceptible to manipulation” [p. 7]. The Court acknowledged that some categories of speech did not qualify for protection, and others received less protection under the First Amendment – including “obscenity, defamation, fraud, incitement, and speech integral to criminal conduct” and commercial speech and speech incidental to regulated professional conduct – but held that the ordinances did not fall under either category as therapy could not qualify as commercial speech, and it was not “incidental speech swept up in the regulation of conduct” because there was no separate professional conduct being regulated here [p. 14]. The Court commented that there was a clear difference between “laws directed at conduct sweeping up incidental speech on the one hand and laws that directly regulate speech”, and that as therapy consisted almost entirely of words, it could not be characterized as conduct [p. 15]. It noted that “[i]f speaking to clients is not speech, the world is truly upside down” [p. 16]. The Court held that the advice the therapists could give their patients fell under the regulation and so the sanctions were on the speech directly and not incidentally. Nevertheless, the Court observed that characterizing the ordinances as professional regulations did not change the standard of scrutiny because there were still inherent risks that the government would use them as instruments “not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information” [p. 6-7].

The Court stressed that it did not have unlimited power to declare new categories of speech unaffected by the First Amendment, and noted that professional speech was not a traditional exception. It referred to the Supreme Court’s judgment in the National Institute of Family & Life Advocates v. Becerra 138 S. Ct case which did not recognize professional speech as less protected speech, and it also criticized court decisions upholding SOCE bans including the ninth circuit court’s review of California’s anti-SOCE law under the rational basis standard in Pickup v Brown, 740 F.3d 1208, 1231 (9th Cir. 2014) and the third circuit’s review of New Jersey’s law in King v Governor of New Jersey, F.3d 216, 234–37 (3d Cir. 2014). The Court noted that although the holding in this case did not mean that reasons cannot exist for professional speech to constitute such a separate category, the governments had not offered one here.

In examining whether the ordinances met a strict standard of scrutiny, the Court referred to the Reed v. Town of Gilbert case and emphasized that under this standard of review, content-based restrictions were presumptively unconstitutional and were justified only if they were “narrowly tailored to serve compelling state interests” [p. 19]. The Court acknowledged that the state undeniably had an interest in protecting the well-being, both physical and psychological of minors, but held this did not extend to “a free-floating power to restrict the ideas to which children may be exposed” where speech was limited solely because the legislative body deemed it unsuitable for the young [p. 20]. The Court emphasized that the governments bore the burden of demonstrating that the ordinances were designed to achieve a “compelling interest” and that they were “narrowly tailored” to achieve that interest [p. 20]. The Court held that the evidence provided by the governments were insufficient as the reports the governments relied on did not provide a clear indication that SOCE is harmful to minors. The Court said these “equivocal conclusions” did not satisfy the strict scrutiny standard and so could not rebut the presumption against content-based limitations [p. 21-22]. The governments had argued – and the District Court had concurred – that the lack of evidence was proof that the therapy was so widely opposed by professional organizations. However, the Court held that the governments’ arguments amounted to an argument that “majority preference can justify a speech restriction” and so went against the First Amendment [p. 22]. The Court highlighted that professional organizations can change their positions and so the prevailing majority view of those organizations cannot be used to limit First Amendment rights.

The Court concluded that society could still remedy harmful speech through professional malpractice torts or state law penalties for actual harm, but, with reference to the NAACP v. Button, 371 U.S. 415, 438 (1963) case, stated that “[b]road prophylactic rules in the area of free expression are suspect” [p. 24]. The Court quoted United States v. Stevens, 559 U.S. 460, 464 (2010) and stressed that although some speech may appear too risky to permit, the First Amendment “requires that content-based speech restrictions satisfy strict scrutiny” and “reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs” [p. 24].

Accordingly, the Court held that Otto and Hamilton had met the first requirement for a preliminary injunction, and, therefore, also met the other two requirements because direct penalization under an unconstitutional ordinance would be irreparable injury and neither the governments nor the public would have a legitimate interest in the enforcement of such an unconstitutional statute.

Otto and Hamilton had also argued that the ordinances were pre-empted by the Florida licensure scheme for mental health professionals and the Court acknowledged that constitutional questions were not to be determined when the case could be decided on other grounds. However, the Court held that the state law ground was not dispositive – because the District Court had only examined the first requirement of a preliminary injunction (irreparable harm) and not the other three requirements – and so did not bar consideration of the constitutional ground. Since the Court was a court of review, it would have to remand to the District Court for examination of the other three factors and the Court did not find it appropriate to wait for such a determination before granting the injunction because Otto and Hamilton’s rights would be in abeyance until that point which could have a chilling effect [p. 26].

The Court concluded by recognizing that “[p]eople have intense moral, religious, and spiritual views about these matters—on all sides” but emphasized that the First Amendment served to ensure that “government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable” [p. 27].

Accordingly, the Court reversed the decision of the District Court, and ordered the preliminary injunction sought by Otto and Hamilton.

Judge Martin’s dissent focused on the proper standard of scrutiny and whether the ordinances met that standard. Martin conducted his analysis on the assumption that the ordinances were content-based restrictions, and found them to meet a strict level of scrutiny.

Martin noted that the ordinances prevented SOCE in the practice of licensed therapists and counsellors, but not among religious leaders. They also did not prohibit recommending or discussing SOCE with minor patients, issuing public statements in support of it, practicing it on adult patients, or practicing it outside of the county.

Martin disagreed with the majority’s finding that the ordinances constituted viewpoint-based discrimination, and said that he did not see the ordinances as viewpoint discrimination because they prevented SOCE therapy regardless of whether a minor patient wanted counseling in carrying out a gender transition, or in transitioning back after a previous transition.

Martin recognized that content-based restrictions rarely meet the strict standard, but would have found that, in the present case, the ordinances did meet that standard as the restrictions were narrowly tailored to a compelling public interest. Martin noted that the governments had an interest in protecting minors from harmful practices and so had power to license and regulate. This interest was heightened in the medical profession and when clients were minors. The ordinances did not preclude minors from obtaining certain information or ideas because therapists could still discuss SOCE and recommend it. They were only barred from actually performing the therapy.

Martin found the reports and evidence submitted by the government to be proof of harm from SOCE therapy. He observed that participants who reported initial positive effects, later reported negative effects. Several organizations such as the American Academy of Pediatrics, the American Psychological Association, the World Health Organization and the US Department of Health and Human Services, Substance Abuse and Mental Health Services Administration had found harmful risks in it. Additionally, more research was not available because it would expose minors to risks and was considered ethically impermissible to conduct such studies: Martin commented that “the very research the majority opinion seems to demand is ‘not ethically permissible’ to conduct” [p. 39]. Martin disagreed with the majority’s interpretation of the Stevens case that “[t]he First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs”, and stressed that the question in this case was whether the ordinances met the required strict scrutiny – whereas in Stevens the question was simply whether the First Amendment applied [p. 40-41].

Martin noted that “[t]he job of the courts is to evaluate the state’s justification for a speech restriction” and that since the strict scrutiny test involved “evaluating real world facts to assess the weight of the interest and the extent of the restriction” [p. 41-42], the judgements of professional organizations were deemed important.

Martin recognized that a less restrictive alternative must be “at least as effective in achieving the legitimate purpose that the statute was enacted to serve” and that under-inclusive and over-inclusive laws both fail to meet the test because the former raises doubts about the intentions of the government and the latter is not the “least restrictive means” [p. 43]. Here, Otto and Hamilton had contended the law was under-inclusive because it excluded the offering of such therapy by unlicensed religious counsellors, but Martin would have found it a reasonable exclusion because such a law could run into issues with the establishment clause, and a law banning even discussion about SOCE would “plainly be unconstitutional” [p. 44]. Otto and Hamilton had also claimed that the ordinances were over-inclusive because they could have instead banned “only aversive or coercive therapies” or had an informed consent condition [p. 45]. Martin would have held that Otto and Hamilton failed to demonstrate the alternatives were more effective, and so they could not be considered alternatives.

Accordingly, Martin would have affirmed the District Court’s denial of the preliminary injunction, and its finding that therapists did not qualify for a preliminary injunction on grounds of the ordinances being “(1) a prior restraint on speech, (2) void for vagueness, and (3) pre-empted by and in conflict with Florida law” [p. 46].

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