Case Summary and Outcome

A Florida district court granted a preliminary injunction, finding that that a city ordinance banning “conversion therapy,” which aims to change an individual’s sexual orientation or gender identity, was a violation of health care professionals First Amendment rights. Two licensed therapists who practiced sexual-orientation-change-efforts (SOCE) counseling, a form of conversion therapy, and New Hearts Outreach, a Christian organization which referred minors to have the therapy, claimed the City of Tampa lacked standing to implement the Ordinance and that it violated their free speech rights. The Court found that the SOCE counseling constituted speech rather than conduct, and that the plaintiffs would likely succeed in their claim that the ordinance was content-based, view-point discriminatory, unconstitutionally vague and a form of prior-restraint. The Court concluded that the limited injunction, which allowed for “talk-therapy” but not coercive forms of therapy, struck the proper balance between protecting the First Amendment rights of SOCE therapists and the health and safety of minors.

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Facts

The City of Tampa’s Ordinance 2017-14 prohibited mental health professionals from practicing “conversion therapy” on minors, which is defined as counseling to change an individual’s sexual orientation or gender identity.

The plaintiffs in the case are Robert Vazzo, David Pickup and New Hearts Outreach. Vazzo and Pickup are licensed marriage and family therapists, who provided sexual-orientation-change-efforts (SOCE) counseling, a form of conversion therapy. SOCE therapy aims to “reduce or eliminate same-sex sexual attractions, behaviors or identity,” and the plaintiffs claimed that some clients requested the therapy to “address the conflict between their sincerely held religious. beliefs and goals to reduce or eliminate their unwanted same-sex attractions, behaviors, or identity.” [Page 3] New Hearts Outreach, a Christian ministry in Tampa, recommended SOCE therapy to individuals, including minors, “struggling with unwanted same-sex attractions, behaviors, and identity” to mental health professionals to receive SOCE counseling.

Under the Ordinance, neither Vazzo and Pickup can provide SOCE counseling to minors, nor can New Heart Outreach refer minors in Tampa to Vazzo and Pickup to provide SOCE counseling. The penalty for the first violation is $1000 fine and a $5,000 fine for each following violation.
The plaintiffs filed a motion for a preliminary injunction. They alleged that the Ordinance violates their freedom of speech under the First Amendment. They also alleged that the Ordinance violates the Florida Constitution as the state legislature is preempted in the field of regulating mental health professionals and hence lacked the authority to enact the Ordinance.

Equality Florida, a civil rights organization, which assisted in the drafting of the ordinance, participated as amicus curiae

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Decision Overview

United States Magistrate Judge Amanda Arnold Sansone delivered the judgment of the Court.

The primary issue dealt with by the Court was whether the plaintiffs established a likelihood of success on the basis of their arguments concerning preemption and First Amendment violation. Further, the Court also looked into the question of satisfaction of other requirements concerning preliminary injunction.

The Court relied on Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) to state requirements for granting a preliminary injunction: “(1) the party has a likelihood of success on the merits; (2) the party will suffer irreparable injury if the court issues no injunction; (3) the threatened injury to the moving party outweighs whatever damage the injunction may cause the opposing party; and (4) the injunction is in the public interest.”

The Court first addressed whether the City lacked the authority to enact the Ordinance and found that the plaintiffs failed to prove any conflict of laws or that the Florida Legislature preempted the area of regulating mental health care professionals. [Page 18]  

The Ordinance violates plaintiffs’ freedom of speech under the First Amendment.

The plaintiffs argued the Ordinance to be content based on the following grounds: (1) the Ordinance is a content-based law; (2) the Ordinance commits viewpoint discrimination; (3) the Ordinance is unconstitutionally vague; (4) the Ordinance is unconstitutionally overbroad; and (5) the Ordinance is an unconstitutional prior restraint of free speech.

• Content-Based Law Claim:

A law is content-based if it “applies to particular speech because of the topic discussed or the idea or message expressed.” These laws are presumptively invalid. Further, such laws must satisfy strict-scrutiny analysis, meaning, the law must be narrowly tailored to promote a compelling government interest. The least strict alternative to promote the government’s interest should be used.

The plaintiffs argued that the counseling only included talk-therapy and that the Ordinance targeted speech which the City disagreed with. They further stated the strict-scrutiny analysis applies and the ordinance fails that test because it is not the least restrictive means of furthering a compelling governmental interest. On the other hand, the City argued that the plaintiffs failed to demonstrate a likelihood of success on their content-based-law claim because the ordinance is narrowly tailored to satisfy a significant governmental interest.

The Court considered four cases: Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2014), King v. Governor of New Jersey, 767 F.3d 216 (3d Cir. 2014), Wollschlaeger v. Governor, Florida, 848 F.3d 1293 (11th Cir. 2017) and National Institute of Family and Life Advocates (NIFLA) v. Becerra, 138 S. Ct. 2361 (2018). The cases established that SOCE counseling is professional speech, rather than conduct. Taking these cases together, the Court observed that the “strict-scrutiny analysis applies to laws banning SOCE counseling”.

Although the Court agreed that the government has a compelling interest to protect the interest of the minors, it observed that less restrictive alternatives to promote the government’s interest were available. An example of a less restrictive alternative would be banning the involuntary SOCE counseling—as opposed to the voluntary, consensual counseling the plaintiffs provide. The Court further observed that the City failed to demonstrate how less restrictive alternatives could not achieve the City’s compelling interest in protecting minors. Hence, there was a likelihood  that the Ordinance could be found to be an unconstitutional content-based restriction under the First Amendment. [Page 29]

• Viewpoint-Discrimination Claim:

The Court observed that the plaintiffs have sufficiently demonstrated that the Ordinance targeted speech the City did not support and therefore will likely be found unconstitutional on the basis of viewpoint discrimination.

• Unconstitutionally-Overbroad Claim:

“A law is overbroad when every application of the law creates the risk that ideas might be suppressed, such as when the law gives overly broad discretion to the person enforcing it” (Foryth Cty. v. Nationalist Movement, 505 U.S. 123, 129–30 (1992)). [Page 30] Since the plaintiffs are likely to prove viewpoint-based discrimination, the risk that ideas may be suppressed is likely to be proved. The Court noted that the application of the Ordinance would necessarily result in the suppression  of the ideas conveyed during SOCE therapy.  Hence, the plaintiffs have demonstrated that they are likely to succeed on the merits of their claim that the Ordinance is overbroad.

• Prior-Restraint Claim:

The Court concluded that the plaintiffs have sufficiently demonstrated that the Ordinance restricts the plaintiffs’ speech SOCE counseling before they can express it.

• Unconstitutionally-Vague Claim:

The Court also found that the plaintiffs are likely to succeed in their claim that the Ordinance is unconstitutionally vague since it authorizes and encourages discriminatory enforcement by the officers against the viewpoints of mental health professionals who provide SOCE counseling.

Satisfaction of other requirements

Irreparable harm: Having established the merit in their claim regarding their First Amendment violation, the Court was satisfied that not granting of the injunction will lead to irreparable harm to their free speech right on the ground that the U.S. Supreme Court held that the “loss of First Amendment freedoms constitute irreparable harm.” [Page 33]

Balance of equities: The party moving for a preliminary injunction should demonstrate the balance of equities tips in his or her favor. The plaintiffs demonstrated their First Amendment rights will be irreparably harmed without a preliminary injunction. However, the City failed to show any harm it may suffer if the Ordinance is enjoined. Hence, the Court ruled that the balance of equities tips in the plaintiffs’ favor.

Public interest: The plaintiffs sufficiently demonstrated that the Ordinance is likely unconstitutional and hence the public has no interest in enforcing an unconstitutional ordinance. Further, the argument of the City that minors will be harmed if the Ordinance is enjoined was undermined by the fact that the City received no complaints related to any minor harmed by SOCE counseling within the city limits.

Limited injunction: An injunction should be no broader than necessary to avoid the harm on which the injunction is based. Accordingly, the injunction was not granted for ban on aversion conversion therapies, like electroshock therapy. The injunction was only granted for “mental health professionals who provide non-coercive, non-aversive, SOCE counseling—which consists entirely of speech, or talk therapy—to minors within the city limits”.

The Court concluded that there was a strong likelihood the plaintiffs would succeed in their First Amendment claim, and hence the limited injunction struck the proper balance between protecting the First Amendment rights of SOCE therapists and the health and safety of minors.

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