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First Amendment News 279: Divided 11th Circuit panel rules LGBTQ 'conversion therapy' ban violates First Amendment
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.
— Judge Britt C. Grant (for the majority)
The majority invalidates laws enacted to curb these therapeutic practices, despite strong evidence of the harm they cause, as well as the laws’ narrow focus on licensed therapists practicing on patients who are minors.
— Judge Beverly B. Martin (dissenting)
The case is Otto v. City of Boca Raton (11th Cir., 2020), a case likely to find its way to the Supreme Court's docket.
Per the district court opinion:
Plaintiffs, licensed therapists, seek to provide talk therapy to minors with the goal of changing their sexual orientation and/or gender identity. Defendants, governmental entities, have passed ordinances to prohibit this practice by the therapists, because they believe that such "conversion therapy" or "sexual orientation change efforts" ("SOCE") are contraindicated and harmful to all persons, but especially minors. At its core, this case is about whether Defendants can prohibit the licensed therapists from administering SOCE therapy to minors where the available medical and subject matter literature concludes that the therapy is harmful to minors.
The applicable law
The ordinance bars those providers covered by the law from treating 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.
The county enacted a similar ordinance banning covered providers from engaging in SOCE with minor clients.
From the circuit majority opinion:
The plaintiffs claim that the SOCE ordinances violate [the self-autonomy] principle by restricting speech-based therapy because the local governments disagree with the message, ideas, subject matter, and content of the words spoken during their clients’ therapy.
The local governments counter that their only intention is to protect minors from the harm that is surely caused by that speech, and say that because it is professional speech or conduct they have the power to limit it.
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)
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.
Conduct not speech argument
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. We can understand why they would make this claim; if the ordinances restricted only non-expressive conduct, and not speech, then they would not implicate the First Amendment at all. Our Court, though, has already rejected the practice of relabeling controversial speech as conduct. In a case quite similar to this one, we laid down an important marker: “the enterprise of labeling certain verbal or written communications ‘speech’ and others ‘conduct’ is unprincipled and susceptible to manipulation.” Wollschlaeger v. Governor, Fla., 848 F.3d 1293, 1308 (11th Cir. 2017) (en banc).
Professional speech exception
The idea that the ordinances target “professional speech” does not loosen the First Amendment’s restraints. Although [Nat’l Inst. of Fam. & Life Advocs. v. Becerra] did “not foreclose the possibility” that some reason might exist for finding that professional speech is a “unique category that is exempt from ordinary First Amendment principles,” the defendants have not provided one.
Standard of review
Strict scrutiny ordinarily applies to content-based restrictions of speech, and this case is no different. That means we must consider whether the ordinances are “narrowly tailored to serve compelling state interests.” Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015). Laws or regulations almost never survive this demanding test, and these ordinances are not outliers. . . .
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. McCullen v. Coakley, 573 U.S. 464, 479 (2014) (quoting FCC v. League of Women Voters of Cal., 468 U.S. 364, 383 (1984)). Take a recent example from the Supreme Court. To see if a robocall was legal, authorities needed to know what the call was about: collecting government debt or anything else. “That is about as content-based as it gets.” Barr v. Am. Ass’n of Pol. Consultants, Inc., 140 S. Ct. 2335, 2346 (2020) (plurality opinion).
While the First Amendment rejects the governments’ approach here, it does not stand in the way of “[l]ongstanding torts for professional malpractice” or other state-law penalties for bad acts that produce actual harm. NIFLA, 138 S. Ct. at 2373 (citing NAACP v. Button, 371 U.S. 415, 438 (1963)). People who actually hurt children can be held accountable, but “[b]road prophylactic rules in the area of free expression are suspect.”
We . . . conclude that these ordinances are content- and viewpoint-based restrictions on speech. . . .
[T]he therapists meet the first requirement for a preliminary injunction. They also meet the remaining requirements as a necessary legal consequence of our holding on the merits. . . .
“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414 (1989). The challenged ordinances violate that principle, and the district court should have enjoined their enforcement. We therefore REVERSE the district court’s order and REMAND for entry of a preliminary injunction consistent with this opinion.
Split in the circuits
From the ABA Journal:
Two other federal appeals courts have upheld bans on conversion therapy, according to Slate and Courthouse News Service. They are the 9th Circuit at San Francisco and the 3rd Circuit at Philadelphia. Twenty states ban the therapy for minors, along with Washington, D.C., and at least 83 municipalities, according to Slate.
- Brief of plaintiff appellants (counsel: Mathew D. Staver, Horatio G. Mihet, Roger K. Gannam / Liberty Counsel)
- Amicus brief of American Psychological Association
- Muri Assuncao, "Appeals court rules that banning LGBTQ ‘conversion therapy’ violates First Amendment," New York Daily News (Nov. 20)
- "The Legality of Conversion 'Therapy' Bans After NIFLA," Law Journal for Social Justice (Oct. 6)
- Clay Calvert, "Testing the First Amendment Validity of Laws Banning Sexual Orientation Change Efforts on Minors: What Level of Scrutiny Applies after Becerra and Does a Proportionality Approach Provide a Solution?," Pepperdine Law Review (2020)
Will the Trump Twitter case be mooted?
The case is Trump v. Knight First Amendment Institute. The issue in the case according to SCOTUSblog is: "Whether the First Amendment deprives a government official of his right to control his personal Twitter account by blocking third-party accounts if he uses that personal account in part to announce official actions and policies." President Trump lost that case in the Second Circuit.
On November 18th the case was rescheduled. The name Petitioners are Donald Trump, in his official capacity as President of the United States, and Daniel Scavino, in his official capacity as White House Director of Social Media and Assistant to the President.
Given the real likelihood that Donald Trump will not be in office after January 20th, might his case be mooted out?
- "Trump, Twitter, & the First Amendment" with Jameel Jaffer, Noah Feldman, and Francesca Procaccini, First Amendment Salon (Jan. 22)
- "Trump's string of legal losses includes First Amendment cases," CNN (Nov. 22)
Defamation suit: Nunes sues The Washington Post
This from First Amendment Watch:
Representative Devin Nunes (R-CA) has filed yet another defamation suit against a media company.
On November 11th, Nunes filed a libel suit in the U.S. District Court for the Eastern District of Virginia against The Washington Post and reporter Ellen Nakashima.
According to the complaint, The Post published an article entitled, “White House official and former GOP political operative Michael Ellis named as NSA general counsel.” The article “falsely accused” Nunes of “dishonesty, deception, lying to the American public, spreading disinformation, lack of integrity, and ethical improprieties,” the complaint states.
The complaints cites two statements that Nunes claims are defamatory:
“In March 2017, [Michael Ellis] gained publicity for his involvement in a questionable episode involving Nunes, who was given access at the White House to intelligence files that Nunes believed would buttress his baseless claims of the Obama administration spying on Trump Tower.”
“News reports stated that Ellis was among the White House officials who helped Nunes see the documents — reportedly late at night, earning the episode the nickname ‘the midnight run’.”
- "Federal Judge Gives Trump Opportunity to Amend Complaint Against CNN," First Amendment Watch (Nov. 13)
Court denies cert in off-campus speech case
This from the cert. petition filed by William Consovoy:
In 2012, Petitioner Paul Hunt was a student at the University of New Mexico School of Medicine. Mr. Hunt posted comments on his personal Facebook page concerning abortion and the recent presidential election. He did not identify himself as being affiliated with the University, did not reference the Medical School, and did not direct his comments to faculty, classmates, or any other individual. Yet Mr. Hunt was punished for violating the University’s Respectful Campus Policy and Social Media Policy because his political speech was deemed “unprofessional.”
- Eugene Volokh, "Journalism Professors Demand Iowa State University Disband the College Republicans Over Offensive Tweet," The Volokh Conspiracy (Nov. 21)
New York's new anti-SLAPP law
- "What You Need to Know About New York’s New Anti-SLAPP Law," First Amendment Watch (Nov. 19)
'Black Preborn Lives Matter' chalk on the sidewalk gives rise to First Amendment suit
- Sam Dorman, "DC mayor sued for alleged First Amendment violations," Fox News (Nov. 19)
D.C. Mayor Bowser is facing a fresh lawsuit alleging that the city discriminated against anti-abortion viewpoints in the way it handled expression during "Black Lives Matter" (BLM) protests.
The issue arose out of a headline-catching confrontation between Students for Life of America (SFLA) members and the Metropolitan Police Department (MPD), which arrested them as they attempted to chalk "Black Preborn Lives Matter" on the sidewalk outside of a Planned Parenthood affiliate.
Filed on Wednesday, the lawsuit alleges that D.C. violated the First Amendment by applying a defacement ordinance to those individuals, but not to others who wrote anti-cop or "Black Lives Matter" messages in the city.
In its filing, SFLA and the Frederick Douglass Foundation note that Bower commissioned a "Black Lives Matter" mural that was painted on D.C. street. Another mural reading, "Defund the Police" was also painted on the same street by BLM D.C.
It's unclear the extent to which MPD enforced the defacement ordinance with other forms of speech, as the lawsuit alleged. But according to NPR, the city's Department of Public Works was later seen refreshing some of the paint but left "defund the police" on the street. "Well it’s not a part of the mural," Bowser told ABC News in June. "And we certainly encourage expression but we are using the city streets for city art." When ABC's Martha Raddatz pressed her further, Bowser said she hadn't "even had an opportunity to review it."
FIRE launches free speech hotline to combat student press censorship
- Lindsie Rank, FIRE’s new hotline allows rapid response to student press censorship, FIRE (Nov. 20)
Last week, FIRE President and CEO Greg Lukianoff wrote about how his experiences as a student journalisttransformed him into a First Amendment advocate. I came to First Amendment advocacy via a similar path, having wrestled with student press censorship in both my high school and college newsrooms. I still distinctly remember the moment my college provost — responding to a journalistic investigation I was leading into allegations of wrongdoing that had been made against him — called me to his office and told me to “be careful.” Other FIRE staffers can tell similar stories.
Our own experiences as student journalists tell us that, while student press censorship can look very similar to other forms of campus censorship, it also comes with its own set of challenges. Student press censorship is often subtle; it can take unique formslike denial of access to necessary information, and it often requires quick resolution because it makes it difficult for journalists to report on current events in a timely manner.
In recognition of these unique challenges, as Greg mentioned in his blog last week, FIRE has renewed its efforts to offer resources and outreach targeted toward student journalists.
Today, we’re excited to announce our latest effort: FIRE’s new hotline for student journalists: 1-833-451-FIRE.
FIRE always strives to offer a quick turnaround for those who reach out with case submissions from those concerned about potential violations of their rights on campus. Our case submission page allows us to receive and promptly respond to the concerns of students and faculty, generally within a few days.
However, student journalists are often in the position of not being able to wait a few days. It’s production night and you just got a call from an administrator demanding that you hold a story. Or your deadline is tomorrow and you just heard that the source you were set to interview was told he isn’t allowed to speak with you. The hypothetical examples are many, but the upswing is the same: Sometimes, student journalists need help today.
The new hotline allows student journalists to leave a brief voice message, which gets quickly transmitted to staff members. While we can’t promise we’ll answer the phone 24/7, this system allows us to triage the needs of the student press in order to offer more rapid response in urgent situations.
We included the hotline number, 1-833-451-FIRE — and, yes, fans of dystopian literature, the number is intentional — on posters sent to 602 student publications last week, and we encourage student journalists to hang these posters in their newsrooms and save it as a phone contact as a reminder that help is only a quick call away. (And if your newsroom didn’t receive a poster, shoot us an email at email@example.com and we’ll make sure one arrives in your mailbox!)
New & forthcoming scholarly articles
- John Acevedo, "Law's Gaze," U of Alabama Legal Studies Research Paper No. 3694579, SSRN (Sept. 15) (Re: obscenity)
When looking at a sexualized image the viewer is both subject and object of the artwork because the gaze of the viewer is turned back on themselves. Thus, the Supreme Court's jurisprudence on obscene speech tells us more about the viewer of an image than we do about the image itself. The existence of the gaze is revealed in the Court’s obscenity jurisprudence and its inability to settle on a definition of obscenity for most of the 20th century. In all of these instances, the court looks upon pornographic materials as the object upon which the court gazes, but in reality, the nature of these materials flips the view so the Court becomes the object on which pornography gazes At the same time the fixation on criminalizing obscenity has led to the silencing of the models who appear in sexual images.
Drawing on social theories, this article argues that the failure of obscenity law was inevitable because at the heart of obscenity lies unending subjectivity. This subjectivity means that obscenity should be protected under the First Amendment. But it also proposes changes to the law that will continue to protect children and give voice to models.
- Robert Corn-Revere, "The Mind of the Censor & The Eve of the Beholder" (Cambridge University Press, June 2020)
- Caroline Keen, Ronald Kramer & Alan France, "The pornographic state: the changing nature of state regulation in addressing illegal and harmful online content," Media Culture & Society (2020)
- Jareb A. Gleckel, "Are Consumers Really Confused by Plant-Based Food Labels? An Empirical Study," Journal of Animal and Environmental Law (forthcoming 2021)
- Barbara Pfeffer Billauer, "Detoxifying Anti-Vaxxer FEAR* Speech and First Amendment Obstacles *False, Fraudulent, Flawed, Fake, Endangering, and Reckless," SSRN (Nov. 12)
First Amendment Salon with Nossel & West
- "Defending Free Speech for All" with Suzanne Nossel & Sonja West, First Amendment Salon (Oct. 29)
- Nicky Robertson, "Voice of America CEO curbed First Amendment rights of its journalists, judge rules," CNN (Nov. 22)
- Alex Morey, "Theater director fought for banned show to go on. Tonight, it will — and you can watch," FIRE (Nov. 20)
- "VICTORY: Student stopped by campus police for holding up a sign settles First Amendment lawsuit with Mississippi college," FIRE (Nov. 19)
- Gene Policinski, "'Buckle Up' America: We're in for a Wild First Amendment Ride," Freedom Forum (Nov. 18)
- Eugene Volokh, "Biden Transition Team Member's Op-Ed on 'Why America Needs a Hate Speech Law,'" The Volokh Conspiracy (Nov. 17)
- Gene Policinski, "We cannot allow our First Amendment rights to become 'wrongs,'" Freedom Forum (Nov. 12)
- David L. Hudson, jr., "Pa. school district seeks high court review of off-campus student social media case," The Free Speech Center (Nov. 10)
- "LAWSUIT VICTORY: UCLA admits to violating the law after stonewalling open records request for over a year," FIRE (Nov. 9)
- David L. Hudson, Jr., "Sheriff’s office deleted critical posts; 11th Circuit finds no First Amendment violation," The Free Speech Center (Nov. 5)
2020-2021 SCOTUS term: Free expression & related cases
- Mckesson v. Doe (per curium, 7-1 with Thomas, J., dissenting) (judgment vacated and remanded to 5th Cir.)
- Fulton v. City of Philadelphia (OA: Nov. 4, 2020) (religious expression: free exercise & free speech claims)
- Carney v. Adams (OA: Oct. 5, 2020) (standing/judicial elections)
- Facebook, Inc. v. Duguid (OA: Dec. 8, 2020) (Telephone Consumer Protection Act robocall case)
- Carney v. Adams (OA: Oct. 5, 2020) (standing/judicial elections)
- Fulton v. City of Philadelphia (OA: Nov. 4, 2020) (religious expression: free exercise & free speech claims)
- Corn et al v. Mississippi Dept. of Public Safety (5th Cir. opinion)
- Jack Daniel’s Properties Inc. v. VIP Products LLC
- Mahanoy Area School District v. B.L.
- Hurchalla v. Lake Point Phase
- Trump v. Knight First Amendment Institute
- Stockman v. United States
- Bruni v. City of Pittsburgh
- Institute for Free Speech v. Becerra
- Americans for Prosperity Foundation v. Becerra
- Thomas More Law Center v. Becerra
- Arlene’s Flowers Inc. v. Washington
- Hunt v. Board of Regents of the University of New Mexico
- Lieu v. Federal Election Commission
- City of Sacramento, California v. Mann
- Evans v. Sandy City, Utah
- Reisman v. Associated Faculties of the University of Maine
- Austin v. Illinois
- Living Essentials, LLC v. Washington
- Rentberry, Inc. v. City of Seattle
- Uzuegbunam & Bradford v. Preczewski, et al. (nominal damages and mootness in campus speech context) (cert. granted)
- National Association of Broadcasters v. Prometheus Radio Project (Re: Section 202(h) of the Telecommunications Act of 1996) (cert. granted)
- Federal Communications Commission v. Prometheus Radio Project (Re: FCC cross-ownership restrictions) (cert. granted)
- Retzlaff v. Van Dyke (state anti-SLAPP laws in federal diversity cases) (cert. denied)
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