The question posed to the original three-judge panel of the Ninth Circuit was whether the state of Washington could prohibit a licensed therapist, Brian Tingley, from advising his patient under the age of 18 to undergo “conversion therapy,” defined by statute as “regime that seeks to change an individual’s sexual orientation or gender identity.” The law prohibited such advice and deemed it professional misconduct.
For most of us, the answer is easy, dictated by the fact that conversion therapy doesn’t work and is potentially harmful to the patient. Perhaps more to the point, if one is of the view that there is nothing wrong with being gay, then it’s not a problem to be cured and there is no justification for conversion therapy. But after the panel ruled in favor of the state, plaintiff sought en banc review, which was denied with an opinion by Judge Diarmuid O’Scannlain that raises some troubling concerns.
Is therapeutic speech speech? Does a tradition of licensing a given profession override all First Amendment limits on licensing requirements? The three-judge panel answered ‘no’ to the first question, and a majority of the panel answered ‘yes’ to the second. In my view, both holdings are erroneous and significant constitutional misinterpretations, and I respectfully dissent from our court’s regrettable failure to rehear this case en banc.
If therapeutic speech is not speech, such that it’s protected by the First Amendment’s prohibition of laws that prohibit it, it opens the door to some extremely troubling law in this time when other such speech, such as the advice of a therapist to have an abortion and how to accomplish it, could similarly be prohibited by law. Sure, you think conversion therapy is awful and deserves to be prohibited. But others think the same about abortion.
The panel based its decision on two ratonales, the first being caselaw that has been expressly rejected by the Supreme Court.
First, the panel said that therapeutic speech is non-speech conduct and so protected only by rational basis review. True, it reached this result by faithfully applying our decision in Pickup v. Brown, which held that a California ban on “sexual orientation change efforts” was a regulation of professional conduct only incidentally burdening speech. But the Supreme Court has rejected Pickup by name. Nat’l Inst. of Family & Life Advocates v. Becerra (“NIFLA“) (2018). And other circuits have rejected Pickup‘s holding, concluding instead that therapeutic speech is—speech, entitled to some First Amendment protection. See King v. Governor of New Jersey (3d Cir. 2014); Otto v. City of Boca Raton (11th Cir. 2020). The panel’s defense of Pickup‘s continuing viability is unconvincing. We should have granted rehearing en banc to reconsider Pickup and so to resolve this circuit split.
The Pickup decision was sophistry at its finest, as if any law dictating what a professional may say in the course of practice isn’t speech but professional regulation of conduct that, incidentally, was the conduct of speaking. The error of relying on a case that’s been overruled by a higher court is self-evident, not that it concerned the Ninth Circuit’s panel too greatly when it had a holding to reach.
Second, a majority of the panel purported to discover a “long (if heretofore unrecognized) tradition of regulation” which warrants applying only rational basis review to laws burdening therapeutic speech. In reality, the majority drew out a gossamer thread of historical evidence into a sweeping new category of First Amendment exceptions. If new traditions are so easily discovered, speech-burdening laws can evade any level of scrutiny simply by identifying some legitimate purpose which they might serve. We should have granted rehearing en banc also to clarify that regulation of the medical profession is not a First-Amendment-free zone.
To be clear, while these issues are arising in the context of the medical profession, they very much apply to law as well, as might be seen with the controversy over Model Rule 8.4(g) which the Idaho Supreme Court just held to be an unconstitutional lawyer speech code.
The problem here is complicated by the fact that there has, indeed, long been a “tradition” of regulating professional speech, even if we would prefer not to see it quite that way. Lawyers aren’t allowed to advice clients to lie to the court on the witness stand, even if that would be the most successful course of action for the client. But lies are bad? Not if you’re a government agent, when they become a necessary tool of law enforcement. So why not us? Because the law forbids us from telling our clients to do it.
Can physicians advise their patients to commit suicide? Can the law prohibit docs from doing so? What if a doc advised a patient that getting an abortion would kill the patient because, but it wasn’t true and just a ruse to prevent the patient from aborting. Would a law prohibiting a physician from doing so be unconstitutional, as a limitation on therapeutic speech?
Some will take comfort in the word “therapeutic,” contending that it implies advice that will benefit the patient, better serve the patient’s health and well-being, such that advice that is harmful to the patient is undeserving of free-speech protections and subject to professional regulation. But who decides? Medicine has a long and sordid history of believing with certainty that some therapy is sound and beneficial, only to learn later that it was dangerous junk. If the law prohibited any challenge to what’s deemed beneficial at any moment in time, how would it ever be determined that it was wrong?
As for the controversy raised by the facts in Tingley, if we’re to accept that this isn’t therapeutic and thus subject to regulation by the state, who decides what’s beneficial for the patient? Is that to be left in the hands of license medical professionals, or legislator who claimed to be volleyball stars at Baruch College? Easy as it may be to dismiss conversion therapy as deserving to be regulated out of existence, what of advice to engage in genital mutilation, occasionally called “gender affirming surgery” by medical professionals who favor advising their patients that it’s in their best interest?
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