King v. Governor of the State of New Jersey ( 2014 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 13-4429
_____________
TARA KING, ED. D. INDIVIDUALLY AND ON
BEHALF OF HER PATIENTS;
RONALD NEWMAN, PH. D., INDIVIDUALLY AND
ON BEHALF OF HIS PATIENTS;
NATIONAL ASSOCIATION FOR RESEARCH AND
THERAPY OF HOMOSEXUALITY, (NARTH);
AMERICAN ASSOCIATION OF CHRISTIAN
COUNSELORS,
Appellants
v.
GOVERNOR OF THE STATE OF NEW JERSEY;
ERIC T. KANEFSKY,
DIRECTOR OF THE NEW JERSEY DEPARTMENT
OF LAW AND PUBLIC SAFETY:
DIVISION OF CONSUMER AFFAIRS, IN HIS
OFFICIAL CAPACITY;
MILAGROS COLLAZO, EXECUTIVE DIRECTOR OF
THE NEW JERSEY BOARD OF MARRIAGE
1
AND FAMILY THERAPY EXAMINERS,
IN HER OFFICIAL CAPACITY;
J. MICHAEL WALKER, EXECUTIVE DIRECTOR OF
THE NEW JERSEY BOARD
OF PSYCHOLOGICAL EXAMINERS,
IN HIS OFFICIAL CAPACITY;
PAUL JORDAN,
PRESIDENT OF THE NEW JERSEY STATE
BOARD OF MEDICAL EXAMINERS,
IN HIS OFFICIAL CAPACITY
GARDEN STATE EQUALITY (Intervenor in D.C.)
_____________
On Appeal from the United States District Court
for the District of New Jersey
District Court No. 13-cv-05038
District Judge: The Honorable Freda L. Wolfson
Argued July 9, 2014
Before: SMITH, VANASKIE, and SLOVITER,
Circuit Judges
(Filed: September 11, 2014)
Mary E. McAlister, Esq.
Daniel J. Schmid, Esq.
2
Liberty Counsel
P.O. Box 11108
Lynchburg, VA 24506
Anita L. Staver, Esq.
Mathew D. Staver [ARGUED]
Liberty Counsel
P.O. Box 540774
Orlando, FL 32854
Demetrios K. Stratis, Esq.
10-04 River Road
Fairlawn, NJ 07410
Counsel for Appellants
Robert T. Lougy, Esq.
Eric S. Pasternack, Esq.
Susan M. Scott [ARGUED]
Office of Attorney General of New Jersey
P.O. Box 112
25 Market Street
Richard J. Hughes Justice Complex
Trenton, NJ 08625
Counsel for Appellee
Shireen A. Barday, Esq.
David S. Flugman, Esq. [ARGUED]
3
Frank M. Holozubiec, Esq.
Andrew C. Orr
Kirkland & Ellis
601 Lexington Avenue
New York, NY 10022
Andrew Bayer, Esq.
Gluck Walrath
2nd Floor
428 River View Plaza
Trenton, NJ 08611
Shannon P. Minter, Esq.
Christopher F. Stoll, Esq.
Amy Whelan, Esq.
National Center for Lesbian Rights
870 Market Street
Suite 370
San Francisco, CA 94102
Counsel for Intervenor Appellee
Mordechai Biser, Esq.
Agudath Israel of America
42 Broadway
14th Floor
New York, NY 10004
Ronald D. Coleman, Esq.
Goetz Fitzpatrick, Esq.
4
1 Penn Plaza
Suite 3100
New York, NY 10119
Jonathan C. Dalton, Esq.
Alliance Defending Freedom
15100 North 90th Street
Scottsdale, AZ 85260
Amicus Appellant
Kristy K. Marino, Esq.
Eileen R. Ridley, Esq.
Foley & Lardner
555 California Street
Suite 1700
San Francisco, CA 94104
Suman Chakraborty, Esq.
Squire Patton Boggs LLP
1185 Avenue of the Americas
30th Floor
New York, NY 10036
Curtis C. Cutting, Esq.
Horvitz & Levy
15760 Ventura Boulevard
18th Floor
Encino, CA 91436
5
Hayley J. Gorrenberg, Esq.
Lambda Legal Defense & Education Fund, Inc.
120 Wall Street
19th Floor
New York, NY 10005
Lisa A. Linsky, Esq.
McDermott, Will & Emery
340 Madison Avenue
New York, NY 10173
Sandford J. Rosen, Esq.
Rosen, Bien & Galvan
315 Montgomery Street
10th Floor
San Francisco, CA 94104
Tanya E. Kalivas, Esq.
Arnold & Porter
399 Park Avenue
34th Floor
New York, NY 10022
Emily B. Goldberg, Esq.
McCarter & English
100 Mulberry Street
Four Gateway Center, 14th Floor
Newark, NJ 07102
Amicus Appellee
6
________________
OPINION
________________
SMITH, Circuit Judge.
A recently enacted statute in New Jersey prohibits
licensed counselors from engaging in “sexual orientation
change efforts”1 with a client under the age of 18.
Individuals and organizations that seek to provide such
counseling filed suit in the United States District Court
for the District of New Jersey, challenging this law as a
violation of their First Amendment rights to free speech
and free exercise of religion. Plaintiffs also asserted
claims on behalf of their minor clients under the First and
Fourteenth Amendments. The District Court rejected
Plaintiffs’ First Amendment claims and held that they
lacked standing to bring claims on behalf of their minor
clients. Although we disagree with parts of the District
Court’s analysis, we will affirm.
1
The term “sexual orientation change efforts” is defined
as “the practice of seeking to change a person’s sexual
orientation, including . . . efforts . . . to reduce or eliminate
sexual or romantic attractions or feelings toward a person of
the same gender.” N.J. Stat. Ann. § 45:1-55.
7
I.
A.
Plaintiffs are individuals and organizations that
provide licensed counseling to minor clients seeking to
reduce or eliminate same-sex attractions (“SSA”). Dr.
Tara King and Dr. Ronald Newman are New Jersey
licensed counselors and founders of Christian counseling
centers that offer counseling on a variety of issues,
including sexual orientation change, from a religious
perspective. The National Association for Research and
Therapy of Homosexuality (“NARTH”) and the
American Association of Christian Counselors are
organizations whose members provide similar licensed
counseling in New Jersey.
Plaintiffs describe sexual orientation change
efforts (“SOCE”) counseling as “talk therapy” that is
administered solely through verbal communication.
SOCE counselors may begin a session by inquiring into
potential “root causes” of homosexual behavior, such as
childhood sexual trauma or other developmental issues,
such as a distant relationship with the same-sex parent. A
counselor might then attempt to effect sexual orientation
change by discussing “traditional, gender-appropriate
behaviors and characteristics” and how the client can
foster and develop these behaviors and characteristics.
Many counselors, including Plaintiffs, approach
8
counseling from a “Biblical perspective” and may also
integrate Biblical teachings into their sessions.2
On August 19, 2013, Governor Christopher J.
Christie signed Assembly Bill A3371 (“A3371”) into
law.3 A3371 provides:
a. A person who is licensed to provide
professional counseling . . . shall not engage
in sexual orientation change efforts with a
person under 18 years of age.
b. As used in this section, “sexual
orientation change efforts” means the
practice of seeking to change a person’s
sexual orientation, including, but not limited
to, efforts to change behaviors, gender
identity, or gender expressions, or to reduce
or eliminate sexual or romantic attractions or
feelings toward a person of the same gender;
except that sexual orientation change efforts
2
As the District Court observed, Plaintiffs provide very
few details of precisely what transpires during SOCE
counseling sessions. The foregoing is the sum total of
Plaintiffs’ descriptions, which they compiled in response to
the District Court’s inquiries at the October 1, 2013, hearing.
J.A. 556–57.
3
Assembly Bill A3371 is now codified at N.J. Stat.
Ann. §§ 45:1-54, 55. Because the parties still refer to the law
as A3371, we do so in this Opinion as well.
9
shall not include counseling for a person
seeking to transition from one gender to
another, or counseling that:
(1) provides acceptance, support, and
understanding of a person or
facilitates a person’s coping, social
support, and identity exploration and
development, including orientation-
neutral interventions to prevent or
address unlawful conduct or unsafe
sexual practices; and
(2) does not seek to change sexual
orientation.
N.J. Stat. Ann. § 45:1-55. Though A3371 does not itself
impose any penalties, a licensed counselor who engages
in the prohibited “sexual orientation change efforts” may
be exposed to professional discipline by the appropriate
licensing board. See N.J. Stat. Ann. § 45:1-21.
A3371 is accompanied by numerous legislative
findings regarding the impact of SOCE counseling on
clients seeking sexual orientation change. N.J. Stat. Ann.
§ 45:1-54. The New Jersey legislature found that “being
lesbian, gay, or bisexual is not a disease, disorder, illness,
deficiency, or shortcoming” and that “major professional
associations of mental health practitioners and
researchers in the United States have recognized this fact
10
for nearly 40 years.” Id. The legislature also cited reports,
articles, resolutions, and position statements from
reputable mental health organizations opposing
therapeutic intervention designed to alter sexual
orientation. Many of these sources emphasized that such
efforts are ineffective and/or carry a significant risk of
harm. According to the legislature, for example, a 2009
report issued by the American Psychological Association
(“APA Report”) concluded:
[S]exual orientation change efforts can pose
critical health risks to lesbian, gay, and
bisexual people, including confusion,
depression, guilt, helplessness, hopelessness,
shame, social withdrawal, suicidality,
substance abuse, stress, disappointment,
self-blame, decreased self-esteem and
authenticity to others, increased self-hatred,
hostility and blame toward parents, feelings
of anger and betrayal, loss of friends and
potential romantic partners, problems in
sexual and emotional intimacy, sexual
dysfunction, high-risk sexual behaviors, a
feeling of being dehumanized and untrue to
self, a loss of faith, and a sense of having
wasted time and resources.
Id.
Finally, the legislature declared that “New Jersey
11
has a compelling interest in protecting the physical and
psychological well-being of minors, including lesbian,
gay, bisexual, and transgender youth, and in protecting its
minors against exposure to serious harms caused by
sexual orientation change efforts.” Id.
B.
On August 22, 2013, Plaintiffs filed a complaint
against various New Jersey executive officials (“State
Defendants”)4 in the United States District Court for the
District of New Jersey, alleging that A3371 violated their
rights to free speech and free exercise of religion under
the First and Fourteenth Amendments. The complaint
also alleged constitutional claims on behalf of Plaintiffs’
minor clients and their parents. Specifically, Plaintiffs
claimed that A3371 violated the minor clients’ First and
Fourteenth Amendment rights to free speech and free
exercise of religion and the parents’ Fourteenth
4
These State Defendants include Christopher J.
Christie, Governor; Eric T. Kanefsky, Director of the New
Jersey Department of Law and Public Safety: Division of
Consumer Affairs; Milagros Collazo, Executive Director of
the New Jersey Board of Marriage and Family Therapy
Examiners; J. Michael Walker, Executive Director of the
New Jersey Board of Psychological Examiners; and Paul
Jordan, President of the New Jersey State Board of Medical
Examiners. Plaintiffs filed suit against each official in his or
her official capacity.
12
Amendment right to substantive due process.5
The following day, Plaintiffs moved for a
Temporary Restraining Order and/or Preliminary
Injunction to prevent enforcement of A3371. During a
telephone conference with the parties, the District Court
denied Plaintiffs’ motion for preliminary relief and, at
Plaintiffs’ request, converted this motion into a motion
for summary judgment. On September 6, 2013, Garden
State Equality (“Garden State”), a New Jersey civil rights
organization that advocates for lesbian, gay, bisexual,
and transgender equality, filed a motion to intervene as a
defendant. On September 13, 2013, State Defendants and
Garden State filed cross-motions for summary judgment.
The District Court heard argument on all of these
motions on October 1, 2013, and issued a final ruling in
an order dated November 8, 2013.
The District Court first considered whether Garden
State was required to demonstrate Article III standing to
participate in the lawsuit as an intervening party.6 The
5
The complaint also alleged various claims under the
constitution of New Jersey. Plaintiffs abandoned these claims
in the District Court.
6
Article III standing requires (1) an injury in fact, (2)
that is causally related to the alleged conduct of the
defendant, and (3) that is redressable by judicial action.
Friends of the Earth, Inc. v. Laidlaw Envt’l Servs. (TOC),
Inc., 528 U.S. 167, 180–81 (2000).
13
Court acknowledged that this was an open question in the
Third Circuit, and adopted the view held by a majority of
our sister circuits that an intervenor need not have Article
III standing to participate. The Court then held that
Garden State fulfilled the requirements for permissive
intervention pursuant to Federal Rule of Civil Procedure
24(b), reasoning that Garden State’s motion was timely,
it shared a common legal defense with State Defendants,
and its participation would not unduly prejudice the
adjudication of Plaintiffs’ rights. Accordingly, the Court
granted Garden State’s motion to intervene.
The District Court then considered whether
Plaintiffs possessed standing to pursue claims on behalf
of their minor clients and their parents. It reasoned first
that “Plaintiffs’ ability to bring third-party claims hinges
on whether they suffered any constitutional wrongs by
the passage of A3371.” J.A. 24. It then held that because,
as it would explain later in its opinion, A3371 did not
violate Plaintiffs’ constitutional rights, Plaintiffs did not
suffer an “injury in fact” sufficient to confer third-party
standing. The Court also held that Plaintiffs failed to
demonstrate that these third parties were sufficiently
hindered in their ability to protect their own interests.
Accordingly, the Court granted summary judgment for
Defendants on Plaintiffs’ third-party claims.
The District Court then considered whether A3371
violated Plaintiffs’ right to free speech. Relying heavily
on the Ninth Circuit’s decision upholding a similar
14
statute in Pickup v. Brown, 728 F.3d 1042 (9th Cir.
2013),7 the Court concluded that A3371 regulates
conduct, not speech. The Court also determined that
A3371 does not have an “incidental effect” on speech
sufficient to trigger a lower level of scrutiny under
United States v. O’Brien, 391 U.S. 367 (1968). Having
determined that A3371 regulates neither speech nor
expressive conduct, the District Court rejected Plaintiffs’
free speech challenge.8 The District Court also concluded
7
After the District Court issued its opinion, the Ninth
Circuit denied a petition for rehearing en banc in Pickup and,
in the process, amended its opinion to include, inter alia, a
discussion of Holder v. Humanitarian Law Project, 561 U.S.
1 (2010). Compare Pickup, 728 F.3d 1042 with Pickup v.
Brown, 740 F.3d 1208 (9th Cir. 2013) cert denied, 134 S. Ct.
2871 (2014) and cert denied, 134 S. Ct. 2881 (2014). We will
discuss Pickup and Humanitarian Law Project in more detail
infra.
8
After concluding that A3371 regulates neither speech
nor expressive conduct, the District Court went on to subject
the statute to rational basis review. In a footnote, it explained
that it had, by this point, “rejected Plaintiff’s First
Amendment free speech challenge,” but that it was applying
rational basis review to determine “whether there [was] any
substantive due process violation.” J.A. 48 n.26. This
explanation is puzzling, however, given that Plaintiffs alleged
a substantive due process claim only on behalf of their minor
patients’ parents, and the District Court’s rejection of these
third-party claims on standing grounds rendered any further
analysis unnecessary.
15
that A3371 is not unconstitutionally vague or overbroad.
The District Court next rejected Plaintiffs’ free
exercise claim. It was not convinced by Plaintiffs’
arguments that A3371 engaged in impermissible
gerrymandering, and concluded instead that A3371 was a
neutral law of general applicability subject only to
rational basis review. The District Court then held that
A3371 is rationally related to New Jersey’s legitimate
interest in protecting its minors from harm and,
accordingly, granted Defendants’ motions for summary
judgment on Plaintiffs’ free exercise claim. This timely
appeal followed.
II.
The District Court had jurisdiction under 28 U.S.C.
§ 1331. We have jurisdiction under 28 U.S.C. § 1291.
We review a district court’s legal conclusions de
novo and ordinarily review its factual findings for clear
error. Pittsburgh League of Young Voters Educ. Fund v.
Port Auth. of Allegheny Cnty., 653 F.3d 290, 295 (3d Cir.
2011). Because this case implicates the First
Amendment, however, we are obligated to “make an
independent examination of the whole record” to “make
sure that the trial court’s judgment does not constitute a
forbidden intrusion on the field of free expression.” Id.
(internal quotation marks and citations omitted).
16
III.
We first turn to the issue of whether A3371, as
applied to the SOCE counseling Plaintiffs seek to
provide, violates Plaintiffs’ First Amendment right to
free speech. The District Court held that it does not,
reasoning that SOCE counseling is “conduct” that
receives no protection under the First Amendment. We
disagree, and hold that the verbal communication that
occurs during SOCE counseling is speech that enjoys
some degree of protection under the First Amendment.
Because Plaintiffs are speaking as state-licensed
professionals within the confines of a professional
relationship, however, this level of protection is
diminished. Accordingly, A3371 survives Plaintiffs’ free
speech challenge if it directly advances the State’s
substantial interest in protecting its citizens from harmful
or ineffective professional practices and is not more
extensive than necessary to serve that interest. We hold
that A3371 meets these requirements.
A.
With respect to Plaintiffs’ free speech challenge,
the preliminary issue we must address is whether A3371
has restricted Plaintiffs’ speech or, as the District Court
held, merely regulated their conduct. The parties agree
that modern-day SOCE therapy, and that practiced by
Plaintiffs in this case, is “talk therapy” that is
17
administered wholly through verbal communication.9
Though verbal communication is the quintessential form
of “speech” as that term is commonly understood,
Defendants argue that these particular communications
are “conduct” and not “speech” for purposes of the First
Amendment because they are merely the “tool”
employed by therapists to administer treatment. Thus, the
question we confront is whether verbal communications
become “conduct” when they are used as a vehicle for
mental health treatment.
We hold that these communications are “speech”
for purposes of the First Amendment. Defendants have
not directed us to any authority from the Supreme Court
or this circuit that have characterized verbal or written
communications as “conduct” based on the function these
communications serve. Indeed, the Supreme Court
rejected this very proposition in Holder v. Humanitarian
9
Prior forms of SOCE therapy included non-verbal
“aversion treatments, such as inducing nausea, vomiting, or
paralysis, providing electric shocks; or having the individual
snap an elastic band around the wrist when the individual
became aroused to same-sex erotic images or thoughts.” J.A.
306 (APA Report). Plaintiffs condemn these techniques as
“unethical methods of treatment that have not been used by
any ethical and licensed mental health professional in
decades” and believe “professionals who engage in such
techniques should have their licenses revoked.” J.A. 171
(Decl. of Dr. Tara King).
18
Law Project, 561 U.S. 1 (2010). In that case, plaintiffs
claimed that a federal statute prohibiting the provision of
“material support” to designated terrorist organizations
violated their free speech rights by preventing them from
providing legal training and advice to the Partiya
Karkeran Kurdistan (“PKK”) and the Liberation Tigers
of Tamil Eelam (“LTTE”). Id. at 10–11. Defendants
responded that the “material support” statute should not
be subjected to strict scrutiny because it is directed
toward conduct and not speech. Id. at 26–28.
The Supreme Court, however, expressly rejected
the argument that “the only thing actually at issue in [the]
litigation [was] conduct.” Id. at 27. It concluded that
while the material support statute ordinarily banned
conduct, the activity it prohibited in the particular case
before it—the provision of legal training and advice—
was speech. Id. at 28. It reached this conclusion based on
the straightforward observation that plaintiffs’ proposed
activity consisted of “communicating a message.” Id. In
concluding further that this statute regulated speech on
the basis of content, the Court’s reasoning was again
simple and intuitive: “Plaintiffs want to speak to the PKK
and the LTTE, and whether they may do so under §
2339B depends on what they say.” Id. at 27. Notably,
what the Supreme Court did not do was reclassify this
19
communication as “conduct” based on the nature or
function of what was communicated.10
Given that the Supreme Court had no difficulty
characterizing legal counseling as “speech,” we see no
reason here to reach the counter-intuitive conclusion that
the verbal communications that occur during SOCE
counseling are “conduct.” Defendants’ citation to
Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502
(1949), does not alter our conclusion. There, members of
the Ice and Coal Drivers and Handlers Local Union No.
953 were enjoined under a state antitrade restraint statute
from picketing in front of an ice company in an effort to
convince it to discontinue ice sales to non-union buyers.
336 U.S. at 492–494. The Supreme Court rejected the
union workers’ free speech claim, reasoning that “it has
never been deemed an abridgment of freedom of speech
or press to make a course of conduct illegal merely
because the conduct was in part initiated, evidenced, or
carried out by means of language, either spoken, written,
or printed.” Id. at 502 (citations omitted). This passage,
which is now over 60 years old, has been the subject of
much confusion. See Eugene Volokh, Speech as
10
Further, a plurality of the Supreme Court in Planned
Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 884
(1992), acknowledged that a Pennsylvania law requiring
physicians to provide information to patients prior to
performing abortions regulated speech rather than merely
“treatment” or “conduct.”
20
Conduct: Generally Applicable Laws, Illegal Courses of
Conduct, “Situation-Altering Utterances,” and the
Uncharted Zones, 90 Cornell L. Rev. 1277, 1314–22
(2005) (discussing eight distinct interpretations of
Giboney’s “course of conduct” language). Yet whatever
may be Giboney’s meaning or scope, Humanitarian Law
Project makes clear that verbal or written
communications, even those that function as vehicles for
delivering professional services, are “speech” for
purposes of the First Amendment. 561 U.S. at 27–28.
In reaching a contrary conclusion, the District
Court relied heavily on the Ninth Circuit’s recent
decision in Pickup. Pickup involved a constitutional
challenge to Senate Bill 1172 (“SB 1172”), which, like
A3371, prohibits state-licensed mental health providers
from engaging in “sexual orientation change efforts” with
clients under 18 years of age. 740 F.3d at 1221. As here,
SOCE counselors argued that SB 1172 violated their
First Amendment rights to free speech and free
exercise.11
The Ninth Circuit disagreed. Pickup explained that
“the First Amendment rights of professionals, such as
doctors and mental health providers” exist on a
“continuum.” Id. at 1227. On this “continuum,” First
Amendment protection is greatest “where a professional
11
Unlike the present case, plaintiffs in Pickup included
minor patients and their parents.
21
is engaged in a public dialogue.” Id. At the midpoint of
this continuum, which Pickup described as speech
“within the confines of the professional relationship,”
First Amendment protection is “somewhat diminished.”
Id. at 1228. At the other end of this continuum is “the
regulation of professional conduct, where the state’s
power is great, even though such regulation may have an
incidental effect on speech.” Id. at 1229 (citing Lowe v.
S.E.C., 472 U.S. 181, 232 (1985) (White, J., concurring
in the result)) (emphasis in original).
Pickup concluded that because SB 1172 “regulates
conduct,” it fell within this third category on the
continuum. Id. It reasoned that “[b]ecause SB 1172
regulates only treatment, while leaving mental health
providers free to discuss and recommend, or recommend
against, SOCE, . . . any effect it may have on free speech
interests is merely incidental. Therefore, we hold that SB
1172 is subject to only rational basis review and must be
upheld if it bears a rational relationship to a legitimate
state interest.” Id. at 1231 (citing Planned Parenthood of
Southeastern Pa. v. Casey, 505 U.S. 833, 884, 967–68
(1992) (plurality opinion)).12 The Ninth Circuit
12
It is not entirely clear why, or on what authority, the
original Pickup opinion concluded that rational basis is the
proper standard of review for a regulation of professional
conduct that has an incidental effect on professional speech.
The original opinion in Pickup accompanied this conclusion
with a quote from National Association for the Advancement
22
concluded that “SB 1172 is rationally related to the
legitimate government interest of protecting the well-
being of minors” and, accordingly, rejected the plaintiffs’
free speech claim. Id. at 1232.
The Ninth Circuit’s denial of a petition for
rehearing en banc drew a spirited dissent from Judge
O’Scannlain. Joined by two other Ninth Circuit judges,
he criticized the Pickup majority for merely “labeling”
disfavored speech as “conduct” and thereby “insulat[ing]
[SB 1172] from First Amendment scrutiny.” 740 F.3d at
of Psychoanalysis v. California Board of Psychology, 228
F.3d 1043, 1049 (9th Cir. 2000) (“NAAP”). 728 F.3d at 1056.
The quoted passage from NAAP, however, refers to the proper
standard for reviewing an equal protection challenge to a law
that discriminates against a non-suspect class—it did not, in
any way, establish that rational basis is the proper standard
for reviewing a free speech challenge to a law that regulates
professional conduct. See 228 F.3d at 1049. When the Ninth
Circuit amended Pickup following the denial of the petition
for rehearing en banc, the panel substituted the citation to
NAAP with one to Planned Parenthood of Southeastern Pa. v.
Casey, 505 U.S. 833, 884, 967–68 (1992), in which,
according to the Ninth Circuit, “a plurality of three justices,
plus four additional justices concurring in part and dissenting
in part, applied a reasonableness standard to the regulation of
medicine where speech may be implicated incidentally.”
Pickup, 740 F.3d at 1231. We will discuss infra the proper
standard of review for regulation of professional speech, as
well as the relevance of Casey to this analysis.
23
1215 (O’Scannlain, J., dissenting from denial of
rehearing en banc). Judge O’Scannlain further explained:
The panel provides no principled doctrinal
basis for its dichotomy: by what criteria do
we distinguish between utterances that are
truly “speech,” on the one hand, and those
that are, on the other hand, somehow
“treatment” or “conduct”? The panel,
contrary to common sense and without legal
authority, simply asserts that some spoken
words—those prohibited by SB 1172—are
not speech.
Id. at 1215–16.
Judge O’Scannlain’s dissent also relied heavily
upon Humanitarian Law Project. Judge O’Scannlain
argued that Humanitarian Law Project “flatly refused to
countenance the government’s purported distinction
between ‘conduct’ and ‘speech’ for constitutional
purposes when the activity at issue consisted of talking
and writing.” Id. at 1216. He explained that
Humanitarian Law Project stood for the proposition that
“the government’s ipse dixit cannot transform ‘speech’
into ‘conduct’ that it may more freely regulate.” Id.13
13
The amended Pickup opinion acknowledges that
Humanitarian Law Project found activity to be “speech”
when it “consist[ed] of communicating a message,” but
24
While Pickup acknowledged that SB 1172 may
have at least an “incidental effect” on speech and
subjected the statute to rational basis review,14 here the
District Court went one step further when it concluded
that SOCE counseling is pure, non-expressive conduct
that falls wholly outside the protection of the First
Amendment. The District Court’s primary rationale for
contends that “SB 1172 does not prohibit Plaintiffs from
‘communicating a message’” because “[i]t is a state
regulation governing the conduct of state-licensed
professionals, and it does not pertain to communication in the
public sphere.” Id. at 1230 (quoting Humanitarian Law
Project, 561 U.S. at 28) (emphasis added by Pickup). We are
not persuaded. Humanitarian Law Project concluded that the
“material support” statute regulated speech despite explicitly
acknowledging that it did not stifle communication in the
public sphere. 561 U.S. at 25–26 (“Under the material-
support statute, plaintiffs may say anything they wish on any
topic. They may speak and write freely about the PKK and
LTTE, the governments of Turkey and Sri Lanka, human
rights, and international law. They may advocate before the
United Nations.”).
14
Judge O’Scannlain’s dissent in Pickup accuses the
majority of “entirely exempt[ing] [SB 1172] from the First
Amendment.” 740 F.3d at 1215 (O’Scannlain, dissenting
from denial of rehearing en banc). We do not believe the
Ninth Circuit went that far. As we have explained, the Ninth
Circuit acknowledged that SB 1172 “may” have an
“incidental effect” on speech, and thus applied rational basis
review; it did not exempt SB 1172 from any review at all.
25
this conclusion was that “the core characteristic of
counseling is not that it may be carried out through
talking, but rather that the counselor applies methods and
procedures in a therapeutic manner.” J.A. 35 (emphasis
added). The District Court derived this reasoning in part
from Pickup, in which the Ninth Circuit observed that the
“key component of psychoanalysis is the treatment of
emotional suffering and depression, not speech.” 740
F.3d at 1226 (quoting National Association for the
Advancement of Psychoanalysis v. California Board of
Psychology, 228 F.3d 1043, 1054 (9th Cir. 2000)). On
this basis, the District Court concluded that “the line of
demarcation between conduct and speech is whether the
counselor is attempting to communicate information or a
particular viewpoint to the client or whether the
counselor is attempting to apply methods, practices, and
procedures to bring about a change in the client—the
former is speech and the latter is conduct.” J.A. 39.
As we have explained, the argument that verbal
communications become “conduct” when they are used
to deliver professional services was rejected by
Humanitarian Law Project. Further, the enterprise of
labeling certain verbal or written communications
“speech” and others “conduct” is unprincipled and
susceptible to manipulation. Notably, the Pickup
majority, in the course of establishing a “continuum” of
protection for professional speech, never explained
exactly how a court was to determine whether a statute
26
regulated “speech” or “conduct.” See Pickup, 740 F.3d at
1215–16 (O’Scannlain, J., dissenting from denial of
rehearing en banc) (“[B]y what criteria do we distinguish
between utterances that are truly ‘speech,’ on the one
hand, and those that are, on the other hand, somehow
‘treatment’ or ‘conduct’?”). And the District Court’s
analysis fares no better; even a cursory inspection of the
line it establishes between utterances that “communicate
information or a particular viewpoint” and those that seek
“to apply methods, practices, and procedures” reveals the
illusory nature of such a dichotomy.
For instance, consider a sophomore psychology
major who tells a fellow student that he can reduce same-
sex attractions by avoiding effeminate behaviors and
developing a closer relationship with his father. Surely
this advice is not “conduct” merely because it seeks to
apply “principles” the sophomore recently learned in a
behavioral psychology course. Yet it would be strange
indeed to conclude that the same words, spoken with the
same intent, somehow become “conduct” when the
speaker is a licensed counselor. That the counselor is
speaking as a licensed professional may affect the level
of First Amendment protection her speech enjoys, but
this fact does not transmogrify her words into “conduct.”
As another example, a law student who tries to convince
her friend to change his political orientation is assuredly
“speaking” for purposes of the First Amendment, even if
she uses particular rhetorical “methods” in the process.
27
To classify some communications as “speech” and others
as “conduct” is to engage in nothing more than a
“labeling game.” Pickup, 740 F.3d at 1218 (O’Scannlain,
J., dissenting from denial of rehearing en banc).
Lastly, the District Court’s classification of
counseling as “conduct” was largely motivated by its
reluctance to imbue certain professions—i.e., clinical
psychology and psychiatry—with “special First
Amendment protection merely because they use the
spoken word as therapy.” J.A. 38. According to the
District Court, the “fundamental problem” with
characterizing SOCE counseling as “speech” is that “it
would mean that any regulation of professional
counseling necessarily implicates fundamental First
Amendment speech rights.” Id. at 39. This result,
reasoned the District Court, would “run[] counter to the
longstanding principle that a state generally may enact
laws rationally regulating professionals, including those
providing medicine and mental health services.” Id.
(citations omitted).
As we will explain, the District Court’s concern is
not without merit, but it speaks to whether SOCE
counseling falls within a lesser protected or unprotected
category of speech—not whether these verbal
communications are somehow “conduct.” Simply put,
speech is speech, and it must be analyzed as such for
purposes of the First Amendment. Certain categories of
speech receive lesser protection, see, e.g., Ohralik v.
28
Ohio State Bar Ass’n, 436 U.S. 447, 455–56 (1978), or
even no protection at all, see, e.g., Roth v. United States,
354 U.S. 476, 483 (1957). But these categories are deeply
rooted in history, and the Supreme Court has repeatedly
cautioned against exercising “freewheeling authority to
declare new categories of speech outside the scope of the
First Amendment.” United States v. Alvarez, 132 S. Ct.
2537 (2012) (quoting United States v. Stevens, 559 U.S.
460, 472 (2010)). By labeling certain communications as
“conduct,” thereby assuring that they receive no First
Amendment protection at all, the District Court has
effectively done just that.
Thus, we conclude that the verbal communications
that occur during SOCE counseling are not “conduct,”
but rather “speech” for purposes of the First Amendment.
We now turn to the issue of whether such speech falls
within a historically delineated category of lesser
protected or unprotected expression.
B.
The District Court’s focus on whether SOCE
counseling is “speech” or “conduct” obscured the
important constitutional inquiry at the heart of this case:
the level of First Amendment protection afforded to
speech that occurs as part of the practice of a licensed
profession. In addressing this question, we first turn to
whether such speech is fully protected by the First
Amendment. We conclude that it is not.
29
The authority of the States to regulate the practice
of certain professions is deeply rooted in our nation’s
jurisprudence. Over 100 years ago, the Supreme Court
deemed it “too well settled to require discussion” that
“the police power of the states extends to the regulation
of certain trades and callings, particularly those which
closely concern the public health.” Watson v. State of
Maryland, 218 U.S. 173, 176 (1910). See also Dent v.
West Virginia, 129 U.S. 114, 122 (1889) (“[I]t has been
the practice of different states, from time immemorial, to
exact in many pursuits a certain degree of skill and
learning upon which the community may confidently
rely.”). The Court has recognized that States have “broad
power to establish standards for licensing practitioners
and regulating the practice of professions.” Goldfarb v.
Va. State Bar, 421 U.S. 773, 792 (1975). See also
Ohralik, 436 U.S. at 460 (“[T]he State bears a special
responsibility for maintaining standards among members
of the licensed professions.”). The exercise of this
authority is necessary to “shield[] the public against the
untrustworthy, the incompetent, or the irresponsible.”
Thomas v. Collins, 323 U.S. 516, 545 (1945) (Jackson, J.,
concurring).
When a professional regulation restricts what a
professional can and cannot say, however, it creates a
“collision between the power of government to license
and regulate those who would pursue a profession or
vocation and the rights of freedom of speech and of the
30
press guaranteed by the First Amendment.” Lowe v.
S.E.C., 472 U.S. 181, 228 (1985) (White, J., concurring
in the result). Justice Jackson first explored this area of
“two well-established, but at times overlapping,
constitutional principles” in Thomas 323 U.S. at 544–48
(1945) (Jackson, J., concurring). There, he explained:
A state may forbid one without its license to
practice law as a vocation, but I think it
could not stop an unlicensed person from
making a speech about the rights of man or
the rights of labor . . . . Likewise, the state
may prohibit the pursuit of medicine as an
occupation without its license but I do not
think it could make it a crime publicly or
privately to speak urging persons to follow
or reject any school of medical thought. So
the state to an extent not necessary now to
determine may regulate one who makes a
business or a livelihood of soliciting funds
or memberships for unions. But I do not
think it can prohibit one, even if he is a
salaried labor leader, from making an
address to a public meeting of workmen,
telling them their rights as he sees them and
urging them to unite in general or to join a
specific union.
Id. at 544–45. Ultimately, Justice Jackson concluded that
the speech at issue—which encouraged a large group of
31
Texas workers to join a specific labor union—“f[ell] in
the category of a public speech, rather than that of
practicing a vocation as solicitor” and was therefore fully
protected by the First Amendment. See id. at 548.
Justice White expounded upon Justice Jackson’s
analysis in Lowe. He and two other justices agreed that
“[t]he power of government to regulate the professions is
not lost whenever the practice of a profession entails
speech” but also recognized that “[a]t some point, a
measure is no longer a regulation of a profession but a
regulation of speech or of the press.” 472 U.S. at 228,
230 (White, J., concurring in the result). Building on
Justice Jackson’s concurrence, Justice White defined the
contours of First Amendment protection in the realm of
professional speech:
One who takes the affairs of a client
personally in hand and purports to exercise
judgment on behalf of the client in the light
of the client’s individual needs and
circumstances is properly viewed as
engaging in the practice of a profession. Just
as offer and acceptance are communications
incidental to the regulable transaction called
a contract, the professional’s speech is
incidental to the conduct of the profession. .
. . Where the personal nexus between
professional and client does not exist, and a
speaker does not purport to be exercising
32
judgment on behalf of any particular
individual with whose circumstances he is
directly acquainted, government regulation
ceases to function as legitimate regulation of
professional practice with only incidental
impact on speech; it becomes regulation of
speaking or publishing as such, subject to
the First Amendment’s command that
“Congress shall make no law . . . abridging
the freedom of speech, or of the press.”
Id. at 232.
The Supreme Court addressed the issue of
professional speech most recently in Planned Parenthood
of Southeastern Pa. v. Casey, 505 U.S. 833 (1992)
(plurality opinion). Though the bulk of the plurality’s
opinion was devoted to a substantive due process claim,
it addressed the plaintiffs’ First Amendment claim briefly
in the following paragraph:
All that is left of petitioners’ argument is an
asserted First Amendment right of a
physician not to provide information about
the risks of abortion, and childbirth, in a
manner mandated by the State. To be sure,
the physician’s First Amendment rights not
to speak are implicated, see Wooley v.
Maynard, 430 U.S. 705 (1977), but only as
part of the practice of medicine, subject to
33
reasonable licensing and regulation by the
State, cf. Whalen v. Roe, 429 U.S. 589, 603
(1977). We see no constitutional infirmity in
the requirement that the physician provide
the information mandated by the State here.
Id. at 884.
A trio of recent federal appellate decisions has read
these opinions to establish special rules for the regulation
of speech that occurs pursuant to the practice of a
licensed profession. See Wollschlaeger v. Florida, No.
12-cv-14009, 2014 WL 3695296, at *13–21 (11th Cir.
July 25, 2014); Pickup, 740 F.3d at 1227–29; Moore-
King v. County of Chesterfield, Va., 708 F.3d 560, 568–
70 (4th Cir. 2013). In Moore-King, for example, the
Fourth Circuit drew heavily from the concurrences in
Thomas and Lowe in holding that “professional speech”
does not receive full protection under the First
Amendment. 708 F.3d at 568–70. Consistent with Justice
White’s concurrence in Lowe, Moore-King explained that
“the relevant inquiry to determine whether to apply the
professional speech doctrine is whether the speaker is
providing personalized advice in a private setting to a
paying client or instead engages in public discussion and
commentary.” Id. at 569. It then concluded that plaintiff’s
speech, which consisted of “spiritual counseling” that
involved “a personalized reading for a paying client,”
was “professional speech” which the state could regulate
34
without triggering strict scrutiny under the First
Amendment. Id.
The Ninth Circuit also embraced the idea of
professional speech in Pickup. Although the District
Court focused primarily on Pickup’s discussion of
whether SOCE counseling is “speech” or “conduct,” the
Ninth Circuit also relied heavily on the constitutional
principle that a licensed professional’s speech is not
afforded the full scope of First Amendment protection
when it occurs as part of the practice of a profession. See
740 F.3d at 1227–29. In recognizing a “continuum” of
First Amendment protection for licensed professionals,
Pickup relied heavily on Justice White’s concurrence in
Lowe and the plurality opinion in Casey. Id. As discussed
supra, Pickup held that First Amendment protection is
“at its greatest” when a professional is “engaged in a
public dialogue,” id. at 1227 (citing Lowe, 472 U.S. at
232 (White, J., concurring in the result)); “somewhat
diminished” when the professional is speaking “within
the confines of a professional relationship,” id. at 1228
(citing Casey, 505 U.S. at 884 (plurality opinion)); and at
its lowest when “the regulation [is] of professional
conduct . . . even though such regulation may have an
incidental effect on speech,” id. at 1229 (citing Lowe,
472 U.S. at 232 (White, J., concurring in the result)).
Most recently, the Eleventh Circuit also
recognized that professional speech is not fully protected
under the First Amendment. Wollschlaeger, 2014 WL
35
3695296. While the Eleventh Circuit would afford
“speech to the public by attorneys on public issues” with
“the strongest protection our Constitution has to offer,” it
held that the full scope of First Amendment protection
did not apply to a physician speaking “only as part of the
practice of medicine, subject to reasonable licensing and
regulation by the State.” Id. at *14 (quoting Casey, 505
U.S. at 884 (plurality opinion)). Similar to Moore-King,
Wollschlaeger explained that “the key to distinguishing
between occupational regulation and abridgment of First
Amendment liberties is in finding a personal nexus
between professional and client.” Id. (internal quotation
marks and citations omitted).
We find the reasoning in these cases to be
informative. Licensed professionals, through their
education and training, have access to a corpus of
specialized knowledge that their clients usually do not.
Indeed, the value of the professional’s services stems
largely from her ability to apply this specialized
knowledge to a client’s individual circumstances. Thus,
clients ordinarily have no choice but to place their trust in
these professionals, and, by extension, in the State that
licenses them. See, e.g., Virginia State Bd. of Pharmacy
v. Va. Citizens Consumer Council, Inc., 425 U.S. 748,
768 (1976) (“[H]igh professional standards, to a
substantial extent, are guaranteed by the close regulation
to which pharmacists in Virginia are subject.”). It is the
State’s imprimatur and the regulatory oversight that
36
accompanies it that provide clients with the confidence
they require to put their health or their livelihood in the
hands of those who utilize knowledge and methods with
which the clients ordinarily have little or no familiarity.
This regulatory authority is particularly important
when applied to professions related to mental and
physical health. See Watson, 218 U.S. at 176 (“[T]he
police power of the states extends to the regulation of
certain trades and callings, particularly those which
closely concern the public health.”). The practice of most
professions, mental health professions in particular, will
inevitably involve communication between the
professional and her client—this is, of course, how
professionals and clients interact. To handcuff the State’s
ability to regulate a profession whenever speech is
involved would therefore unduly undermine its authority
to protect its citizens from harm. See Robert Post,
Informed Consent to Abortion: A First Amendment
Analysis of Compelled Physician Speech, 2007 U. Ill. L.
Rev. 939, 950 (2007) (“The practice of medicine, like all
human behavior, transpires through the medium of
speech. In regulating the practice, therefore, the state
must necessarily also regulate professional speech.”).
Thus, we conclude that a licensed professional
does not enjoy the full protection of the First Amendment
when speaking as part of the practice of her profession.
Like the Fourth and Eleventh Circuits, we believe a
professional’s speech warrants lesser protection only
37
when it is used to provide personalized services to a
client based on the professional’s expert knowledge and
judgment. See Wollschlaeger, 2014 WL 3695296, at *14;
Moore-King, 708 F.3d at 569. By contrast, when a
professional is speaking to the public at large or offering
her personal opinion to a client, her speech remains
entitled to the full scope of protection afforded by the
First Amendment.15
15
While we embrace Pickup’s conclusion that First
Amendment protection differs in the context of professional
speech, we decline to adopt its three categories of protection.
It is indisputable that a professional “engaged in a public
dialogue” receives robust protection under the First
Amendment. Pickup, 740 F.3d at 1227. But we find that the
other two points on Pickup’s “continuum” are usually
conflated; a regulation of “professional conduct” will in many
cases “incidentally” affect speech that occurs “within the
confines of a professional relationship.” Id. at 1228–29.
SB1172 is a prime example: even if, as the Pickup panel
reasoned, it only “incidentally” affects speech, the speech that
it incidentally affects surely occurs within the confines of the
counseling relationship. In fact, Pickup itself conflated these
two categories when applying its “continuum” to SB1172.
Though it held that SB1172 implicated the least protected
category, Pickup subjected the statute to the level of scrutiny
of its midpoint category—i.e., Casey’s rational basis test. See
id. at 1228–29. Thus, we refuse to adopt Pickup’s distinction
between speech that occurs within the confines of a
38
With these principles in mind, it is clear to us that
speech occurring as part of SOCE counseling is
professional speech. SOCE counselors provide
specialized services to individual clients in the form of
psychological practices and procedures designed to effect
a change in the clients’ thought patterns and behaviors.
Importantly, A3371 does not prevent these counselors
from engaging in a public dialogue on homosexuality or
sexual orientation change—it prohibits only a
professional practice that is, in this instance, carried out
through verbal communication. While the function of this
speech does not render it “conduct” that is wholly outside
the scope of the First Amendment, it does place it within
a recognized category of speech that is not entitled to the
full protection of the First Amendment.
C.
That we have classified Plaintiffs’ speech as
professional speech does not end our inquiry. While the
cases above make clear that such speech is not fully
protected under the First Amendment, the question
remains whether this category receives some lesser
degree of protection or no protection at all. We hold that
professional speech receives diminished protection, and,
accordingly, that prohibitions of professional speech are
constitutional only if they directly advance the State’s
professional relationship and that which is only incidentally
affected by a regulation of professional conduct.
39
interest in protecting its citizens from harmful or
ineffective professional practices and are no more
extensive than necessary to serve that interest.
In explaining why this level of protection is
appropriate, we find it helpful to compare professional
speech to commercial speech. For over 35 years, the
Supreme Court has recognized that commercial speech—
truthful, non-misleading speech that proposes a legal
economic transaction—enjoys diminished protection
under the First Amendment. See Ohralik, 436 U.S. at
454–59.16 Though such speech was at one time
considered outside the scope of the First Amendment
altogether, see Valentine v. Chrestensen, 316 U.S. 52, 54
(1942), the Supreme Court reversed course in Bigelow v.
Virginia, 421 U.S. 809, 818–26 (1975), and recognized
that commercial speech enjoys some degree of
protection. The Court has since explained that
commercial speech has value under the First Amendment
because it facilitates the “free flow of commercial
information,” in which both the intended recipients and
society at large have a strong interest. Virginia State Bd.
of Pharmacy v. Virginia Citizens Consumer Council,
Inc., 425 U.S. 748, 763–64 (1976) (“Virginia
16
Advertisements that are false or misleading have never
been recognized as protected by the First Amendment. See
Virginia State Bd. of Pharmacy v. Virginia Citizens
Consumer Council, Inc., 425 U.S. 748, 771 (1976). Nor have
advertisements proposing illegal transactions. See id. at 772.
40
Pharmacy”); see also Central Hudson Gas & Elec. Corp.
v. Public Serv. Comm. of New York, 447 U.S. 557, 561–
62 (1980) (explaining that commercial speech “assists
consumers and furthers the societal interest in the fullest
possible dissemination of information”). In fact, the
Court has recognized that a consumer’s interest in this
information “may be as keen, if not keener by far, than
his interest in the day’s most urgent political debate.”
Virginia Pharmacy, 425 U.S. at 763.
Despite recognizing the value of commercial
speech, the Court has “not discarded the ‘common-sense’
distinction” between commercial speech and other areas
of protected expression. Ohralik, 436 U.S. at 455–56
(quoting Virginia Pharmacy, 425 U.S. at 771 n.24).
Instead, the Court has repeatedly emphasized that
commercial speech enjoys only diminished protection
because it “occurs in an area traditionally subject to
government regulation.” Central Hudson, 447 U.S. at
562 (quoting Ohralik, 436 U.S. at 455–56). Because
commercial speech is “linked inextricably with the
commercial arrangement it proposes, . . . the State’s
interest in regulating the underlying transaction may give
it a concomitant interest in the expression itself.”
Edenfield v. Fane, 507 U.S.761, 767 (1993) (internal
quotation marks and citations omitted). Accordingly, a
prohibition of commercial speech is permissible when it
“directly advances” a “substantial” government interest
and is “not more extensive than is necessary to serve that
41
interest.” Central Hudson, 447 U.S. at 566. The Supreme
Court later dubbed this standard of review “intermediate
scrutiny.” Florida Bar v. Went For It, Inc., 515 U.S. 618,
623–24 (1995) (internal quotation marks and citation
omitted).
We believe that commercial and professional
speech share important qualities and, thus, that
intermediate scrutiny is the appropriate standard of
review for prohibitions aimed at either category. Like
commercial speech, professional speech is valuable to
listeners and, by extension, to society as a whole because
of the “informational function” it serves. Central
Hudson, 447 U.S. at 563. As previously discussed,
professionals have access to a body of specialized
knowledge to which laypersons have little or no
exposure. Although this information may reach non-
professionals through other means, such as journal
articles or public speeches, it will often be communicated
to them directly by a licensed professional during the
course of a professional relationship. Thus, professional
speech, like commercial speech, serves as an important
channel for the communication of information that might
otherwise never reach the public. See Post, supra, at 977;
see also Central Hudson, 447 U.S. at 561–62 (describing
42
“the societal interest in the fullest possible dissemination
of information”).17
Additionally, like commercial speech, professional
speech also “occurs in an area traditionally subject to
government regulation.” Central Hudson, 447 U.S. at
562 (quoting Ohralik, 436 U.S. at 455–56). As we have
previously explained, States have traditionally enjoyed
broad authority to regulate professions as a means of
protecting the public from harmful or ineffective
professional services. Accordingly, as with commercial
speech, it is difficult to ignore the “common-sense”
differences between professional speech and other forms
of protected communication. Ohralik, 436 U.S. at 455–56
(quoting Virginia Pharmacy, 425 U.S. at 771 n.24).
Given these striking similarities, we conclude that
professional speech should receive the same level of First
Amendment protection as that afforded commercial
speech. Thus, we hold that a prohibition of professional
17
We also recognize that professional speech can often
serve an expressive function insofar as a professional’s
personal beliefs—including deeply-held political or religious
beliefs—are infused in the practice of a profession. SOCE
counselors, for example, provide counseling not merely for
remuneration but as a means of putting important beliefs and
values into practice. This expressive value is further reason to
afford professional speech some level of protection under the
First Amendment.
43
speech is permissible only if it “directly advances” the
State’s “substantial” interest in protecting clients from
ineffective or harmful professional services, and is “not
more extensive than necessary to serve that interest.”
Central Hudson, 447 U.S. at 566.
In so holding, we emphasize that a regulation of
professional speech is spared from more demanding
scrutiny only when the regulation was, as here, enacted
pursuant to the State’s interest in protecting its citizens
from ineffective or harmful professional services.
Because the State’s regulatory authority over licensed
professionals stems from its duty to protect the clients of
these professionals, a state law may be subject to strict
scrutiny if designed to advance an interest unrelated to
client protection. Thus, a law designed to combat
terrorism is not a professional regulation, and,
accordingly, may be subject to strict scrutiny. See
Humanitarian Law Project, 561 U.S. at 25–28. Similarly,
a law that is not intended to protect a professional’s
clients, but to insulate certain laws from constitutional
challenge, is more than just a regulation of professional
speech and, accordingly, intermediate scrutiny is not the
proper standard of review. See Legal Servs. Corp. v.
Velazquez, 531 U.S. 533, 540–49 (2001).18
18
Like Humanitarian Law Project, Velazquez concerned
federal legislation which could not have been passed pursuant
to the State’s police power. Velazquez, 531 U.S. at 536.
44
We recognize that our sister circuits have
concluded that regulations of professional speech are
subject to a more deferential standard of review or,
possibly, no review at all. See Pickup, 740 F.3d at 1231;
Wollschlaeger, 2014 WL 3695296, at *13–14; Moore-
King, 708 F.3d at 567–70. Pickup, for example, cited
Casey, 505 U.S. at 884, 967–68 (plurality opinion), as
support for its decision to apply rational basis review to a
similar statute. Pickup, 740 F.3d at 1231.19
19
Pickup is the only court to explicitly apply rational
basis review to a regulation of professional speech. 740 F.3d
at 1231. Wollschlaeger and Moore-King, by contrast, do not
explicitly identify the level of scrutiny they apply, if they
apply one at all. In Wollschlaeger, the majority held that “a
statute that governs the practice of an occupation is not
unconstitutional as an abridgment of the right to free speech,
so long as any inhibition of that right is merely the incidental
effect of observing an otherwise legitimate regulation.” 2014
WL 3695296, at *13 (internal quotation marks and citation
omitted); see also id. at *15 (noting that generally applicable
licensing regimes “do[] not implicate constitutionally
protected activity under the First Amendment”) (internal
quotation marks and citations omitted). But see id. at *41
(Wilson, J., dissenting) (interpreting the majority opinion to
apply rational basis review). Similarly, in Moore-King, the
majority held that “[u]nder the professional speech doctrine,
the government can license and regulate those who would
provide services to their clients for compensation without
running afoul of the First Amendment.” 708 F.3d at 569. But
45
To the extent Casey suggested rational basis
review, we do not believe such a standard governs here.
While the plurality opinion noted in passing that speech,
when part of the practice of medicine, is “subject to
reasonable licensing and regulation by the State,” 505
U.S. at 884 (emphasis added), the regulation it addressed
fell within a special category of laws that compel
disclosure of truthful factual information, id. at 881. In
the context of commercial speech, the Supreme Court has
treated compelled disclosures of truthful factual
information differently than prohibitions of speech,
subjecting the former to rational basis review and the
latter to intermediate scrutiny. See Zauderer v. Office of
Disciplinary Counsel of Supreme Court of Ohio, 471
U.S. 626, 650–51 (1985) (outlining the “material
differences between disclosure requirements and outright
prohibitions on speech” and subjecting a disclosure
requirement to rational basis review). Thus, to the extent
Casey applied rational basis review, this facet of the
opinion is inapplicable to the present case because the
law at issue is a prohibition of speech, not a compulsion
of truthful factual information. See Wollschlaeger, 2014
WL 3695296, at *38 (Wilson, J., dissenting) (reasoning
that “[e]ven if Casey applied something less than
see id. at 570 (refusing to “afford the government carte
blanche in crafting or implementing [occupational]
regulations” and refraining from “delineat[ing] the precise
boundaries of permissible occupational regulation under the
professional speech doctrine”).
46
intermediate scrutiny,” Zauderer establishes that a more
stringent standard of review should apply to restrictions
on professional speech.).
Additionally, we have serious doubts that anything
less than intermediate scrutiny would adequately protect
the First Amendment interests inherent in professional
speech. Without sufficient judicial oversight, legislatures
could too easily suppress disfavored ideas under the
guise of professional regulation. See Pickup, 740 F.3d at
1215 (O’Scannlain, J., dissenting from denial of
rehearing en banc). This possibility is particularly
disturbing when the suppressed ideas concern specialized
knowledge that is unlikely to reach the general public
through channels other than the professional-client
relationship. Intermediate scrutiny is necessary to ensure
that State legislatures are regulating professional speech
to prohibit the provision of harmful or ineffective
professional services, not to inhibit politically-disfavored
messages.
Lastly, we reject Plaintiffs’ argument that A3371
should be subject to strict scrutiny because it
discriminates on the basis of content and viewpoint. First,
although we agree with Plaintiffs that A3371
discriminates on the basis of content,20 it does so in a way
20
We have little doubt in this conclusion. A3371, on its
face, prohibits licensed counselors from speaking words with
a particular content; i.e. words that “seek[] to change a
47
that does not trigger strict scrutiny. Ordinarily, content-
based regulations are highly disfavored and subjected to
strict scrutiny. See Sorrell v. IMS Health, Inc., 131 S. Ct.
2653, 2664 (2011). And this is generally true even when
the law in question regulates unprotected or lesser
protected speech. See R.A.V. v. City of St. Paul, 505 U.S.
377, 381–86 (1992). Nonetheless, within these
unprotected or lesser protected categories of speech, the
Supreme Court has held that a statute does not trigger
strict scrutiny “[w]hen the basis for the content
discrimination consists entirely of the very reason the
entire class of speech at issue is proscribable.” Id. at 388.
By way of illustration, the Court explained:
[A] State may choose to regulate price
advertising in one industry but not in others,
because the risk of fraud (one of the
characteristics of commercial speech that
justifies depriving it of full First
Amendment protection) is in its view greater
there. But a State may not prohibit only that
commercial advertising that depicts men in a
demeaning fashion.
Id. at 388–89 (internal citations omitted).
person’s sexual orientation.” N.J. Stat Ann. § 45:1-55. Thus,
as in Humanitarian Law Project, “Plaintiffs want to speak to
[minor clients], and whether they may do so under [A3371]
depends on what they say.” 561 U.S. at 27.
48
A3371 fits comfortably within this category of
permissible content discrimination. As with the content-
based regulations identified by R.A.V. as permissible,
“the basis for [A3371’s] content discrimination consists
entirely of the very reason” professional speech is a
category of lesser-protected speech. Id. at 388. The New
Jersey legislature has targeted SOCE counseling for
prohibition because it was presented with evidence that
this particular form of counseling is ineffective and
potentially harmful to clients. Thus, the reason
professional speech receives diminished protection under
the First Amendment—i.e., because of the State’s
longstanding authority to protect its citizens from
ineffective or harmful professional practices—is
precisely the reason New Jersey targeted SOCE
counseling with A3371. Therefore, we conclude that
A3371 does not trigger strict scrutiny by discriminating
on the basis of content in an impermissible manner.
Nor do we agree that A3371 triggers strict scrutiny
because it discriminates on the basis of viewpoint.
Plaintiffs argue that A3371 prohibits them from
expressing the viewpoint “that [same sex attractions] can
be reduced or eliminated to the benefit of the client.”
Appellant’s Br. 26. That is a misreading of the statute.
A3371 allows Plaintiffs to express this viewpoint, in the
form of their personal opinion, to anyone they please,
including their minor clients. What A3371 prevents
Plaintiffs from doing is expressing this viewpoint in a
49
very specific way—by actually rendering the
professional services that they believe to be effective and
beneficial. Arguably, any time a professional engages in
a particular professional practice she is implicitly
communicating the viewpoint that such practice is
effective and beneficial. The prohibition of this method
of communicating a particular viewpoint, however, is not
the type of viewpoint discrimination with which the First
Amendment is concerned. If it were, State legislatures
could never ban a particular professional practice without
triggering strict scrutiny. Thus, a statute banning licensed
psychotherapists from administering treatments based on
phrenology would be subject to strict scrutiny because it
prevents these therapists from expressing their belief in
phrenology by putting it into practice. Such a rule would
unduly undermine the State’s authority to regulate the
practice of licensed professions.
Accordingly, we believe intermediate scrutiny is
the applicable standard of review in this case. We must
uphold A3371 if it “directly advances” the government’s
interest in protecting clients from ineffective and/or
harmful professional services, and is “not more extensive
than necessary to serve that interest.” See Central
Hudson, 447 U.S. at 566. Those are the questions we
next address.
D.
50
Our analysis begins with an evaluation of New
Jersey’s interest in the passage of A3371. As we have
previously explained, the State’s interest in protecting its
citizens from harmful professional practices is
unquestionably substantial. See Goldfarb, 421 U.S. at
792; Watson, 218 U.S. at 176. Here, New Jersey’s stated
interest is even stronger because A3371 seeks to protect
minor clients—a population that is especially vulnerable
to such practices. See Supplemental App. 85 (Declaration
of Douglas C. Haldeman, Ph.D.) (explaining that
adolescent and teenage clients are “much more
vulnerable to the potentially traumatic effects of SOCE”
because their “pre-frontal cort[ices] [are] still developing
and changing rapidly”).
Our next task, then, is to determine whether A3371
directly advances this interest by prohibiting a
professional practice that poses serious health risks to
minors. To survive heightened scrutiny, the State must
establish that the harms it believes SOCE counseling
presents are “real, not merely conjectural, and that the
regulation will in fact alleviate these harms in a direct
and material way.” Turner Broad. Sys., Inc. v. F.C.C.,
512 U.S. 622, 664 (1994) (plurality opinion) (“Turner I”)
(citations omitted). See also Pitt News v. Pappert, 379
F.3d 96, 107 (3d Cir. 2004) (explaining that legislatures
cannot meet this burden by relying on “mere speculation
or conjecture”) (quoting Edenfield v. Fane, 507 U.S. 761,
770–71 (1992)). Even when applying intermediate
51
scrutiny, however, we do not review a legislature’s
empirical judgment de novo—our task is merely to
determine whether the legislature has “drawn reasonable
inferences based on substantial evidence.” Turner Broad.
Sys., Inc., v. F.C.C., 520 U.S. 180, 195 (1997) (“Turner
II”) (internal quotation marks and citation omitted).
Further, “[t]he quantum of empirical evidence needed to
satisfy heightened judicial scrutiny of legislative
judgments will vary up or down with the novelty and
plausibility of the justification raised.” Nixon v. Shrink
Mo. Gov’t PAC, 528 U.S. 377, 391 (2000).
We conclude that New Jersey has satisfied this
burden. The legislative record demonstrates that over the
last few decades a number of well-known, reputable
professional and scientific organizations have publicly
condemned the practice of SOCE, expressing serious
concerns about its potential to inflict harm. Among
others, the American Psychological Association, the
American Psychiatric Association, and the Pan American
Health Organization have warned of the “great” or
“serious” health risks accompanying SOCE counseling,
including depression, anxiety, self-destructive behavior,
and suicidality. N.J. Stat. Ann. § 45:1-54 (collecting
additional position statements and articles from the
American Academy of Pediatrics, the American
Psychoanalytic Association, and the American Academy
of Child and Adolescent Psychiatry warning of the health
risks posed by SOCE counseling). Many such
52
organizations have also concluded that there is no
credible evidence that SOCE counseling is effective. See
id.
We conclude that this evidence is substantial.
Legislatures are entitled to rely on the empirical
judgments of independent professional organizations that
possess specialized knowledge and experience
concerning the professional practice under review,
particularly when this community has spoken with such
urgency and solidarity on the subject. Such evidence is a
far cry from the “mere speculation or conjecture” our
cases have held to be insufficient. Pitt News, 379 F.3d at
107 (internal quotation marks and citations omitted).
Plaintiffs do not dispute the views of the
professional community at large concerning the efficacy
and potential harmfulness of SOCE counseling. Instead,
they fault the legislature for passing A3371 without first
obtaining conclusive empirical evidence regarding the
effect of SOCE counseling on minors. To be sure, the
APA Report suggests that the bulk of empirical evidence
regarding the efficacy or harmfulness of SOCE
counseling currently falls short of the demanding
standards imposed by the scientific community. See J.A.
327 (noting the “limited amount of methodologically
sound research” on SOCE counseling); id. at 367 (noting
that “[t]he few early research investigations that were
conducted with scientific rigor raise concerns about the
safety of SOCE” but refusing “to make a definitive
53
statement about whether recent SOCE is safe or harmful
and for whom” due to a lack of “scientifically rigorous
studies” of these practices).21
Yet a state legislature is not constitutionally
required to wait for conclusive scientific evidence before
acting to protect its citizens from serious threats of harm.
See United States v. Playboy Entm’t Grp., Inc., 529 U.S.
803, 822 (2000) (“This is not to suggest that a 10,000-
page record must be compiled in every case or that the
Government must delay in acting to address a real
problem; but the Government must present more than
anecdote and suspicion.”). This is particularly true when
a legislature’s empirical judgment is highly plausible, as
we conclude New Jersey’s judgment is in this case. See
Nixon, 528 U.S. at 391. It is not too far a leap in logic to
conclude that a minor client might suffer psychological
harm if repeatedly told by an authority figure that her
sexual orientation—a fundamental aspect of her
identity—is an undesirable condition. Further, if SOCE
counseling is ineffective—which, as we have explained,
is supported by substantial evidence—it would not be
unreasonable for a legislative body to conclude that a
minor would blame herself if her counselor’s efforts
21
It is worth noting that although the APA Report was
uncomfortable making a “definitive” statement about the
effects of SOCE, it did ultimately observe that there was at
least “some evidence to indicate that individuals experienced
harm from SOCE.” J.A. 287, 367.
54
failed. Given the substantial evidence with which New
Jersey was presented, we cannot say that these fears are
unreasonable. We therefore conclude that A3371
“directly advances” New Jersey’s stated interest in
protecting minor citizens from harmful professional
practices.
Lastly, we must determine whether A3371 is more
extensive than necessary to protect this interest. To
survive this prong of intermediate scrutiny, New Jersey
“is not required to employ the least restrictive means
conceivable, but it must demonstrate narrow tailoring of
the challenged regulation to the asserted interest.”
Greater New Orleans Broad. Ass’n, Inc. v. United States,
527 U.S. 173, 188 (1999) (citing Board of Tr. of State
Univ. of New York v. Fox, 492 U.S. 469, 480 (1989)).22
Thus, New Jersey must establish “a fit that is not
necessarily perfect, but reasonable; that represents not
necessarily the single best disposition but one whose
scope is in proportion to the interest served.” Id. (quoting
Fox, 492 U.S. at 480); see also Heffner v. Murphy, 745
F.3d 56, 92–93 (3d Cir. 2014) (upholding regulation of
commercial speech while acknowledging that the fit
between the statute and its interests was “imperfect”).
22
As explained in Fox, the word “necessary,” in the
context of intermediate scrutiny, does not “translate into [a]
‘least-restrictive-means’ test” but instead has a “more flexible
meaning.” 492 U.S. at 476–77.
55
Plaintiffs argue that A3371’s ban is overly
burdensome, and that New Jersey’s objectives could be
accomplished in a less restrictive manner via a
requirement that minor clients give their informed
consent before undergoing SOCE counseling. We are not
convinced, however, that an informed consent
requirement would adequately serve New Jersey’s
interests. Minors constitute an “especially vulnerable
population,” see J.A. 405 (APA Report, Appendix A),
and may feel pressured to receive SOCE counseling by
their families and their communities despite their fear of
being harmed, see J.A. 301 (APA Report) (explaining
that “hostile social and family attitudes” are among the
reasons minors seek SOCE counseling). Thus, even if
SOCE counseling were helpful in a small minority of
cases—and the legislature, based on the body of evidence
before it, was entitled to reach a contrary conclusion—an
informed consent requirement could not adequately
ensure that only those minors that could benefit would
agree to move forward. As Plaintiffs have offered no
other suggestion as to how the New Jersey legislature
could achieve its interests in a less restrictive manner, we
conclude that A3371 is sufficiently tailored to survive
intermediate scrutiny.
Accordingly, we conclude that A3371 is a
permissible prohibition of professional speech.
F.
56
Lastly, Plaintiffs argue that A3371 is
unconstitutionally vague and overbroad. We disagree.
The Supreme Court has held that “standards of
permissible statutory vagueness are strict in the area of
free expression.” NAACP v. Button, 371 U.S. 415, 432
(1963) (citations omitted). “Because First Amendment
freedoms need breathing space to survive, government
may regulate in the area only with narrow specificity.”
Id. at 433 (citation omitted). Nonetheless, “perfect clarity
and precise guidance have never been required even of
regulations that restrict expressive activity.” Ward v.
Rock Against Racism, 491 U.S. 781, 794 (1989)
(citations omitted). “[B]ecause we are condemned to the
use of words, we can never expect mathematical certainty
from our language.” Hill v. Colorado, 530 U.S. 730, 733
(2000) (internal quotation marks and citation omitted).
Thus, “speculation about possible vagueness in
hypothetical situations not before the Court will not
support a facial attack on a statute when it is surely valid
in the vast majority of its intended applications.” Id.
(internal quotation marks and citation omitted).
Plaintiffs argue that A3371 is unconstitutional on
its face because the term “sexual orientation change
57
efforts” is impermissibly vague.23 We disagree. Under
A3371, this term is defined as:
[T]he practice of seeking to change a
person’s sexual orientation, including, but
not limited to, efforts to change behaviors,
gender identity, or gender expressions, or to
reduce or eliminate sexual or romantic
attractions or feelings toward a person of the
same gender; except that sexual orientation
change efforts shall not include counseling
for a person seeking to transition from one
gender to another, or counseling that:
(1) provides acceptance, support, and
understanding of a person or
facilitates a person’s coping, social
support, and identity exploration and
development, including orientation-
neutral interventions to prevent or
address unlawful conduct or unsafe
sexual practices; and
(2) does not seek to change sexual
orientation.
23
In the District Court, Plaintiffs also argued that the
phrase “sexual orientation” is unconstitutionally vague. They
do not pursue this argument on appeal.
58
N.J. Stat. Ann. § 45:1-55. While this statutory definition
may not provide “perfect clarity,” Hill, 530 U.S. at 733
(quotation marks and citation omitted), its list of
illustrative examples provides boundaries that are
sufficiently clear to pass constitutional muster. Further,
counseling designed to change a client’s sexual
orientation is recognized as a discrete practice within the
profession. Such counseling is sometimes referred to as
“reparative” or “conversion” therapy and has been the
specific target of public statements by recognized
professional organizations. See N.J. Stat. Ann. § 45:1-54
(quoting statements from the American Psychiatric
Association, the National Association of Social Workers,
the American Counseling Association Governing
Council, and the Pan American Health Organization
referring to this practice). Plaintiffs themselves claim
familiarity with this form of counseling and acknowledge
that many counselors “specialize” in such practices. See,
e.g., J.A. 168 (Decl. of Dr. Tara King) (explaining that
Dr. King provides “sexual orientation change efforts
(‘SOCE’) counseling”); J.A. 177 (Decl. of Dr. Ronald
Newman) (explaining that “part of [Dr. Newman’s]
practice involves what is often called sexual orientation
change efforts (‘SOCE’) counseling”); J.A. 182 (Decl. of
David Pruden, on behalf of NARTH) (explaining that
“NARTH provides various presentations across the
country hosted by mental health professionals who
specialize in what is referred to in A3371 as sexual
orientation change efforts (‘SOCE’) counseling”). To
59
those in the field of professional counseling, the meaning
of this term is sufficiently definite “in the vast majority
of its intended applications.” Hill, 530 U.S. at 733
(quotation marks and citation omitted). Thus, we reject
Plaintiffs’ argument that A3371 is unconstitutionally
vague.
As to overbreadth, a statute that impinges upon
First Amendment freedoms is impermissibly overbroad if
“a substantial number of its applications are
unconstitutional, judged in relation to [its] plainly
legitimate sweep.” United States v. Stevens, 559 U.S.
460, 473 (2010) (quoting Washington State Grange v.
Washington State Republican Party, 552 U.S. 442, 449
n.6 (2008)). Plaintiffs’ only argument on this front is that
A3371 prohibits SOCE counseling even when, in
Plaintiffs’ view, such counseling would be especially
beneficial. See Appellant’s Br. 47 (arguing that A3371
prevents a minor from receiving SOCE counseling even
if the cause of their same-sex attractions was sexual
abuse). This argument, however, is nothing more than a
disagreement with New Jersey’s empirical judgments
regarding the effect of SOCE counseling on minors. As
we have already concluded, New Jersey’s reasons for
banning SOCE counseling were sufficiently supported by
the legislative record. Thus, we hold that A3371 is not
unconstitutionally overbroad.
60
IV.
Plaintiffs’ second constitutional claim is that
A3371 violates their First Amendment right to the free
exercise of religion. For the reasons that follow, we
conclude that this claim also lacks merit.
Under the Religion Clauses of the First
Amendment, “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise
thereof.” The right to freely exercise one’s religion,
however, is not absolute. McTernan v. City of York, 577
F.3d 521, 532 (3d Cir. 2009). If a law is “neutral” and
“generally applicable,” it will withstand a free exercise
challenge so long as it is “rationally related to a
legitimate government objective.” Brown v. City of
Pittsburgh, 586 F.3d 263, 284 (3d Cir. 2009) (citation
omitted). This is so even if the law “has the incidental
effect of burdening a particular religious practice” or
group. Id. at 284 (quoting Church of the Lukumi Babalu
Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993)).
The issue before us, then, is whether A3371 is
“neutral” and “generally applicable.” “A law is ‘neutral’
if it does not target religiously motivated conduct either
on its face or as applied in practice.” Blackhawk v.
Pennsylvania., 381 F.3d 202, 209 (3d Cir. 2004) (citing
Lukumi, 508 U.S. at 533–40; Tenafly Eruv Ass’n, Inc. v.
Borough of Tenafly, 309 F.3d 144, 167 (3d Cir. 2002)).
61
“A law fails the general applicability requirement if it
burdens a category of religiously motivated conduct but
exempts or does not reach a substantial category of
conduct that is not religiously motivated and that
undermines the purposes of the law to at least the same
degree as the covered conduct that is religiously
motivated.” Id. at 209 (citations omitted).
As a preliminary matter, A3371 makes no explicit
reference to any religion or religious beliefs, and is
therefore neutral on its face. See Lukumi, 508 U.S. at
533–34. Nevertheless, Plaintiffs argue that A3371
covertly targets their religion by prohibiting counseling
that is generally religious in nature while permitting other
forms of counseling that are equally harmful to minors.
Specifically, Plaintiffs contend that A3371 operates as an
impermissible “religious gerrymander”24 because it
provides “individualized exemptions” for counseling:
(1) for minors seeking to transition from one
gender to another, (2) for minors struggling
with or confused about heterosexual
24
A “religious gerrymander” occurs when the boundaries
of statutory coverage are “artfully drawn” to target or exclude
religiously-motivated activity. American Family Ass’n, Inc. v.
F.C.C., 365 F.3d 1156, 1170 (D.C. Cir. 2004); see also
Lukumi, 508 U.S. at 535 (describing a “religious
gerrymander” as “an impermissible attempt to target
petitioners and their religious practices”).
62
attractions, behaviors, or identity, (3) that
facilitates exploration and development of
same-sex attractions, behaviors, or identity,
(4) for individuals over the age of 18, and
(5) provided by unlicensed counselors.
Appellant’s Br. 51.
None of these five “exemptions,” however,
demonstrate that A3371 covertly targets religiously
motivated conduct. Plaintiffs’ first and third
“exemptions” are not compelling because nothing in the
record suggests that these forms of counseling are
equally harmful to minors. Plaintiffs’ second
“exemption,” which implies that A3371 would permit
heterosexual-to-homosexual change efforts, misinterprets
the statute; A3371 prohibits all “sexual orientation
change efforts” regardless of the direction of the desired
change. See N.J. Stat. Ann. § 45:1-55 (defining “sexual
orientation change efforts” as “including, but not limited
to,” efforts to eliminate same sex attractions) (emphasis
added). Lastly, Plaintiffs’ fourth and fifth “exemptions”
are simply irrelevant because they have nothing to do
with religion. Plaintiffs fail to explain how A3371’s
focus on the professional status of the counselor or the
63
age of the client belies a concealed intention to suppress
a particular religious belief.25
Accordingly, we conclude that A3371 is neutral
and generally applicable, and therefore triggers only
rational basis review. In so doing, we reject Plaintiffs’
argument that even if A3371 were neutral and generally
applicable, it should be subject to strict scrutiny under a
“hybrid rights” theory. Specifically, Plaintiffs contend
that because A3371 “burdens” both their free exercise
and free speech rights, they have presented a “hybrid
rights” claim that triggers heightened scrutiny. We have
previously refused to endorse such a theory, McTernan v.
25
Plaintiffs also argue that A3371’s neutrality is
undermined by a statement made by one of the members of
the Task Force that authored the 2009 APA Report.
According to Plaintiffs, this researcher claimed that the APA
Task Force was unwilling to “take into account what are
fundamentally negative religious perceptions of
homosexuality—they don’t fit into our world view.”
Appellant’s Br. 52. Plaintiffs fail to explain, however, how
this statement reflects the New Jersey legislature’s motives in
passing A3371. This statement was made by one of several
members of the APA Task Force, which produced only one of
the many pieces of evidence on which the legislature relied
when passing A3371. It by no means establishes that New
Jersey was secretly motivated by religious animus, as
opposed to their stated objective of protecting minor citizens
from harm.
64
City of York, Pa., 564 F.3d 636, 647 n.5 (3d Cir. 2009),
and we refuse to do so today. See also Combs v. Homer-
Center Sch. Dist., 540 F.3d 231, 247 (3d Cir. 2008)
(“Until the Supreme Court provides direction, we believe
the hybrid-rights theory to be dicta.”). Because we have
already concluded that A3371 survives intermediate
scrutiny, it follows ipso facto that this law is rationally
related to a legitimate government interest. Therefore, we
will affirm the District Court’s dismissal of this claim.
V.
Plaintiffs also argue that the District Court erred by
concluding that they lacked standing to bring claims on
behalf of their minor clients.26 This argument is also
without merit.
“It is a well-established tenet of standing that ‘a
litigant must assert his or her own legal rights and
interests, and cannot rest a claim to relief on the legal
rights or interests of third parties.’” Pennsylvania
Psychiatric Soc’y v. Green Spring Health Servs., Inc.,
280 F.3d 278, 288 (3d Cir. 2002) (quoting Powers v.
Ohio, 499 U.S. 400, 410 (1991)). “Yet the prohibition is
not invariable and our jurisprudence recognizes third-
party standing under certain circumstances.” Id. (citations
26
Although Plaintiffs’ complaint alleged claims on
behalf of their patients’ parents, Plaintiffs do not pursue these
claims on appeal.
65
omitted). To establish third-party standing, a litigant must
demonstrate that (1) she has suffered an “injury in fact”
that provides her with a “sufficiently concrete interest in
the outcome of the issue in dispute”; (2) she has a “close
relation to the third party”; and (3) there exists “some
hindrance to the third party’s ability to protect his or her
own interests.” Powers, 499 U.S. at 411 (internal
quotation marks and citations omitted). In the present
case, the parties agree that licensed counselors have a
sufficiently “close relationship” to their clients, see
Pennsylvania Psychiatric Soc’y, 280 F.3d at 289–90, but
dispute whether Plaintiffs have suffered a sufficient
“injury in fact” and whether Plaintiffs’ clients are
sufficiently “hindered” in their ability to bring suit
themselves. We will address these two elements in turn.
Plaintiffs argue that the District Court erred by
holding that they did not suffer an “injury in fact.” We
agree. The District Court reasoned that “Plaintiffs’ ability
to bring third-party claims hinges on whether they
suffered any constitutional wrongs by the passage of
A3371.” J.A. 24. We have never held, however, that a
plaintiff must possess a successful constitutional claim in
order to establish an “injury in fact” sufficient to confer
third-party standing. In Craig v. Boren, 429 U.S. 190,
191–97 (1976), for example, the Supreme Court granted
third-party standing to a vendor who did not even allege
a violation of her own constitutional rights—she merely
alleged that the law at issue, in violating the rights of her
66
customers, resulted in a reduction in her sales. Here,
Plaintiffs are similarly injured by A3371 in that they are
forced to either sacrifice a portion of their client base or
disobey the law and risk the loss of their licenses. Thus,
we conclude that Plaintiffs have a “sufficiently concrete
interest” in this dispute regardless of whether A3371
violates their constitutional rights.
We agree with Defendants, however, that Plaintiffs
have failed to establish that their clients are “hindered” in
their ability to bring suit themselves. The only evidence
Plaintiffs provide on this issue is Dr. Newman’s assertion
that “[n]either of [his] clients wants others to even know
they are in therapy.”27 J.A. 448 (Decl. of Ronald
Newman, Ph.D.). While a fear of social stigma can in
some circumstances constitute a substantial obstacle to
filing suit, see Pennsylvania Psychiatric Soc’y, 280 F.3d
at 290, Plaintiffs’ evidence does not sufficiently establish
the presence of such fear here. Further, we note that
minor clients have been able to file suit pseudonymously
in both Pickup and Doe v. Christie, 2014 WL 3765310
(D.N.J. July 31, 2014). While we disagree with the
District Court that the presence of such lawsuits is
27
Further, Dr. Newman made this assertion as a
justification for not asking his patients to testify in open court,
not as a reason these patients would be unwilling to file suit
under a pseudonym. J.A. 448 (Decl. of Ronald Newman,
Ph.D.).
67
dispositive,28 the fact that minor clients have previously
filed suit bolsters our conclusion that they are not
sufficiently hindered in their ability to protect their own
interests. Accordingly, we hold that Plaintiffs lack
standing to pursue claims on behalf of their minor clients.
VI.
Plaintiffs also argue that the District Court erred by
allowing Garden State to intervene. They advance two
arguments on this point: first, that the District Court
erroneously concluded that Garden State was not
required to possess Article III standing; and second, that
the District Court abused its discretion by permitting
Garden State to intervene under Federal Rule of Civil
Procedure 24(b). For the reasons that follow, we reject
both arguments.
28
The District Court reasoned that “since these litigants
are bringing their own action against Defendants, there can be
no serious argument that these third parties are facing
obstacles that would prevent them from pursuing their own
claims.” J.A. 22. As we have explained, however, “a party
need not face insurmountable hurdles to warrant third-party
standing.” Pennsylvania Psychiatric Soc’y, 280 F.3d at 290
(citation omitted). Thus, the fact that a few patients have been
able to overcome certain obstacles does not necessarily
preclude a determination that these obstacles are a
“hindrance” sufficient to justify third-party standing.
68
A.
“Article III of the Constitution limits the power of
federal courts to deciding ‘cases’ and ‘controversies.’
This requirement ensures the presence of the ‘concrete
adverseness which sharpens the presentation of issues
upon which the court so largely depends for illumination
of difficult constitutional questions.’” Diamond v.
Charles, 476 U.S. 54, 61–62 (1986) (citing Baker v.
Carr, 369 U.S. 186, 204 (1962)). In order to ensure that
such a “case” or “controversy” is present, the Supreme
Court has consistently required prospective plaintiffs to
establish Article III standing in order to pursue a lawsuit
in federal court. See, e.g., id. at 62. Prospective plaintiffs
must therefore allege a “personal injury fairly traceable
to the defendant’s allegedly unlawful conduct and likely
to be redressed by the requested relief.” Already, LLC v.
Nike, Inc., 133 S. Ct. 721, 726 (2013) (quotation marks
and citation omitted).
Whether prospective intervenors must establish
Article III standing, however, is an open question in the
Third Circuit. See American Auto. Ins. Co. v. Murray,
658 F.3d 311, 318 n.4 (3d Cir. 2011) (“[W]e need not
today resolve the issue of whether a party seeking to
intervene must have Article III standing.”). As the
District Court acknowledged, our sister circuits are
divided on this question. The majority have held that an
intervenor is not required to possess Article III standing
69
to participate. See San Juan Cnty. v. United States, 503
F.3d 1163, 1171–72 (10th Cir. 2007) (en banc); Ruiz v.
Estelle, 161 F.3d 814, 830–33 (5th Cir. 1998); Associated
Builders & Contractors v. Perry, 16 F.3d 688, 690 (6th
Cir. 1994); Yniguez v. Arizona, 939 F.2d 727, 731 (9th
Cir. 1991); Chiles v. Thornburgh, 865 F.2d 1197, 1213
(11th Cir. 1989); and United States Postal Serv. v.
Brennan, 579 F.2d 188, 190 (2d Cir. 1978). The Eighth
and D.C. Circuits have reached a contrary conclusion.
See Mausolf v. Babbitt, 85 F.3d 1295, 1300 (8th Cir.
1996); Southern Christian Leadership Conference v.
Kelley, 747 F.2d 777, 779 (D.C. Cir. 1984).29
29
The District Court cited United States v. 36.96 Acres of
Land, 754 F.2d 855 (7th Cir. 1985), as falling on this side of
the split as well. While 36.96 Acres held that a party seeking
intervention as of right must demonstrate an interest that is
“greater than the interest sufficient to satisfy the standing
requirement,” id. at 859, it is unclear whether the Seventh
Circuit concluded that this greater interest was required by
Article III of the Constitution or merely by the then-existing
version of Rule 24(a). See Ruiz, 161 F.3d at 831 (explaining
that “of the cases cited in Diamond”—including 36.96
Acres—“only Kelly maintains that Article III (and not just
Rule 24(a)(2) & 24(b)(2)) requires intervenors to possess
standing.”). To the extent 36.96 held that a greater interest
was constitutionally required, it provided no reasoning for
that conclusion and thus carries no persuasive weight.
70
We find the majority’s view more persuasive. If
the plaintiff that initiated the lawsuit in question has
Article III standing, a “case” or “controversy” exists
regardless of whether a subsequent intervenor has such
standing. See Ruiz, 161 F.3d at 832 (“Once a valid
Article III case-or-controversy is present, the court’s
jurisdiction vests. The presence of additional parties,
although they alone could independently not satisfy
Article III’s requirements, does not of itself destroy
jurisdiction already established.”); Chiles, 865 F.2d at
1212 (“Intervention under Rule 24 presumes that there is
a justiciable case into which an individual wants to
intervene.”).
Further, while the Supreme Court has never
explicitly concluded that intervenors need not possess
Article III standing, this conclusion is implicit in several
decisions in which it has questioned whether a particular
intervenor has Article III standing but nonetheless
refrained from resolving the issue. See, e.g., McConnell
v. Federal Election Comm’n, 540 U.S. 93, 233 (2003)
(“It is clear, however, that the [named defendant] has
standing, and therefore we need not address the standing
of the intervenor-defendants . . . .”), overruled on other
grounds by Citizens United v. Federal Election Comm’n,
558 U.S. 310 (2010); Arizonans for Official English v.
Arizona, 520 U.S. 43, 66 (1997) (expressing “grave
doubts” about whether intervenors possessed Article III
standing but concluding that it “need not definitively
71
resolve the issue”). As the Tenth Circuit reasoned in San
Juan Cnty., the Supreme Court could not have avoided
these questions if intervenors were required to have
standing under Article III “because the Court could not
simply ignore whether the requirements of Article III had
been satisfied.” 503 F.3d at 1172. See also id. (“Standing
implicates a court’s jurisdiction, and requires a court
itself to raise and address standing before reaching the
merits of the case before it.”) (quotation marks and
citations omitted).
Accordingly, we conclude that the District Court
did not err by determining that Garden State need not
demonstrate Article III standing in order to intervene.
B.
Plaintiffs also argue that the District Court abused
its discretion by permitting Garden State to intervene
under Federal Rule of Civil Procedure 24(b). This
argument lacks merit as well.
Rule 24(b) provides that “[o]n timely motion, the
court may permit anyone to intervene who: (A) is given a
conditional right to intervene by a federal statute; or (B)
has a claim or defense that shares with the main action a
common question of law or fact.” Fed. R. Civ. P.
24(b)(1). In exercising its discretion, a district court
“must consider whether the intervention will unduly
72
delay or prejudice the adjudication of the original parties’
rights.” Fed. R. Civ. P. 24(b)(3). We have previously
noted that a district court’s ruling on a motion for
permissive intervention is a “highly discretionary
decision” into which we are “reluctant to intrude.” Brody
By and Through Sugzdinis v. Spang, 957 F.2d 1108, 1115
(3d Cir. 1992).
We see no reason to disturb the District Court’s
decision in this case. Garden State’s motion was timely,
as it was filed a mere 14 days after the complaint. Garden
State and New Jersey also share the common legal
position that A3371 does not violate Plaintiffs’ First
Amendment rights. Lastly, Plaintiffs’ argument that they
are unduly prejudiced by having to respond to
“superfluous arguments” is not convincing. Accordingly,
we conclude that the District Court did not abuse its
discretion by permitting Garden State to intervene.
VII.
Although we reject the District Court’s conclusion
that A3371 prohibits only “conduct” that is wholly
unprotected by the First Amendment, we uphold the
statute as a regulation of professional speech that passes
intermediate scrutiny. We agree with the District Court
that A3371 does not violate Plaintiffs’ right to free
exercise of religion, as it is a neutral and generally
applicable law that is rationally related to a legitimate
73
government interest. We further agree that Plaintiffs lack
standing to bring claims on behalf of their minor clients,
and conclude that the District Court did not abuse its
discretion by permitting Garden State to intervene.
Accordingly, we will affirm the judgment of the District
Court.
74