David Pickup v. Edmund Brown, Jr.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID H. PICKUP; CHRISTOPHER H. No. 12-17681
ROSICK; JOSEPH NICOLOSI; ROBERT
VAZZO; NATIONAL ASSOCIATION D.C. No.
FOR RESEARCH AND THERAPY OF 2:12-CV-02497-
HOMOSEXUALITY, a Utah non-profit KJM-EFB
organization; AMERICAN
ASSOCIATION OF CHRISTIAN
COUNSELORS, a Virginia non-profit
association; JACK DOE 1, Parent of
John Doe 1; JANE DOE 1, Parent of
John Doe 1; JOHN DOE 1, a minor,
guardian ad litem Jane Doe, guardian
ad litem Jack Doe; JACK DOE 2,
Parent of John Doe 2; JANE DOE 2,
Parent of John Doe 2; JOHN DOE 2, a
minor, guardian ad litem Jack Doe,
guardian ad litem Jane Doe,
Plaintiffs-Appellants,
v.
EDMUND G. BROWN, JR., Governor
of the State of California, in his
official capacity; ANNA M.
CABALLERO, Secretary of the
California State and Consumer
Services Agency, in her official
capacity; SHARON LEVINE, President
of the Medical Board of California,
in her official capacity; KIM
2 PICKUP V. BROWN
MADSEN, Executive Officer of the
California Board of Behavioral
Sciences, in her official capacity;
MICHAEL ERICKSON, President of the
California Board of Psychology, in
his official capacity,
Defendants-Appellees,
and
EQUALITY CALIFORNIA,
Intervenor-Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
DONALD WELCH; ANTHONY DUK; No. 13-15023
AARON BITZER,
Plaintiffs-Appellees, D.C. No.
2:12-CV-02484-
v. WBS-KJN
EDMUND G. BROWN, JR., Governor
of the State of California, in his ORDER AND
official capacity; ANNA M. AMENDED
CABALLERO, Secretary of California OPINION
State and Consumer Services
Agency, in her official capacity;
DENISE BROWN, Case Manager,
Director of Consumer Affairs, in her
official capacity; CHRISTINE
WIETLISBACH, PATRICIA LOCK-
PICKUP V. BROWN 3
DAWSON, SAMARA ASHLEY, HARRY
DOUGLAS, JULIA JOHNSON, SARITA
KOHLI, RENEE LONNER, KAREN
PINES, CHRISTINA WONG, in their
official capacities as members of the
California Board of Behavioral
Sciences; SHARON LEVINE, MICHAEL
BISHOP, SILVIA DIEGO, DEV
GNANADEV, REGINALD LOW, DENISE
PINES, JANET SALOMONSON, GERRIE
SCHIPSKE, DAVID SERRANO SEWELL,
BARBARA YAROSLAVSKY, in their
official capacities as members of the
Medical Board of California,
Defendants-Appellants.
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, Senior District Judge, Presiding
Argued and Submitted
April 17, 2013—San Francisco, California
Filed August 29, 2013
Amended January 29, 2014
Before: Alex Kozinski, Chief Judge, and Susan P. Graber,
and Morgan Christen, Circuit Judges.
Order;
Dissent to Order by Judge O’Scannlain;
Opinion by Judge Graber
4 PICKUP V. BROWN
SUMMARY*
Civil Rights
The panel replaced its prior opinion, filed on August 29,
2013, and published at 728 F.3d 1042, with an amended
opinion, denied a petition for panel rehearing, denied a
petition for rehearing en banc on behalf of the court, and
ordered that no further petitions shall be entertained.
Reversing an order granting preliminary injunctive relief
in Welch v. Brown, 13-15023, and affirming the denial of
preliminary injunctive relief in Pickup v. Brown, 12-17681,
the panel held that California Senate Bill 1172, which bans
state-licensed mental health providers from engaging in
“sexual orientation change efforts” with patients under 18
years of age, does not violate the free speech rights of
practitioners or minor patients, is neither vague nor
overbroad, and does not violate parents’ fundamental rights.
The panel held that Senate Bill 1172 regulates professional
conduct, not speech and therefore was subject only to a
rational basis review.
Dissenting from the denial of rehearing en banc, Judge
O’Scannlain, joined by Judges Bea and Ikuta stated that by
defining disfavored speech as “conduct,” the panel’s opinion
entirely exempted California’s regulation from the First
Amendment. Judge O’Scannlain stated that in so doing, the
panel contravened recent Supreme Court precedent, ignored
established free speech doctrine, misread Ninth Circuit cases,
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
PICKUP V. BROWN 5
and thus insulated from First Amendment scrutiny
California’s prohibition—in the guise of a professional
regulation—of politically unpopular expression.
COUNSEL
No. 12-17681
Mathew D. Staver (argued) and Anita L. Staver, Liberty
Counsel, Maitland, Florida; Mary E. McAlister, Stephen M.
Crampton, and Daniel J. Schmid, Liberty Counsel,
Lynchburg, Virginia, for Plaintiffs-Appellants David H.
Pickup et al.
Alexandra Robert Gordon (argued), Deputy Attorney
General, Kamala D. Harris, Attorney General of California,
Douglas J. Woods, Senior Assistant Attorney General, Tamar
Pachter, Supervising Deputy Attorney General, and Daniel J.
Powell and Rei R. Onishi, Deputy Attorneys General, San
Francisco, California, for Defendants-Appellees Edmund G.
Brown, Jr., et al.
Shannon P. Minter (argued), National Center for Lesbian
Rights, San Francisco, California; David C. Dinielli, Munger,
Tolles & Olson LLP, Los Angeles, California, for
Intervenor/Defendant-Appellee.
Robert P. Taylor, Arnold & Porter LLP, San Francisco,
California, for Amici Curiae American Association for
Marriage and Family Therapy-California Division, et al.;
Elizabeth O. Gill, ACLU Foundation of Northern California,
Inc., San Francisco, California, for Amicus Curiae American
Civil Liberties Union Foundation of Northern California; Eric
6 PICKUP V. BROWN
Alan Isaacson, San Diego, California, and Stacey M. Kaplan,
San Francisco, California, for Amici Curiae California Faith
for Equality, et al.; Brad W. Seiling, Benjamin G. Shatz, and
Justin Jones Rodriquez, Manatt, Phelps & Phillips, LLP, Los
Angeles, California, and Hayley Gorenberg, Lambda Legal
Defense and Education Fund, Inc., New York, New York,
and Shelbi D. Day, Lambda Legal Defense and Education
Fund, Inc., Los Angeles, California, for Amici Curiae
Children’s Law Center of California, et al.; Jay Rapaport,
Covington & Burling LLP, San Francisco, California, for
Amicus Curiae Dr. Jack Drescher, M.D.; Jon B. Eisenberg
and Barry R. Levy, Encino, California, for Amicus Curiae
First Amendment Scholars; Eileen R. Ridley, Thomas F.
Carlucci, Patrick T. Wong, and Kristy K. Marino, Foley &
Lardner LLP, San Francisco, California, for Amicus Curiae
Health Law Scholars; Adam L. Gray and James Maxwell
Cooper, Kirkland & Ellis LLP, San Francisco, California, for
Amici Curiae Medical Professionals Tonya Chaffee, MD,
MPH, et al.; Tara M. Steeley, Deputy City Attorney, and
Dennis J. Herrera, City Attorney, and Therese Stewart, Mollie
Lee, and Sara Eisenberg, Deputy City Attorneys, San
Francisco, California, for Amicus Curiae The City and
County of San Francisco; and Sanford Jay Rosen, Rosen Bien
Galvan & Grunfeld LLP, San Francisco, California, for
Amicus Curiae Survivors of Sexual Orientation Change
Efforts.
No. 13-15023
Alexandra Robert Gordon (argued), Deputy Attorney
General, Kamala D. Harris, Attorney General of California,
Douglas J. Woods, Senior Assistant Attorney General, Tamar
Pachter, Supervising Deputy Attorney General, and Daniel J.
Powell and Rei R. Onishi, Deputy Attorneys General, and
PICKUP V. BROWN 7
Craig J. Konnoth, Deputy Solicitor General, San Francisco,
California, for Defendants-Appellants Edmund G. Brown, Jr.,
et al.
Kevin T. Snider (argued), Matthew B. McReynolds, and
Michael J. Peffer, Pacific Justice Institute, Sacramento,
California, for Plaintiffs-Appellees Donald Welch et al.
Elizabeth O. Gill, ACLU Foundation of Northern California,
Inc., San Francisco, California, for Amicus Curiae American
Civil Liberties Union Foundation of Northern California;
Peter D. Lepiscopo, William P. Morrow, James M. Griffiths,
and Michael W. Healy, Lepiscopo & Associates Law Firm,
San Diego, California, for Amicus Curiae American College
of Pediatricians; Eric Alan Isaacson, San Diego, California,
and Stacey M. Kaplan, San Francisco, California, for Amici
Curiae California Faith for Equality, et al.; Brad W. Seiling
and Benjamin G. Shatz, Manatt, Phelps & Phillips, LLP, Los
Angeles, California, and Hayley Gorenberg, Lambda Legal
Defense and Education Fund, Inc, New York, New York, and
Shelbi D. Day, Lambda Legal Defense and Education Fund,
Inc., Los Angeles, California, for Amici Curiae Children’s
Law Center of California, et al.; Shannon P. Minter, National
Center for Lesbian Rights, San Francisco, California, and
David C. Dinielli, Munger, Tolles & Olson LLP, Los
Angeles, California, for Amicus Curiae Equality California;
Jon B. Eisenberg and Barry R. Levy, Encino, California, for
Amicus Curiae First Amendment Scholars; John A. Eidsmoe
and Joshua M. Pendergrass, Foundation for Moral Law,
Montgomery, Alabama, for Amicus Curiae Foundation for
Moral Law; Eileen R. Ridley, Thomas F. Carlucci, Patrick T.
Wong, and Kristy K. Marino, Foley & Lardner LLP, San
Francisco, California, for Amicus Curiae Health Law
Scholars; Dean R. Broyles, The National Center for Law &
8 PICKUP V. BROWN
Policy, Escondido, California, for Amicus Curiae Parents and
Friends of Ex-Gays & Gays; and Sanford Jay Rosen, Rosen
Bien Galvan & Grunfeld LLP, San Francisco, California, for
Amicus Curiae Survivors of Sexual Orientation Change
Efforts.
ORDER
The opinion filed on August 29, 2013, and published at
728 F.3d 1042, is replaced by the amended opinion filed
concurrently with this order. With these amendments, the
panel has voted to deny the petitions for panel rehearing and
petitions for rehearing en banc.
The full court has been advised of the petitions for
rehearing en banc. A judge of the court called for a vote on
whether to rehear the matter en banc. On such vote, a
majority of the nonrecused active judges failed to vote in
favor of en banc rehearing.
The petitions for panel rehearing and petitions for
rehearing en banc are DENIED. No further petitions for
panel rehearing or petitions for rehearing en banc shall be
entertained.
PICKUP V. BROWN 9
O’SCANNLAIN, Circuit Judge, joined by BEA and IKUTA,
Circuit Judges, dissenting from the denial of rehearing en
banc:
May the legislature avoid First Amendment judicial
scrutiny by defining disfavored talk as “conduct”? That is
what these cases are really about.
The State of California, in the statute at issue here, has
prohibited licensed professionals from saying certain words
to their clients. By labeling such speech as “conduct,” the
panel’s opinion has entirely exempted such regulation from
the First Amendment. In so doing, the panel contravenes
recent Supreme Court precedent, ignores established free
speech doctrine, misreads our cases, and thus insulates from
First Amendment scrutiny California’s prohibition—in the
guise of a professional regulation—of politically unpopular
expression.
I respectfully dissent from our court’s regrettable failure
to rehear these cases en banc.
I
California enacted Senate Bill 1172 (“SB 1172”), which
subjects state-licensed “mental health providers”1 to
professional discipline for engaging in “sexual orientation
1
According to the statute, “mental health providers” consist not only of
the medical doctor and trained psychologist, but also “psychological
assistant, intern, or trainee, a licensed marriage and family therapist, a
registered marriage and family therapist, intern, or trainee, . . . a licensed
clinical social worker, an associate clinical social worker, a licensed
professional clinical counselor, a registered clinical counselor, intern, or
trainee.” Cal. Bus. & Prof. Code § 865(a).
10 PICKUP V. BROWN
change efforts” with clients who are minors. Cal. Bus. &
Prof. Code §§ 865.1, 865.2. The statute defines such change
efforts to include “any practices . . . that seek to change an
individual’s sexual orientation.” Id. § 865(b)(1). Explicitly
exempted from the regulation are “psychotherapies that
provide acceptance, support, and understanding of clients’
coping, social support, and identity exploration and
development.” Id. § 865(b)(2). The law does not expressly
prohibit professionals from discussing change efforts with
patients, from referring patients to unlicensed practitioners of
change efforts, or otherwise from offering opinions on the
subject of homosexuality. Amended op. at 26.
In Welch, the district court granted plaintiffs an injunction
against SB 1172, but a different judge in Pickup denied a
similar request. Plaintiffs in these cases include licensed
professionals who provide change efforts exclusively through
speech—i.e., methods such as counseling and prayer.2 Cf. id.
at 39 n.5.
According to the panel the words proscribed by SB 1172
consist entirely of medical “treatment,” which although
effected by verbal communication nevertheless constitutes
“professional conduct” entirely unprotected by the First
Amendment. See amended op. at 37–39. Unlike a
professional’s opinions, theories, recommendations, or
advocacy, such “conduct” effected through speech would
receive no constitutional safeguards against state suppression.
Id. The panel provides no principled doctrinal basis for its
2
In surveying the history of “sexual orientation change efforts,” the
panel also catalogues various “aversive” treatments, some barbaric and
many archaic, employed by psychologists of a bygone era. See amended
op. at 23–24. Such anachronisms are not at issue here.
PICKUP V. BROWN 11
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.
Empowered by this ruling of our court, government will
have a new and powerful tool to silence expression based on
a political or moral judgment about the content and purpose
of the communications. The First Amendment precisely
forbids government from punishing speech on such grounds.
II
Our precedents do not suggest that laws prohibiting
“conduct” effected exclusively by means of speech escape
First Amendment scrutiny. In fact, the Supreme Court, in its
most recent relevant case, 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.
The plaintiffs in Holder v. Humanitarian Law Project,
130 S. Ct. 2705 (2010), had challenged a Federal statute
forbidding “material support” to terrorist organizations for
criminalizing protected verbal communications. Id. at
2716–17. The Supreme Court upheld the statute, but only
after applying First Amendment scrutiny. Specifically, the
Court rejected the government’s argument that the statute
only punished “conduct”: for, in this situation, the “conduct
triggering coverage under the statute consists of
communicating a message.” Id. at 2724. In other words, the
12 PICKUP V. BROWN
government’s ipse dixit cannot transform “speech” into
“conduct” that it may more freely regulate.3
The panel attempts, vainly, to distinguish Humanitarian
Law Project from the facts of this case by emphasizing that
the change efforts prohibited by SB 1172 are “therapeutic
treatment, not expressive speech” and that the practitioners to
whom the law applies are “licensed mental health
professionals acting within the confines of the counselor-
client relationship.” Amended op. at 39. In purported
contrast is the issue in Humanitarian Law Project, which
according to the panel dealt with “political speech . . . by
ordinary citizens.” Id. at 40. These supposedly
distinguishing characteristics find no support in the Supreme
Court’s holding and do not even fairly characterize the facts
of the case.
In the first place, the panel’s vague invocation of
“ordinary citizens” misses the mark. What exactly the panel
means by this locution—more redolent of campaign sound
bites or generic political press releases than the customarily
more precise language of judicial opinions—is unclear. To
the extent that “ordinary citizens” encompass non-
professionals, this dichotomy is self-evidently irrelevant on
the facts of Humanitarian Law Project. The plaintiffs in that
case included a nonprofit human-rights organization with
consultative status to the United Nations, 130 S. Ct. at
3
Undoubtedly the State possesses an important interest in regulating the
professions in the interest of public health, safety, and morals; but
presumably the governmental interest in proscribing criminal activity, and
especially support of terrorism, is similarly substantial—if not more so.
Yet the Supreme Court declined to declare speech uttered in just such a
context as categorically outside of the First Amendment’s protections.
PICKUP V. BROWN 13
2713–14; the activities in which they had contemplated
engaging included offering their professional expertise and
advice on various international and humanitarian issues, id.
at 2716–17. Such plaintiffs may not have been doctors or
psychoanalysts, but certainly purported to be offering
professional services of another sort; the Supreme Court, at
least, did not treat them as mere lay people. If that is the
distinction the panel perceives in the “ordinary citizens” of
Humanitarian Law Project, it is illusory.
Furthermore, the Supreme Court in Humanitarian Law
Project explicitly rejected the plaintiffs’ argument that the
expression in question consisted of “pure political speech.”
Id. at 2722; see also id. at 2724 (“The First Amendment issue
before us is . . . not whether the Government may prohibit
pure political speech.”). In explanation, the Court proceeded
to enumerate various sorts of political expression that the
statute did not abridge—just as the panel’s opinion does with
respect to SB 1172. The material support statute permitted
“plaintiffs . . . to say anything they wish on any topic[; t]hey
may speak and write freely[;] . . . . [t]hey may advocate
before the United Nations.” Id. at 2722–23; cf. amended op.
at 26 (“SB 1172 does not . . . [p]revent mental health
providers from communicating with the public about SOCE[;
p]revent mental health providers from expressing their views
to patients, whether children or adults, about SOCE,
homosexuality, or any other topic[; p]revent mental health
providers from recommending SOCE to patients, whether
children or adults . . . .”). Such classical “political speech,”
Chief Justice Roberts concluded, did not fall within the
statute’s strictures; nevertheless, the Court ruled that the First
Amendment still applied to the sort of speech in which the
plaintiffs contemplated engaging and which they claimed the
statute forbade. See id. at 2724–27. The reasoning of
14 PICKUP V. BROWN
Humanitarian Law Project specifically forecloses courts from
approving a statutory restriction on speech simply because it
still permits various and extensive political expression.
The cases here present an analogous situation:
professionals—including but not limited to doctors and
psychologists—desire to “communicate a message” that the
law in question does not permit. This court accordingly
should subject SB 1172 to some level of scrutiny under the
First Amendment.
It bears noting, further, that the Court in Humanitarian
Law Project did not examine the content or purpose of the
“message” the plaintiffs desired to communicate. Thus the
panel’s attempt to validate SB 1172, on the basis that the
speech—the communicated “message”—it proscribes is not
“expressive” or “symbolic,” amended op. at 39, finds no
support in Humanitarian Law Project itself. Whether the
prohibited communications in any given situation qualify as
pure political speech or, for example, commercial speech will
affect only the level of scrutiny, not whether the First
Amendment applies at all. The Supreme Court has not
required that speech, as a threshold matter, be “expressive” or
“symbolic” before deigning to extend to it constitutional
protection.4
4
The panel’s reliance on the Supreme Court’s opinion in Rumsfeld v.
Forum for Academic & Institutional Rights (“FAIR II”), 547 U.S. 47
(2006), consequently, begs the question. See amended op. at 40. That
case “extended First Amendment protection only to conduct that is
inherently expressive,” id. at 66; but the panel’s insufficiently grounded
assertion that change efforts constitute “conduct” is precisely what is at
issue. FAIR II would only control if the panel first correctly determined
that change efforts comprise not speech but conduct for the purposes of
PICKUP V. BROWN 15
The Supreme Court’s implication in Humanitarian Law
Project is clear: legislatures cannot nullify the First
Amendment’s protections for speech by playing this labeling
game. SB 1172 prohibits certain “practices,” just as the
statute in Humanitarian Law Project prohibited “material
support”; but with regard to those plaintiffs as well as the
plaintiffs here, those laws targeted speech. Thus, the First
Amendment still applies.
III
The Federal courts have never recognized a freestanding
exception to the First Amendment for state professional
regulations.5 Indeed authoritative precedents have established
that neither professional regulations generally, nor even a
more limited subclass of such rules, remain categorically
outside of the First Amendment’s reach.6 To justify its
the First Amendment—a determination that, on these facts, Humanitarian
Law Project forecloses.
5
The panel places professionals’ free-speech rights along a
“continuum,” on one end of which, “where a professional is engaged in a
public dialogue,” he enjoys extensive protections under the First
Amendment. And, “[a]t the midpoint of the continuum, . . . First
Amendment protection . . . is somewhat diminished” but apparently not
obliterated. See amended op. at 34–37.
6
See, e.g., Fla. Bar v. Went For It, Inc., 515 U.S. 618, 622–24 (1995)
(applying the First Amendment to state bar rules forbidding certain direct
attorney advertising); Edenfield v. Fane, 507 U.S. 761, 765–67 (1993)
(applying the First Amendment to state professional regulation of
accountants); Ohralik v. Ohio St. Bar Ass’n, 436 U.S. 447, 454–59 (1978)
(applying a balancing test under the First Amendment to state professional
regulation that prohibited attorney in-person solicitation); Bates v. St. Bar
of Ariz., 433 U.S. 350, 363–66 (1977) (applying First Amendment to state
16 PICKUP V. BROWN
purported speech/conduct dichotomy in the context of the
professions, the panel instead invokes our decisions in
National Association for the Advancement of Psychoanalysis
v. California Board of Psychology (“NAAP”), 228 F.3d 1043
(9th Cir. 2000), and Conant v. Walters, 309 F.3d 629 (9th Cir.
2002), as well as scattered citations of non-authoritative
cases. Supreme Court precedent, however, as well as NAAP
and Conant themselves, do not dictate such conclusion—
rather, they counsel against it.
A
NAAP confronted the question whether California may
regulate the psychoanalytical professions at all. We
concluded, indeed, that psychoanalysts, simply by dint of
theirs being the “talking cure,” do not receive “special First
Amendment protection.” See NAAP, 228 F.3d at 1054
professional regulation that prohibited attorney advertising); Va. St. Bd. of
Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 758–61
(1975) (applying First Amendment to state professional regulation that
prohibited pharmacists from advertising prices).
Most precedents addressing the application of the First Amendment
to professional regulations have occurred in the context of rules against
advertising. The Supreme Court has subjected such “commercial speech”
to a lower degree of scrutiny under the First Amendment than classical
political expression, respecting the state’s traditional “power to regulate
commercial activity deemed harmful.” Ohralik, 436 U.S. at 456. Unlike
advertising—or the “exchange of information about securities, corporate
proxy statements, the exchange of price and production information, and
employers’ threats of retaliation for the labor activities of employees,”
id.—change efforts do not have a necessarily commercial focus. Indeed,
SB 1172 does not simply prohibit licensed practitioners from engaging in
change efforts for a fee, but subjects them to professional discipline for
doing so even absent any commercial relationship—such as, for example,
in connection with a church’s ministry.
PICKUP V. BROWN 17
(emphasis added). But such statement does not in any way
support the novel principle, discerned by the panel, that such
“talk therapy” receives no First Amendment protection at all.
In fact NAAP explicitly affirmed that the “communication
that occurs during psychoanalysis is entitled to constitutional
protection,” even if it “is not immune from regulation.” Id.
Although the panel implies otherwise, NAAP did not hold that
psychotherapy administered solely through the spoken word
constitutes wholly unprotected speech.7 Rather we stated in
NAAP that mental health professionals do not lose all of their
First Amendment immunities once their counseling sessions
begin.8
B
Conant likewise offers no terra firma for the panel’s
unprecedented distinction. In that case, the Ninth Circuit
invalidated a Federal regulation that prohibited physicians
from recommending medicinal marijuana to their patients. In
so doing, we affirmed that doctors’ speech to their patients
“may be entitled to the strongest protection our Constitution
has to offer.” Conant, 309 F.3d at 637 (internal quotation
7
Plaintiffs in that case had challenged California’s general licensing
scheme for certain mental health professionals, which required
practitioners to possess certain educational credentials but otherwise did
not “dictate what can be said between psychologists and patients during
treatment.” NAAP, 228 F.3d at 1055. Unlike NAAP, this case does not
involve simply a general licensing scheme or educational requirements,
but rather the substantive regulation of the speech uttered between
practitioners and patients.
8
It merits repeating here that SB 1172’s reach extends much more
broadly than the psychoanalytical professions: it also regulates marriage
therapists, social workers, and clinical counselors. See supra note 4.
18 PICKUP V. BROWN
marks omitted). Conant furthermore explained that NAAP
stated that “communication that occurs during psychoanalysis
is entitled to First Amendment protection” and summarized
its holding that the regulation at issue in that case passed
muster because the “content-neutral” law “did not attempt to
dictate the content of what is said in therapy and did not
prevent licensed therapists from utilizing particular psycho-
analytical methods.” Id. (internal quotation marks omitted).
On its face, this language from Conant seems to apply more
directly and more strongly to SB 1172 than to the Federal
restriction considered in that case. Indeed, SB 1172 explicitly
bans speech with a certain content or uttered with a certain
intent, and unequivocally prohibits not only “particular
psycho-analytical methods” but also particular purposes that
both doctor and patient may have for preferring such
methods.
The panel, however, claims to find support for its
conduct/speech distinction in Conant’s contrast of
recommending medicinal marijuana with actually prescribing
the controlled substance. See id. at 635. Because SB 1172
purportedly permits professionals freely to discuss change
efforts with—and even recommend change efforts to—their
patients, but simply forbids them from engaging in change
efforts themselves, the panel asserts that the regulation does
not fail under Conant’s logic. See amended op. at 38–39.
Such a conclusion depends on an analogy between change
efforts and “speak[ing] the words necessary to provide or
administer the banned drug.” Id. at 37–38. But by writing a
prescription, a physician’s words have an independent legal
effect: ordinarily, it entitles the patient to a controlled
chemical substance he otherwise would have no right to
possess. When the State prohibits a doctor from prescribing
a drug, it simply refuses to accord his written words this
PICKUP V. BROWN 19
additional legal significance.9 Rather, like the regulation
challenged and invalidated in Conant, SB 1172 prohibits the
doctor from speaking to his patient with certain words and in
a certain way.10
9
For a similar reason, the State may also punish a doctor for purporting
to prescribe an illegal drug or otherwise writing a prescription he is not
qualified or permitted to write. In such a situation, the doctor is
attempting fraudulently to arrogate to his writing a legal significance to
which it is not entitled. A psychologist or a social worker who undertakes
change efforts on his patient, on the other hand, is not investing, or
attempting to invest, his words with any legal effect.
10
Although it quotes, word for word, the statutory definition of “mental
health provider,” amended op. at 25 n.1, the panel finds no problem
characterizing as “medical treatment” the services provided by non-
medical professionals such as marriage therapists, social workers, and
clinical counselors—all of whom SB 1172 forbids from engaging in
change efforts.
The panel emphasizes the “medical” nature of the regulation at issue.
It describes change efforts as “therapeutic treatment” and “activities [that]
are therapeutic,” and classifies change efforts as analogous for relevant
purposes alongside medical procedures. Id at 39–40. Although the panel
expressly invokes the statutory language when arguing that SB 1172
regulates conduct, it does not attend as closely to the legislative text in
attempting to characterize change efforts as “medicine.” Indeed, as
emphasized above, SB 1172 extends much more broadly than just to the
medical or even the psychoanalytical professions. SB 1172 likewise
forbids licensed marriage and family therapists as well as social workers,
among others, from engaging in change efforts. See Cal. Bus. & Prof.
Code § 865(a). It strains credulity to depict the counseling
services—socially invaluable as they are—provided by marriage
counselors and social workers as “medicine” or “treatment.” If the
panel’s presumption that all change efforts, whether administered by
doctors and psychologists, or by social workers and marriage counselors,
are necessarily “medicine” is based on scientific or other objective
technical expertise, they do not say so. For certainly the text of the statute
does not suggest, let alone compel, such a broad proclamation.
20 PICKUP V. BROWN
C
Perhaps what really shapes the panel’s reasoning in these
cases is not the principles supposedly distilled from the case
law, but rather problematic and potentially unavoidable
implications of an alternative conclusion. By subjecting SB
1172 to any First Amendment scrutiny at all, the panel may
fear it will open Pandora’s box: heretofore uncontroversial
professional regulations proscribing negligent, incompetent,
or harmful advice will now attract meritless challenges
merely on the basis that such provisions prohibit speech.
Alluding to these concerns, the panel notes that “doctors
are routinely held liable for giving negligent medical advice
to their patients, without serious suggestion that the First
Amendment protects their right to give advice that is not
consistent with the accepted standard of care.” Amended op.
at 36. But the panel nevertheless fails to develop this
argument, and cites no authoritative precedent that protects
such regulations from First Amendment scrutiny. In the first
place, Humanitarian Law Project has effectively neutralized
this ground of reasoning. The material-support statute in that
case attempted, with respect to those plaintiffs, just what SB
1172 proposes to do to Drs. Welch and Pickup: prohibit the
provision of certain professional services delivered solely
through speech. The statute in Humanitarian Law Project
survived—but it did not escape—First Amendment scrutiny.
Subjecting regulations of professionals’ speech to some
degree of scrutiny under the First Amendment indeed does
not necessarily call their legitimacy into question. But
perhaps the panel’s common sense would afford more
deferential treatment to such traditional regulations as, for
example, the ethical rules forbidding attorneys from
PICKUP V. BROWN 21
divulging client confidences. Accordingly, the panel
intimates a potentially broad exception to the First
Amendment for certain categories of speech. The Supreme
Court, however, has clearly warned us inferior courts against
arrogating to ourselves “any ‘freewheeling authority to
declare new categories of speech outside the scope of the
First Amendment.’” United States v. Alvarez, 132 S. Ct.
2537, 2547 (2012) (quoting United States v. Stevens, 559 U.S.
460, 472 (2010)).11 The panel cites no case holding that
speech, uttered by professionals to their clients, does not
actually constitute “speech” for purposes of the First
Amendment. And that should not surprise us—for the
Supreme Court has not recognized such a category.12
III
The Supreme Court has chastened us lower courts for
creating, out of whole cloth, new categories of speech to
which the First Amendment does not apply. But, that is
exactly what the panel’s opinion accomplishes in this case,
concealing its achievement by casually characterizing the
communications prohibited by SB 1172 as nonexpressive
11
Notwithstanding my vigorous dissent from our court’s denial of en
banc rehearing, the Supreme Court ratified the Alvarez panel’s “novel
theory that ‘we presumptively protect all speech . . . .’” United States v.
Alvarez, 638 F.3d 666, 679 (9th Cir. 2011) (O’Scannlain, J., dissenting
from denial of rehearing). We may not reopen now this settled question.
12
Although the panel fears the implications of overprotecting
professional speech, it does not consider the potential effects of
underprotection. If a state may freely regulate speech uttered by
professionals in the course of their practice without implicating the First
Amendment, then targeting disfavored moral and political expression may
only be a matter of creative legislative draftsmanship.
22 PICKUP V. BROWN
conduct. Of course, this begs the question. The panel
provides no authority to support its broad intimations that the
words spoken by therapists and social workers, if they fall
within the statutory language of SB 1172, should receive no
protection at all from the First Amendment.
The regulation at issue may very well constitute a valid
exercise of California’s police power: I take no view as to the
merits of SB 1172, either as a matter of policy or on the
question whether it would withstand strict or some
intermediate level of scrutiny. But as to the threshold
issue—may California remove from the First Amendment’s
ambit the speech of certain professionals when the State
disfavors its content or its purpose?—the Supreme Court has
definitively and unquestionably said “No.” It is no longer
within our discretion to disagree.
For the foregoing reasons I respectfully dissent from the
court’s decision not to rehear these cases en banc.
OPINION
GRABER, Circuit Judge:
The California legislature enacted Senate Bill 1172 to ban
state-licensed mental health providers from engaging in
“sexual orientation change efforts” (“SOCE”) with patients
under 18 years of age. Two groups of plaintiffs sought to
enjoin enforcement of the law, arguing that SB 1172 violates
the First Amendment and infringes on several other
constitutional rights.
PICKUP V. BROWN 23
In Welch v. Brown, No. 13-15023, the district court ruled
that Plaintiffs were likely to succeed on the merits of their
First Amendment claim and that the balance of the other
preliminary-injunction factors tipped in their favor; thus, the
court granted a preliminary injunction. In Pickup v. Brown,
No. 12-17681, the district court ruled that Plaintiffs were
unlikely to succeed on the merits of any of their claims and
denied preliminary relief. The losing parties timely appealed.
We address both appeals in this opinion.
Although we generally review for abuse of discretion a
district court’s decision to grant or deny a preliminary
injunction, we may undertake plenary review of the issues if
a district court’s ruling “‘rests solely on a premise as to the
applicable rule of law, and the facts are established or of no
controlling relevance.’” Gorbach v. Reno, 219 F.3d 1087,
1091 (9th Cir. 2000) (en banc) (quoting Thornburgh v. Am.
Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 755–57
(1986)). Because those conditions are met here, we
undertake plenary review and hold that SB 1172, as a
regulation of professional conduct, does not violate the free
speech rights of SOCE practitioners or minor patients, is
neither vague nor overbroad, and does not violate parents’
fundamental rights. Accordingly, we reverse the order
granting preliminary relief in Welch and affirm the denial of
preliminary relief in Pickup.
FACTUAL AND PROCEDURAL BACKGROUND
A. Sexual Orientation Change Efforts (“SOCE”)
SOCE, sometimes called reparative or conversion
therapy, began at a time when the medical and psychological
community considered homosexuality an illness. SOCE
24 PICKUP V. BROWN
encompasses a variety of methods, including both aversive
and non-aversive treatments, that share the goal of changing
an individual’s sexual orientation from homosexual to
heterosexual. In the past, aversive treatments included
inducing nausea, vomiting, or paralysis; providing electric
shocks; or having an individual snap an elastic band around
the wrist when aroused by same-sex erotic images or
thoughts. Even more drastic methods, such as castration,
have been used. Today, some non-aversive treatments use
assertiveness and affection training with physical and social
reinforcement to increase other-sex sexual behaviors. Other
non-aversive treatments attempt “to change gay men’s and
lesbians’ thought patterns by reframing desires, redirecting
thoughts, or using hypnosis, with the goal of changing sexual
arousal, behavior, and orientation.” American Psychological
Association, Appropriate Therapeutic Responses to Sexual
Orientation 22 (2009). The plaintiff mental health providers
in these cases use only non-aversive treatments.
In 1973, homosexuality was removed from the Diagnostic
and Statistical Manual of Mental Disorders. Shortly
thereafter the American Psychological Association declared
that homosexuality is not an illness. Other major mental
health associations followed suit. Subsequently, many mental
health providers began questioning and rejecting the efficacy
and appropriateness of SOCE therapy. Currently, mainstream
mental health professional associations support affirmative
therapeutic approaches to sexual orientation that focus on
coping with the effects of stress and stigma. But a small
number of mental health providers continue to practice, and
advocate for, SOCE therapy.
PICKUP V. BROWN 25
B. Senate Bill 1172
Senate Bill 1172 defines SOCE as “any practices by
mental health providers[1] that seek to change an individual’s
sexual orientation[,] . . . includ[ing] efforts to change
behaviors or gender expressions, or to eliminate or reduce
sexual or romantic attractions or feelings toward individuals
of the same sex.” Cal. Bus. & Prof. Code § 865(b)(1).
SOCE, however,
does not include psychotherapies that: (A)
provide acceptance, support, and
understanding of clients or the facilitation of
clients’ coping, social support, and identity
exploration and development, including
sexual orientation-neutral interventions to
prevent or address unlawful conduct or unsafe
sexual practices; and (B) do not seek to
change sexual orientation.
1
California Business and Professions Code section 865(a) defines
“mental health provider” as
a physician and surgeon specializing in the practice of
psychiatry, a psychologist, a psychological assistant,
intern, or trainee, a licensed marriage and family
therapist, a registered marriage and family therapist,
intern, or trainee, a licensed educational psychologist,
a credentialed school psychologist, a licensed clinical
social worker, an associate clinical social worker, a
licensed professional clinical counselor, a registered
clinical counselor, intern, or trainee, or any other person
designated as a mental health professional under
California law or regulation.
26 PICKUP V. BROWN
Id. § 865(b)(2). A licensed mental health provider’s use of
SOCE on a patient under 18 years of age is “considered
unprofessional conduct,” which will subject that provider to
“discipline by the licensing entity for that mental health
provider.” Id. § 865.2.
Importantly, SB 1172 does not do any of the following:
• Prevent mental health providers from communicating
with the public about SOCE
• Prevent mental health providers from expressing their
views to patients, whether children or adults, about
SOCE, homosexuality, or any other topic
• Prevent mental health providers from recommending
SOCE to patients, whether children or adults
• Prevent mental health providers from administering
SOCE to any person who is 18 years of age or older
• Prevent mental health providers from referring minors
to unlicensed counselors, such as religious leaders
• Prevent unlicensed providers, such as religious
leaders, from administering SOCE to children or
adults
• Prevent minors from seeking SOCE from mental
health providers in other states
Instead, SB 1172 does just one thing: it requires licensed
mental health providers in California who wish to engage in
“practices . . . that seek to change a [minor’s] sexual
PICKUP V. BROWN 27
orientation” either to wait until the minor turns 18 or be
subject to professional discipline. Thus, SB 1172 regulates
the provision of mental treatment, but leaves mental health
providers free to discuss or recommend treatment and to
express their views on any topic.
The legislature’s stated purpose in enacting SB 1172 was
to “protect[] the physical and psychological well-being of
minors, including lesbian, gay, bisexual, and transgender
youth, and [to] protect[] its minors against exposure to
serious harms caused by sexual orientation change efforts.”
2012 Cal. Legis. Serv. ch. 835, § 1(n). The legislature relied
on the well-documented, prevailing opinion of the medical
and psychological community that SOCE has not been shown
to be effective and that it creates a potential risk of serious
harm to those who experience it. Specifically, the legislature
relied on position statements, articles, and reports published
by the following organizations: the American Psychological
Association, the American Psychiatric Association, the
American School Counselor Association, the American
Academy of Pediatrics, the American Medical Association,
the National Association of Social Workers, the American
Counseling Association, the American Psychoanalytic
Association, the American Academy of Child and Adolescent
Psychiatry, and the Pan American Health Organization.
In particular, the legislature relied on a report created by
a Task Force of the American Psychological Association.
That report resulted from a systematic review of the scientific
literature on SOCE. Methodological problems with some of
the reviewed studies limited the conclusions that the Task
Force could draw. Nevertheless, the report concluded that
SOCE practitioners have not demonstrated the efficacy of
28 PICKUP V. BROWN
SOCE and that anecdotal reports of harm raise serious
concerns about the safety of SOCE.
C. Procedural History
Plaintiffs in Welch include two SOCE practitioners and an
aspiring SOCE practitioner. Plaintiffs in Pickup include
SOCE practitioners, organizations that advocate SOCE,
children undergoing SOCE, and their parents. All sought a
declaratory judgment that SB 1172 is unconstitutional and
asked for injunctive relief to prohibit enforcement of the law.2
In Welch, Plaintiffs moved for preliminary injunctive
relief, arguing that SB 1172 violates their free speech and
privacy rights. They also argued that the law violates the
religion clauses and is unconstitutionally vague and
overbroad under the First Amendment.
The Welch court held that SB 1172 is subject to strict
scrutiny because it would restrict the content of speech and
suppress the expression of particular viewpoints. It reasoned
that the fact that the law is a professional regulation does not
change the level of scrutiny. The court granted preliminary
relief because it determined that the state was unlikely to
satisfy strict scrutiny, Plaintiffs would suffer irreparable harm
2
In Pickup, Equality California, an advocacy group for gay rights,
sought and received intervenor status to defend SB 1172. Pickup
Plaintiffs argue that the Supreme Court’s recent decision in Hollingsworth
v. Perry, 133 S. Ct. 2652 (2013), means that Equality California does not
have standing to defend the statute. We need not resolve that question,
however, because the State of California undoubtedly has standing to
defend its statute, and “the presence in a suit of even one party with
standing suffices to make a claim justiciable.” Brown v. City of Los
Angeles, 521 F.3d 1238, 1240 n.1 (9th Cir. 2008) (per curiam).
PICKUP V. BROWN 29
in the absence of an injunction, the balance of the equities
tipped in their favor, and the injunction was in the public
interest. Because the district court granted relief on their free
speech claim, it did not reach Plaintiffs’ other constitutional
challenges.3
In Pickup, Plaintiffs moved for preliminary injunctive
relief, arguing that SB 1172 violates the First and Fourteenth
Amendments by infringing on SOCE practitioners’ right to
free speech, minors’ right to receive information, and parents’
right to direct the upbringing of their children. They also
argued that SB 1172 is unconstitutionally vague.
The Pickup court denied Plaintiffs’ motion because it
determined that they were unlikely to prevail on the merits of
any of their claims. It reasoned that, because the plain text of
SB 1172 bars only treatment, but not discussions about
treatment, the law regulates primarily conduct rather than
speech. Applying the rational basis test, the court ruled that
3
The Welch Plaintiffs’ response brief contains a single paragraph
asserting that SB 1172 violates the religion clauses of the First
Amendment. That paragraph, which cites neither the record nor any case,
is part of Plaintiffs’ argument that SB 1172 is not narrowly tailored to
achieve a compelling government purpose, as required by the Free Speech
Clause, because it contains no clergy exemption. The religion claim,
however, is not “specifically and distinctly argued,” as ordinarily required
for us to consider an issue on appeal. Thompson v. Runnels, 705 F.3d
1089, 1099–1100 (9th Cir.) (internal quotation marks omitted), cert.
denied, 134 S. Ct. 234 (2013); see also Maldonado v. Morales, 556 F.3d
1037, 1048 n.4 (9th Cir. 2009) (“Arguments made in passing and
inadequately briefed are waived.”). Moreover, although the Welch
Plaintiffs raised the claim in the district court, the court did not rule on it
because it granted relief on their free speech claim. In these
circumstances, we decline to address the religion claim. The district court
may do so in the first instance.
30 PICKUP V. BROWN
Plaintiffs were unlikely to show a violation of the SOCE
practitioners’ free speech rights or the minors’ right to receive
information. As for vagueness, the court ruled that the text of
the statute is clear enough to put mental health providers on
notice of what is prohibited. Finally, the court ruled that SB
1172 does not implicate parents’ right to control the
upbringing of their children because that right does not
encompass the right to choose a specific mental health
treatment that the state has reasonably deemed harmful to
minors.
DISCUSSION
A. Free Speech Rights
At the outset, we must decide whether the First
Amendment requires heightened scrutiny of SB 1172. As
explained below, we hold that it does not.
The first step in our analysis is to determine whether SB
1172 is a regulation of conduct or speech. “[W]ords can in
some circumstances violate laws directed not against speech
but against conduct . . . .” R.A.V. v. City of St. Paul, 505 U.S.
377, 389 (1992). “Congress, for example, can prohibit
employers from discriminating in hiring on the basis of race.
The fact that this will require an employer to take down a sign
reading ‘White Applicants Only’ hardly means that the law
should be analyzed as one regulating the employer’s speech
rather than conduct.” Rumsfeld v. Forum for Academic &
Institutional Rights, Inc. (“FAIR II”), 547 U.S. 47, 62 (2006).
The Supreme Court has made clear that First Amendment
protection does not apply to conduct that is not “inherently
expressive.” Id. at 66. In identifying whether SB 1172
regulates conduct or speech, two of our cases guide our
PICKUP V. BROWN 31
decision: National Association for the Advancement of
Psychoanalysis v. California Board of Psychology
(“NAAP”), 228 F.3d 1043 (9th Cir. 2000), and Conant v.
Walters, 309 F.3d 629 (9th Cir. 2002).
In NAAP, 228 F.3d at 1053, psychoanalysts who were not
licensed in California brought a First Amendment challenge
to California’s licensing scheme for mental health providers.
The licensing scheme required that persons who provide
psychological services to the public for a fee obtain a license,
which in turn required particular educational and experiential
credentials. Id. at 1047. The plaintiffs alleged that the
licensing scheme violated their First Amendment right to
freedom of speech because the license examination tested
only certain psychological theories and required certain
training; plaintiffs had studied and trained under different
psychoanalytic theories. Id. at 1055. We were equivocal
about whether, and to what extent, the licensing scheme in
NAAP implicated any free speech concerns. Id. at 1053 (“We
conclude that, even if a speech interest is implicated,
California’s licensing scheme passes First Amendment
scrutiny.” (emphasis added)); id. at 1056 (“Although some
speech interest may be implicated, California’s content-
neutral mental health licensing scheme is a valid exercise of
its police power . . . .” (emphasis added)). We reasoned that
prohibitions of conduct have “‘never been deemed an
abridgement of freedom of speech . . . merely because the
conduct was in part initiated, evidenced, or carried out by
means of language.’” See id. at 1053 (ellipsis in original)
(quoting Giboney v. Empire Storage & Ice Co., 336 U.S. 490,
502 (1949)). And, importantly, we specifically rejected the
argument that “because psychoanalysis is the ‘talking cure,’
it deserves special First Amendment protection because it is
‘pure speech.’” Id. at 1054. We reasoned: “[T]he key
32 PICKUP V. BROWN
component of psychoanalysis is the treatment of emotional
suffering and depression, not speech. That psychoanalysts
employ speech to treat their clients does not entitle them, or
their profession, to special First Amendment protection.” Id.
(internal quotation marks and ellipsis omitted).
Nevertheless, we concluded that the “communication that
occurs during psychoanalysis is entitled to constitutional
protection, but it is not immune from regulation.” Id. But we
neither decided how much protection that communication
should receive nor considered whether the level of protection
might vary depending on the function of the communication.
Given California’s strong interest in regulating mental health,
we held that the licensing scheme at issue in NAAP was a
valid exercise of its police power. Id. at 1054–55.
We went on to conclude that, even if the licensing scheme
in NAAP regulated speech, it did not trigger strict scrutiny
because it was both content neutral and viewpoint neutral. Id.
at 1055. We reasoned that the licensing laws did not “dictate
what can be said between psychologists and patients during
treatment.” Id. Further, we observed that those laws were
“not adopted because of any disagreement with
psychoanalytical theories” but for “the important purpose of
protecting public health, safety, and welfare.” Id. at 1056
(internal quotation marks omitted). We again concluded that
the laws were a valid exercise of California’s police power.
Id.
In Conant, 309 F.3d at 633–34, we affirmed a district
court’s order granting a permanent injunction that prevented
the federal government from revoking a doctor’s DEA
registration or initiating an investigation if he or she
recommended medical marijuana. The federal government
PICKUP V. BROWN 33
had adopted a policy that a doctor’s “recommendation” of
marijuana would lead to revocation of his or her license. Id.
at 632. But the government was “unable to articulate exactly
what speech [the policy] proscribed, describing it only in
terms of speech the patient believes to be a recommendation
of marijuana.” Id. at 639. Nevertheless, the demarcation
between conduct and speech in Conant was clear. The policy
prohibited doctors from prescribing or distributing marijuana,
and neither we nor the parties disputed the government’s
authority to prohibit doctors from treating patients with
marijuana. Id. at 632, 635–36. Further, the parties agreed
that “revocation of a license was not authorized where a
doctor merely discussed the pros and cons of marijuana use.”
Id. at 634 (emphasis added).
We ruled that the policy against merely “recommending”
marijuana was both content- and viewpoint-based. Id. at 637.
It was content-based because it covered only doctor-patient
speech “that include[d] discussions of the medical use of
marijuana,” and it was viewpoint-based because it
“condemn[ed] expression of a particular viewpoint, i.e., that
medical marijuana would likely help a specific patient.” Id.
We held that the policy did not withstand heightened First
Amendment scrutiny because it lacked “the requisite narrow
specificity” and left “doctors and patients no security for free
discussion.” Id. at 639 (internal quotation marks omitted).
We distill the following relevant principles from NAAP
and Conant: (1) doctor-patient communications about
medical treatment receive substantial First Amendment
protection, but the government has more leeway to regulate
the conduct necessary to administering treatment itself; (2)
psychotherapists are not entitled to special First Amendment
protection merely because the mechanism used to deliver
34 PICKUP V. BROWN
mental health treatment is the spoken word; and (3)
nevertheless, communication that occurs during
psychotherapy does receive some constitutional protection,
but it is not immune from regulation.
Because those principles, standing alone, do not tell us
whether or how the First Amendment applies to the
regulation of specific mental health treatments, we must go
on to consider more generally the First Amendment rights of
professionals, such as doctors and mental health providers.
In determining whether SB 1172 is a regulation of speech or
conduct, we find it helpful to view this issue along a
continuum.
At one end of the continuum, where a professional is
engaged in a public dialogue, First Amendment protection is
at its greatest. Thus, for example, a doctor who publicly
advocates a treatment that the medical establishment
considers outside the mainstream, or even dangerous, is
entitled to robust protection under the First Amendment—just
as any person is—even though the state has the power to
regulate medicine. See Lowe v. SEC, 472 U.S. 181, 232
(1985) (White, J., concurring) (“Where the personal nexus
between professional and client does not exist, and a speaker
does not purport to be exercising 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.’”);
Robert Post, Informed Consent to Abortion: A First
Amendment Analysis of Compelled Physician Speech,
PICKUP V. BROWN 35
2007 U. Ill. L. Rev. 939, 949 (2007) (“When a physician
speaks to the public, his opinions cannot be censored and
suppressed, even if they are at odds with preponderant
opinion within the medical establishment.”); cf. Bailey v.
Huggins Diagnostic & Rehab. Ctr., Inc., 952 P.2d 768, 773
(Colo. Ct. App. 1997) (holding that the First Amendment
does not permit a court to hold a dentist liable for statements
published in a book or made during a news program, even
when those statements are contrary to the opinion of the
medical establishment). That principle makes sense because
communicating to the public on matters of public concern lies
at the core of First Amendment values. See, e.g., Snyder v.
Phelps, 131 S. Ct. 1207, 1215 (2011) (“Speech on matters of
public concern is at the heart of the First Amendment’s
protection.” (internal quotation markets, brackets, and ellipsis
omitted)). Thus, outside the doctor-patient relationship,
doctors are constitutionally equivalent to soapbox orators and
pamphleteers, and their speech receives robust protection
under the First Amendment.
At the midpoint of the continuum, within the confines of
a professional relationship, First Amendment protection of a
professional’s speech is somewhat diminished. For example,
in Planned Parenthood of Southeastern Pennsylvania v.
Casey, 505 U.S. 833, 884 (1992), the plurality upheld a
requirement that doctors disclose truthful, nonmisleading
information to patients about certain risks of abortion:
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
36 PICKUP V. BROWN
speak are implicated, but only as part of the
practice of medicine, subject to reasonable
licensing and regulation by the State. We see
no constitutional infirmity in the requirement
that the physician provide the information
mandated by the State here.[4]
(Citations omitted; emphasis added.) Outside the
professional relationship, such a requirement would almost
certainly be considered impermissible compelled speech. Cf.
Wooley v. Maynard, 430 U.S. 705, 717 (1977) (holding that
a state could not require a person to display the state motto on
his or her license plate).
Moreover, doctors are routinely held liable for giving
negligent medical advice to their patients, without serious
suggestion that the First Amendment protects their right to
give advice that is not consistent with the accepted standard
of care. A doctor “may not counsel a patient to rely on quack
medicine. The First Amendment would not prohibit the
doctor’s loss of license for doing so.” Conant v. McCaffrey,
No. C 97-00139 WHA, 2000 WL 1281174, at *13 (N.D. Cal.
Sept. 7, 2000) (order) (unpublished); see also Shea v. Bd. of
Med. Exam’rs, 146 Cal. Rptr. 653, 662 (Ct. App. 1978) (“The
state’s obligation and power to protect its citizens by
regulation of the professional conduct of its health
practitioners is well settled. . . . [T]he First Amendment . . .
does not insulate the verbal charlatan from responsibility for
4
Although the plurality opinion garnered only three votes, four
additional justices would have upheld the challenged law in its entirety.
Casey, 505 U.S. at 944 (Rehnquist, C.J., concurring in the judgment in
part and dissenting in part). Thus, there were seven votes to uphold the
disclosure requirement.
PICKUP V. BROWN 37
his conduct; nor does it impede the State in the proper
exercise of its regulatory functions.” (citations omitted)); cf.
Post, 2007 U. Ill. L. Rev. at 949 (“[W]hen a physician speaks
to a patient in the course of medical treatment, his opinions
are normally regulated on the theory that they are inseparable
from the practice of medicine.”). And a lawyer may be
disciplined for divulging confidences of his client, even
though such disclosure is pure speech. See, e.g., In re
Isaacson, State Bar Court of California, Case No. 08-O-
10684, 2012 WL 6589666, at *4–5 (Dec. 6, 2012)
(unpublished) (noting prior suspension of bar license for
failure to preserve client confidences). Thus, the First
Amendment tolerates a substantial amount of speech
regulation within the professional-client relationship that it
would not tolerate outside of it. And that toleration makes
sense: When professionals, by means of their state-issued
licenses, form relationships with clients, the purpose of those
relationships is to advance the welfare of the clients, rather
than to contribute to public debate. Cf. Lowe, 472 U.S. at 232
(White, J., concurring) (“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.”).
At the other end of the continuum, and where we
conclude that SB 1172 lands, is the regulation of professional
conduct, where the state’s power is great, even though such
regulation may have an incidental effect on speech. See id.
(“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.”). Most, if not all, medical and mental health
treatments require speech, but that fact does not give rise to
38 PICKUP V. BROWN
a First Amendment claim when the state bans a particular
treatment. When a drug is banned, for example, a doctor who
treats patients with that drug does not have a First
Amendment right to speak the words necessary to provide or
administer the banned drug. Cf. Conant, 309 F.3d at 634–35
(noting the government’s authority to ban prescription of
marijuana). Were it otherwise, then any prohibition of a
particular medical treatment would raise First Amendment
concerns because of its incidental effect on speech. Such an
application of the First Amendment would restrict unduly the
states’ power to regulate licensed professions and would be
inconsistent with the principle that “it has never been deemed
an abridgement 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.” Giboney, 336 U.S. at 502.
Senate Bill 1172 regulates conduct. It bans a form of
treatment for minors; it does nothing to prevent licensed
therapists from discussing the pros and cons of SOCE with
their patients. Senate Bill 1172 merely prohibits licensed
mental health providers from engaging in SOCE with minors.
It is the limited reach of SB 1172 that distinguishes the
present cases from Conant, in which the government’s policy
prohibited speech wholly apart from the actual provision of
treatment. Pursuant to its police power, California has
authority to regulate licensed mental health providers’
administration of therapies that the legislature has deemed
harmful. Under Giboney, 336 U.S. at 502, the fact that
speech may be used to carry out those therapies does not turn
the regulation of conduct into a regulation of speech. In fact,
the Welch Plaintiffs concede that the state has the power to
ban aversive types of SOCE. And we reject the position of
the Pickup Plaintiffs—asserted during oral argument—that
PICKUP V. BROWN 39
even a ban on aversive types of SOCE requires heightened
scrutiny because of the incidental effect on speech.5 Here,
unlike in Conant, 309 F.3d at 639, the law allows discussions
about treatment, recommendations to obtain treatment, and
expressions of opinions about SOCE and homosexuality.
Plaintiffs contend that Holder v. Humanitarian Law
Project, 130 S. Ct. 2705 (2010), supports their position. It
does not.
As we have explained, SB 1172 regulates only
(1) therapeutic treatment, not expressive speech, by
(2) licensed mental health professionals acting within the
confines of the counselor-client relationship. The statute does
not restrain Plaintiffs from imparting information or
disseminating opinions; the regulated activities are
therapeutic, not symbolic. And an act that “symbolizes
nothing,” even if employing language, is not “an act of
communication” that transforms conduct into First
Amendment speech. Nev. Comm’n on Ethics v. Carrigan,
131 S. Ct. 2343, 2350 (2011). Indeed, it is well recognized
that a state enjoys considerable latitude to regulate the
conduct of its licensed health care professionals in
administering treatment. See, e.g., Gonzales v. Carhart,
550 U.S. 124, 157 (2007) (“Under our precedents it is clear
the State has a significant role to play in regulating the
medical profession.”).
5
We do not mean to suggest that any Plaintiff here conducts aversive
SOCE therapy. The record shows that Plaintiffs who are licensed mental
health providers practice SOCE only through talk therapy. We mention
aversive techniques merely to highlight the state’s legitimate power to
regulate professional conduct.
40 PICKUP V. BROWN
In sharp contrast, Humanitarian Law Project pertains to
a different issue entirely: the regulation of (1) political
speech (2) by ordinary citizens. The plaintiffs there sought to
communicate information about international law and
advocacy to a designated terrorist organization. The federal
statute at issue barred them from doing so, because it
considered the plaintiffs’ expression to be material support to
terrorists. As the Supreme Court held, the material support
statute triggered rigorous First Amendment review because,
even if that statute “generally functions as a regulation of
conduct . . . as applied to plaintiffs the conduct triggering
coverage under the statute consists of communicating a
message.” Humanitarian Law Project, 130 S. Ct. at 2724
(second emphasis added).6 Again, SB 1172 does not prohibit
Plaintiffs from “communicating a message.” Id. It is a state
regulation governing the conduct of state-licensed
professionals, and it does not pertain to communication in the
public sphere. Plaintiffs may express their views to anyone,
including minor patients and their parents, about any subject,
including SOCE, insofar as SB 1172 is concerned. The only
thing that a licensed professional cannot do is avoid
professional discipline for practicing SOCE on a minor
patient.
This case is more akin to FAIR II. There, the Supreme
Court emphasized that it “extended First Amendment
protection only to conduct that is inherently expressive.”
547 U.S. at 66 (emphasis added). The Court upheld the
Solomon Amendment, which conditioned federal funding for
institutions of higher education on their offering military
recruiters the same access to campus and students that they
6
We also note that Plaintiffs here bring a facial, not an as-applied,
challenge to SB 1172.
PICKUP V. BROWN 41
provided to nonmilitary recruiters. The Court held that the
statute did not implicate First Amendment scrutiny, even as
applied to law schools seeking to express disagreement with
military policy by limiting military recruiters’ access,
reasoning that the law schools’ “actions were expressive only
because the law schools accompanied their conduct with
speech explaining it.” Id. at 51, 66. Like the conduct at issue
in FAIR II, the administration of psychotherapy is not
“inherently expressive.” Nor does SB 1172 prohibit any
speech, either in favor of or in opposition to SOCE, that
might accompany mental health treatment. Because SB 1172
regulates a professional practice that is not inherently
expressive, it does not implicate the First Amendment.
We further conclude that the First Amendment does not
prevent a state from regulating treatment even when that
treatment is performed through speech alone. As we have
already held in NAAP, talk therapy does not receive special
First Amendment protection merely because it is
administered through speech. 228 F.3d at 1054. That
holding rested on the understanding of talk therapy as “the
treatment of emotional suffering and depression, not speech.”
Id. (internal quotation marks omitted) (first emphasis added).
Thus, under NAAP, to the extent that talk therapy implicates
speech, it stands on the same First Amendment footing as
other forms of medical or mental health treatment. Senate
Bill 1172 is subject to deferential review just as are other
regulations of the practice of medicine.
Our conclusion is consistent with NAAP’s statement that
“communication that occurs during psychoanalysis is entitled
to constitutional protection, but it is not immune from
regulation.” Id. Certainly, under Conant, content- or
viewpoint-based regulation of communication about
42 PICKUP V. BROWN
treatment must be closely scrutinized. But a regulation of
only treatment itself—whether physical medicine or mental
health treatment—implicates free speech interests only
incidentally, if at all. To read NAAP otherwise would
contradict its holding that talk therapy is not entitled to
“special First Amendment protection,” and it would, in fact,
make talk therapy virtually “immune from regulation.” Id.
Nor does NAAP’s discussion of content and viewpoint
discrimination change our conclusion. There, we used both
a belt and suspenders. In addition to holding that the
licensing scheme at issue was a permissible regulation of
conduct, we reasoned that even if California’s licensing
requirements implicated First Amendment interests, the
requirements did not discriminate on the basis of content or
viewpoint. Id. at 1053, 1055–56. But here, SB 1172
regulates only treatment, and nothing in NAAP requires us to
analyze a regulation of treatment in terms of content and
viewpoint discrimination.7
Because SB 1172 regulates only treatment, while leaving
mental health providers free to discuss and recommend, or
recommend against, SOCE, we conclude that 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. See Casey, 505 U.S.
at 884, 967–68 (a plurality of three justices, plus four
additional justices concurring in part and dissenting in part,
7
We acknowledge that Plaintiffs ask us to apply strict scrutiny, but they
have not cited any case in which a court has applied strict scrutiny to the
regulation of a medical or mental health treatment. Nor are we aware of
any.
PICKUP V. BROWN 43
applied a reasonableness standard to the regulation of
medicine where speech may be implicated incidentally).
According to the statute, SB 1172 advances California’s
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.” 2012 Cal. Legis. Serv. ch. 835, § 1(n).
Without a doubt, protecting the well-being of minors is a
legitimate state interest. And we need not decide whether
SOCE actually causes “serious harms”; it is enough that it
could “reasonably be conceived to be true by the
governmental decisionmaker.” NAAP, 228 F.3d at 1050
(internal quotation marks omitted).
The record demonstrates that the legislature acted
rationally when it decided to protect the well-being of minors
by prohibiting mental health providers from using SOCE on
persons under 18.8 The legislature relied on the report of the
Task Force of the American Psychological Association,
which concluded that SOCE has not been demonstrated to be
effective and that there have been anecdotal reports of harm,
including depression, suicidal thoughts or actions, and
substance abuse. The legislature also relied on the opinions
of many other professional organizations. Each of those
organizations opposed the use of SOCE, concluding, among
8
We need not and do not decide whether the legislature would have
acted rationally had it banned SOCE for adults. One could argue that
children under the age of 18 are especially vulnerable with respect to
sexual identity and that their parents’ judgment may be clouded by this
emotionally charged issue as well. The considerations with respect to
adults may be different.
44 PICKUP V. BROWN
other things, that homosexuality is not an illness and does not
require treatment (American School Counselor Association),
SOCE therapy can provoke guilt and anxiety (American
Academy of Pediatrics), it may be harmful (National
Association of Social Workers), and it may contribute to an
enduring sense of stigma and self-criticism (American
Psychoanalytic Association). Although the legislature also
had before it some evidence that SOCE is safe and effective,
the overwhelming consensus was that SOCE was harmful and
ineffective. On this record, we have no trouble concluding
that the legislature acted rationally by relying on that
consensus.
Plaintiffs argue that the legislature acted irrationally when
it banned SOCE for minors because there is a lack of
scientifically credible proof of harm. But, under rational
basis review, “[w]e ask only whether there are plausible
reasons for [the legislature’s] action, and if there are, our
inquiry is at an end.” Romero-Ochoa v. Holder, 712 F.3d
1328, 1331 (9th Cir. 2013) (internal quotation marks
omitted).
Therefore, we hold that SB 1172 is rationally related to
the legitimate government interest of protecting the well-
being of minors.9
9
The foregoing discussion relates as well to the Pickup Plaintiffs’ claim
that SB 1172 violates minors’ right to receive information. See Monteiro
v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1027 n.5 (9th Cir. 1998)
(recognizing the “well-established rule that the right to receive
information is an inherent corollary of the rights of free speech and
press”).
PICKUP V. BROWN 45
B. Expressive Association
We also reject the Pickup Plaintiffs’ argument that SB
1172 implicates their right to freedom of association because
the First Amendment protects their “choices to enter into and
maintain the intimate human relationships between
counselors and clients.”10
First, SB 1172 does not prevent mental health providers
and clients from entering into and maintaining therapeutic
relationships. It prohibits only “practices . . . that seek to
change [a minor] individual’s sexual orientation.” Cal. Bus.
& Prof. Code § 865(b)(1). Therapists are free, but not
obligated, to provide therapeutic services, as long as they do
not “seek to change [the] sexual orientation” of minor clients.
Moreover, the therapist-client relationship is not the type
of relationship that the freedom of association has been held
to protect. The Supreme Court’s decisions “have referred to
constitutionally protected ‘freedom of association’ in two
distinct senses.” Roberts v. U.S. Jaycees, 468 U.S. 609, 617
(1984). The first type of protected association concerns
“intimate human relationships,” which are implicated in
personal decisions about marriage, childbirth, raising
10
The Pickup Plaintiffs arguably waived their expressive association
argument by not raising it in the district court. But “the rule of waiver is
a discretionary one.” Ruiz v. Affinity Logistics Corp., 667 F.3d 1318, 1322
(9th Cir. 2012) (internal quotation marks omitted). We have discretion to
address an argument that otherwise would be waived “when the issue
presented is purely one of law and either does not depend on the factual
record developed below, or the pertinent record has been fully developed.”
Id. (internal quotation marks omitted). Whether SB 1172 violates the right
to expressive association is such an issue, and we exercise our discretion
to address it.
46 PICKUP V. BROWN
children, cohabiting with relatives, and the like. Id. at
617–19. That type of freedom of association “receives
protection as a fundamental element of personal liberty.” Id.
at 618. The second type protects association “for the purpose
of engaging in those activities protected by the First
Amendment—speech, assembly, petition for the redress of
grievances, and the exercise of religion.” Id. at 618.
Plaintiffs in Pickup claim an infringement of only the first
type of freedom of association.
Although we have not specifically addressed the
therapist-client relationship in terms of freedom of
association, we have explained why the therapist-client
relationship is not protected by the Due Process Clause of the
Fourteenth Amendment: “The relationship between a client
and psychoanalyst lasts only as long as the client is willing to
pay the fee. Even if analysts and clients meet regularly and
clients reveal secrets and emotional thoughts to their analysts,
these relationships simply do not rise to the level of a
fundamental right.” NAAP, 228 F.3d at 1050 (internal
quotation marks and citation omitted). Because the type of
associational protection that the Pickup Plaintiffs claim is
rooted in “personal liberty,” U.S. Jaycees, 468 U.S. at 618,
and because we have already determined that the therapist-
client relationship does not “implicate the fundamental rights
associated with . . . close-knit relationships,” NAAP, 228 F.3d
at 1050, we conclude that the freedom of association also
does not encompass the therapist-client relationship.
PICKUP V. BROWN 47
C. Vagueness
We next hold that SB 1172 is not void for vagueness.
“It is a basic principle of due process that an enactment is
void for vagueness if its prohibitions are not clearly defined.”
Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).
Nevertheless, “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). “[U]ncertainty at a statute’s margins will
not warrant facial invalidation if it is clear what the statute
proscribes ‘in the vast majority of its intended applications.’”
Cal. Teachers Ass’n v. State Bd. of Educ., 271 F.3d 1141,
1151 (9th Cir. 2001) (quoting Hill v. Colorado, 530 U.S. 703,
733 (2000)). “A defendant is deemed to have fair notice of
an offense if a reasonable person of ordinary intelligence
would understand that his or her conduct is prohibited by the
law in question.” United States v. Weitzenhoff, 35 F.3d 1275,
1289 (9th Cir. 1994) (internal quotation marks omitted). But,
“if the statutory prohibition involves conduct of a select
group of persons having specialized knowledge, and the
challenged phraseology is indigenous to the idiom of that
class, the standard is lowered and a court may uphold a
statute which uses words or phrases having a technical or
other special meaning, well enough known to enable those
within its reach to correctly apply them.” Id. (internal
quotation marks omitted).
Although the Pickup Plaintiffs argue that they cannot
ascertain where the line is between what is prohibited and
what is permitted—for example, they wonder whether the
mere dissemination of information about SOCE would
subject them to discipline—the text of SB 1172 is clear to a
48 PICKUP V. BROWN
reasonable person. Discipline attaches only to “practices”
that “seek to change” a minor “patient[‘s]” sexual orientation.
Cal. Bus. & Prof. Code §§ 865-865.1. A reasonable person
would understand the statute to regulate only mental health
treatment, including psychotherapy, that aims to alter a minor
patient’s sexual orientation. Although Plaintiffs present
various hypothetical situations to support their vagueness
challenge, the Supreme Court has held that “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.” Hill, 530 U.S. at 733 (internal quotation marks
omitted).
Moreover, considering that SB 1172 regulates licensed
mental health providers, who constitute “a select group of
persons having specialized knowledge,” the standard for
clarity is lower. Weitzenhoff, 35 F.3d at 1289. Indeed, it is
hard to understand how therapists who identify themselves as
SOCE practitioners can credibly argue that they do not
understand what practices qualify as SOCE.
Neither is the term “sexual orientation” vague. Its
meaning is clear enough to a reasonable person and should be
even more apparent to mental health providers. In fact,
several provisions in the California Code—though not SB
1172 itself—provide a simple definition: “heterosexuality,
homosexuality, or bisexuality.” Cal. Educ. Code §§ 212.6,
66262.7; Cal. Gov’t Code § 12926®; Cal. Penal Code
§§ 422.56(h), 11410(b)(7). Moreover, courts have repeatedly
rejected vagueness challenges that rest on the term “sexual
orientation.” E.g., United States v. Jenkins, 909 F. Supp. 2d
758, 778–79 (E.D. Ky. 2012); Hyman v. City of Louisville,
PICKUP V. BROWN 49
132 F. Supp. 2d 528, 546 (W.D. Ky. 2001), vacated on other
grounds, 53 F. App’x 740 (6th Cir. 2002) (unpublished).
D. Overbreadth
We further hold that SB 1172 is not overbroad.11
Overbreadth doctrine permits the facial invalidation of
laws that prohibit “a substantial amount of constitutionally
protected speech.” City of Houston v. Hill, 482 U.S. 451, 466
(1987). “[T]he mere fact that one can conceive of some
impermissible applications of a statute is not sufficient to
render it susceptible to an overbreadth challenge.” Members
of City Council v. Taxpayers for Vincent, 466 U.S. 789, 800
(1984). Rather, “particularly where conduct and not merely
speech is involved, . . . the overbreadth of a statute must not
only be real, but substantial as well, judged in relation to the
statute’s plainly legitimate sweep.” Broadrick v. Oklahoma,
413 U.S. 601, 615 (1973).
Senate Bill 1172’s plainly legitimate sweep includes
SOCE techniques such as inducing vomiting or paralysis,
administering electric shocks, and performing castrations.
And, as explained above, it also includes SOCE techniques
carried out solely through words. As with any regulation of
a particular medical or mental health treatment, there may be
11
Intervenor Equality California argues that the Pickup Plaintiffs waived
their overbreadth challenge by failing to raise it adequately in the district
court. Although they did not argue overbreadth with specificity, they did
allege it in their complaint and in their memorandum in support of
preliminary injunctive relief. Moreover, whether the statute is overbroad
is a question of law that “does not depend on the factual record developed
below.” Ruiz, 667 F.3d at 1322. Therefore, we exercise our discretion to
address Plaintiffs’ overbreadth challenge.
50 PICKUP V. BROWN
an incidental effect on speech. Any incidental effect,
however, is small in comparison with the “plainly legitimate
sweep” of the law. Broadrick, 413 U.S. at 615.
Thus, SB 1172 is not overbroad.
E. Parents’ Fundamental Rights
The Pickup Plaintiffs also argue that SB 1172 infringes on
their fundamental parental right to make important medical
decisions for their children. The state does not dispute that
parents have a fundamental right to raise their children as
they see fit, but argues that Plaintiffs “cannot compel the
State to permit licensed mental health [professionals] to
engage in unsafe practices, and cannot dictate the prevailing
standard of care in California based on their own views.”
Because Plaintiffs argue for an affirmative right to access
SOCE therapy from licensed mental health providers, the
precise question at issue is whether parents’ fundamental
rights include the right to choose for their children a
particular type of provider for a particular medical or mental
health treatment that the state has deemed harmful. See
Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997)
(holding that courts should precisely define purported
substantive due process rights to direct and restrain
exposition of the Due Process Clause).
Parents have a constitutionally protected right to make
decisions regarding the care, custody, and control of their
children, but that right is “not without limitations.” Fields v.
Palmdale Sch. Dist., 427 F.3d 1197, 1204 (9th Cir. 2005).
States may require school attendance and mandatory school
uniforms, and they may impose curfew laws applicable only
to minors. See id. at 1204–05 (collecting cases demonstrating
PICKUP V. BROWN 51
the “wide variety of state actions that intrude upon the liberty
interest of parents in controlling the upbringing and education
of their children”). In the health arena, states may require the
compulsory vaccination of children (subject to some
exceptions), see Prince v. Massachusetts, 321 U.S. 158, 166
(1944), and states may intervene when a parent refuses
necessary medical care for a child, see Jehovah’s Witnesses
v. King Cnty. Hosp., 278 F. Supp. 488, 504 (W.D. Wash.
1967) (three-judge panel) (per curiam), aff’d, 390 U.S. 598
(1968) (per curiam). “[A] state is not without constitutional
control over parental discretion in dealing with children when
their physical or mental health is jeopardized.” Parham v.
J.R., 442 U.S. 584, 603 (1979).
We are unaware of any case that specifically addresses
whether a parent’s fundamental rights encompass the right to
choose for a child a particular type of provider for a particular
treatment that the state has deemed harmful, but courts that
have considered whether patients have the right to choose
specific treatments for themselves have concluded that they
do not. For example, we have held that “substantive due
process rights do not extend to the choice of type of treatment
or of a particular health care provider.” NAAP, 228 F.3d at
1050. Thus, we concluded that “there is no fundamental right
to choose a mental health professional with specific training.”
Id. The Seventh Circuit has also held that “a patient does not
have a constitutional right to obtain a particular type of
treatment or to obtain treatment from a particular provider if
the government has reasonably prohibited that type of
treatment or provider.” Mitchell v. Clayton, 995 F.2d 772,
775 (7th Cir. 1993). Moreover, courts have held that there is
no substantive due process right to obtain drugs that the FDA
has not approved, Carnohan v. United States, 616 F.2d 1120,
1122 (9th Cir. 1980) (per curiam), even when those drugs are
52 PICKUP V. BROWN
sought by terminally ill cancer patients, see Rutherford v.
United States, 616 F.2d 455, 457 (10th Cir. 1980) (“It is
apparent in the context with which we are here concerned that
the decision by the patient whether to have a treatment or not
is a protected right, but his selection of a particular treatment,
or at least a medication, is within the area of governmental
interest in protecting public health.”). Those cases cut against
recognizing the right that Plaintiffs assert; it would be odd if
parents had a substantive due process right to choose specific
treatments for their children—treatments that reasonably have
been deemed harmful by the state—but not for themselves.
It would be all the more anomalous because the Supreme
Court has recognized that the state has greater power over
children than over adults. Prince, 321 U.S. at 170 (stating
that “the power of the state to control the conduct of children
reaches beyond the scope of its authority over adults”).
Further, our decision in Fields counsels against
recognizing the right that Plaintiffs assert. In that case,
parents of school children argued that a school violated their
parental rights when it administered to students a survey that
contained several questions about sex. Fields, 427 F.3d at
1203. We rejected that argument, holding that, although
parents have the right to inform their children about sex when
and as they choose, they do not have the right to “compel
public schools to follow their own idiosyncratic views as to
what information the schools may dispense.” Id. at 1206.
Similarly, here, to recognize the right Plaintiffs assert would
be to compel the California legislature, in shaping its
regulation of mental health providers, to accept Plaintiffs’
personal views of what therapy is safe and effective for
minors. The aforementioned cases lead us to conclude that
the fundamental rights of parents do not include the right to
choose a specific type of provider for a specific medical or
PICKUP V. BROWN 53
mental health treatment that the state has reasonably deemed
harmful.
Therefore, SB 1172 does not infringe on the fundamental
rights of parents.
CONCLUSION
Senate Bill 1172 survives the constitutional challenges
presented here. Accordingly, the order granting preliminary
relief in Welch, No. 13-15023, is REVERSED, and the order
denying preliminary relief in Pickup, No. 12-17681, is
AFFIRMED. We remand both cases for further proceedings
consistent with this opinion.