It looks like New Jersey is going to be the second state to outlaw sexual orientation change efforts for minors. Sexual orientation change efforts consist of therapy, counseling, and other efforts by psychiatrists to change the sexual orientation of gay youths. Various professional organizations, including the American Medical Association and the American Psychiatric Association, decry this practice and argue that it is harmful for youths.
California was the first state to outlaw sexual orientation change efforts for minors. The statute was challenged on First Amendment grounds, leading to a split between two California District Courts. In Welch v. Brown, Judge William Shubb upheld an injunction preventing the law from taking effect, holding that the law constituted impermissible viewpoint discrimination and violated the First Amendment. In Pickup v. Brown, Judge Kimberly Mueller refused to uphold a similar injunction, holding that sexual orientation change efforts did not constitute expressive conduct and was therefore subject to the state's control so long as there was a rational basis for the law. The case has since been appealed and the Ninth Circuit still has yet to release a decision. (The various briefs submitted by the parties and amici can be found here).
Eugene Volokh blogged about the split here, noting that existing Ninth Circuit precedent seemed to support Judge Shubb's ruling. In Conant v. Walters, 309 F.3d 629 (2002), for instance, the Ninth Circuit upheld an injunction prohibiting the criminal investigation of a doctor on the sole basis that the doctor recommended the use of medical marijuana to a patient. The court noted that it is important that a doctor feel able to speak freely to his or her patients. Volokh pointed out, however, that the sexual orientation change efforts cases raise an open question (at the Supreme Court level) of the power of states to restrict professional-client speech on the grounds of that speech harming the client. He concludes that this case may well be destined for the Supreme Court because it raises such an open question.
The New Jersey statute certainly makes things more interesting for this type of statute. I have not researched the issue in depth, but my preliminary check of cases turned up no controlling authority for the New Jersey courts. The closest authority I could find was Cunningham v. New Jersey, 452 F. Supp. 2d 591 (D. N. J. 2006). In this case, the New Jersey District Court cited Conant and noted that it stood for the proposition that a doctor's statements to a patient regarding treatment could be protected by the First Amendment. The court, however, was distinguishing the case before it from Conant, and, in any event, this opinion is at the district level and is persuasive at most for the New Jersey District Court.
I am interested in this issue because I think it illustrates the limits of theories behind the First Amendment. One central justification for First Amendment protections is that protecting speech preserves a marketplace of ideas. People speak freely and share ideas, and through this process of sharing, the best ideas will become clear to those participating in the discourse. Speech between doctors/psychiatrists/psychologists and patients may be less likely to contribute to any meaningful marketplace of ideas because the speech is private. The patient may feel compelled to share whatever is discussed with others, but the structure of the professional/patient interaction does not seem to lend itself to this. Moreover, speech by professionals reminds me of speech by experts that Robert Post discusses in his book, Democracy, Expertise, and Academic Freedom : a First Amendment Jurisprudence for the Modern State. Post seems to raise similar questions about whether the marketplace of ideas theory applies to private professional-client speech. Moreover, Post notes that traditional marketplace of ideas justifications break down in the context of expert speech. Speech by experts is not characterized by a deluge of conflicting opinions, but is rather regulated by peer review. The dominant theory underlying expert speech seems to be accuracy, rather than variety. This doesn't necessarily mean that expert speech should be easily regulated, however, because there is the danger of the state getting a regulation of expert speech wrong. While I approve of the states' policies in this case - there is always the danger that states may make similar laws banning speech that is not as obviously harmful, or that may in fact be beneficial. This danger perpetually exists because legislators are often not experts themselves.
I think that the California and New Jersey statutes and the cases involved in the California litigation are fascinating examples of how the First Amendment affects state regulation of professional speech. I would not be surprised if litigation similar to the California lawsuits occurs in New Jersey, and I am interested in seeing how the New Jersey District Court (with its lack of controlling precedent) will react to such a lawsuit.
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