Ninth Circuit Upholds Sexual Orientation Change Efforts Ban

Dale Carpenter at the Volokh Conspiracy posts about the Ninth Circuit's decision today upholding California's SB 1172.  As I mentioned in this previous post, this statute bars mental health professionals from engaging in efforts to change the sexual orientation of minors (also known as sexual orientation change efforts, or SOCE).

The Ninth Circuit's opinion is available here.

The court does not shy away from the complicated issue of determining how the First Amendment should regulate the speech of professionals.  The court begins by outlining some important things that the bill does not do.  I have emphasized the points that I think are important, given the court's later analysis:

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

The court then outlines some basic principles that it derives from existing case law:

(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 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.

Noting that these principles are not enough to resolve the issue, the court goes on to develop a continuum approach to speech by medical professionals, with different levels of First Amendment protection being granted to three different places on that continuum.  The overall test is quoted after the break, with emphasis at the beginning of the discussion of each level of the continuum of speech protection.

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
...
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
...
...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.
...
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 treatment requires speech, but that fact does not give rise to 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 the medical profession 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.

To sum up the test:

1. It appears that when medical professionals are speaking to the public at large about medicine, treatments, or techniques, the professionals are entitled to strong First Amendment protection, even if those treatments are controversial or banned by licensing laws.

2. When medical professionals are speaking to patients, they are subject to a "substantial amount" of state regulation.  Medical professionals are subject to this regulation as long as they have formed a doctor-patient (or professional-client) relationship, and it appears that this rule applies to any communications that occur within that relationship.

3. Professional conduct, even conduct that involves or consists entirely of speech, is unprotected by the First Amendment.

While I will probably have more thoughts on this case later, I am intrigued by the potential disconnect between the points about the court's emphasis on what law does NOT do and the broad allowance for substantial state regulation of any communications occurring between doctors and their patients.  The court notes that the law does not prevent doctors from: (1) telling patients their views on sexual orientation change efforts; (2) recommending this course of treatment to patients; (3) referring patients to those who can engage in this treatment and; (4) administering this treatment to patients who are over 18 years old.  It would appear that all of these activities would fall into the middle of the continuum of speech protection -- where professional speech is subject to substantial state regulation.  All of the speech in these scenarios is speech that only occurs because the professional has developed a professional relationship with the patient.

This broad statement of the scope of potential regulation of speech arising from the doctor-patient relationship is presumably limited by Conant v. Walters, 309 F.3d 629 (9th Cir. 2002), where the court noted that the government cannot prohibit doctors from discussing the pros and cons of medical marijuana use with their patients.  While speech of this nature arises out of the professional relationship and is therefore subject to substantial state regulation, it would probably be protected under the Conant precedent.

A harder case would arise if California wrote a law barring physicians from discussing the pros and cons of medical marijuana with juvenile patients.  This alternative situation would be subject to substantial regulation because a doctor-patient relationship exists, but it would be more limited than the Conant scenario because doctors would only be prohibited from discussing marijuana usage with a subset of their patients.  Similarly, the question is fuzzier in a case where a state prohibits doctors from referring minors to out-of-state or non-professional actors who can provide sexual orientation change efforts.  Referring a patient would probably not be unprotected conduct, but speech (albeit speech subject to substantial state regulation).

It is good to see the court taking on the issue of professional speech.  Given the questions that remain, it will be interesting to see how courts develop the notion of substantial state regulation in future cases involving speech in the doctor-patient relationship.

UPDATE, January 29, 2014

Upon rereading my post, I realized I omitted the name of the case itself, which is Pickup v. Brown.