CASE NO. ___________________________________________ IN THE SUPREME COURT OF THE UNITED STATES ____________________________________________ DAVID PICKUP, CHRISTOPHER H.

ROSIK, JOSEPH NICOLOSI, ROBERT VAZZO, et al., Petitioners, v. EDMUND G. BROWN, Jr., ANNA M. CABALLERO, KIM MADSEN, et. al., Respondents, EQUALITY CALIFORNIA, Respondent-Intervenor ____________________________________________ On Petition for Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit ____________________________________________ PETITION FOR WRIT OF CERTIORARI ____________________________________________ Mathew D. Staver Stephen M. Crampton (Counsel of Record) Mary E. McAlister Anita L. Staver LIBERTY COUNSEL Horatio G. Mihet PO Box 11108 LIBERTY COUNSEL Lynchburg, VA 24506 PO Box 540774 (434) 592-7000 Orlando, FL 32854 court@lc.org (800) 671-1776 court@lc.org

i QUESTIONS PRESENTED Under Californias SB1172, a mental health provider can provide acceptance, support, and understanding of unwanted same-sex attractions, but cannot provide counsel to try to relieve such unwanted desires, if the client is a minor, even if the client and his or her parents desire and benefit from such counseling. Following the passage of SB1172, New Jersey passed an almost identical law. Almost identical laws have now been introduced in Maryland, Massachusetts, New York, Pennsylvania, Virginia, Washington, and Wisconsin. Minors whose struggles in this area brought them to the brink of suicide before they received counsel which increased their selfesteem and reduced or eliminated their internal conflicts and who desperately want to continue with change counsel are the casualties of SB1172. The questions presented are:

1.

Whether a law that bans counselors from providing and minor clients from receiving talk therapy counseling that unwanted samesex sexual attractions, behaviors, or identity (collectively SSA) can be reduced or eliminated but permits talk therapy that affirms and approves unwanted SSA violates the First Amendment.

ii

2.

Whether a law that prohibits licensed counselors from, under any circumstances, engaging in talk therapy on the subject of sexual orientation that expresses the viewpoint that minors unwanted SSA can be reduced or eliminated is impermissibly vague and overbroad.

3.

Whether a state law that prevents parents from seeking licensed counselors to provide talk therapy, as requested by their children, which expresses the viewpoint that the childrens unwanted SSA can be reduced or eliminated while permitting talk therapy that expresses the viewpoint that the childrens SSA should be affirmed and approved infringes upon the parents fundamental rights to direct the upbringing of their children. PARTIES Petitioners are David Pickup, Christopher H. Rosik, Ph.D., Joseph Nicolosi, Ph.D, Robert Vazzo, the National Association For Research And Therapy Of Homosexuality (NARTH), American Association Of Christian Counselors (AACC), minor John Doe 1, appearing by and through his parents Jack Doe 1 and Jane Doe 1, who are also suing individually, and minor John Doe 2, who is

iii appearing by and through his parents Jack Doe 2 and Jane Doe 2, who are also suing individually. Respondents are Edmund G. Brown, Jr. Governor of the State of California, in his official capacity; Anna M. Caballero, Secretary of the State and Consumer Services Agency of the State of California, in her official capacity, Kim Madsen, Executive Officer of the California Board of Behavioral Sciences, in her official capacity; Michael Erickson, Ph.D, President of the California Board of Psychology, in his official capacity and Sharon Levine, President of the Medical Board of California, in her official capacity. Equality California is Respondent-Intervenor. CORPORATE DISCLOSURE STATEMENT There is no parent or publicly held company owning 10 percent or more of the corporations stock.

iv TABLE OF CONTENTS QUESTIONS PRESENTED ............................ i PARTIES ........................................................... ii CORPORATE DISCLOSURE STATEMENT.................................................. iii TABLE OF CONTENTS ................................ iv TABLE OF AUTHORITIES .........................iix OPINIONS BELOW ........................................ 1 JURISDICTION............................................... 1 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED............................. 2 INTRODUCTION ............................................ 2 STATEMENT OF THE CASE ........................ 3 PROCEDURAL HISTORY ........................... 10 REASONS FOR GRANTING THE PETITION ....................................................... 12 I. THIS COURT SHOULD GRANT REVIEW TO DECIDE THE IMPORTANT QUESTION WHETHER A LAW THAT CENSORS COUNSELORS AND CLIENTS BASED UPON THE CONTENT AND VIEWPOINT OF THEIR TALK THERAPY IS AN IMPERMISSIBLE REGULATION OF SPEECH THAT SHOULD BE AFFORDED FIRST AMENDMENT PROTECTION. ............... 12

v A. The Panels Conclusion That SB1172 Is a Legitimate Licensing Regulation Conflicts withPrecedent. 133 B. The Panels Decision Creates Intra- and Inter-Circuit Conflicts. ... 188 II. THIS COURT SHOULD GRANT REVIEW TO RESOLVE THE CONFLICT BETWEEN THE PANELS CONCLUSION THAT SB1172 IS NOT A CONTENT- AND VIEWPOINT-BASED RESTRICTION AND PRECEDENTS FROM THIS COURT AND OTHER CIRCUITS. .......... 20 A. The Panels Ruling Conflicts with this Courts Precedents. ..................... 211 B. The Panels Conclusion that SB1172 is a Regulation of Conduct Subject Only to Rational Basis Review Conflicts with Its Own Precedents and the Precedents in Other Courts Finding Similar Regulations to be Content-Based Speech Restrictions.277 III. THIS COURT SHOULD GRANT REVIEW TO RESOLVE THE CONFLICT BETWEEN THE PANELS CONCLUSION THAT A REGULATION OF CONDUCT WHICH ALSO INFRINGES ON SPEECH NEED NOT BE SUBJECT TO

vi INTERMEDIATE SCRUTINY AND THIS COURTS PRECEDENT. .......................... 31 A. The Panels Conclusion Conflicts with this Courts Precedents Establishing That Content-Neutral Speech Restrictions Must be Subject to Intermediate Scrutiny. ....................... 322 B. The Panels Decision that Rational Basis Review Applies Conflicts with Other Ninth Circuit Panels and Other Circuits. ................ 355 IV. THIS COURT SHOULD GRANT REVIEW TO RESOLVE THE CONFLICT BETWEEN THE PANELS CONCLUSION THAT SB1172 IS NOT VAGUE AND OVERBROAD AND THIS COURTS PRECEDENTS. ........................................ 388 A. The Panels Conclusion that SB1172 Is Not Vague Conflicts with Established Precedent.......................... 38 B. The Panels Conclusion that SB1172 Is Not Overbroad Conflicts with Precedent. ...................................... 41

vii V. THIS COURT SHOULD GRANT REVIEW TO RESOLVE THE CONFLICT BETWEEN THE PANELS CONCLUSION THAT SB1172 DOES NOT VIOLATE PARENTAL RIGHTS AND THIS COURTS PRECEDENT. .......................... 43 A. The Panels Decision Conflicts with This Courts Longstanding Protection of Parental Rights. ......... 444 B. The Panels Decision Conflicts with Other Circuits Decisions. .......... 46 CONCLUSION ............................................. 488

viii Appendix Ninth Circuit Court of Appeals Order Denying Panel Rehearing or Rehearing En Banc and Amending the Panel Opinion, Jan. 29, 2014 . 1a Ninth Circuit Court of Appeals Panel Decision Affirming District Court Denial of Preliminary Injunction, Aug. 29, 2013 ............................. 81a Ninth Circuit Court of Appeals Order Granting Injunction Pending Appeal, Dec. 21, 2012 . 133a Declaration of Dr. Joseph Nicolosi, Ph.D. in Support of Emergency Motion for Injunction Pending Appeal ............................................ 135a Declaration of David Pickup in Support of Emergency Motion for Injunction Pending Appeal ........................................................... 147a Order of the District Court of Eastern District of California Denying Preliminary Injunction, Dec. 4, 2012 .................................................. 156a Declaration of Joseph Nicolosi in Support of Preliminary Injunction. ............................... 242a Enrolled Text of California SB1172 ............ 255a First and Fourteenth Amendments to the United States Constitution ......................... 268a

ix TABLE OF AUTHORITIES CASES Am. Life League, Inc. v. Reno, 47 F.3d 642 (4th Cir. 1995) .................... 36, 37 Brown v. Entmt Merchants Assn, 131 S. Ct. 2738 (2011) ........................... 22, 25 Canady v. Bossier Parish Sch. Bd., 240 F.3d 437 (5th Cir. 2001) ........................ 36 Chaplinsky v. State of New Hampshire, 315 U.S. 568 (1942) ...................................... 26 Chatin v. Coombe, 186 F.3d 82 (2d Cir. 1999) ............................ 40 Conant v. Walters, 309 F.3d 629 (9th Cir. 2002) ............ 18, 27, 28 Conchatta Inc. v. Miller, 458 F.3d 258 (3d Cir. 2006 ..................... 36, 37 Cooksey v. Futrell, 721 F.3d 226 (4th Cir. 2013) .................. 18, 19 Day v. Holahan, 34 F.3d 1356 (8th Cir. 1994) .................. 27, 30 Disc. Tobacco City & Lottery, Inc. v. United States, 674 F.3d 509 (6th Cir. 2012) ............ 42

x Doe v. Heck, 327 F.3d 492 (7th Cir. 2003) ........................ 47 Egolf v. Witmer, 26 F.3d 104 (3d Cir. 2008) ............................ 36 Farkas v. Miller, 151 F.3d 900 (8th Cir. 1998). ................. 36, 37 Fields v. Palmdale Sch. Dist., 427 F.3d 1197 (9th Cir. 2005) ...................... 46 Free Speech Coalition, Inc. v. Attorney Gen., 677 F.3d 519 (3d Cir. 2012) .......................... 42 Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991). ................................... 39 Grayned v. City of Rockford, 408 U.S. 104 (1972) ...................................... 38 Hodgkins v. Peterson, 355 F.3d 1048 (7th Cir. 2004) ................ 36, 37 Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010) .......... 11, 23, 24, 33, 34 Jacobs v. Clark Cnty. Sch. Dist., 526 F.3d 419 (9th Cir. 2008) ........................ 35 Kickapoo Tribe of Oklahoma v. Rader, 822 F.2d 1493 (10th Cir. 1987) .............. 43, 47

xi Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001) .............. 13, 14, 15, 18, 25 Lowe v. S.E.C., 472 U.S. 181 (1985) ...................................... 13 McGlone v. Cheek, 534 F. Appx. 293 (6th Cir. 2013) ................. 40 Meyer v. Nebraska, 262 U.S. 390 (1923) ...................................... 44 NAACP v. Button, 371 U.S. 415 (1963). ..................................... 38 National Association for the Advancement of Psychoanalysis v. California Board of Psychology, (NAAP) 228 F.3d 1043 (9th Cir. 2000) ................. 27-29 Parham v. J.R., 442 U.S. 584 (1979) ................................ 43, 45 Pickup v. Brown, 2014 WL 306860 (January 29, 2014) ............. 2 Porter v. Bowen, 496 F.3d 1009 (9th Cir. 2007) ...................... 35 Prince v. Massachusetts, 321 U.S. 158 (1944) ................................ 44, 46 R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) .................... 21, 24, 25, 28

xii Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819 (1995) .................... 21, 22, 25, 28 Rumsfeld v. FAIR, 547 U.S. 47 (2006) .................................. 34, 35 Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250 (11th Cir. 2005) .............. 27, 30 Sons of Confederate Veterans, Inc. v. Commn of Virginia Dept of Motor Vehicles, 288 F.3d 610 (4th Cir. 2002) .................. 27, 29 Sorrell v. IMS Health, Inc., 131 S. Ct. 2653 (2011) ...................... 13, 14, 22 Texas v. Johnson, 491 U.S. 397 (1989) ...................................... 34 Thomas v. Collins, 323 U.S. 516 (1948) ................................ 13, 15 Troxel v. Granville, 530 U.S. 57 (2000) ........................................ 45 Turner Broad. Sys., Inc. v. F.C.C., 520 U.S. 180 (1997) ...................................... 33 United States v. Alvarez, 132 S. Ct. 2537 (2012) .................................. 26 United States v. OBrien, 391 U.S. 367 (1968) ................................ 33, 33

xiii United States v. Playboy Entmt Grp., 529 U.S. 803 (2000) ...................................... 47 United States v. Stevens, 559 U.S. 460 (2010) ................................ 41, 42 Video Software Dealers Assn v. Schwarzenegger, 556 F.3d 950 (9th Cir. 2009) ........................ 46 Virginia State Bd of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976) .............. 13, 16, 17, 22, 23 Wallis v. Spencer, 202 F.3d 1126 (9th Cir. 2000) ................ 43, 46 Wisconsin v. Yoder, 406 U.S. 205 (1972) ...................................... 45 STATUTES 28 U.S.C. 1254(1). ............................................ 1 28 U.S.C. 1292(a)(1) ......................................... 1 Cal. Bus. & Prof. Code 865(b)(1) ..................... 4 Cal. Bus. & Prof. Code 865(b)(2) ..................... 5 Cal. Bus. & Prof. Code 865.1 ........................... 4 Cal. Bus. & Prof. Code 865.2 ........................... 4

1 OPINIONS BELOW The order of the District Court denying a preliminary injunction is reported at 2012 WL 6021465 and is reproduced in the Appendix at 156a. The order of the Ninth Circuit Court of Appeals granting an injunction pending appeal is reported at 2012 WL 6869637 and reproduced in the Appendix at 133a. The initial decision of the three-judge panel affirming the District Court denial of the preliminary injunction is reported at 728 F.3d 1042 and reproduced in the Appendix at 81a. The order denying panel rehearing or rehearing en banc and amending the panel opinion, along with the dissent, is reported at 2014 WL 306860 and reproduced in the Appendix at 1a. JURISDICTION The judgment of the Ninth Circuit panel was filed on August 29, 2013. The Ninth Circuits order denying panel rehearing or rehearing en banc and amending the panel opinion was filed on January 29, 2014. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. 1254(1). Jurisdiction in the Ninth Circuit was based upon 28 U.S.C. 1292(a)(1) and Ninth

2 Circuit Local Rule 3-3. The district court had jurisdiction under 28 U.S.C. 1331. CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED California Senate Bill 1172 (SB1172) is codified at California Business and Professions Code 865-865.2. The full text of SB1172 is reproduced in the Appendix at 255a. The relevant provisions of the First and Fourteenth amendments to the United States Constitution are reproduced in the Appendix at 268a. INTRODUCTION Can a court simply re-label disfavored expression as conduct and thereby insulate a regulation from First Amendment review? That is the question that this Court needs to answer. The panel decision removes an entire category of speech from any level of First Amendment review. Unless this Court grants the petition and overturns the lower courts, 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 despite the First Amendments explicit prohibition against such governmental punishment. Pickup v. Brown, 2014 WL 306860 at *2 (January 29, 2014)

3 (OScannlain, J., dissenting from denial of rehearing en banc) App. 11a-12a. SB1172 tramples on two of the most sacrosanct venues in societythe counseling room and the family hometo dictate what shall be orthodox in counseling minors who are struggling with unwanted same-sex attractions, behaviors, or identity (collectively SSA). Going beyond merely regulating professional licensing, SB1172 dictates what message can be provided to minors seeking help for unwanted SSA. App. 266a-267a. SB1172 provides that licensed counselors cannot under any circumstances, even at the clients insistence, counsel minors that their unwanted SSA can be reduced or eliminated; they can, however, present the message that SSA are to be affirmed and approved. App. 267a (emphasis added). Counselors who respect their clients wishes but do not respect the states directive face loss of their professional licenses. App. 138a. Meanwhile, if counselors follow the states directive, then they will face sanctions for violating professional licensing standards for not respecting the clients right to selfdetermination. App. 151a-152a. STATEMENT OF THE CASE SB1172 provides that [u]nder no circumstances shall a mental health provider engage in sexual orientation change efforts

4 [SOCE] with a patient under 18 years of age. Cal. Bus. & Prof. Code 865.1 (emphasis added). Any sexual orientation change efforts attempted on a patient under 18 years of age by a mental health provider shall be considered unprofessional conduct and shall subject a mental health provider to discipline by the licensing entity for that mental health provider. Cal. Bus. & Prof. Code 865.2. Sexual orientation change efforts means any practices that seek to change an individuals sexual orientation, but only if they involve 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) (emphasis added). However, SOCE excludes psychotherapies that: (A) provide acceptance, support, and understanding of clients or the facilitation of clients coping, social

5 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. Cal. Bus. & Prof. Code 865(b)(2) (emphasis added). In other words, if a child comes to a counselor and states that he has unwanted SSA, a counselor is permitted to counsel the minor that those unwanted SSA are to be affirmed but cannot offer counsel that the unwanted SSA can be reduced or eliminated. App. 266a-267a. Counselors who offer counseling that seeks to reduce or eliminate SSA, even when those attractions are unwanted and change is requested by the client, are guilty under the statute of unprofessional conduct and subject to discipline. App. 267a. California enacted SB1172 purportedly to prevent harm to children but proffered no evidence that children were being harmed by receiving counseling expressing the viewpoint that SSA can be reduced or eliminated. App. 255a-265a. Instead of offering empirical evidence of harm, the legislature referenced selective articles, policy group opinions and an inconclusive report from the American

6 Psychological Association (APA). App. 258a265a. The APA report upon which the legislature particularly relied, concluded that there is no evidence regarding the efficacy of counseling which seeks to reduce or eliminate SSA in children and youth. App. 143a-144a (emphasis added). Early and recent research studies provide no clear indication of the prevalence of harmful outcomes among people who have undergone efforts to change their sexual orientation or the frequency of occurrence of harm because no study to date of adequate scientific rigor has been explicitly designed to do so. Thus, we cannot conclude how likely it is that harm will occur from SOCE. App. at 143a-144a (emphasis added). Organizations representing professional counselors in California told legislators that a statutory ban on a type of therapy was unprecedented, particularly the complete ban on SOCE for minors, even those who freely consent to the treatment. App. 169a. Petitioners are among those who will be forced to choose between facing professional discipline for continuing consensual, beneficial

7 treatment that expresses a viewpoint the state has deemed unacceptable or facing discipline for discontinuing beneficial treatment in violation of ethical standards. Counselors are California licensed mental health professionals whose licenses and livelihoods, as well as the health of their minor clients, are threatened by SB1172. Counselors comply with the standards that regulate their practices by providing clients with all available treatment options, explaining the advantages and disadvantages of each, and, only after obtaining the informed consent of the clients and their parents, beginning the agreed upon course of counseling. App. 244a-245a. That counseling consists solely of speech. App. 142a, 153a. The therapeutic relationship is talking and communication; verbal and non-verbal communication is the essential element of the therapeutic process. App. 142a. A therapists speech is the only tool he has to engage a client. App. 153a. There is no other conduct that takes place in my counseling sessions. Id. Based upon the clients needs and desires, known as the right to self-determination, and the Counselors professional judgment, the course of treatment, i.e., speech, might include messages aimed at reducing or eliminating unwanted SSA. Id. In other cases, the clients needs and Counselors professional judgment might include speech aimed at helping clients understand and deal with issues

8 associated with a homosexual lifestyle and behavior or helping clients and parents accept and love the minor despite any challenges arising from SSA. Id. SB1172 takes away the clients right to self-determination and the Counselors ability to exercise professional judgment by banning speech aimed at reducing or eliminating unwanted SSA. App. 249a-250a. Counselors who permit their clients right of selfdetermination to prevail and continue to provide speech aimed at reducing or eliminating SSA are per se engaging in unprofessional conduct and shall be subject to discipline. App. 267a. However, if Counselors comply with SB1172 and discontinue counseling aimed at reducing or eliminating SSA, they also face potential licensing sanctions. App. 150a-152a, 250a-254a. Professional standards require that Counselors provide significant information concerning all treatment options and respect client wishes. Id. Consequently, if clients do not receive information about reducing or eliminating unwanted SSA or if they request counseling to reduce or eliminate SSA and are refused, Counselors will be violating professional standards regarding treatment options and client self-determination. Id.

9 John Does 1 and 2 and their parents Jack and Jane Does 1 and 21, respectively, are some of the clients whose ongoing consensual and beneficial counseling aimed at reducing or eliminating SSA is threatened by SB1172. App. 247a-249a. These families consented to receiving counseling after receiving detailed information regarding its scope and efficacy, and the childrens health and well-being have improved. App. 244a-247a. Under the law, the families will be forced to terminate the beneficial counseling, which will undo the progress they have made toward improving the health of their children. App. 247a-250a. SOCE counseling has improved Does 1 and 2s mental, physical and emotional health and has improved the relationship between Does 1 and 2 and their parents. App. 247a249a. Does 1 and 2 have developed beneficial therapeutic alliances with Dr. Nicolosi, which will have to be terminated if SB1172 is permitted to go into effect. App. 247a-249a. If SOCE counseling has to be discontinued as a result of SB1172, then Does 1 and 2s health and well-being will be adversely affected. App. 247a-249a. The individual Petitioners sued using pseudonyms to protect the identity of the minors and the confidential psychotherapistpatient relationships they have with Petitioner Nicolosi.
1

10 PROCEDURAL HISTORY Petitioners filed a Complaint and Motion for Preliminary Injunction in the Eastern District of California on October 4, 2012, seeking relief under the United States and California constitutions and 42 U.S.C. 1983. Petitioners challenged SB1172 both on its face and as applied.2 Another group of counselors filed a similar action in the Eastern District of California and were granted a preliminary injunction. Welch v. Brown, D.C. No. 2:12CV 02484WBSKJN. App. 10a. On December 4, 2012, another judge in the same court issued an order denying Plaintiffs motion for a Preliminary Injunction. App. 156a. On December 6, 2012, Plaintiffs filed an emergency motion for a preliminary injunction pending appeal with the Ninth Circuit, which was granted on December 21, 2012. App. 134a. On August 29, 2013, a three-judge panel of the Ninth Circuit affirmed the district courts denial of a preliminary injunction in Pickup and reversed the grant of the preliminary injunction in Welch. App. 81a. The panel Both the District Court and Ninth Circuit incorrectly stated that Petitioners challenged SB1172 only on its face App. 61a, 205a-206a. In fact, the words on its face and as applied appear more than 40 times in the Complaint.
2

11 concluded that SB1172 regulates only medical treatment, and that any effect it may have on free speech interests is merely incidental. App. 111a. In particular, the panel held that SB1172 does not regulate speech at all: SB1172 regulates conduct. App. 108a. The panel then held that SB1172 only needed to and did satisfy rational basis review. App. 113a. On September 10, 2013, Petitioners filed a Petition for Panel Rehearing or Rehearing En Banc. On January 29, 2014, the Ninth Circuit denied the petitions and amended the August 29, 2013 opinion. App. 1a. Judges OScannlain, Bea and Ikuta dissented from the denial of rehearing or rehearing en banc in a written decision. App. 8a. The court amended the original panel decision to remove references to SOCE as medical treatment and attempted to distinguish Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2723-24 (2010) from the case at bar. App. 59a-61a. The panel apparently acted in response to the dissents exposition of how the panels decision contradicts this Courts holding in Holder. App. 12a-18a. The dissents analysis of Holder, and its analysis of how the panel employed legerdemain to circumvent that and other precedent from this Court illustrates why this Court should grant the Petition.

12 REASONS FOR GRANTING THE PETITION I. THIS COURT SHOULD GRANT REVIEW TO DECIDE THE IMPORTANT QUESTION WHETHER A LAW THAT CENSORS COUNSELORS AND CLIENTS BASED UPON THE CONTENT AND VIEWPOINT OF THEIR TALK THERAPY IS AN IMPERMISSIBLE REGULATION OF SPEECH THAT SHOULD BE AFFORDED FIRST AMENDMENT PROTECTION.

SB1172 set the states power to regulate professions on a collision course with fundamental constitutional rights. The panels decision excludes an entire category of speech from any level of First Amendment review. This case does not involve state licensing requirements, but whether the state can censor what a licensed counselor says.

13 A. The Panels Conclusion That SB1172 Is a Legitimate Licensing Regulation Conflicts with Precedent.

The states power to license professions has never been extended to encompass the licensing of speech per se or of the press. Lowe v. S.E.C., 472 U.S. 181, 229-30 (1985) (White, J., concurring). At some point, a measure is no longer a regulation of a profession but a regulation of speech or of the press; beyond that point, the statute must survive the level of scrutiny demanded by the First Amendment. Id. at 230. SB1172 has crossed that line. SB1172 goes beyond merely regulating the licensing of professional counselors to dictating what can, or more specifically, what cannot, under any circumstances, be said in the privacy of the counseling room. App. 267a. SB1172 crosses the line between legitimate state regulation and impermissible regulation of speech. Lowe, 472 U.S. at 229-30; Sorrell v. IMS Health, Inc., 131 S. Ct. 2653, 2667 (2011); Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 544 (2001); Virginia State Bd of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 770 (1976) (Virginia Citizens); Thomas v. Collins, 323 U.S. 516, 532 (1948). The Ninth Circuits contrary conclusion

14 conflicts with these and other precedents and should be reviewed. In Sorrell, this Court reviewed a regulation prohibiting pharmacies from selling or disseminating prescriber-identifying information for marketing, but not other uses. This Court rejected the states characterization of the challenged regulation as merely a commercial regulation that did not implicate the First Amendment. 131 S. Ct. at 2664. This Court concluded that the law imposes a burden based on the content of speech and the identity of the speaker, and therefore was subject to strict scrutiny. Id. at 2665. The same is true of SB1172, which does not regulate the counseling business, but dictates what counselors are permitted to say in the counseling room. As was true with the regulation in Velazquez, SB1172 distorts the mental health system by altering the traditional role of counselors. See Velazquez, 531 U.S. at 544 (funding restriction distorts the legal system by altering the traditional role of the attorneys). The regulation in Velazquez prohibited lawyers who received federal funds from engaging in legal representation in which they sought to amend or otherwise challenge welfare laws. Id. at 536-37. This Court struck down the regulation, finding that its effect was to prohibit advice or argumentation that existing welfare laws are unconstitutional or

15 unlawful, and thereby exclude certain vital theories and ideas from the lawyers representation. Id. at 547-49. This Court found that the government cannot use its funding authority to coerce recipients to suppress ideas thought inimical to the Governments own interest. Id. at 549. SB1172 suffers from the same infirmities as did the regulation in Velazquez. Indeed, the constitutional violation in SB1172 is more pronounced. The Velazquez regulation merely removed one source of funding from attorneys who expressed the prohibited viewpoint. Id. at 547-48. SB1172 deprives counselors of their licenses and, therefore, their entire livelihoods, if they express the prohibited viewpoint that SSA can be reduced or eliminated. App. 267a. If the Constitution forbids the government from withholding funding based upon the expression of an unapproved viewpoint, then even more it forbids the government from revoking licenses of counselors who express the disapproved viewpoint that SSA can be reduced or eliminated. As was true in Thomas, [t]he case confronts us again with the duty our system places on this Court to say where the individuals freedom ends and the States power begins. 323 U.S. at 529. Reaching the proper balance is particularly important, where, as here, the individual freedoms at stake involve indispensable democratic freedoms secured by

16 the First Amendment. Id. at 529-30. While the state undoubtedly has the right to regulate professions to protect the public interest, it must not trespass upon the domain set apart for free speech and free assembly. Id. at 532. A restriction against using language that could be interpreted as solicitation was such a trespass and exceeded the states regulatory power. Id. Similarly, SB1172s ban on the message that SSA can be reduced or eliminated goes beyond merely regulating the counseling profession to infringe upon the First Amendment rights of counselors and their clients. As was true in Thomas, this trespass into the domain of free speech has crossed the line between permissible and impermissible regulation. See id. Where, as here, professional codes of conduct impose high standards of care to protect against harm, the states attempt to regulate speech is all the more problematic. Virginia Citizens, 425 U.S. at 768-69. The First Amendment commands the assumption that information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them. Id. at 770. This Court rejected the states claim that a law prohibiting pharmacists from advertising the market price of drugs was necessary to prevent the negative

17 effects of price competition and concluded that it was an impermissible restriction on speech. Id. Similarly, here, the states purported purpose of protecting minors from harmful information related to reducing or eliminating SSA does not hold water in light of the professional counseling standards already in place that require full disclosure of the risks and benefits of all available counseling options and proscribe doing harm to clients. Virginia Citizens requires a finding that SB1172 has crossed the line between permissible regulation and impermissible infringement of speech. The panel constructed a false dichotomy between conduct and speech to find that SB1172 permissibly regulates only conduct, ignoring the evidence that counseling practice consists solely of speech. App. 57a-59a.3 That manipulation of the language to circumvent established precedent should be reviewed by this Court. As Judge OScannlain said, The panel provides no principled doctrinal basis for its dichotomy: by what criteria do we distinguish between utterances that are truly speech, on the one hand, and those that are, on the other hand, somehow treatment or conduct? The panel, contrary to common sense and without legal authority, simply asserts that some spoken wordsthose prohibited by SB1172 are not speech. Appx. 11a.
3

18 B. The Panels Decision Creates Intra- and InterCircuit Conflicts.

The panels decision creates intra- and inter-circuit conflicts with decisions which concluded that restrictions less intrusive than SB1172 crossed the line between permissible professional regulation and impermissible restraint on speech. Conant v. Walters, 309 F.3d 629 (9th Cir. 2002); Cooksey v. Futrell, 721 F.3d 226 (4th Cir. 2013). Those conflicts further illustrate why this Court should accept review. In Conant, another panel of the Ninth Circuit found that a federal law which prohibited physicians from advising patients about the use of medical marijuana went beyond merely regulating physicians to impermissibly interfering with physicians speech. Conant, 309 F.3d at 638. Relying upon Virginia Citizens, the Conant panel found that the law impermissibly closed channels of communication between physicians and patients and prevented physicians from exercising their medical judgment when treating patients. Id. The court also found that, as was true with the limitation in Velazquez, the policy in Conant alter[s] the traditional role of medical professionals by prohibit[ing] speech necessary to the proper functioning of those systems. Id. (citing Velazquez, 531 U.S. at 544). Although the same is true of SB1172,

19 the panel here found that disciplining counselors who express the message that SSA can be reduced and eliminated is nothing more than a legitimate state regulation of the counseling profession. App. 59a-61a. In Cooksey, the Fourth Circuit found that the state crosses the line between professional regulation and speech restriction when it intrudes into the content of the advice professionals offer to their clients. Cooksey, 721 F.3d at 236. The Fourth Circuit found that the states authority to regulate dietitians did not extend to censoring the plaintiffs private conversations with people who contacted him through his Website. Id. Similarly, here the panel should have found that the states authority to license counselors does not extend to prohibiting the message that SSA can be reduced or eliminated.

20

II.

THIS COURT SHOULD GRANT REVIEW TO RESOLVE THE CONFLICT BETWEEN THE PANELS CONCLUSION THAT SB1172 IS NOT A CONTENT- AND VIEWPOINT-BASED RESTRICTION AND PRECEDENTS FROM THIS COURT AND OTHER CIRCUITS.

The panel contradicted decades of this Courts First Amendment jurisprudence, myriad circuit court decisions, the language of the statute, and the evidentiary record when it concluded that SB1172 is not a content- and viewpoint-based restriction on speech but merely a regulation of treatment. The Ninth Circuit constructed two legal fictions to reach its conclusion and circumvent the strict scrutiny analysis required for content-based speech restrictions. Despite the fact that the treatment described in SB1172 consists entirely of speech, the panel fabricated and relied upon a false dichotomy between treatment (which the panel called conduct) and speech. App. 57a-60a. Building upon that fallacious foundation, the panel constructed what it called a continuum of speech protection that bears no relationship to this Courts First Amendment jurisprudence. App. 51a-57a.

21 The significant conflicts between the Ninth Circuits ruling and this Courts First Amendment precedents present an urgent need for this Courts review. A. The Panels Ruling Conflicts with this Courts Precedents.

The Ninth Circuit employed a semantic reclassification tactic that this Court rejected in Sorrell, Velazquez and myriad other precedents as an improper attempt to circumvent strict scrutiny review of content-based speech restrictions. While recognizing that SB1172 regulates talk therapy, the Ninth Circuit nevertheless found that SOCE is treatment that does not even implicate the First Amendment. App. 39a, 108a. The court acknowledged that [t]he record shows that Plaintiffs who are licensed mental health providers practice SOCE only through talk therapy, but then said that SB1172 does nothing to prevent licensed therapists from discussing the pros and cons of SOCE with their patients. App. 57a-60a. The panels conclusion not only strains credulity, but also contradicts Sorrell, Velazquez, Holder, and this Courts numerous precedents prohibiting content and viewpoint based restrictions. See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992); Rosenberger v. Rector & Visitors of

22 the Univ. of Va., 515 U.S. 819 (1995); Brown v. Entmt Merchants Assn, 131 S. Ct. 2738 (2011); Virginia Citizens, 425 U.S. at 771. In Sorrell, this Court rejected a similar attempt to categorize a regulation prohibiting selling or disseminating prescriber-identifying information for marketing as merely a commercial regulation that did not implicate the First Amendment. Sorrell, 131 S. Ct. at 2662. Relying upon this Courts tenet that the creation and dissemination of information are speech, the Sorrell Court found that the law imposes a burden based on the content of speech and the identity of the speaker. Id. at 2665. The Court found the states claim that the law merely regulated conduct, the same claim made here, was meritless in light of longstanding precedent and the explicit terms of the regulation. Id. As was true in Sorrell, SB1172 regulates the creation and dissemination of information, i.e., counseling regarding SSA, and imposes a burden professional disciplinebased upon the content and viewpoint of the speech, i.e., that SSA can be reduced or eliminated. App. 267a. Sorrell requires finding that SB1172 is a content-based restriction on speech subject to strict scrutiny, not, as the lower courts found, a regulation of conduct. As was true of the statute in Virginia Citizens, SB1172 singles out speech of a particular content and seeks to prevent its

23 dissemination completely. 425 U.S. at 771. Consequently, it exceeds the bounds of permissible time, place and manner regulation and violates the First Amendment. Id. This Courts decision in Holder also requires analyzing SB1172 as a content-based speech restriction, or at least affording some level of First Amendment review. 130 S. Ct. at 2723-24. In Holder, the government argued that the criminal ban on material support to groups deemed terrorist related involved only conduct, not speech. Id. at 2723. This Court disagreed, and its description of the effect of the statute equally describes SB1172. Id. Plaintiffs wanted to speak, and whether they may do so under 2339B depends on what they say. Id. at 2723-24. Speech that imparted a specific skill or communicates advice derived from specialized knowledge was barred, but speech that imparted only general or unspecialized knowledge was permitted. Id. at 2724. Consequently, the statute regulates speech on the basis of its content. Id. at 2723. Similarly, under SB1172, whether counselors may speak to minor clients with unwanted SSA depends upon what they want to say or what the client wants to hear. App. 267a. If they want to say or hear that the SSA must be approved and affirmed, then they are permitted to proceed. Id. However, if they want to say or hear that SSA can be reduced or eliminated, they are prohibited from

24 proceeding. Id. The panel tried to avoid this inevitable conclusion by asserting that SB1172 does not prohibit Petitioners from communicating a message. App. 60a. However, as Judge OScannlain said, the implication in Holder is clear: legislatures cannot nullify the First Amendments protections for speech by playing this labeling game. App. 18a. SB1172 goes even beyond mere content discrimination, to actual viewpoint discrimination, as did the ordinance in R.A.V., 505 U.S. at 391. Demonstrators could use certain fighting words if they were expressing a viewpoint of racial or religious tolerance or equality, but could not use those words if they were expressing the viewpoint that certain groups should be excluded or opposed. Id. Here, under SB1172, counselors can counsel minors about unwanted SSA if they say that SSA are to be affirmed and approved, but cannot offer the viewpoint that the SSA can be reduced or eliminated. App. 267a. The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects. Id. Similarly, the First Amendment does not permit California to impose special prohibitions upon counselors who express what the state has said is the disfavored view. The panels decision removes an entire category of speech from any level of

25 First Amendment review. This dangerous precedent should be reviewed by this Court. SB1172 is as viewpoint-based as was the regulation struck down in Velazquez, 531 U.S. at 43. As California does here, the federal government in Velazquez regulated professional advice according to the message being offered. Id. Lawyers who received federal funds could not advise clients or the court that certain welfare statutes were unconstitutional, even if such advice was integral to the lawyers representation and duty to the court. Id. Here, counselors who are licensed by the state cannot advise clients that SSA can be reduced or eliminated, even if that advice is integral to the counselors obligations to their clients. As was true with the regulation in Velazquez, the prohibition in SB1172 should have been found to be an invalid viewpoint-based restriction. Id. See also, Rosenberger, 515 U.S. at 836 (invalidating university regulation that selected student journalistic efforts with religious editorial viewpoints for disfavored treatment). As a content- and viewpoint-based speech restriction, SB1172 is presumed to be invalid and should have been subjected to strict scrutiny analysis. R.A.V., 505 U.S. at 382; Entmt Merchants Assn, 131 S. Ct. at 2738. The panels conclusion that SB1172 is neither content- nor viewpoint-based and can be validated under rational basis review

26 contradicts long-established precedent and should be reviewed by this Court. Despite this Courts warning to inferior courts against arrogating to ourselves any freewheeling authority to declare new categories of speech outside the scope of the First Amendment, the panel has declared that the message that SSA can be reduced or eliminated is outside the protective shield of the First Amendment. (Judge OScannlains dissent, App. 30a citing United States v. Alvarez, 132 S. Ct. 2537, 2547 (2012)). Such speech is not among the well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem e.g., lewd, obscene, profane, libelous, and insulting or fighting words. Chaplinsky v. State of New Hampshire, 315 U.S. 568, 571-72, (1942). The panel exceeded its authority when it attempted to create a new class of unprotected speech. The implications of the decision are staggering. This Court should review the opinion below.

27 B. The Panels Conclusion that SB1172 is a Regulation of Conduct Subject Only to Rational Basis Review Conflicts with Its Own Precedents and the Precedents in Other Courts Finding Similar Regulations to be Content-Based Speech Restrictions.

As well as contradicting this Courts precedents, the panels ruling conflicts with another Ninth Circuit panel analyzing a substantially similar professional regulation and with decisions in the Fourth, Eighth and Eleventh Circuits. Conant, 309 F.3d at 638; National Association for the Advancement of Psychoanalysis v. California Board of Psychology, (NAAP) 228 F.3d 1043 (9th Cir. 2000); Sons of Confederate Veterans, Inc. v. Commn of Virginia Dept of Motor Vehicles, 288 F.3d 610, 625 (4th Cir. 2002); Day v. Holahan, 34 F.3d 1356, 1360-61 (8th Cir. 1994); Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250, 1258 (11th Cir. 2005). These conflicts further illustrate the need for this Courts review. In Conant, another panel of the Ninth Circuit found that a regulation substantially similar to SB1172 was an impermissible viewpoint-based restriction on speech. 309 F.3d

28 at 638. Just as SB1172 prohibits counselors from advising clients that unwanted SSA can be reduced or eliminated, the regulation at issue in Conant prohibited physicians from advising clients that medical marijuana might provide relief for their symptoms. Id. at 637. Instead of stating, as the panel did here, that the prohibition was merely a regulation of medical treatment that did not trigger First Amendment concerns, the Conant panel found the regulation struck at core First Amendment interests of doctors and patients. Id. at 636. The governments policy in this case seeks to punish physicians on the basis of the content of doctor-patient communications. Id. at 637. Moreover, [t]he policy does not merely prohibit the discussion of marijuana; it condemns expression of a particular viewpoint, i.e., that medical marijuana would likely help a specific patient. Id. Finding that the regulation was materially similar to the regulation struck down in Velazquez, the Conant panel concluded that the regulation was an invalid viewpointbased restriction. Id. (citing Rosenberger, 515 U.S. at 829; R.A.V., 505 U.S. at 382). The panel here also contradicted another panels decision in NAAP, which explicitly affirmed that communication that occurs during psychoanalysis is entitled to constitutional protection, even if the psychoanalytical profession is not immune from regulation. 228 F.3d at 1054. Contrary to

29 the panel decision here, the NAAP panel affirmed that mental health professionals do not lose all of their First Amendment immunities once their counseling sessions begin. Id. SB1172 is materially similar to the regulations struck down in Velazquez and Conant which struck at core First Amendment interests of counselors and clients. SB1172 punishes counselors on the basis of the content of their communications with their clients. However, contrary to Velazquez and Conant, the panel here found that SB1172 merely regulates conduct and so need only have a rational basis. App. 58a-62a. The panels decision also conflicts with decisions in other circuits which found regulations that punish certain messages impermissible content- or viewpoint-based restrictions on speech. In Confederate Veterans, the Fourth Circuit found that a restriction against a Confederate flag logo on license plates was impermissible viewpoint-based discrimination. 288 F.3d at 625. The court found that the regulation burdened only the speech of the organization and not of others using similar logos. Id. Therefore, it was the organizations viewpoint, rather than the Confederate flag as content, that was the subject of the restriction. Id. Similarly, the Eighth Circuit found that a statute that singled out speech that advocated

30 the defeat of a candidate and/or supported the election of her opponents for negative treatment was a statute that by [its] terms distinguish[es] favored speech from disfavored speech on the basis of the ideas or views expressed, and thus cannot be content-neutral. Day, 34 F.3d at 1360-61. Expenditures supporting the expression of any sentiment other than advocating the defeat of one candidate or the election of another did not trigger the statutes limit-increasing and money-shifting provisions. Id. Consequently, the court found that the regulation imposed differential burdens upon speech because of its content and had to be subject to strict scrutiny. Id. Similarly, the Eleventh Circuit found a sign ordinance that exempted certain categories of signs constituted a facially unconstitutional content-based restriction on speech. Solantic, 410 F.3d at 1258. Because most (though not all) of the exemptions from the sign code are based on the contentrather than the time, place, or mannerof the message, we are constrained to agree with Solantic that the sign code discriminates against certain types of speech based on content. Id. Despite the fact that SB1172, like the regulations in Confederate Veterans, Day and Solantic, prohibits only counseling that expresses a particular message, the Ninth

31 Circuit panel found that there was no unconstitutional restriction and no level of First Amendment protection. Because that conclusion conflicts with other circuits, as well as another panel of the Ninth Circuit, this Court should grant review.

III. THIS COURT SHOULD GRANT REVIEW TO RESOLVE THE CONFLICT BETWEEN THE PANELS CONCLUSION THAT A REGULATION OF CONDUCT WHICH ALSO INFRINGES ON SPEECH NEED NOT BE SUBJECT TO INTERMEDIATE SCRUTINY AND THIS COURTS PRECEDENT.
The Ninth Circuit plowed new ground with its novel First Amendment continuum to bypass intermediate scrutiny and conclude that SB1172 need only satisfy rational basis. In fact, this panel acknowledged that SB1172 had an incidental effect on speech, but then concluded it was solely conduct that need only satisfy the Ninth Circuits version of rational basis. Neither of the lower courts did or could cite any precedent from this Court justifying their use of rational basis review. This Court has established that content-neutral regulations that have even an incidental effect

32 on speech must be subjected to intermediate scrutiny. United States v. OBrien, 391 U.S. 367, 377 (1968). Both lower courts ignored OBrien. However, this Court has established that OBrien is the standard to be applied if a law is not content-based. A. The Panels Conclusion Conflicts with this Courts Precedents Establishing That Content-Neutral Speech Restrictions Must be Subject to Intermediate Scrutiny.

The panel ignored 45 years of precedent when it concluded that SB1172, which it acknowledged had at least an incidental effect on speech,4 need only satisfy rational basis review. Since OBrien, this Court has consistently maintained a content-neutral regulation that has even an incidental effect on speech will be subject to intermediate Since SOCE consists solely of talk therapy, it should be categorized as speech, not conduct. App. 142a, 153a. However, Petitioners note the lower courts acknowledgement that SB1172 has an incidental effect on speech to illustrate its error in applying rational basis instead of intermediate scrutiny.
4

33 scrutiny. 391 U.S. at 377. Such a regulation will be sustained only if it advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests. Id. See also Turner Broad. Sys., Inc. v. F.C.C., 520 U.S. 180, 189 (1997) (basing its analysis on the standards for intermediate scrutiny enunciated in OBrien). In Holder, this Court again reiterated that intermediate scrutiny is the proper standard of review for a First Amendment challenge to a regulation of conduct that has an effect upon speech. Holder, 130 S. Ct. at 272324. In fact, Holder illustrates the glaring conflict between the panels holding and this Courts precedent. In Holder, the government argued that the restriction challenging material support for foreign organizations was solely a regulation of conduct and therefore subject to OBrien. Id. at 2723. That statement is notable in that even the government did not go as far as the courts did here, i.e. arguing that the regulation of conduct need only have a rational basis. Id. This Court implicitly agreed that OBriens intermediate scrutiny (not rational basis) standard would be appropriate if the material support restriction regulated conduct without regard to the message being conveyed. Id. at 2724. However, since the conduct triggering coverage under the statute

34 consisted of communicating a message, it was subject to strict scrutiny. Id. As this Court explained in Texas v. Johnson, 491 U.S. 397, 403 (1989), [i]f the [Governments] regulation is not related to expression, then the less stringent standard we announced in United States v. OBrien for regulations of noncommunicative conduct controls. However, if the regulation is related to expression, then we are outside of OBriens test, and we must [apply] a more demanding standard. Id. OBrien applies if a regulation is contentneutral and has an incidental restriction on speech. Rumsfeld v. FAIR, 547 U.S. 47, 66 (2006). In Rumsfeld, this Court found that the Solomon Amendment, which requires that law schools grant military recruiters equal access for job recruitment activities, was not inherently expressive so as to trigger intermediate scrutiny under OBrien. Id. at 65. The law schools argued that the Solomon Amendment was inherently expressive because granting access to military recruiters would communicate the message that they agree with the militarys policies. Id. This Court rejected the schools attempt to infuse an access policy with communicative elements and found that OBrien did not apply. Id. at 66. By contrast, in this case no attenuated argument is required to find that SOCE is inherently expressive. SB1172 regulates SOCE,

35 which is entirely composed of talk therapy. App. 142a, 153a. SOCE is inherently and entirely expressive. Id. SB1172 must at least be examined under the intermediate scrutiny rubric of OBrien. Rumsfeld, 547 U.S at 66; Holder, 130 S. Ct. at 2723. The lower courts refusal even to acknowledge OBrien and instead to apply rational basis review cannot be reconciled with this Courts precedent. Therefore, because the lower court has set a dangerous precedent for infringing fundamental free speech rights in a professional setting, this Court should grant review. B. The Panels Decision that Rational Basis Review Applies Conflicts with Other Ninth Circuit Panels and Other Circuits.

The panel contradicted decisions from other circuits when it validated SB1172 based upon rational basis review. Unlike the panel here, other panels of the Ninth Circuit as well as panels in the Third, Fourth, Fifth, Seventh and Eighth Circuits have applied the OBrien intermediate scrutiny standard, not rational basis review, to content-neutral speech restrictions. Porter v. Bowen, 496 F.3d 1009, 1021 (9th Cir. 2007); Jacobs v. Clark Cnty. Sch. Dist., 526 F.3d 419, 434-35 (9th Cir. 2008);

36 Egolf v. Witmer, 526 F.3d 104, 120-21 (3d Cir. 2008); Am. Life League, Inc. v. Reno, 47 F.3d 642, 651 (4th Cir. 1995); Canady v. Bossier Parish Sch. Bd., 240 F.3d 437, 443 (5th Cir. 2001); Hodgkins v. Peterson, 355 F.3d 1048, 1064 (7th Cir. 2004); Farkas v. Miller, 151 F.3d 900, 905 (8th Cir. 1998). In Porter, a Ninth Circuit panel applied OBrien to a regulation that affected communication regarding voting rights and concluded that the States legitimate interests did not support threatened criminal prosecution of the owners of voting Web sites. Id. Similarly, in Jacobs, another panel of the Ninth Circuit held that OBriens intermediate scrutiny standard should be applied to school policies that place content-neutral restrictions upon pure speech or place limitations upon expressive conduct. 526 F.3d at 434. The Third, Fourth, Fifth, Seventh and Eighth Circuits have all affirmed that intermediate scrutiny, not rational basis review, is the appropriate standard for contentneutral regulations challenged on First Amendment grounds. In Egolf, the Third Circuit stated that the OBrien test was appropriate when dealing with the regulation of conduct embodying both speech and nonspeech elements. 526 F.3d at 120. See also Conchatta Inc. v. Miller, 458 F.3d 258, 267 (3d Cir. 2006) (Where, as here, a regulation burdens expression but is content-neutral,

37 courts apply the intermediate scrutiny standard enunciated in OBrien.). In American Life League, the Fourth Circuit found that the Freedom of Access to Clinic Entrances Act was subject to intermediate scrutiny under OBrien. 47 F.3d at 651. In Canady, the Fifth Circuit found that a content-neutral school uniform policy should be analyzed using intermediate scrutiny. 240 F.3d at 443. In Hodgkins, the Seventh Circuit applied OBrien intermediate scrutiny to invalidate a curfew law that incidentally affected minors late-night free speech activities. 355 F.3d at 1064. In Farkas, the Eighth Circuit applied intermediate scrutiny to an adult entertainment regulation. 151 F.3d at 905. In each of these decisions, the courts recognized that there were two alternatives for reviewing regulations that affect First Amendment activities, intermediate scrutiny if the regulations at least incidentally affect expression, or strict scrutiny if the regulations directly affect expression. Even regulations which, unlike SB1172, only peripherally affect speech such as school uniforms or adult entertainment have warranted at least intermediate scrutiny. The panel decision here according SB1172, which directly targets counseling consisting entirely of speech, only rational basis review cannot be reconciled with established precedent and should be reviewed by this Court.

38

IV.

THIS COURT SHOULD GRANT REVIEW TO RESOLVE THE CONFLICT BETWEEN THE PANELS CONCLUSION THAT SB1172 IS NOT VAGUE AND OVERBROAD AND THIS COURTS PRECEDENTS.
A. The Panels Conclusion that SB1172 Is Not Vague Conflicts with Established Precedent.

The panels conclusion that SB1172 is not void for vagueness conflicts with this Courts precedents which recognize that First Amendment freedoms need breathing space to survive, so the government may regulate expressive activity only with narrow specificity. NAACP v. Button, 371 U.S. 415, 438 (1963). In order to survive a vagueness challenge, a statute must give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that they may act accordingly and provide explicit standards for application in order to prevent arbitrary and discriminatory enforcement. Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972). People such as Petitioners who face potential

39 sanction under the statute must have fair notice and adequate warning that their actions run afoul of the law. Gentile v. State Bar of Nevada, 501 U.S. 1030, 1077-78 (1991). The panels conclusion that SB1172 provides the required safeguards cannot be reconciled with these precedents. In fact, the panels explanation of why it concluded that SB1172 is not vague itself belies the statement that its meaning is perfectly clear to those affected by its provisions. The panel stated that [a] reasonable person would understand the statute to prohibit only mental health treatment, including psychotherapy, that aims to alter a minor patients sexual orientation. App. 72a. The panel also said that SB1172 allows discussions about treatment, recommendations to obtain treatment, and expressions of opinions about SOCE and homosexuality. App. 58a. However, the panel acknowledged that Plaintiffs who are licensed mental health providers practice SOCE only through talk therapy, i.e., speech. App. 58a59a at n.5. If Petitioners engage only in talk therapy and they are prohibited from engaging in talk therapy aimed at reducing or eliminating SSA, then a reasonable person would understand that a counselor could not talk about reducing or eliminating SSA. The panels contention that SB1172 permits discussions about SOCE does not comport with the text of the law or the

40 record, thereby demonstrating that it does not have the precision of regulation necessary for a statute affecting First Amendment rights. Even if SB1172 were found to meet the threshold vagueness inquiry, there is no way to determine at what point talking about the pros and cons of SOCE becomes counsel about SOCE that violates SB1172. Given its imprecision, Petitioners are foreclosed from even mentioning SOCE for fear of losing their professional license for fear of an ethical complaint. SB1172 does not provide professionals subject to the law with notice and warning of what conduct will be subject to discipline. The Sixth Circuit reached that conclusion with a similar provision for which the government offered different possible interpretations of the relevant language. McGlone v. Cheek, 534 F. Appx. 293, 298 (6th Cir. 2013). The inconsistency in interpretation meant that the statute was impermissibly unclear to the ordinary person who was subject to the regulation. Id. Similarly, the Second Circuit found that a prison regulation of religious services or speech did not provide reasonable notice of what was prohibited and did not sufficiently cabin administrative discretion. Chatin v. Coombe, 186 F.3d 82, 89 (2d Cir. 1999). As is true with SB1172, the regulation was subject to varying interpretations by government officials and therefore was unconstitutionally vague. Id. The panels

41 conclusion that SB1172 is not vague creates a conflict that this Court should review. B. The Panels Conclusion that SB1172 Is Not Overbroad Conflicts with Precedent.

The panels conclusion that SB1172 is not overbroad, but has a plainly legitimate sweep cannot be reconciled with this Courts precedents prohibiting overbroad regulations of speech. United States v. Stevens, 559 U.S. 460, 474 (2010). As was true with the statute in Stevens, SB1172 creates a professional sanction of alarming breadth. Id. SB1172s mandate that [u]nder no circumstances shall a mental health provider engage in sexual orientation change efforts with a patient under 18 years of age, App. 267a (emphasis added), like the statute in Stevens, does not provide exceptions or limitations to prevent infringing free speech. See id. Instead, it sweeps into its prohibition anything that could be construed to be treatment aimed at reducing or eliminating SSA. App. 266a-267a. The only treatment in which Petitioners engage is speech, so SB1172 necessary chills their speech. App. 142a, 153a. There are no guidelines to determine when talking about the pros and cons of SOCE become conduct, and thus violate SB1172.

42 The law is so broad it encompasses mere discussion as much as continual counseling, because at the end of the day the perception will lie with the client. The panels contention that SB1172 does not prevent discussions about SOCE does not comport with the language of SB1172, which, like the statute in Stevens, infringes upon the First Amendment rights of Petitioners. 559 U.S. at 482. SB1172s sweeping language poses a realistic danger of significantly compromising First Amendment protections as it prevents all licensed counselors from using speech to send the message that SSA can be reduced or eliminated, under any circumstances. App. 267a. Consequently, SB1172 is overbroad and invalid under the First Amendment under Stevens, Entmt Merchants Assn and similar precedents. The panels contrary conclusion conflicts with these precedents, and this Court should grant review to resolve the conflict. The panels conclusion also conflicts with decisions in other circuits that have found that similar sweeping prohibitions are unconstitutionally overbroad under this Courts precedents. See, e.g., Free Speech Coalition, Inc. v. Attorney Gen., 677 F.3d 519, 538 (3d Cir. 2012) (statutes mandating compliance by whoever produces certain videos is overbroad); Disc. Tobacco City & Lottery, Inc. v. United States, 674 F.3d 509, 559 (6th Cir. 2012) cert.

43 denied, 133 S. Ct. 1996 (2013) (law regulating graphic advertising warnings is overbroad). The inter-circuit conflict caused by the panels decision, along with the conflict between the decision and this Courts precedents, points to the need for this Courts review.

V.

THIS COURT SHOULD GRANT REVIEW TO RESOLVE THE CONFLICT BETWEEN THE PANELS CONCLUSION THAT SB1172 DOES NOT VIOLATE PARENTAL RIGHTS AND THIS COURTS PRECEDENT.

Disregarding decades of this Courts and circuit court precedents, the panel adopted the statist notion that governmental power should supersede parental authority that this Court has found to be repugnant to American tradition. Parham v. J.R., 442 U.S. 584, 603 (1979). This Court, other panels of the Ninth Circuit, and other circuits have long recognized the primacy of parents fundamental rights, particularly the right to make important medical decisions for their children without undue interference from the state. Id. at 602; Wallis v. Spencer, 202 F.3d 1126, 1141 (9th Cir. 2000); Kickapoo Tribe of Oklahoma v. Rader, 822 F.2d 1493, 1497 (10th Cir. 1987). The

44 Ninth Circuits eschewed this longstanding precedent and validated supplanting parental authority with governmental power to determine whether minors can receive mental health treatment. This Court should grant review to reverse this dangerous assumption of power by the state legislature. A. The Panels Decision Conflicts with This Courts Longstanding Protection of Parental Rights.

The panels validation of SB1172 violates this Courts longstanding protection of the right to marry, establish a home and bring up children which is among those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. Meyer v. Nebraska, 262 U.S. 390, 399 (1923). SB1172s blanket prohibition against minors receiving counseling that seeks to reduce or eliminate unwanted SSA, counseling which parents have consented to and determined serves their childrens best interests, invades the private realm of family life which the state cannot enter. Prince v. Massachusetts, 321 U.S. 158, 166 (1944). It is the parents responsibility to inculcate moral standards, religious beliefs, and elements of good citizenship in their children. Wisconsin v.

45 Yoder, 406 U.S. 205, 233 (1972). Petitioners Jack and Jane Does 1 and 2 have undertaken that responsibility by seeking SOCE counseling with professionally licensed counselors for their children at their childrens request. California has superseded the parents rights and controverted perhaps the oldest fundamental liberty interest recognized by this Court, i.e., parental interest in the care, custody, and control of their children. Troxel v. Granville, 530 U.S. 57 (2000). This Court has specifically stated that parents fundamental rights to direct the upbringing of their children include making important medical decisions for their children, with a concomitant right of the children to have those decisions made by parents rather than the state. Parham, 442 U.S. at 602. The panel paid lip service to these precedents, but then avoided following them by recasting the right being asserted by Petitioners. App. 76-78a. The panel determined 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. App. 76-78a. Having re-defined the relevant question, the Ninth Circuit proceeded to answer it by referencing precedents which addressed parental rights vis-a-vis public schools. App. 76-78a (citing Prince, 321 U.S. at

46 166; Fields v. Palmdale Sch. Dist., 427 F.3d 1197, 1204 (9th Cir. 2005)). Since SB1172 does not implicate the states authority over public education, Prince and Fields cannot validate the statute, which conflicts with Parham and numerous circuit court decisions that address private medical decisions such as those made by Petitioners here. The conflict between the panel decision and this Courts precedents demonstrates the need for review. B. The Panels Decision Conflicts with Other Circuits Decisions.

As well as conflicting with this Courts decision in Parham, the panels decision conflicts with another Ninth Circuit panels decision upholding parental rights to make medical decisions for their children. Wallis v. Spencer, 202 F.3d 1126, 1141 (9th Cir. 2000). Unlike Fields, Wallis addressed the fundamental right at issue in this case, i.e., the right to family association [which] includes the right of parents to make important medical decisions for their children, and of children to have those decisions made by their parents rather than the state. Id. Similarly, in Video Software Dealers Assn v. Schwarzenegger, 556 F.3d 950, 962-63 (9th Cir. 2009), another Ninth Circuit panel rejected the states attempt to interfere in

47 parents private decision-making regarding their childrens well-being. Video Softwares invalidation of a violent video game law for lack of evidence of harm also illustrates how the panel here failed to comply with this Courts requirement that there must be substantial evidence, not mere anecdote and suspicion or opinion evidence of harm before the state can restrict parental rights.5 United States v. Playboy Entmt Grp., 529 U.S. 803, 822 (2000). The panels decision also conflicts with other circuits that have upheld fundamental rights in the context of private decisions dealing with health and well-being. For example in Kickapoo Tribe, the Tenth Circuit rejected the states attempt to supersede parental rights regarding medical treatment absent evidence of harm. 822 F.2d at 1497. The Seventh Circuit likewise said it is clear that the court is to apply some form of heightened scrutiny in cases alleging a violation of a governmental interference with familial relations. Doe v. Heck, 327 F.3d 492, 519 (7th Cir. 2003). Whereas in this case, the state adopted the presumption that parents do not act in the best interest of their children when As described above, the APA report upon which the legislature relied in drafting SB1172 concluded that there is no research regarding SOCE counseling with children and youth. App. 143a-144a.
5

48 they choose SOCE counseling, in Doe, the Seventh Circuit properly rejected the governments adoption of the presumption that parents do not act in their childrens best interest. Id. at 521. The panel decisions conflict with decisions of other panels in its circuit as well as other circuit panels creates an untenable interference upon parental rights, requiring this Courts review. CONCLUSION Acting contrary to this Courts chastening, the Ninth Circuit has created, out of whole cloth, a new category of speech to which the First Amendment does not apply. (Judge OScannlains dissent, App. 32a). In addition, the panels conclusions that SB1172 is not vague or overbroad and does not infringe upon parental rights conflicts with Ninth Circuit and Supreme Court precedent.

49

For these reasons, the Petition should be granted. February 2014 Mathew D. Staver (Lead Counsel) Anita L. Staver Horatio G. Mihet LIBERTY COUNSEL PO Box 540774 Orlando, FL 32854 (800) 671-1776 court@lc.org Stephen M. Crampton Mary E. McAlister LIBERTY COUNSEL P.O. Box 11108 Lynchburg, VA 24506 (434) 592-7000 court@lc.org