13-4429 #699665

13-4429
IN THE
United States Court of Appeals
FOR THE THIRD CIRCUIT
TARA KING, ED. D. individually and on behalf of her patients; RONALD NEWMAN,
PH. D., individually and on behalf of his patients; NATIONAL ASSOCIATION FOR
RESEARCH AND THERAPY OF HOMOSEXUALI TY, (NARTH); AMERI CAN
ASSOCIATION OF CHRISTIAN COUNSELORS,
Appellant,
v.
GOVERNOR OF THE STATE OF NEW J ERSEY; ERIC T. KANEFSKY, DIRECTOR OF
THE NEW J ERSEY DEPARTMENT OF LAW AND PUBLIC SAFETY: DIVISION OF
CONSUMER AFFAIRS, in his official capacity; MILAGROS COLLAZO, EXECUTIVE
DIRECTOR OF THE NEW J ERSEY BOARD OF MARRIAGE AND FAMILY THERAPY
EXAMI NERS, in her official capacity; J . MI CHAEL WALKER, EXECUTI VE
DIRECTOR OF THE NEWJ ERSEY BOARD OF PSYCHOLOGICAL EXAMINERS, in his
official capacity; PAUL J ORDAN, PRESIDENT OF THE NEW J ERSEY STATE BOARD
OF MEDICAL EXAMINERS, in his official capacity; GARDEN STATE EQUALITY,
Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEWJ ERSEY
SUPPLEMENTAL BRIEF OF APPELLEE
GARDEN STATE EQUALITY
d
FRANK HOLOZUBIEC
DAVID S. FLUGMAN
SHIREEN A. BARDAY
ANDREW C. ORR
KIRKLAND & ELLIS LLP
601 Lexington Avenue
New York, New York 10022
(212) 446-4800
and
ANDREW J. WELZ
KIRKLAND & ELLIS LLP
655 Fifteenth Street, NW
Washington, D.C. 20005
(202) 879-5000
MICHAEL GLUCK
ANDREW BAYER
GLUCKWALRATH LLP
428 River View Plaza
Trenton, New J ersey 08611
(609) 278-3900
SHANNON P. MINTER
CHRISTOPHER F. STOLL
AMY WHELAN
NATIONAL CENTER FOR
LESBIAN RIGHTS
870 Market Street, Suite 370
San Francisco, California 94102
(415) 392-6257
Attorneys for Appellee Garden State Equality
Case: 13-4429 Document: 003111699665 Page: 1 Date Filed: 08/05/2014

i
TABLE OF CONTENTS
Page
INTRODUCTION ..................................................................................................... 1
I. The State May Reasonably Regulate Medical Practice, Including
Professional Speech That Is Part Of The Provision Of Care. ......................... 4
II. Plaintiffs Argument Has No Basis In Existing First Amendment Law
And Would Call Into Question Many Other Common Regulations Of
Medical Care. ................................................................................................... 9
CONCLUSION ........................................................................................................ 15


ii
TABLE OF AUTHORITIES
Page(s)
Cases
Accountants Socy of Va. v. Bowman,
860 F.2d 602 (4th Cir. 1988) .................................................................................. 5
Barsky v. Bd. of Regents of Univ. of State of N.Y.,
347 U.S. 442 (1954) ................................................................................................ 4
Calabrese v. Trenton State Coll.,
392 A.2d 600 (N.J. Super. Ct. App. Div. 1978),
affd, 413 A.2d 315 (N.J. 1980) .............................................................................. 8
Canterbury v. Spence,
464 F.2d 772 (D.C. Cir. 1972) .............................................................................. 11
Coggeshall v. Mass. Bd. of Registration of Psychologists,
604 F.3d 658 (1st Cir. 2010) ...............................................................................7, 8
Conant v. Walters,
309 F.3d 629 (9th Cir. 2002) .................................................................................. 9
Fla. Bar v. Went For It, Inc.,
515 U.S. 618 (1995) ................................................................................................ 5
Jaffee v. Redmond,
518 U.S. 1 (1996) .................................................................................................... 4
Locke v. Shore,
634 F.3d 1185 (11th Cir. 2011) .............................................................................. 5
Lowe v. SEC,
472 U.S. 181 (1985) ............................................................................... 4, 5, 11, 12
Pickup v. Brown,
740 F.3d 1208 (9th Cir. 2014) ................................................................... 7, 11, 12
Planned Parenthood of Se. Pa. v. Casey,
505 U.S. 833 (1992) ................................................................................................ 1
Planned Parenthood v. Rounds,
686 F.3d 889 (8th Cir. 2012) .................................................................................. 7
Schware v. Bd. of Bar Examrs of State of N.M.,
353 U.S. 232 (1957) ................................................................................................ 5
TABLE OF AUTHORITIES (CONT'D)
Page(s)
iii
Stuart v. Loomis,
__F. Supp. 2d __, No. 1:11-CV-804, 2014 WL 186310
(M.D.N.C. Jan.17, 2014) ................................................................................. 5, 12
Tex. Med. Providers Performing Abortion Servs. v. Lakey,
667 F.3d 570 (5th Cir. 2012) .................................................................................. 8
Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc.,
425 U.S. 748 (1976) ................................................................................................ 8
Vasilik v. Federbush,
742 A.2d 591 (N.J. Super. Ct. App. Div. 1999) ..................................................... 8
Watson v. Maryland,
218 U.S. 173 (1910) ............................................................................................2, 4
Wollschlaeger v. Governor of Fla.,
__ F.3d __, No. 12-14009, 2014 WL 3695296
(11th Cir. July 25, 2014) .....................................................................................3, 7
Other Authorities
Jennifer M. Keighley, Physician Speech & Mandatory Ultrasound Laws: The First
Amendments Limit on Compelled Ideological Speech,
34 CARDOZO L. REV. 2347 (2013) ........................................................................ 12
Kathleen Sullivan, The Intersection of Free Speech and the Legal Profession:
Constraints on Lawyers First Amendment Rights,
67 FORDHAM L. REV. 569 (1998) ............................................................................ 6
Randall P. Bezanson, Speaking Through Others Voices: Authorship, Originality,
and Free Speech,
38 WAKE FOREST L. REV. 983 (2003) ................................................................... 11
Robert Post, Informed Consent to Abortion: A First Amendment Analysis of
Compelled Physician Speech,
2007 U. ILL. L. REV. 939 (2007) ........................................................................... 12

INTRODUCTION
On July 30, 2014, this Court requested supplemental briefing from the
parties in response to the questions: What role does the doctrine of professional
speech play in this case? If A3371 regulates speech and not merely conduct,
how much protection does this speech receive under the First Amendment? Are
Plaintiffs free speech rights diminished when they are speaking as licensed
professionals in the course of treating clients? (Doc. No. 003111694096.)
The answer to these questions is as follows: A3371 can be understood as a
regulation of speech by professionals and, under such an analysis, A3371 is valid
because (i) medical professionals generally have diminished free speech rights
when they are speaking as licensed professionals in the course of treating clients,
(ii) states may impose reasonable restrictions on professional speech in that
context, and (iii) the limitations imposed on professionals by A3371 fall squarely
within the ambit of those routinely upheld by courts, including the Supreme Court
in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833
(1992).
Appellate courts, including the Supreme Court, have long recognized the
broad authority of states to regulate the medical and mental health professions to
ensure that patients receive competent care. This is the law even though these
professionals use speech in the course of providing medical care. As the Supreme

2
Court stated in Casey, 505 U.S. at 884, speech that is part of the practice of
medicine, [is] subject to reasonable licensing and regulation.
1

In contrast, the proposed rule that Plaintiffs advancesubjecting
professional regulations to heightened First Amendment scrutiny whenever they
affect professional speechwould overturn a century of settled law confirming
power and duty of states to regulate state-licensed providers of medical care. See,
e.g., Watson v. Maryland, 218 U.S. 173, 176 (1910) (There is perhaps no
profession more properly open to such regulation than that which embraces the
practitioners of medicine.). Indeed, such a rule would call into question a central
premise of regulation of the medical profession (including through medical
malpractice law)that states can enforce accepted professional standards about
how medical professionals treat their patients, including aspects of what they can
and cannot say to their patients when providing care.
While the First Amendment provides medical and other professionals with
almost complete freedom to express any views in the public arena, it does not
prevent states from enacting reasonable regulations to protect the public health and
safety by requiring that professionals operating under the aegis of a state-issued

1
Although this particular holding is contained in the plurality opinion authored by
Justices OConnor, Kennedy, and Souter, a majority of the Courtincluding Chief
Justice Rehnquist, as well as Justices White, Scalia, and Thomasagreed with this
portion of the decision. Id. at 967, 981.

3
license comply with professional standards of competence. Instead, courts have
recognized that when states require medical providers to adhere to the accepted
level of care when treating patients, such regulations do not implicate the core
concerns of the First Amendment and are generally permissible, even when they
encompass some restrictions on professional speech. As the Eleventh Circuit
recently confirmed, the First Amendment permits states to define the standards of
good medical practice and provide for administrative enforcement of those
standards. Wollschlaeger v. Governor of Fla., __ F.3d __, No. 12-14009, 2014
WL 3695296, at *13 (11th Cir. July 25, 2014).
This is precisely what New Jersey has done in enacting A3371. Sexual
orientation change efforts (SOCE) have been rejected as scientifically unfounded
by the nations medical, mental health, and child welfare organizationsincluding
the American Medical Association, the American Psychological Association, the
American Psychiatric Association, and the American Academy of Pediatricians,
among othersbecause efforts to change a young persons sexual orientation
conflict with the contemporary scientific understanding of sexual orientation, are
ineffective, and pose serious risks to the health and well-being of minors.
2
A3371
codifies this professional consensus in prohibiting licensed mental health providers
from engaging in these discredited practices with minors. For these reasons, even

2
See Brief for Appellee Garden State Equality at 68, Doc. No. 003111545347.

4
if A3371 is understood as a restriction on professional speech by licensed mental
health care providers, it easily passes muster under the First Amendment standard
of reasonableness that applies to such regulations.
I. THE STATE MAY REASONABLY REGULATE MEDICAL
PRACTICE, INCLUDING PROFESSIONAL SPEECH THAT IS
PART OF THE PROVISION OF CARE.
Courts have long recognized that states have a strong interest in regulating
the practice of medicine, including psychotherapy, and have the authority to do so.
Watson, 218 U.S. at 176 (It is too well settled to require discussion . . . that the
police power of the states extends to the regulation of certain trades and callings,
particularly those which closely concern the public health.); see also Jaffee v.
Redmond, 518 U.S. 1, 11 (1996) (The mental health of our citizenry, no less than
its physical health, is a public good of transcendent importance.). It is equally
clear that a states legitimate concern for maintaining high standards of
professional conduct extends beyond initial licensing, Barsky v. Bd. of Regents of
Univ. of State of N.Y., 347 U.S. 442, 451 (1954), and extends to the actual practice
of medicine.
Courts have also recognized that, in exercising that authority, states may
impose reasonable regulations on professional speech. The power of government
to regulate the professions is not lost whenever the practice of a profession entails
speech. Lowe v. SEC, 472 U.S. 181, 228 (1985) (White, J., concurring). Speech

5
by professionals obviously has many dimensions, Florida. Bar v. Went For It,
Inc., 515 U.S. 618, 634 (1995), and [t]here is a difference, for First Amendment
purposes, between regulating professionals speech to the public at large versus
their direct, personalized speech with clients. Locke v. Shore, 634 F.3d 1185,
1191 (11th Cir. 2011) (citing Lowe, 472 U.S. at 232 (White, J., concurring)); see
also Accountants Socy of Va. v. Bowman, 860 F.2d 602, 604 (4th Cir. 1988)
(Professional regulation is not invalid, nor is it subject to first amendment strict
scrutiny, merely because it restricts some kinds of speech.). Rather, any First
Amendment concerns when the state compels compliance with standards of
acceptable and prevailing [professional] practice are minimal. Stuart v.
Loomis, __F. Supp. 2d __, No. 1:11-CV-804, 2014 WL 186310, at * 10 (M.D.N.C.
Jan. 17, 2014) (citations omitted).
Most legal practice, for example, involves speech in the broadest sense, but
state bar regulations are permissible so long as they have a rational connection
with the applicants fitness or capacity to practice the profession. Schware v. Bd.
of Bar Examrs of State of N.M., 353 U.S. 232, 239 (1957). States regulate lawyers
in a number of ways that restrict speech, including rules of evidence and
procedure, bans on revealing grand jury testimony, prohibitions on counseling a
client to commit perjury, restrictions on in person solicitation, and sanctions for
frivolous pleadings. When a lawyer counsels her client to violate the law

6
including a law she believes to be unconstitutional or grossly unfairshe may be
subject to professional discipline, notwithstanding that her advice was based on her
personal views. See Kathleen Sullivan, The Intersection of Free Speech and the
Legal Profession: Constraints on Lawyers First Amendment Rights, 67 FORDHAM
L. REV. 569 (1998) (Lawyers freedom of speech is constrained in many ways
that no one would challenge seriously under the First Amendment).
The same principles hold true in the context of the medical profession. In
Casey, the Supreme Court upheld a requirement that doctors provide certain
information to women considering an abortion. 505 U.S. at 884. Though
acknowledging that the physicians First Amendment rights . . . [were]
implicated, the Court found no constitutional infirmity in the requirement that
the physician provide the information mandated by the State. Id. Rather, the
Court held that the law restricted speech only as part of the practice of medicine
and that such speech is subject to reasonable licensing and regulation by the
State. Id. That holding is directly applicable here and requires the application of
a reasonableness standard to A3371, which similarly restricts the professional
speech of licensed mental health care providers only as part of the practice of
[mental health treatment].
Consistent with Casey, other appellate courts uniformly have held that states
may regulate the speech of doctors and other health care providers, including

7
psychotherapists, to ensure compliance with professional standards of care. In
Wollschlaeger v. Governor of Fla., __ F.3d __, No. 12-14009, 2014 WL 3695296
(11th Cir. July 25, 2014), the Eleventh Circuit recently confirmed this framework,
holding that while doctors speech enjoys First Amendment protections which are
at their apex when [the doctor] speaks to the public on matters of public concern,
such protections approach a nadir . . . when the [doctor] speaks privately, in the
course of exercising his or her professional judgment, to a person receiving
medical treatment. Id. at *13.
3
Similarly, in upholding a statute virtually identical
to that challenged by Plaintiffs here, the Ninth Circuit held that, unlike a situation
in which a professional is engaged in a public dialogue, [where] First Amendment
protection is at its greatest, when a doctor speaks within the confines of a
professional relationship, First Amendment protection . . . is somewhat
diminished. Pickup v. Brown, 740 F.3d 1208, 122728 (9th Cir. 2014); see also
Planned Parenthood v. Rounds, 686 F.3d 889, 893 (8th Cir. 2012) (recognizing

3
The dissent in Wollschlaeger raises an important questionnot presented here
about the application of that framework to the unusual law challenged in that case,
which barred doctors from discussing purportedly medically irrelevant topics with
their patients. As the dissent noted, by subjecting speech that is irrelevant to
medical conduct to regulation without First Amendment scrutiny, the majority
opinion could be construed as holding that any speech taking place within the
confines of the doctor-patient relationship can be restricted without First
Amendment scrutiny. Id. at *41. In contrast, A3371 falls squarely within the
states power to regulate medical conduct and was enacted to protect minor
patients from discredited and unsafe treatments and restricts only the professional
speech that is used as a vehicle for such treatments.

8
under Casey that doctors speech can be subject to reasonable regulation); Tex.
Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570, 57677 (5th
Cir. 2012) (same); Coggeshall v. Mass. Bd. of Registration of Psychologists, 604
F.3d 658, 667 (1st Cir. 2010) (Simply because speech occurs does not exempt
those who practice a profession from state regulation[.]).
4

Under this settled approach to the regulation of professional conduct and
speech, the restrictions on professional speech imposed by A3371 do not require
heightened First Amendment scrutiny. A3371 was enacted to require licensed
mental health care providers to provide competent care and to prevent them from
subjecting minor patients to ineffective and discredited treatments. As such, its

4
This framework is consistent with the well-settled principle that First Amendment
law must be sensitive to the context in which speech occurs. For example, states
generally cannot restrict speech in the public arena because it is false; however,
because the constitutional value of commercial speech lies in the information it
carries, the Supreme Court has held that states can prevent commercial speech that
is false or misleading. Va. State Bd. of Pharmacy v. Va. Citizens Consumer
Council, Inc., 425 U.S. 748, 771 (1976). Likewise, courts have recognized that
states generally can regulate speech by professionals to require adherence to
professional standards of competence without violating the First Amendment even
if similar restrictions would be impermissible in other settings. For example, under
ordinary circumstances, a person has no duty to suggest that a person with a
substance abuse problem be hospitalized, but a doctor might incur liability, without
running afoul of the First Amendment, for failing to do so. See, e.g., Vasilik v.
Federbush, 742 A.2d 591, 593 (N.J. Super. Ct. App. Div. 1999). And there is no
serious doubt that doctors can be held liable for failing to provide specific
information to patients. See, e.g., Calabrese v. Trenton State Coll., 392 A.2d 600,
605 (N.J. Super. Ct. App. Div. 1978), affd, 413 A.2d 315 (N.J. 1980) (describing
doctors duty to inform patient of dangerous side effects of medication).

9
incidental restrictions on professional speech by licensed therapists in the course of
providing treatment to their clients are subject to, and easily satisfy, the
reasonableness standard applied by the Supreme Court in Casey and by other
appellate courts in similar contexts.
5

II. PLAINTIFFS ARGUMENT HAS NO BASIS IN EXISTING FIRST
AMENDMENT LAW AND WOULD CALL INTO QUESTION MANY
OTHER COMMON REGULATIONS OF MEDICAL CARE.
Plaintiffs ask this Court to invalidate A3371 on the novel theory that any
regulation that affects what a mental health professional may say when providing
psychotherapy is subject to strict scrutiny under the First Amendmenta result
that would call into question a plethora of common regulations of medical care and
prevent states from protecting the public even from practices that grossly depart
from standards of professional competence. A3371 is one of many statutes and
regulations that define unprofessional conduct for licensed medical professionals in

5
Conant v. Walters, 309 F.3d 629 (9th Cir. 2002), supports this conclusion. The
plaintiffs in Conant challenged a federal criminal law policy that penalized doctors
if they recommend[ed] the use of medical marijuana. Id. at 634. The policy
enjoined in Conant raised First Amendment concerns because it restricted speech
solely in order to further a federal criminal policy, not to require adherence to
professional medical standards; in fact, by preventing doctors from recommending
treatments supported by significant scientific evidence, the challenged federal
policy interfered with the normal operation of the doctor-client relationship and
impaired Californias [regulatory] interest in legalizing the use of marijuana in
certain limited circumstances, so that critically ill patients may use it if and only if
it is medically advisable for them to do so. Id. at 645 (Kozinski, J., concurring).
In contrast, A3371 is a state law enacted to require mental health providers to
provide competent care.

10
New Jersey. See Amicus Curiae Brief of Health Law Scholars in Support of
Defendants and Appellees at 1523, Doc. No. 003111552159. The Legislature
enacted A3371 based upon the consensus of medical, mental health, and child
welfare organizations that efforts to change a young persons sexual orientation
through psychotherapy or other means have no scientific validity, are ineffective,
and have been reported to put youth at risk of serious harms, including severe
depression and suicide attempts.
Crucial to the analysis is that A3371 regulates only speech by state-licensed
mental health providers that is used in the provision of mental health treatment to
minor patients. It imposes no restrictions on the ability of mental health
professionals to express their views in the public arena. Plaintiffs and others can
advocate for changes in the professional standards in light of their views about
sexual orientation. They can appear on television or in print, in the popular press
or professional journals, advocating for the view that the broad professional
consensus that rejects SOCE as ineffective and harmful is misguided. The First
Amendment protects their right to do so regardless of how extreme or out-of-step
with the prevailing scientific consensus their professional views might be. But
First Amendment doctrine has never regarded the provision of healthcare to
patients as a forum for the exchange of ideas. Rather, it is a highly regulated
setting in which what professionals do and say can and must be subject to

11
compliance with widely accepted professional standards. See Pickup v. Brown,
740 F.3d at 1228 (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.); see also Randall
P. Bezanson, Speaking Through Others Voices: Authorship, Originality, and Free
Speech, 38 WAKE FOREST L. REV. 983, 105354 (2003) (Patients do not
ordinarily expect (or even want) a physicians professional speech to reflect
nothing more than his or her own personal views; instead, patients expect the
physicians advice to reflect the physicians best professional judgment about the
ideas embodied in the standard of reasonable medical opinion.).
The States interest in ensuring that medical professionals provide competent
care is based on the reality that [t]he average patient has little or no understanding
of the medical arts, and thus requires dependence upon the physician [that] is
well-nigh abject. Canterbury v. Spence, 464 F.2d 772, 78082 (D.C. Cir. 1972).
Thus, because a doctor takes the affairs of a client personally in hand and purports
to exercise judgment on behalf of the client, a doctor has a fiduciary relationship
to his or her patients. Lowe, 472 U.S. at 232 (White, J., concurring). When a
patient enters a physicians office, the patient depends on the physicians
knowledge and submits to the physicians authority, sometimes on matters of life
and death. Wollschlaeger, 2014 WL 3695296 at *10. As a result of the

12
information imbalance and this fiduciary relationship between physicians and
their patients, patients are likely to place significant value on the physicians
speech about a medical treatment. Stuart, 2014 WL 186310, at * 9 (internal
citations omitted). Therefore, like other professionals, doctors are properly
required to evince the qualities of truth-speaking, honor, discretion, and fiduciary
responsibility, and the state may legitimately enact such requirements through
legislation. Lowe, 472 U.S. at 229 (White, J., concurring); see also Wollschlaeger,
2014 WL 3695296, at *1011 (same). And where regulations govern the health
and well-being of minors, the States authority to regulate is at its highest. See
Pickup, 740 F.3d at 1235 (collecting cases).
Indeed, states routinely restrict doctors professional speech through statutes,
regulations, and common-law causes of action that enforce professional standards
of competence and integrity. In addition, malpractice law routinely requires courts
to enforce extensive regulations on doctors speech. These sorts of regulations
may subject a professional to discipline or liability for failing to inform patients in
a timely way of an accurate diagnosis, for failing to give patients proper
instructions, for failing to ask patients necessary questions, or for failing to refer a
patient to an appropriate specialist. Robert Post, Informed Consent to Abortion: A
First Amendment Analysis of Compelled Physician Speech, 2007 U. ILL. L. REV.
939, 951 (2007). Such regulations are not subject to heightened First Amendment

13
scrutiny because they do not suppress the free flow of ideas or expression;
providers remain free to express their views on any and all topics, including their
disagreement with the standards of care. But a doctor who departs from
professional standards of competence in treating clients cannot avoid regulation or
malpractice liability by invoking the First Amendment. Laws that require doctors,
including mental health professionals such as those regulated by A3371, to treat
patients in conformity with accepted professional standards are not subject to
heightened First Amendment scrutiny merely because they limit a providers
ability to depart from those standards and perform discredited and incompetent
treatments on their patients. Such an argument would transform the First
Amendment into a shield against state laws imposing even reasonable regulations
on the provision of medical care.
Consistent with these principles, a great number of regulations expressly
control therapists speech by forbidding therapists to speak, or requiring them to
speak, about particular subjects. Current New Jersey law defines unprofessional
conduct to include a wide range of practices by therapists, including many
involving prohibitions on what the therapist may say, or compelling particular
speech, during treatment sessions. See Amicus Curiae Brief of Health Law
Scholars in Support of Defendants and Appellees at 2223, Doc. No.
003111552159 (describing, among others, New Jersey regulations regarding (1)

14
mandatory reporting; (2) public communications by healthcare providers; and (3)
information doctors are required to provide to patients). A3371 falls squarely
within this long tradition of state regulation of medical professionals and
professional speech. It is part of a well-established legal scheme defining and
enforcing professional standards of competence for New Jerseys licensed mental
health professionals.
In sum, New Jersey validly exercised its authority to regulate licensed
mental health professionals when it enacted A3371. New Jersey considered the
prevailing consensus of medical, mental health, and child welfare organizations, as
well as other evidence, that SOCE is ineffective and unsafe, and enacted a
professional regulation consistent with that finding. A3371 is limited: it bans these
professionals only from engaging in the practice of SOCE with minors, a
particularly vulnerable population. That speech is used as the method for SOCE is
only incidental to the regulation; indeed, A3371 makes no mention of speech at all
and applies equally to verbal and non-verbal forms of SOCE. A3371 restricts only
professional speech by licensed professionals in the course of treating clients. It
does not restrict the ability of mental health professionals to express any view
regarding SOCE in the public arena. Thus, A3371 is a valid regulation that does
not offend the First Amendment.


15
CONCLUSION
For all the foregoing reasons, this Court should affirm the District Courts
opinion in its entirety and sustain the dismissal of Appellants complaint.

Dated: August 5, 2014 KIRKLAND & ELLIS LLP

/s David S. Flugman
Frank Holozubiec
David S. Flugman
Shireen A. Barday
Andrew C. Orr
601 Lexington Avenue
New York, New York 10022
Telephone: (212) 446-4800
Facsimile: (212) 446-4900

Andrew J. Welz
655 Fifteenth Street, N.W.
Washington, D.C. 20005
Telephone: (202) 637-2015
Facsimile: (202) 879-5200

NATIONAL CENTER FOR LESBIAN RIGHTS
Shannon P. Minter
Christopher F. Stoll
Amy C. Whelan
870 Market Street, Suite 370
San Francisco, California 94102
Telephone: (415) 392-6257
Facsimile: (415) 392-8442


16
GLUCKWALRATH LLP
Michael Gluck
Andrew Bayer
428 River View Plaza
Trenton, New Jersey 08611
Telephone: (609) 278-3900
Facsimile: (609) 278-3901

Attorneys for Appellee
Garden State Equality

CERTIFICATION OF COUNSEL
I, David S. Flugman, hereby certify that:
1. I am a member of the bar of this court;
2. This brief complies with the type-volume limitation of Fed. R
App. P. 32(a)(7)(B) because this brief contains 3,502 words, excluding the
parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii);
3. This brief complies with the typeface requirements of Fed. R.
App. P. 32(a)(5) and type style requirements of Fed. R. App. P. 32(a)(6)
because this brief has been prepared in a proportionally spaced typeface
using Microsoft Word in Times New Roman (14 point font);
4. The electronic version of this brief is identical to the text
version in the paper copies filed with the court. This document was scanned
using Microsoft Forefront and that no viruses were detected.
5. On this date, seven (7) hard copies of the Supplemental Brief
of Appellee Garden State Equality were sent to the Clerks Office.
Pursuant to Local Appellate Rules 31.1(d) and 113.4(a), I caused the
Supplemental Brief of Appellee Garden State Equality to be served on
counsel for Appellants via the Notice of Docket Activity generated by the
Courts electronic filing system (i.e., CM/ECF).
Dated: August 5, 2014
New York, New York

s/ David S. Flugman
Counsel for Appellee Garden
State Equality

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