David Pickup v. Edmund Brown, Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID H. PICKUP; CHRISTOPHER H. No. 12-17681

ROSICK; JOSEPH NICOLOSI; ROBERT

VAZZO; NATIONAL ASSOCIATION D.C. No.

FOR RESEARCH AND THERAPY OF 2:12-CV-02497-

HOMOSEXUALITY, a Utah non-profit KJM-EFB

organization; AMERICAN

ASSOCIATION OF CHRISTIAN

COUNSELORS, a Virginia non-profit

association; JACK DOE 1, Parent of

John Doe 1; JANE DOE 1, Parent of

John Doe 1; JOHN DOE 1, a minor,

guardian ad litem Jane Doe, guardian

ad litem Jack Doe; JACK DOE 2,

Parent of John Doe 2; JANE DOE 2,

Parent of John Doe 2; JOHN DOE 2, a

minor, guardian ad litem Jack Doe,

guardian ad litem Jane Doe,

Plaintiffs-Appellants,

v.

EDMUND G. BROWN, JR., Governor

of the State of California, in his

official capacity; ANNA M.

CABALLERO, Secretary of the

California State and Consumer

Services Agency, in her official

capacity; SHARON LEVINE, President

of the Medical Board of California,

in her official capacity; KIM

2 PICKUP V. BROWN

MADSEN, Executive Officer of the

California Board of Behavioral

Sciences, in her official capacity;

MICHAEL ERICKSON, President of the

California Board of Psychology, in

his official capacity,

Defendants-Appellees,

and

EQUALITY CALIFORNIA,

Intervenor-Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of California

Kimberly J. Mueller, District Judge, Presiding

DONALD WELCH; ANTHONY DUK; No. 13-15023

AARON BITZER,

Plaintiffs-Appellees, D.C. No.

2:12-CV-02484-

v. WBS-KJN

EDMUND G. BROWN, JR., Governor

of the State of California, in his ORDER AND

official capacity; ANNA M. AMENDED

CABALLERO, Secretary of California OPINION

State and Consumer Services

Agency, in her official capacity;

DENISE BROWN, Case Manager,

Director of Consumer Affairs, in her

official capacity; CHRISTINE

WIETLISBACH, PATRICIA LOCK-

PICKUP V. BROWN 3

DAWSON, SAMARA ASHLEY, HARRY

DOUGLAS, JULIA JOHNSON, SARITA

KOHLI, RENEE LONNER, KAREN

PINES, CHRISTINA WONG, in their

official capacities as members of the

California Board of Behavioral

Sciences; SHARON LEVINE, MICHAEL

BISHOP, SILVIA DIEGO, DEV

GNANADEV, REGINALD LOW, DENISE

PINES, JANET SALOMONSON, GERRIE

SCHIPSKE, DAVID SERRANO SEWELL,

BARBARA YAROSLAVSKY, in their

official capacities as members of the

Medical Board of California,

Defendants-Appellants.

Appeal from the United States District Court

for the Eastern District of California

William B. Shubb, Senior District Judge, Presiding

Argued and Submitted

April 17, 2013—San Francisco, California

Filed August 29, 2013

Amended January 29, 2014

Before: Alex Kozinski, Chief Judge, and Susan P. Graber,

and Morgan Christen, Circuit Judges.

Order;

Dissent to Order by Judge O’Scannlain;

Opinion by Judge Graber

4 PICKUP V. BROWN

SUMMARY*

Civil Rights

The panel replaced its prior opinion, filed on August 29,

2013, and published at 728 F.3d 1042, with an amended

opinion, denied a petition for panel rehearing, denied a

petition for rehearing en banc on behalf of the court, and

ordered that no further petitions shall be entertained.

Reversing an order granting preliminary injunctive relief

in Welch v. Brown, 13-15023, and affirming the denial of

preliminary injunctive relief in Pickup v. Brown, 12-17681,

the panel held that California Senate Bill 1172, which bans

state-licensed mental health providers from engaging in

“sexual orientation change efforts” with patients under 18

years of age, does not violate the free speech rights of

practitioners or minor patients, is neither vague nor

overbroad, and does not violate parents’ fundamental rights.

The panel held that Senate Bill 1172 regulates professional

conduct, not speech and therefore was subject only to a

rational basis review.

Dissenting from the denial of rehearing en banc, Judge

O’Scannlain, joined by Judges Bea and Ikuta stated that by

defining disfavored speech as “conduct,” the panel’s opinion

entirely exempted California’s regulation from the First

Amendment. Judge O’Scannlain stated that in so doing, the

panel contravened recent Supreme Court precedent, ignored

established free speech doctrine, misread Ninth Circuit cases,

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

PICKUP V. BROWN 5

and thus insulated from First Amendment scrutiny

California’s prohibition—in the guise of a professional

regulation—of politically unpopular expression.

COUNSEL

No. 12-17681

Mathew D. Staver (argued) and Anita L. Staver, Liberty

Counsel, Maitland, Florida; Mary E. McAlister, Stephen M.

Crampton, and Daniel J. Schmid, Liberty Counsel,

Lynchburg, Virginia, for Plaintiffs-Appellants David H.

Pickup et al.

Alexandra Robert Gordon (argued), Deputy Attorney

General, Kamala D. Harris, Attorney General of California,

Douglas J. Woods, Senior Assistant Attorney General, Tamar

Pachter, Supervising Deputy Attorney General, and Daniel J.

Powell and Rei R. Onishi, Deputy Attorneys General, San

Francisco, California, for Defendants-Appellees Edmund G.

Brown, Jr., et al.

Shannon P. Minter (argued), National Center for Lesbian

Rights, San Francisco, California; David C. Dinielli, Munger,

Tolles & Olson LLP, Los Angeles, California, for

Intervenor/Defendant-Appellee.

Robert P. Taylor, Arnold & Porter LLP, San Francisco,

California, for Amici Curiae American Association for

Marriage and Family Therapy-California Division, et al.;

Elizabeth O. Gill, ACLU Foundation of Northern California,

Inc., San Francisco, California, for Amicus Curiae American

Civil Liberties Union Foundation of Northern California; Eric

6 PICKUP V. BROWN

Alan Isaacson, San Diego, California, and Stacey M. Kaplan,

San Francisco, California, for Amici Curiae California Faith

for Equality, et al.; Brad W. Seiling, Benjamin G. Shatz, and

Justin Jones Rodriquez, Manatt, Phelps & Phillips, LLP, Los

Angeles, California, and Hayley Gorenberg, Lambda Legal

Defense and Education Fund, Inc., New York, New York,

and Shelbi D. Day, Lambda Legal Defense and Education

Fund, Inc., Los Angeles, California, for Amici Curiae

Children’s Law Center of California, et al.; Jay Rapaport,

Covington & Burling LLP, San Francisco, California, for

Amicus Curiae Dr. Jack Drescher, M.D.; Jon B. Eisenberg

and Barry R. Levy, Encino, California, for Amicus Curiae

First Amendment Scholars; Eileen R. Ridley, Thomas F.

Carlucci, Patrick T. Wong, and Kristy K. Marino, Foley &

Lardner LLP, San Francisco, California, for Amicus Curiae

Health Law Scholars; Adam L. Gray and James Maxwell

Cooper, Kirkland & Ellis LLP, San Francisco, California, for

Amici Curiae Medical Professionals Tonya Chaffee, MD,

MPH, et al.; Tara M. Steeley, Deputy City Attorney, and

Dennis J. Herrera, City Attorney, and Therese Stewart, Mollie

Lee, and Sara Eisenberg, Deputy City Attorneys, San

Francisco, California, for Amicus Curiae The City and

County of San Francisco; and Sanford Jay Rosen, Rosen Bien

Galvan & Grunfeld LLP, San Francisco, California, for

Amicus Curiae Survivors of Sexual Orientation Change

Efforts.

No. 13-15023

Alexandra Robert Gordon (argued), Deputy Attorney

General, Kamala D. Harris, Attorney General of California,

Douglas J. Woods, Senior Assistant Attorney General, Tamar

Pachter, Supervising Deputy Attorney General, and Daniel J.

Powell and Rei R. Onishi, Deputy Attorneys General, and

PICKUP V. BROWN 7

Craig J. Konnoth, Deputy Solicitor General, San Francisco,

California, for Defendants-Appellants Edmund G. Brown, Jr.,

et al.

Kevin T. Snider (argued), Matthew B. McReynolds, and

Michael J. Peffer, Pacific Justice Institute, Sacramento,

California, for Plaintiffs-Appellees Donald Welch et al.

Elizabeth O. Gill, ACLU Foundation of Northern California,

Inc., San Francisco, California, for Amicus Curiae American

Civil Liberties Union Foundation of Northern California;

Peter D. Lepiscopo, William P. Morrow, James M. Griffiths,

and Michael W. Healy, Lepiscopo & Associates Law Firm,

San Diego, California, for Amicus Curiae American College

of Pediatricians; Eric Alan Isaacson, San Diego, California,

and Stacey M. Kaplan, San Francisco, California, for Amici

Curiae California Faith for Equality, et al.; Brad W. Seiling

and Benjamin G. Shatz, Manatt, Phelps & Phillips, LLP, Los

Angeles, California, and Hayley Gorenberg, Lambda Legal

Defense and Education Fund, Inc, New York, New York, and

Shelbi D. Day, Lambda Legal Defense and Education Fund,

Inc., Los Angeles, California, for Amici Curiae Children’s

Law Center of California, et al.; Shannon P. Minter, National

Center for Lesbian Rights, San Francisco, California, and

David C. Dinielli, Munger, Tolles & Olson LLP, Los

Angeles, California, for Amicus Curiae Equality California;

Jon B. Eisenberg and Barry R. Levy, Encino, California, for

Amicus Curiae First Amendment Scholars; John A. Eidsmoe

and Joshua M. Pendergrass, Foundation for Moral Law,

Montgomery, Alabama, for Amicus Curiae Foundation for

Moral Law; Eileen R. Ridley, Thomas F. Carlucci, Patrick T.

Wong, and Kristy K. Marino, Foley & Lardner LLP, San

Francisco, California, for Amicus Curiae Health Law

Scholars; Dean R. Broyles, The National Center for Law &

8 PICKUP V. BROWN

Policy, Escondido, California, for Amicus Curiae Parents and

Friends of Ex-Gays & Gays; and Sanford Jay Rosen, Rosen

Bien Galvan & Grunfeld LLP, San Francisco, California, for

Amicus Curiae Survivors of Sexual Orientation Change

Efforts.

ORDER

The opinion filed on August 29, 2013, and published at

728 F.3d 1042, is replaced by the amended opinion filed

concurrently with this order. With these amendments, the

panel has voted to deny the petitions for panel rehearing and

petitions for rehearing en banc.

The full court has been advised of the petitions for

rehearing en banc. A judge of the court called for a vote on

whether to rehear the matter en banc. On such vote, a

majority of the nonrecused active judges failed to vote in

favor of en banc rehearing.

The petitions for panel rehearing and petitions for

rehearing en banc are DENIED. No further petitions for

panel rehearing or petitions for rehearing en banc shall be

entertained.

PICKUP V. BROWN 9

O’SCANNLAIN, Circuit Judge, joined by BEA and IKUTA,

Circuit Judges, dissenting from the denial of rehearing en

banc:

May the legislature avoid First Amendment judicial

scrutiny by defining disfavored talk as “conduct”? That is

what these cases are really about.

The State of California, in the statute at issue here, has

prohibited licensed professionals from saying certain words

to their clients. By labeling such speech as “conduct,” the

panel’s opinion has entirely exempted such regulation from

the First Amendment. In so doing, the panel contravenes

recent Supreme Court precedent, ignores established free

speech doctrine, misreads our cases, and thus insulates from

First Amendment scrutiny California’s prohibition—in the

guise of a professional regulation—of politically unpopular

expression.

I respectfully dissent from our court’s regrettable failure

to rehear these cases en banc.

I

California enacted Senate Bill 1172 (“SB 1172”), which

subjects state-licensed “mental health providers”1 to

professional discipline for engaging in “sexual orientation

1

According to the statute, “mental health providers” consist not only of

the medical doctor and trained psychologist, but also “psychological

assistant, intern, or trainee, a licensed marriage and family therapist, a

registered marriage and family therapist, intern, or trainee, . . . a licensed

clinical social worker, an associate clinical social worker, a licensed

professional clinical counselor, a registered clinical counselor, intern, or

trainee.” Cal. Bus. & Prof. Code § 865(a).

10 PICKUP V. BROWN

change efforts” with clients who are minors. Cal. Bus. &

Prof. Code §§ 865.1, 865.2. The statute defines such change

efforts to include “any practices . . . that seek to change an

individual’s sexual orientation.” Id. § 865(b)(1). Explicitly

exempted from the regulation are “psychotherapies that

provide acceptance, support, and understanding of clients’

coping, social support, and identity exploration and

development.” Id. § 865(b)(2). The law does not expressly

prohibit professionals from discussing change efforts with

patients, from referring patients to unlicensed practitioners of

change efforts, or otherwise from offering opinions on the

subject of homosexuality. Amended op. at 26.

In Welch, the district court granted plaintiffs an injunction

against SB 1172, but a different judge in Pickup denied a

similar request. Plaintiffs in these cases include licensed

professionals who provide change efforts exclusively through

speech—i.e., methods such as counseling and prayer.2 Cf. id.

at 39 n.5.

According to the panel the words proscribed by SB 1172

consist entirely of medical “treatment,” which although

effected by verbal communication nevertheless constitutes

“professional conduct” entirely unprotected by the First

Amendment. See amended op. at 37–39. Unlike a

professional’s opinions, theories, recommendations, or

advocacy, such “conduct” effected through speech would

receive no constitutional safeguards against state suppression.

Id. The panel provides no principled doctrinal basis for its

2

In surveying the history of “sexual orientation change efforts,” the

panel also catalogues various “aversive” treatments, some barbaric and

many archaic, employed by psychologists of a bygone era. See amended

op. at 23–24. Such anachronisms are not at issue here.

PICKUP V. BROWN 11

dichotomy: by what criteria do we distinguish between

utterances that are truly “speech,” on the one hand, and those

that are, on the other hand, somehow “treatment” or

“conduct”? The panel, contrary to common sense and

without legal authority, simply asserts that some spoken

words—those prohibited by SB 1172—are not speech.

Empowered by this ruling of our court, government will

have a new and powerful tool to silence expression based on

a political or moral judgment about the content and purpose

of the communications. The First Amendment precisely

forbids government from punishing speech on such grounds.

II

Our precedents do not suggest that laws prohibiting

“conduct” effected exclusively by means of speech escape

First Amendment scrutiny. In fact, the Supreme Court, in its

most recent relevant case, flatly refused to countenance the

government’s purported distinction between “conduct” and

“speech” for constitutional purposes when the activity at issue

consisted of talking and writing.

The plaintiffs in Holder v. Humanitarian Law Project,

130 S. Ct. 2705 (2010), had challenged a Federal statute

forbidding “material support” to terrorist organizations for

criminalizing protected verbal communications. Id. at

2716–17. The Supreme Court upheld the statute, but only

after applying First Amendment scrutiny. Specifically, the

Court rejected the government’s argument that the statute

only punished “conduct”: for, in this situation, the “conduct

triggering coverage under the statute consists of

communicating a message.” Id. at 2724. In other words, the

12 PICKUP V. BROWN

government’s ipse dixit cannot transform “speech” into

“conduct” that it may more freely regulate.3

The panel attempts, vainly, to distinguish Humanitarian

Law Project from the facts of this case by emphasizing that

the change efforts prohibited by SB 1172 are “therapeutic

treatment, not expressive speech” and that the practitioners to

whom the law applies are “licensed mental health

professionals acting within the confines of the counselor-

client relationship.” Amended op. at 39. In purported

contrast is the issue in Humanitarian Law Project, which

according to the panel dealt with “political speech . . . by

ordinary citizens.” Id. at 40. These supposedly

distinguishing characteristics find no support in the Supreme

Court’s holding and do not even fairly characterize the facts

of the case.

In the first place, the panel’s vague invocation of

“ordinary citizens” misses the mark. What exactly the panel

means by this locution—more redolent of campaign sound

bites or generic political press releases than the customarily

more precise language of judicial opinions—is unclear. To

the extent that “ordinary citizens” encompass non-

professionals, this dichotomy is self-evidently irrelevant on

the facts of Humanitarian Law Project. The plaintiffs in that

case included a nonprofit human-rights organization with

consultative status to the United Nations, 130 S. Ct. at

3

Undoubtedly the State possesses an important interest in regulating the

professions in the interest of public health, safety, and morals; but

presumably the governmental interest in proscribing criminal activity, and

especially support of terrorism, is similarly substantial—if not more so.

Yet the Supreme Court declined to declare speech uttered in just such a

context as categorically outside of the First Amendment’s protections.

PICKUP V. BROWN 13

2713–14; the activities in which they had contemplated

engaging included offering their professional expertise and

advice on various international and humanitarian issues, id.

at 2716–17. Such plaintiffs may not have been doctors or

psychoanalysts, but certainly purported to be offering

professional services of another sort; the Supreme Court, at

least, did not treat them as mere lay people. If that is the

distinction the panel perceives in the “ordinary citizens” of

Humanitarian Law Project, it is illusory.

Furthermore, the Supreme Court in Humanitarian Law

Project explicitly rejected the plaintiffs’ argument that the

expression in question consisted of “pure political speech.”

Id. at 2722; see also id. at 2724 (“The First Amendment issue

before us is . . . not whether the Government may prohibit

pure political speech.”). In explanation, the Court proceeded

to enumerate various sorts of political expression that the

statute did not abridge—just as the panel’s opinion does with

respect to SB 1172. The material support statute permitted

“plaintiffs . . . to say anything they wish on any topic[; t]hey

may speak and write freely[;] . . . . [t]hey may advocate

before the United Nations.” Id. at 2722–23; cf. amended op.

at 26 (“SB 1172 does not . . . [p]revent mental health

providers from communicating with the public about SOCE[;

p]revent mental health providers from expressing their views

to patients, whether children or adults, about SOCE,

homosexuality, or any other topic[; p]revent mental health

providers from recommending SOCE to patients, whether

children or adults . . . .”). Such classical “political speech,”

Chief Justice Roberts concluded, did not fall within the

statute’s strictures; nevertheless, the Court ruled that the First

Amendment still applied to the sort of speech in which the

plaintiffs contemplated engaging and which they claimed the

statute forbade. See id. at 2724–27. The reasoning of

14 PICKUP V. BROWN

Humanitarian Law Project specifically forecloses courts from

approving a statutory restriction on speech simply because it

still permits various and extensive political expression.

The cases here present an analogous situation:

professionals—including but not limited to doctors and

psychologists—desire to “communicate a message” that the

law in question does not permit. This court accordingly

should subject SB 1172 to some level of scrutiny under the

First Amendment.

It bears noting, further, that the Court in Humanitarian

Law Project did not examine the content or purpose of the

“message” the plaintiffs desired to communicate. Thus the

panel’s attempt to validate SB 1172, on the basis that the

speech—the communicated “message”—it proscribes is not

“expressive” or “symbolic,” amended op. at 39, finds no

support in Humanitarian Law Project itself. Whether the

prohibited communications in any given situation qualify as

pure political speech or, for example, commercial speech will

affect only the level of scrutiny, not whether the First

Amendment applies at all. The Supreme Court has not

required that speech, as a threshold matter, be “expressive” or

“symbolic” before deigning to extend to it constitutional

protection.4

4

The panel’s reliance on the Supreme Court’s opinion in Rumsfeld v.

Forum for Academic & Institutional Rights (“FAIR II”), 547 U.S. 47

(2006), consequently, begs the question. See amended op. at 40. That

case “extended First Amendment protection only to conduct that is

inherently expressive,” id. at 66; but the panel’s insufficiently grounded

assertion that change efforts constitute “conduct” is precisely what is at

issue. FAIR II would only control if the panel first correctly determined

that change efforts comprise not speech but conduct for the purposes of

PICKUP V. BROWN 15

The Supreme Court’s implication in Humanitarian Law

Project is clear: legislatures cannot nullify the First

Amendment’s protections for speech by playing this labeling

game. SB 1172 prohibits certain “practices,” just as the

statute in Humanitarian Law Project prohibited “material

support”; but with regard to those plaintiffs as well as the

plaintiffs here, those laws targeted speech. Thus, the First

Amendment still applies.

III

The Federal courts have never recognized a freestanding

exception to the First Amendment for state professional

regulations.5 Indeed authoritative precedents have established

that neither professional regulations generally, nor even a

more limited subclass of such rules, remain categorically

outside of the First Amendment’s reach.6 To justify its

the First Amendment—a determination that, on these facts, Humanitarian

Law Project forecloses.

5

The panel places professionals’ free-speech rights along a

“continuum,” on one end of which, “where a professional is engaged in a

public dialogue,” he enjoys extensive protections under the First

Amendment. And, “[a]t the midpoint of the continuum, . . . First

Amendment protection . . . is somewhat diminished” but apparently not

obliterated. See amended op. at 34–37.

6

See, e.g., Fla. Bar v. Went For It, Inc., 515 U.S. 618, 622–24 (1995)

(applying the First Amendment to state bar rules forbidding certain direct

attorney advertising); Edenfield v. Fane, 507 U.S. 761, 765–67 (1993)

(applying the First Amendment to state professional regulation of

accountants); Ohralik v. Ohio St. Bar Ass’n, 436 U.S. 447, 454–59 (1978)

(applying a balancing test under the First Amendment to state professional

regulation that prohibited attorney in-person solicitation); Bates v. St. Bar

of Ariz., 433 U.S. 350, 363–66 (1977) (applying First Amendment to state

16 PICKUP V. BROWN

purported speech/conduct dichotomy in the context of the

professions, the panel instead invokes our decisions in

National Association for the Advancement of Psychoanalysis

v. California Board of Psychology (“NAAP”), 228 F.3d 1043

(9th Cir. 2000), and Conant v. Walters, 309 F.3d 629 (9th Cir.

2002), as well as scattered citations of non-authoritative

cases. Supreme Court precedent, however, as well as NAAP

and Conant themselves, do not dictate such conclusion—

rather, they counsel against it.

A

NAAP confronted the question whether California may

regulate the psychoanalytical professions at all. We

concluded, indeed, that psychoanalysts, simply by dint of

theirs being the “talking cure,” do not receive “special First

Amendment protection.” See NAAP, 228 F.3d at 1054

professional regulation that prohibited attorney advertising); Va. St. Bd. of

Pharmacy v. Va. Citizens Consumer Council, 425 U.S. 748, 758–61

(1975) (applying First Amendment to state professional regulation that

prohibited pharmacists from advertising prices).

Most precedents addressing the application of the First Amendment

to professional regulations have occurred in the context of rules against

advertising. The Supreme Court has subjected such “commercial speech”

to a lower degree of scrutiny under the First Amendment than classical

political expression, respecting the state’s traditional “power to regulate

commercial activity deemed harmful.” Ohralik, 436 U.S. at 456. Unlike

advertising—or the “exchange of information about securities, corporate

proxy statements, the exchange of price and production information, and

employers’ threats of retaliation for the labor activities of employees,”

id.—change efforts do not have a necessarily commercial focus. Indeed,

SB 1172 does not simply prohibit licensed practitioners from engaging in

change efforts for a fee, but subjects them to professional discipline for

doing so even absent any commercial relationship—such as, for example,

in connection with a church’s ministry.

PICKUP V. BROWN 17

(emphasis added). But such statement does not in any way

support the novel principle, discerned by the panel, that such

“talk therapy” receives no First Amendment protection at all.

In fact NAAP explicitly affirmed that the “communication

that occurs during psychoanalysis is entitled to constitutional

protection,” even if it “is not immune from regulation.” Id.

Although the panel implies otherwise, NAAP did not hold that

psychotherapy administered solely through the spoken word

constitutes wholly unprotected speech.7 Rather we stated in

NAAP that mental health professionals do not lose all of their

First Amendment immunities once their counseling sessions

begin.8

B

Conant likewise offers no terra firma for the panel’s

unprecedented distinction. In that case, the Ninth Circuit

invalidated a Federal regulation that prohibited physicians

from recommending medicinal marijuana to their patients. In

so doing, we affirmed that doctors’ speech to their patients

“may be entitled to the strongest protection our Constitution

has to offer.” Conant, 309 F.3d at 637 (internal quotation

7

Plaintiffs in that case had challenged California’s general licensing

scheme for certain mental health professionals, which required

practitioners to possess certain educational credentials but otherwise did

not “dictate what can be said between psychologists and patients during

treatment.” NAAP, 228 F.3d at 1055. Unlike NAAP, this case does not

involve simply a general licensing scheme or educational requirements,

but rather the substantive regulation of the speech uttered between

practitioners and patients.

8

It merits repeating here that SB 1172’s reach extends much more

broadly than the psychoanalytical professions: it also regulates marriage

therapists, social workers, and clinical counselors. See supra note 4.

18 PICKUP V. BROWN

marks omitted). Conant furthermore explained that NAAP

stated that “communication that occurs during psychoanalysis

is entitled to First Amendment protection” and summarized

its holding that the regulation at issue in that case passed

muster because the “content-neutral” law “did not attempt to

dictate the content of what is said in therapy and did not

prevent licensed therapists from utilizing particular psycho-

analytical methods.” Id. (internal quotation marks omitted).

On its face, this language from Conant seems to apply more

directly and more strongly to SB 1172 than to the Federal

restriction considered in that case. Indeed, SB 1172 explicitly

bans speech with a certain content or uttered with a certain

intent, and unequivocally prohibits not only “particular

psycho-analytical methods” but also particular purposes that

both doctor and patient may have for preferring such

methods.

The panel, however, claims to find support for its

conduct/speech distinction in Conant’s contrast of

recommending medicinal marijuana with actually prescribing

the controlled substance. See id. at 635. Because SB 1172

purportedly permits professionals freely to discuss change

efforts with—and even recommend change efforts to—their

patients, but simply forbids them from engaging in change

efforts themselves, the panel asserts that the regulation does

not fail under Conant’s logic. See amended op. at 38–39.

Such a conclusion depends on an analogy between change

efforts and “speak[ing] the words necessary to provide or

administer the banned drug.” Id. at 37–38. But by writing a

prescription, a physician’s words have an independent legal

effect: ordinarily, it entitles the patient to a controlled

chemical substance he otherwise would have no right to

possess. When the State prohibits a doctor from prescribing

a drug, it simply refuses to accord his written words this

PICKUP V. BROWN 19

additional legal significance.9 Rather, like the regulation

challenged and invalidated in Conant, SB 1172 prohibits the

doctor from speaking to his patient with certain words and in

a certain way.10

9

For a similar reason, the State may also punish a doctor for purporting

to prescribe an illegal drug or otherwise writing a prescription he is not

qualified or permitted to write. In such a situation, the doctor is

attempting fraudulently to arrogate to his writing a legal significance to

which it is not entitled. A psychologist or a social worker who undertakes

change efforts on his patient, on the other hand, is not investing, or

attempting to invest, his words with any legal effect.

10

Although it quotes, word for word, the statutory definition of “mental

health provider,” amended op. at 25 n.1, the panel finds no problem

characterizing as “medical treatment” the services provided by non-

medical professionals such as marriage therapists, social workers, and

clinical counselors—all of whom SB 1172 forbids from engaging in

change efforts.

The panel emphasizes the “medical” nature of the regulation at issue.

It describes change efforts as “therapeutic treatment” and “activities [that]

are therapeutic,” and classifies change efforts as analogous for relevant

purposes alongside medical procedures. Id at 39–40. Although the panel

expressly invokes the statutory language when arguing that SB 1172

regulates conduct, it does not attend as closely to the legislative text in

attempting to characterize change efforts as “medicine.” Indeed, as

emphasized above, SB 1172 extends much more broadly than just to the

medical or even the psychoanalytical professions. SB 1172 likewise

forbids licensed marriage and family therapists as well as social workers,

among others, from engaging in change efforts. See Cal. Bus. & Prof.

Code § 865(a). It strains credulity to depict the counseling

services—socially invaluable as they are—provided by marriage

counselors and social workers as “medicine” or “treatment.” If the

panel’s presumption that all change efforts, whether administered by

doctors and psychologists, or by social workers and marriage counselors,

are necessarily “medicine” is based on scientific or other objective

technical expertise, they do not say so. For certainly the text of the statute

does not suggest, let alone compel, such a broad proclamation.

20 PICKUP V. BROWN

C

Perhaps what really shapes the panel’s reasoning in these

cases is not the principles supposedly distilled from the case

law, but rather problematic and potentially unavoidable

implications of an alternative conclusion. By subjecting SB

1172 to any First Amendment scrutiny at all, the panel may

fear it will open Pandora’s box: heretofore uncontroversial

professional regulations proscribing negligent, incompetent,

or harmful advice will now attract meritless challenges

merely on the basis that such provisions prohibit speech.

Alluding to these concerns, the panel notes that “doctors

are routinely held liable for giving negligent medical advice

to their patients, without serious suggestion that the First

Amendment protects their right to give advice that is not

consistent with the accepted standard of care.” Amended op.

at 36. But the panel nevertheless fails to develop this

argument, and cites no authoritative precedent that protects

such regulations from First Amendment scrutiny. In the first

place, Humanitarian Law Project has effectively neutralized

this ground of reasoning. The material-support statute in that

case attempted, with respect to those plaintiffs, just what SB

1172 proposes to do to Drs. Welch and Pickup: prohibit the

provision of certain professional services delivered solely

through speech. The statute in Humanitarian Law Project

survived—but it did not escape—First Amendment scrutiny.

Subjecting regulations of professionals’ speech to some

degree of scrutiny under the First Amendment indeed does

not necessarily call their legitimacy into question. But

perhaps the panel’s common sense would afford more

deferential treatment to such traditional regulations as, for

example, the ethical rules forbidding attorneys from

PICKUP V. BROWN 21

divulging client confidences. Accordingly, the panel

intimates a potentially broad exception to the First

Amendment for certain categories of speech. The Supreme

Court, however, has clearly warned us inferior courts against

arrogating to ourselves “any ‘freewheeling authority to

declare new categories of speech outside the scope of the

First Amendment.’” United States v. Alvarez, 132 S. Ct.

2537, 2547 (2012) (quoting United States v. Stevens, 559 U.S.

460, 472 (2010)).11 The panel cites no case holding that

speech, uttered by professionals to their clients, does not

actually constitute “speech” for purposes of the First

Amendment. And that should not surprise us—for the

Supreme Court has not recognized such a category.12

III

The Supreme Court has chastened us lower courts for

creating, out of whole cloth, new categories of speech to

which the First Amendment does not apply. But, that is

exactly what the panel’s opinion accomplishes in this case,

concealing its achievement by casually characterizing the

communications prohibited by SB 1172 as nonexpressive

11

Notwithstanding my vigorous dissent from our court’s denial of en

banc rehearing, the Supreme Court ratified the Alvarez panel’s “novel

theory that ‘we presumptively protect all speech . . . .’” United States v.

Alvarez, 638 F.3d 666, 679 (9th Cir. 2011) (O’Scannlain, J., dissenting

from denial of rehearing). We may not reopen now this settled question.

12

Although the panel fears the implications of overprotecting

professional speech, it does not consider the potential effects of

underprotection. If a state may freely regulate speech uttered by

professionals in the course of their practice without implicating the First

Amendment, then targeting disfavored moral and political expression may

only be a matter of creative legislative draftsmanship.

22 PICKUP V. BROWN

conduct. Of course, this begs the question. The panel

provides no authority to support its broad intimations that the

words spoken by therapists and social workers, if they fall

within the statutory language of SB 1172, should receive no

protection at all from the First Amendment.

The regulation at issue may very well constitute a valid

exercise of California’s police power: I take no view as to the

merits of SB 1172, either as a matter of policy or on the

question whether it would withstand strict or some

intermediate level of scrutiny. But as to the threshold

issue—may California remove from the First Amendment’s

ambit the speech of certain professionals when the State

disfavors its content or its purpose?—the Supreme Court has

definitively and unquestionably said “No.” It is no longer

within our discretion to disagree.

For the foregoing reasons I respectfully dissent from the

court’s decision not to rehear these cases en banc.

OPINION

GRABER, Circuit Judge:

The California legislature enacted Senate Bill 1172 to ban

state-licensed mental health providers from engaging in

“sexual orientation change efforts” (“SOCE”) with patients

under 18 years of age. Two groups of plaintiffs sought to

enjoin enforcement of the law, arguing that SB 1172 violates

the First Amendment and infringes on several other

constitutional rights.

PICKUP V. BROWN 23

In Welch v. Brown, No. 13-15023, the district court ruled

that Plaintiffs were likely to succeed on the merits of their

First Amendment claim and that the balance of the other

preliminary-injunction factors tipped in their favor; thus, the

court granted a preliminary injunction. In Pickup v. Brown,

No. 12-17681, the district court ruled that Plaintiffs were

unlikely to succeed on the merits of any of their claims and

denied preliminary relief. The losing parties timely appealed.

We address both appeals in this opinion.

Although we generally review for abuse of discretion a

district court’s decision to grant or deny a preliminary

injunction, we may undertake plenary review of the issues if

a district court’s ruling “‘rests solely on a premise as to the

applicable rule of law, and the facts are established or of no

controlling relevance.’” Gorbach v. Reno, 219 F.3d 1087,

1091 (9th Cir. 2000) (en banc) (quoting Thornburgh v. Am.

Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 755–57

(1986)). Because those conditions are met here, we

undertake plenary review and hold that SB 1172, as a

regulation of professional conduct, does not violate the free

speech rights of SOCE practitioners or minor patients, is

neither vague nor overbroad, and does not violate parents’

fundamental rights. Accordingly, we reverse the order

granting preliminary relief in Welch and affirm the denial of

preliminary relief in Pickup.

FACTUAL AND PROCEDURAL BACKGROUND

A. Sexual Orientation Change Efforts (“SOCE”)

SOCE, sometimes called reparative or conversion

therapy, began at a time when the medical and psychological

community considered homosexuality an illness. SOCE

24 PICKUP V. BROWN

encompasses a variety of methods, including both aversive

and non-aversive treatments, that share the goal of changing

an individual’s sexual orientation from homosexual to

heterosexual. In the past, aversive treatments included

inducing nausea, vomiting, or paralysis; providing electric

shocks; or having an individual snap an elastic band around

the wrist when aroused by same-sex erotic images or

thoughts. Even more drastic methods, such as castration,

have been used. Today, some non-aversive treatments use

assertiveness and affection training with physical and social

reinforcement to increase other-sex sexual behaviors. Other

non-aversive treatments attempt “to change gay men’s and

lesbians’ thought patterns by reframing desires, redirecting

thoughts, or using hypnosis, with the goal of changing sexual

arousal, behavior, and orientation.” American Psychological

Association, Appropriate Therapeutic Responses to Sexual

Orientation 22 (2009). The plaintiff mental health providers

in these cases use only non-aversive treatments.

In 1973, homosexuality was removed from the Diagnostic

and Statistical Manual of Mental Disorders. Shortly

thereafter the American Psychological Association declared

that homosexuality is not an illness. Other major mental

health associations followed suit. Subsequently, many mental

health providers began questioning and rejecting the efficacy

and appropriateness of SOCE therapy. Currently, mainstream

mental health professional associations support affirmative

therapeutic approaches to sexual orientation that focus on

coping with the effects of stress and stigma. But a small

number of mental health providers continue to practice, and

advocate for, SOCE therapy.

PICKUP V. BROWN 25

B. Senate Bill 1172

Senate Bill 1172 defines SOCE as “any practices by

mental health providers[1] that seek to change an individual’s

sexual orientation[,] . . . includ[ing] efforts to change

behaviors or gender expressions, or to eliminate or reduce

sexual or romantic attractions or feelings toward individuals

of the same sex.” Cal. Bus. & Prof. Code § 865(b)(1).

SOCE, however,

does not include psychotherapies that: (A)

provide acceptance, support, and

understanding of clients or the facilitation of

clients’ coping, social support, and identity

exploration and development, including

sexual orientation-neutral interventions to

prevent or address unlawful conduct or unsafe

sexual practices; and (B) do not seek to

change sexual orientation.

1

California Business and Professions Code section 865(a) defines

“mental health provider” as

a physician and surgeon specializing in the practice of

psychiatry, a psychologist, a psychological assistant,

intern, or trainee, a licensed marriage and family

therapist, a registered marriage and family therapist,

intern, or trainee, a licensed educational psychologist,

a credentialed school psychologist, a licensed clinical

social worker, an associate clinical social worker, a

licensed professional clinical counselor, a registered

clinical counselor, intern, or trainee, or any other person

designated as a mental health professional under

California law or regulation.

26 PICKUP V. BROWN

Id. § 865(b)(2). A licensed mental health provider’s use of

SOCE on a patient under 18 years of age is “considered

unprofessional conduct,” which will subject that provider to

“discipline by the licensing entity for that mental health

provider.” Id. § 865.2.

Importantly, SB 1172 does not do any of the following:

• Prevent mental health providers from communicating

with the public about SOCE

• Prevent mental health providers from expressing their

views to patients, whether children or adults, about

SOCE, homosexuality, or any other topic

• Prevent mental health providers from recommending

SOCE to patients, whether children or adults

• Prevent mental health providers from administering

SOCE to any person who is 18 years of age or older

• Prevent mental health providers from referring minors

to unlicensed counselors, such as religious leaders

• Prevent unlicensed providers, such as religious

leaders, from administering SOCE to children or

adults

• Prevent minors from seeking SOCE from mental

health providers in other states

Instead, SB 1172 does just one thing: it requires licensed

mental health providers in California who wish to engage in

“practices . . . that seek to change a [minor’s] sexual

PICKUP V. BROWN 27

orientation” either to wait until the minor turns 18 or be

subject to professional discipline. Thus, SB 1172 regulates

the provision of mental treatment, but leaves mental health

providers free to discuss or recommend treatment and to

express their views on any topic.

The legislature’s stated purpose in enacting SB 1172 was

to “protect[] the physical and psychological well-being of

minors, including lesbian, gay, bisexual, and transgender

youth, and [to] protect[] its minors against exposure to

serious harms caused by sexual orientation change efforts.”

2012 Cal. Legis. Serv. ch. 835, § 1(n). The legislature relied

on the well-documented, prevailing opinion of the medical

and psychological community that SOCE has not been shown

to be effective and that it creates a potential risk of serious

harm to those who experience it. Specifically, the legislature

relied on position statements, articles, and reports published

by the following organizations: the American Psychological

Association, the American Psychiatric Association, the

American School Counselor Association, the American

Academy of Pediatrics, the American Medical Association,

the National Association of Social Workers, the American

Counseling Association, the American Psychoanalytic

Association, the American Academy of Child and Adolescent

Psychiatry, and the Pan American Health Organization.

In particular, the legislature relied on a report created by

a Task Force of the American Psychological Association.

That report resulted from a systematic review of the scientific

literature on SOCE. Methodological problems with some of

the reviewed studies limited the conclusions that the Task

Force could draw. Nevertheless, the report concluded that

SOCE practitioners have not demonstrated the efficacy of

28 PICKUP V. BROWN

SOCE and that anecdotal reports of harm raise serious

concerns about the safety of SOCE.

C. Procedural History

Plaintiffs in Welch include two SOCE practitioners and an

aspiring SOCE practitioner. Plaintiffs in Pickup include

SOCE practitioners, organizations that advocate SOCE,

children undergoing SOCE, and their parents. All sought a

declaratory judgment that SB 1172 is unconstitutional and

asked for injunctive relief to prohibit enforcement of the law.2

In Welch, Plaintiffs moved for preliminary injunctive

relief, arguing that SB 1172 violates their free speech and

privacy rights. They also argued that the law violates the

religion clauses and is unconstitutionally vague and

overbroad under the First Amendment.

The Welch court held that SB 1172 is subject to strict

scrutiny because it would restrict the content of speech and

suppress the expression of particular viewpoints. It reasoned

that the fact that the law is a professional regulation does not

change the level of scrutiny. The court granted preliminary

relief because it determined that the state was unlikely to

satisfy strict scrutiny, Plaintiffs would suffer irreparable harm

2

In Pickup, Equality California, an advocacy group for gay rights,

sought and received intervenor status to defend SB 1172. Pickup

Plaintiffs argue that the Supreme Court’s recent decision in Hollingsworth

v. Perry, 133 S. Ct. 2652 (2013), means that Equality California does not

have standing to defend the statute. We need not resolve that question,

however, because the State of California undoubtedly has standing to

defend its statute, and “the presence in a suit of even one party with

standing suffices to make a claim justiciable.” Brown v. City of Los

Angeles, 521 F.3d 1238, 1240 n.1 (9th Cir. 2008) (per curiam).

PICKUP V. BROWN 29

in the absence of an injunction, the balance of the equities

tipped in their favor, and the injunction was in the public

interest. Because the district court granted relief on their free

speech claim, it did not reach Plaintiffs’ other constitutional

challenges.3

In Pickup, Plaintiffs moved for preliminary injunctive

relief, arguing that SB 1172 violates the First and Fourteenth

Amendments by infringing on SOCE practitioners’ right to

free speech, minors’ right to receive information, and parents’

right to direct the upbringing of their children. They also

argued that SB 1172 is unconstitutionally vague.

The Pickup court denied Plaintiffs’ motion because it

determined that they were unlikely to prevail on the merits of

any of their claims. It reasoned that, because the plain text of

SB 1172 bars only treatment, but not discussions about

treatment, the law regulates primarily conduct rather than

speech. Applying the rational basis test, the court ruled that

3

The Welch Plaintiffs’ response brief contains a single paragraph

asserting that SB 1172 violates the religion clauses of the First

Amendment. That paragraph, which cites neither the record nor any case,

is part of Plaintiffs’ argument that SB 1172 is not narrowly tailored to

achieve a compelling government purpose, as required by the Free Speech

Clause, because it contains no clergy exemption. The religion claim,

however, is not “specifically and distinctly argued,” as ordinarily required

for us to consider an issue on appeal. Thompson v. Runnels, 705 F.3d

1089, 1099–1100 (9th Cir.) (internal quotation marks omitted), cert.

denied, 134 S. Ct. 234 (2013); see also Maldonado v. Morales, 556 F.3d

1037, 1048 n.4 (9th Cir. 2009) (“Arguments made in passing and

inadequately briefed are waived.”). Moreover, although the Welch

Plaintiffs raised the claim in the district court, the court did not rule on it

because it granted relief on their free speech claim. In these

circumstances, we decline to address the religion claim. The district court

may do so in the first instance.

30 PICKUP V. BROWN

Plaintiffs were unlikely to show a violation of the SOCE

practitioners’ free speech rights or the minors’ right to receive

information. As for vagueness, the court ruled that the text of

the statute is clear enough to put mental health providers on

notice of what is prohibited. Finally, the court ruled that SB

1172 does not implicate parents’ right to control the

upbringing of their children because that right does not

encompass the right to choose a specific mental health

treatment that the state has reasonably deemed harmful to

minors.

DISCUSSION

A. Free Speech Rights

At the outset, we must decide whether the First

Amendment requires heightened scrutiny of SB 1172. As

explained below, we hold that it does not.

The first step in our analysis is to determine whether SB

1172 is a regulation of conduct or speech. “[W]ords can in

some circumstances violate laws directed not against speech

but against conduct . . . .” R.A.V. v. City of St. Paul, 505 U.S.

377, 389 (1992). “Congress, for example, can prohibit

employers from discriminating in hiring on the basis of race.

The fact that this will require an employer to take down a sign

reading ‘White Applicants Only’ hardly means that the law

should be analyzed as one regulating the employer’s speech

rather than conduct.” Rumsfeld v. Forum for Academic &

Institutional Rights, Inc. (“FAIR II”), 547 U.S. 47, 62 (2006).

The Supreme Court has made clear that First Amendment

protection does not apply to conduct that is not “inherently

expressive.” Id. at 66. In identifying whether SB 1172

regulates conduct or speech, two of our cases guide our

PICKUP V. BROWN 31

decision: National Association for the Advancement of

Psychoanalysis v. California Board of Psychology

(“NAAP”), 228 F.3d 1043 (9th Cir. 2000), and Conant v.

Walters, 309 F.3d 629 (9th Cir. 2002).

In NAAP, 228 F.3d at 1053, psychoanalysts who were not

licensed in California brought a First Amendment challenge

to California’s licensing scheme for mental health providers.

The licensing scheme required that persons who provide

psychological services to the public for a fee obtain a license,

which in turn required particular educational and experiential

credentials. Id. at 1047. The plaintiffs alleged that the

licensing scheme violated their First Amendment right to

freedom of speech because the license examination tested

only certain psychological theories and required certain

training; plaintiffs had studied and trained under different

psychoanalytic theories. Id. at 1055. We were equivocal

about whether, and to what extent, the licensing scheme in

NAAP implicated any free speech concerns. Id. at 1053 (“We

conclude that, even if a speech interest is implicated,

California’s licensing scheme passes First Amendment

scrutiny.” (emphasis added)); id. at 1056 (“Although some

speech interest may be implicated, California’s content-

neutral mental health licensing scheme is a valid exercise of

its police power . . . .” (emphasis added)). We reasoned that

prohibitions of conduct have “‘never been deemed an

abridgement of freedom of speech . . . merely because the

conduct was in part initiated, evidenced, or carried out by

means of language.’” See id. at 1053 (ellipsis in original)

(quoting Giboney v. Empire Storage & Ice Co., 336 U.S. 490,

502 (1949)). And, importantly, we specifically rejected the

argument that “because psychoanalysis is the ‘talking cure,’

it deserves special First Amendment protection because it is

‘pure speech.’” Id. at 1054. We reasoned: “[T]he key

32 PICKUP V. BROWN

component of psychoanalysis is the treatment of emotional

suffering and depression, not speech. That psychoanalysts

employ speech to treat their clients does not entitle them, or

their profession, to special First Amendment protection.” Id.

(internal quotation marks and ellipsis omitted).

Nevertheless, we concluded that the “communication that

occurs during psychoanalysis is entitled to constitutional

protection, but it is not immune from regulation.” Id. But we

neither decided how much protection that communication

should receive nor considered whether the level of protection

might vary depending on the function of the communication.

Given California’s strong interest in regulating mental health,

we held that the licensing scheme at issue in NAAP was a

valid exercise of its police power. Id. at 1054–55.

We went on to conclude that, even if the licensing scheme

in NAAP regulated speech, it did not trigger strict scrutiny

because it was both content neutral and viewpoint neutral. Id.

at 1055. We reasoned that the licensing laws did not “dictate

what can be said between psychologists and patients during

treatment.” Id. Further, we observed that those laws were

“not adopted because of any disagreement with

psychoanalytical theories” but for “the important purpose of

protecting public health, safety, and welfare.” Id. at 1056

(internal quotation marks omitted). We again concluded that

the laws were a valid exercise of California’s police power.

Id.

In Conant, 309 F.3d at 633–34, we affirmed a district

court’s order granting a permanent injunction that prevented

the federal government from revoking a doctor’s DEA

registration or initiating an investigation if he or she

recommended medical marijuana. The federal government

PICKUP V. BROWN 33

had adopted a policy that a doctor’s “recommendation” of

marijuana would lead to revocation of his or her license. Id.

at 632. But the government was “unable to articulate exactly

what speech [the policy] proscribed, describing it only in

terms of speech the patient believes to be a recommendation

of marijuana.” Id. at 639. Nevertheless, the demarcation

between conduct and speech in Conant was clear. The policy

prohibited doctors from prescribing or distributing marijuana,

and neither we nor the parties disputed the government’s

authority to prohibit doctors from treating patients with

marijuana. Id. at 632, 635–36. Further, the parties agreed

that “revocation of a license was not authorized where a

doctor merely discussed the pros and cons of marijuana use.”

Id. at 634 (emphasis added).

We ruled that the policy against merely “recommending”

marijuana was both content- and viewpoint-based. Id. at 637.

It was content-based because it covered only doctor-patient

speech “that include[d] discussions of the medical use of

marijuana,” and it was viewpoint-based because it

“condemn[ed] expression of a particular viewpoint, i.e., that

medical marijuana would likely help a specific patient.” Id.

We held that the policy did not withstand heightened First

Amendment scrutiny because it lacked “the requisite narrow

specificity” and left “doctors and patients no security for free

discussion.” Id. at 639 (internal quotation marks omitted).

We distill the following relevant principles from NAAP

and Conant: (1) doctor-patient communications about

medical treatment receive substantial First Amendment

protection, but the government has more leeway to regulate

the conduct necessary to administering treatment itself; (2)

psychotherapists are not entitled to special First Amendment

protection merely because the mechanism used to deliver

34 PICKUP V. BROWN

mental health treatment is the spoken word; and (3)

nevertheless, communication that occurs during

psychotherapy does receive some constitutional protection,

but it is not immune from regulation.

Because those principles, standing alone, do not tell us

whether or how the First Amendment applies to the

regulation of specific mental health treatments, we must go

on to consider more generally the First Amendment rights of

professionals, such as doctors and mental health providers.

In determining whether SB 1172 is a regulation of speech or

conduct, we find it helpful to view this issue along a

continuum.

At one end of the continuum, where a professional is

engaged in a public dialogue, First Amendment protection is

at its greatest. Thus, for example, a doctor who publicly

advocates a treatment that the medical establishment

considers outside the mainstream, or even dangerous, is

entitled to robust protection under the First Amendment—just

as any person is—even though the state has the power to

regulate medicine. See Lowe v. SEC, 472 U.S. 181, 232

(1985) (White, J., concurring) (“Where the personal nexus

between professional and client does not exist, and a speaker

does not purport to be exercising judgment on behalf of any

particular individual with whose circumstances he is directly

acquainted, government regulation ceases to function as

legitimate regulation of professional practice with only

incidental impact on speech; it becomes regulation of

speaking or publishing as such, subject to the First

Amendment’s command that ‘Congress shall make no

law . . . abridging the freedom of speech, or of the press.’”);

Robert Post, Informed Consent to Abortion: A First

Amendment Analysis of Compelled Physician Speech,

PICKUP V. BROWN 35

2007 U. Ill. L. Rev. 939, 949 (2007) (“When a physician

speaks to the public, his opinions cannot be censored and

suppressed, even if they are at odds with preponderant

opinion within the medical establishment.”); cf. Bailey v.

Huggins Diagnostic & Rehab. Ctr., Inc., 952 P.2d 768, 773

(Colo. Ct. App. 1997) (holding that the First Amendment

does not permit a court to hold a dentist liable for statements

published in a book or made during a news program, even

when those statements are contrary to the opinion of the

medical establishment). That principle makes sense because

communicating to the public on matters of public concern lies

at the core of First Amendment values. See, e.g., Snyder v.

Phelps, 131 S. Ct. 1207, 1215 (2011) (“Speech on matters of

public concern is at the heart of the First Amendment’s

protection.” (internal quotation markets, brackets, and ellipsis

omitted)). Thus, outside the doctor-patient relationship,

doctors are constitutionally equivalent to soapbox orators and

pamphleteers, and their speech receives robust protection

under the First Amendment.

At the midpoint of the continuum, within the confines of

a professional relationship, First Amendment protection of a

professional’s speech is somewhat diminished. For example,

in Planned Parenthood of Southeastern Pennsylvania v.

Casey, 505 U.S. 833, 884 (1992), the plurality upheld a

requirement that doctors disclose truthful, nonmisleading

information to patients about certain risks of abortion:

All that is left of petitioners’ argument is

an asserted First Amendment right of a

physician not to provide information about the

risks of abortion, and childbirth, in a manner

mandated by the State. To be sure, the

physician’s First Amendment rights not to

36 PICKUP V. BROWN

speak are implicated, but only as part of the

practice of medicine, subject to reasonable

licensing and regulation by the State. We see

no constitutional infirmity in the requirement

that the physician provide the information

mandated by the State here.[4]

(Citations omitted; emphasis added.) Outside the

professional relationship, such a requirement would almost

certainly be considered impermissible compelled speech. Cf.

Wooley v. Maynard, 430 U.S. 705, 717 (1977) (holding that

a state could not require a person to display the state motto on

his or her license plate).

Moreover, doctors are routinely held liable for giving

negligent medical advice to their patients, without serious

suggestion that the First Amendment protects their right to

give advice that is not consistent with the accepted standard

of care. A doctor “may not counsel a patient to rely on quack

medicine. The First Amendment would not prohibit the

doctor’s loss of license for doing so.” Conant v. McCaffrey,

No. C 97-00139 WHA, 2000 WL 1281174, at *13 (N.D. Cal.

Sept. 7, 2000) (order) (unpublished); see also Shea v. Bd. of

Med. Exam’rs, 146 Cal. Rptr. 653, 662 (Ct. App. 1978) (“The

state’s obligation and power to protect its citizens by

regulation of the professional conduct of its health

practitioners is well settled. . . . [T]he First Amendment . . .

does not insulate the verbal charlatan from responsibility for

4

Although the plurality opinion garnered only three votes, four

additional justices would have upheld the challenged law in its entirety.

Casey, 505 U.S. at 944 (Rehnquist, C.J., concurring in the judgment in

part and dissenting in part). Thus, there were seven votes to uphold the

disclosure requirement.

PICKUP V. BROWN 37

his conduct; nor does it impede the State in the proper

exercise of its regulatory functions.” (citations omitted)); cf.

Post, 2007 U. Ill. L. Rev. at 949 (“[W]hen a physician speaks

to a patient in the course of medical treatment, his opinions

are normally regulated on the theory that they are inseparable

from the practice of medicine.”). And a lawyer may be

disciplined for divulging confidences of his client, even

though such disclosure is pure speech. See, e.g., In re

Isaacson, State Bar Court of California, Case No. 08-O-

10684, 2012 WL 6589666, at *4–5 (Dec. 6, 2012)

(unpublished) (noting prior suspension of bar license for

failure to preserve client confidences). Thus, the First

Amendment tolerates a substantial amount of speech

regulation within the professional-client relationship that it

would not tolerate outside of it. And that toleration makes

sense: When professionals, by means of their state-issued

licenses, form relationships with clients, the purpose of those

relationships is to advance the welfare of the clients, rather

than to contribute to public debate. Cf. Lowe, 472 U.S. at 232

(White, J., concurring) (“One who takes the affairs of a client

personally in hand and purports to exercise judgment on

behalf of the client in the light of the client’s individual needs

and circumstances is properly viewed as engaging in the

practice of a profession.”).

At the other end of the continuum, and where we

conclude that SB 1172 lands, is the regulation of professional

conduct, where the state’s power is great, even though such

regulation may have an incidental effect on speech. See id.

(“Just as offer and acceptance are communications incidental

to the regulable transaction called a contract, the

professional’s speech is incidental to the conduct of the

profession.”). Most, if not all, medical and mental health

treatments require speech, but that fact does not give rise to

38 PICKUP V. BROWN

a First Amendment claim when the state bans a particular

treatment. When a drug is banned, for example, a doctor who

treats patients with that drug does not have a First

Amendment right to speak the words necessary to provide or

administer the banned drug. Cf. Conant, 309 F.3d at 634–35

(noting the government’s authority to ban prescription of

marijuana). Were it otherwise, then any prohibition of a

particular medical treatment would raise First Amendment

concerns because of its incidental effect on speech. Such an

application of the First Amendment would restrict unduly the

states’ power to regulate licensed professions and would be

inconsistent with the principle that “it has never been deemed

an abridgement of freedom of speech or press to make a

course of conduct illegal merely because the conduct was in

part initiated, evidenced, or carried out by means of language,

either spoken, written, or printed.” Giboney, 336 U.S. at 502.

Senate Bill 1172 regulates conduct. It bans a form of

treatment for minors; it does nothing to prevent licensed

therapists from discussing the pros and cons of SOCE with

their patients. Senate Bill 1172 merely prohibits licensed

mental health providers from engaging in SOCE with minors.

It is the limited reach of SB 1172 that distinguishes the

present cases from Conant, in which the government’s policy

prohibited speech wholly apart from the actual provision of

treatment. Pursuant to its police power, California has

authority to regulate licensed mental health providers’

administration of therapies that the legislature has deemed

harmful. Under Giboney, 336 U.S. at 502, the fact that

speech may be used to carry out those therapies does not turn

the regulation of conduct into a regulation of speech. In fact,

the Welch Plaintiffs concede that the state has the power to

ban aversive types of SOCE. And we reject the position of

the Pickup Plaintiffs—asserted during oral argument—that

PICKUP V. BROWN 39

even a ban on aversive types of SOCE requires heightened

scrutiny because of the incidental effect on speech.5 Here,

unlike in Conant, 309 F.3d at 639, the law allows discussions

about treatment, recommendations to obtain treatment, and

expressions of opinions about SOCE and homosexuality.

Plaintiffs contend that Holder v. Humanitarian Law

Project, 130 S. Ct. 2705 (2010), supports their position. It

does not.

As we have explained, SB 1172 regulates only

(1) therapeutic treatment, not expressive speech, by

(2) licensed mental health professionals acting within the

confines of the counselor-client relationship. The statute does

not restrain Plaintiffs from imparting information or

disseminating opinions; the regulated activities are

therapeutic, not symbolic. And an act that “symbolizes

nothing,” even if employing language, is not “an act of

communication” that transforms conduct into First

Amendment speech. Nev. Comm’n on Ethics v. Carrigan,

131 S. Ct. 2343, 2350 (2011). Indeed, it is well recognized

that a state enjoys considerable latitude to regulate the

conduct of its licensed health care professionals in

administering treatment. See, e.g., Gonzales v. Carhart,

550 U.S. 124, 157 (2007) (“Under our precedents it is clear

the State has a significant role to play in regulating the

medical profession.”).

5

We do not mean to suggest that any Plaintiff here conducts aversive

SOCE therapy. The record shows that Plaintiffs who are licensed mental

health providers practice SOCE only through talk therapy. We mention

aversive techniques merely to highlight the state’s legitimate power to

regulate professional conduct.

40 PICKUP V. BROWN

In sharp contrast, Humanitarian Law Project pertains to

a different issue entirely: the regulation of (1) political

speech (2) by ordinary citizens. The plaintiffs there sought to

communicate information about international law and

advocacy to a designated terrorist organization. The federal

statute at issue barred them from doing so, because it

considered the plaintiffs’ expression to be material support to

terrorists. As the Supreme Court held, the material support

statute triggered rigorous First Amendment review because,

even if that statute “generally functions as a regulation of

conduct . . . as applied to plaintiffs the conduct triggering

coverage under the statute consists of communicating a

message.” Humanitarian Law Project, 130 S. Ct. at 2724

(second emphasis added).6 Again, SB 1172 does not prohibit

Plaintiffs from “communicating a message.” Id. It is a state

regulation governing the conduct of state-licensed

professionals, and it does not pertain to communication in the

public sphere. Plaintiffs may express their views to anyone,

including minor patients and their parents, about any subject,

including SOCE, insofar as SB 1172 is concerned. The only

thing that a licensed professional cannot do is avoid

professional discipline for practicing SOCE on a minor

patient.

This case is more akin to FAIR II. There, the Supreme

Court emphasized that it “extended First Amendment

protection only to conduct that is inherently expressive.”

547 U.S. at 66 (emphasis added). The Court upheld the

Solomon Amendment, which conditioned federal funding for

institutions of higher education on their offering military

recruiters the same access to campus and students that they

6

We also note that Plaintiffs here bring a facial, not an as-applied,

challenge to SB 1172.

PICKUP V. BROWN 41

provided to nonmilitary recruiters. The Court held that the

statute did not implicate First Amendment scrutiny, even as

applied to law schools seeking to express disagreement with

military policy by limiting military recruiters’ access,

reasoning that the law schools’ “actions were expressive only

because the law schools accompanied their conduct with

speech explaining it.” Id. at 51, 66. Like the conduct at issue

in FAIR II, the administration of psychotherapy is not

“inherently expressive.” Nor does SB 1172 prohibit any

speech, either in favor of or in opposition to SOCE, that

might accompany mental health treatment. Because SB 1172

regulates a professional practice that is not inherently

expressive, it does not implicate the First Amendment.

We further conclude that the First Amendment does not

prevent a state from regulating treatment even when that

treatment is performed through speech alone. As we have

already held in NAAP, talk therapy does not receive special

First Amendment protection merely because it is

administered through speech. 228 F.3d at 1054. That

holding rested on the understanding of talk therapy as “the

treatment of emotional suffering and depression, not speech.”

Id. (internal quotation marks omitted) (first emphasis added).

Thus, under NAAP, to the extent that talk therapy implicates

speech, it stands on the same First Amendment footing as

other forms of medical or mental health treatment. Senate

Bill 1172 is subject to deferential review just as are other

regulations of the practice of medicine.

Our conclusion is consistent with NAAP’s statement that

“communication that occurs during psychoanalysis is entitled

to constitutional protection, but it is not immune from

regulation.” Id. Certainly, under Conant, content- or

viewpoint-based regulation of communication about

42 PICKUP V. BROWN

treatment must be closely scrutinized. But a regulation of

only treatment itself—whether physical medicine or mental

health treatment—implicates free speech interests only

incidentally, if at all. To read NAAP otherwise would

contradict its holding that talk therapy is not entitled to

“special First Amendment protection,” and it would, in fact,

make talk therapy virtually “immune from regulation.” Id.

Nor does NAAP’s discussion of content and viewpoint

discrimination change our conclusion. There, we used both

a belt and suspenders. In addition to holding that the

licensing scheme at issue was a permissible regulation of

conduct, we reasoned that even if California’s licensing

requirements implicated First Amendment interests, the

requirements did not discriminate on the basis of content or

viewpoint. Id. at 1053, 1055–56. But here, SB 1172

regulates only treatment, and nothing in NAAP requires us to

analyze a regulation of treatment in terms of content and

viewpoint discrimination.7

Because SB 1172 regulates only treatment, while leaving

mental health providers free to discuss and recommend, or

recommend against, SOCE, we conclude that any effect it

may have on free speech interests is merely incidental.

Therefore, we hold that SB 1172 is subject to only rational

basis review and must be upheld if it bears a rational

relationship to a legitimate state interest. See Casey, 505 U.S.

at 884, 967–68 (a plurality of three justices, plus four

additional justices concurring in part and dissenting in part,

7

We acknowledge that Plaintiffs ask us to apply strict scrutiny, but they

have not cited any case in which a court has applied strict scrutiny to the

regulation of a medical or mental health treatment. Nor are we aware of

any.

PICKUP V. BROWN 43

applied a reasonableness standard to the regulation of

medicine where speech may be implicated incidentally).

According to the statute, SB 1172 advances California’s

interest in “protecting the physical and psychological well-

being of minors, including lesbian, gay, bisexual and

transgender youth, and in protecting its minors against

exposure to serious harms caused by sexual orientation

change efforts.” 2012 Cal. Legis. Serv. ch. 835, § 1(n).

Without a doubt, protecting the well-being of minors is a

legitimate state interest. And we need not decide whether

SOCE actually causes “serious harms”; it is enough that it

could “reasonably be conceived to be true by the

governmental decisionmaker.” NAAP, 228 F.3d at 1050

(internal quotation marks omitted).

The record demonstrates that the legislature acted

rationally when it decided to protect the well-being of minors

by prohibiting mental health providers from using SOCE on

persons under 18.8 The legislature relied on the report of the

Task Force of the American Psychological Association,

which concluded that SOCE has not been demonstrated to be

effective and that there have been anecdotal reports of harm,

including depression, suicidal thoughts or actions, and

substance abuse. The legislature also relied on the opinions

of many other professional organizations. Each of those

organizations opposed the use of SOCE, concluding, among

8

We need not and do not decide whether the legislature would have

acted rationally had it banned SOCE for adults. One could argue that

children under the age of 18 are especially vulnerable with respect to

sexual identity and that their parents’ judgment may be clouded by this

emotionally charged issue as well. The considerations with respect to

adults may be different.

44 PICKUP V. BROWN

other things, that homosexuality is not an illness and does not

require treatment (American School Counselor Association),

SOCE therapy can provoke guilt and anxiety (American

Academy of Pediatrics), it may be harmful (National

Association of Social Workers), and it may contribute to an

enduring sense of stigma and self-criticism (American

Psychoanalytic Association). Although the legislature also

had before it some evidence that SOCE is safe and effective,

the overwhelming consensus was that SOCE was harmful and

ineffective. On this record, we have no trouble concluding

that the legislature acted rationally by relying on that

consensus.

Plaintiffs argue that the legislature acted irrationally when

it banned SOCE for minors because there is a lack of

scientifically credible proof of harm. But, under rational

basis review, “[w]e ask only whether there are plausible

reasons for [the legislature’s] action, and if there are, our

inquiry is at an end.” Romero-Ochoa v. Holder, 712 F.3d

1328, 1331 (9th Cir. 2013) (internal quotation marks

omitted).

Therefore, we hold that SB 1172 is rationally related to

the legitimate government interest of protecting the well-

being of minors.9

9

The foregoing discussion relates as well to the Pickup Plaintiffs’ claim

that SB 1172 violates minors’ right to receive information. See Monteiro

v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1027 n.5 (9th Cir. 1998)

(recognizing the “well-established rule that the right to receive

information is an inherent corollary of the rights of free speech and

press”).

PICKUP V. BROWN 45

B. Expressive Association

We also reject the Pickup Plaintiffs’ argument that SB

1172 implicates their right to freedom of association because

the First Amendment protects their “choices to enter into and

maintain the intimate human relationships between

counselors and clients.”10

First, SB 1172 does not prevent mental health providers

and clients from entering into and maintaining therapeutic

relationships. It prohibits only “practices . . . that seek to

change [a minor] individual’s sexual orientation.” Cal. Bus.

& Prof. Code § 865(b)(1). Therapists are free, but not

obligated, to provide therapeutic services, as long as they do

not “seek to change [the] sexual orientation” of minor clients.

Moreover, the therapist-client relationship is not the type

of relationship that the freedom of association has been held

to protect. The Supreme Court’s decisions “have referred to

constitutionally protected ‘freedom of association’ in two

distinct senses.” Roberts v. U.S. Jaycees, 468 U.S. 609, 617

(1984). The first type of protected association concerns

“intimate human relationships,” which are implicated in

personal decisions about marriage, childbirth, raising

10

The Pickup Plaintiffs arguably waived their expressive association

argument by not raising it in the district court. But “the rule of waiver is

a discretionary one.” Ruiz v. Affinity Logistics Corp., 667 F.3d 1318, 1322

(9th Cir. 2012) (internal quotation marks omitted). We have discretion to

address an argument that otherwise would be waived “when the issue

presented is purely one of law and either does not depend on the factual

record developed below, or the pertinent record has been fully developed.”

Id. (internal quotation marks omitted). Whether SB 1172 violates the right

to expressive association is such an issue, and we exercise our discretion

to address it.

46 PICKUP V. BROWN

children, cohabiting with relatives, and the like. Id. at

617–19. That type of freedom of association “receives

protection as a fundamental element of personal liberty.” Id.

at 618. The second type protects association “for the purpose

of engaging in those activities protected by the First

Amendment—speech, assembly, petition for the redress of

grievances, and the exercise of religion.” Id. at 618.

Plaintiffs in Pickup claim an infringement of only the first

type of freedom of association.

Although we have not specifically addressed the

therapist-client relationship in terms of freedom of

association, we have explained why the therapist-client

relationship is not protected by the Due Process Clause of the

Fourteenth Amendment: “The relationship between a client

and psychoanalyst lasts only as long as the client is willing to

pay the fee. Even if analysts and clients meet regularly and

clients reveal secrets and emotional thoughts to their analysts,

these relationships simply do not rise to the level of a

fundamental right.” NAAP, 228 F.3d at 1050 (internal

quotation marks and citation omitted). Because the type of

associational protection that the Pickup Plaintiffs claim is

rooted in “personal liberty,” U.S. Jaycees, 468 U.S. at 618,

and because we have already determined that the therapist-

client relationship does not “implicate the fundamental rights

associated with . . . close-knit relationships,” NAAP, 228 F.3d

at 1050, we conclude that the freedom of association also

does not encompass the therapist-client relationship.

PICKUP V. BROWN 47

C. Vagueness

We next hold that SB 1172 is not void for vagueness.

“It is a basic principle of due process that an enactment is

void for vagueness if its prohibitions are not clearly defined.”

Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).

Nevertheless, “perfect clarity and precise guidance have

never been required even of regulations that restrict

expressive activity.” Ward v. Rock Against Racism, 491 U.S.

781, 794 (1989). “[U]ncertainty at a statute’s margins will

not warrant facial invalidation if it is clear what the statute

proscribes ‘in the vast majority of its intended applications.’”

Cal. Teachers Ass’n v. State Bd. of Educ., 271 F.3d 1141,

1151 (9th Cir. 2001) (quoting Hill v. Colorado, 530 U.S. 703,

733 (2000)). “A defendant is deemed to have fair notice of

an offense if a reasonable person of ordinary intelligence

would understand that his or her conduct is prohibited by the

law in question.” United States v. Weitzenhoff, 35 F.3d 1275,

1289 (9th Cir. 1994) (internal quotation marks omitted). But,

“if the statutory prohibition involves conduct of a select

group of persons having specialized knowledge, and the

challenged phraseology is indigenous to the idiom of that

class, the standard is lowered and a court may uphold a

statute which uses words or phrases having a technical or

other special meaning, well enough known to enable those

within its reach to correctly apply them.” Id. (internal

quotation marks omitted).

Although the Pickup Plaintiffs argue that they cannot

ascertain where the line is between what is prohibited and

what is permitted—for example, they wonder whether the

mere dissemination of information about SOCE would

subject them to discipline—the text of SB 1172 is clear to a

48 PICKUP V. BROWN

reasonable person. Discipline attaches only to “practices”

that “seek to change” a minor “patient[‘s]” sexual orientation.

Cal. Bus. & Prof. Code §§ 865-865.1. A reasonable person

would understand the statute to regulate only mental health

treatment, including psychotherapy, that aims to alter a minor

patient’s sexual orientation. Although Plaintiffs present

various hypothetical situations to support their vagueness

challenge, the Supreme Court has held that “speculation

about possible vagueness in hypothetical situations not before

the Court will not support a facial attack on a statute when it

is surely valid in the vast majority of its intended

applications.” Hill, 530 U.S. at 733 (internal quotation marks

omitted).

Moreover, considering that SB 1172 regulates licensed

mental health providers, who constitute “a select group of

persons having specialized knowledge,” the standard for

clarity is lower. Weitzenhoff, 35 F.3d at 1289. Indeed, it is

hard to understand how therapists who identify themselves as

SOCE practitioners can credibly argue that they do not

understand what practices qualify as SOCE.

Neither is the term “sexual orientation” vague. Its

meaning is clear enough to a reasonable person and should be

even more apparent to mental health providers. In fact,

several provisions in the California Code—though not SB

1172 itself—provide a simple definition: “heterosexuality,

homosexuality, or bisexuality.” Cal. Educ. Code §§ 212.6,

66262.7; Cal. Gov’t Code § 12926®; Cal. Penal Code

§§ 422.56(h), 11410(b)(7). Moreover, courts have repeatedly

rejected vagueness challenges that rest on the term “sexual

orientation.” E.g., United States v. Jenkins, 909 F. Supp. 2d

758, 778–79 (E.D. Ky. 2012); Hyman v. City of Louisville,

PICKUP V. BROWN 49

132 F. Supp. 2d 528, 546 (W.D. Ky. 2001), vacated on other

grounds, 53 F. App’x 740 (6th Cir. 2002) (unpublished).

D. Overbreadth

We further hold that SB 1172 is not overbroad.11

Overbreadth doctrine permits the facial invalidation of

laws that prohibit “a substantial amount of constitutionally

protected speech.” City of Houston v. Hill, 482 U.S. 451, 466

(1987). “[T]he mere fact that one can conceive of some

impermissible applications of a statute is not sufficient to

render it susceptible to an overbreadth challenge.” Members

of City Council v. Taxpayers for Vincent, 466 U.S. 789, 800

(1984). Rather, “particularly where conduct and not merely

speech is involved, . . . the overbreadth of a statute must not

only be real, but substantial as well, judged in relation to the

statute’s plainly legitimate sweep.” Broadrick v. Oklahoma,

413 U.S. 601, 615 (1973).

Senate Bill 1172’s plainly legitimate sweep includes

SOCE techniques such as inducing vomiting or paralysis,

administering electric shocks, and performing castrations.

And, as explained above, it also includes SOCE techniques

carried out solely through words. As with any regulation of

a particular medical or mental health treatment, there may be

11

Intervenor Equality California argues that the Pickup Plaintiffs waived

their overbreadth challenge by failing to raise it adequately in the district

court. Although they did not argue overbreadth with specificity, they did

allege it in their complaint and in their memorandum in support of

preliminary injunctive relief. Moreover, whether the statute is overbroad

is a question of law that “does not depend on the factual record developed

below.” Ruiz, 667 F.3d at 1322. Therefore, we exercise our discretion to

address Plaintiffs’ overbreadth challenge.

50 PICKUP V. BROWN

an incidental effect on speech. Any incidental effect,

however, is small in comparison with the “plainly legitimate

sweep” of the law. Broadrick, 413 U.S. at 615.

Thus, SB 1172 is not overbroad.

E. Parents’ Fundamental Rights

The Pickup Plaintiffs also argue that SB 1172 infringes on

their fundamental parental right to make important medical

decisions for their children. The state does not dispute that

parents have a fundamental right to raise their children as

they see fit, but argues that Plaintiffs “cannot compel the

State to permit licensed mental health [professionals] to

engage in unsafe practices, and cannot dictate the prevailing

standard of care in California based on their own views.”

Because Plaintiffs argue for an affirmative right to access

SOCE therapy from licensed mental health providers, the

precise question at issue is whether parents’ fundamental

rights include the right to choose for their children a

particular type of provider for a particular medical or mental

health treatment that the state has deemed harmful. See

Washington v. Glucksberg, 521 U.S. 702, 720–21 (1997)

(holding that courts should precisely define purported

substantive due process rights to direct and restrain

exposition of the Due Process Clause).

Parents have a constitutionally protected right to make

decisions regarding the care, custody, and control of their

children, but that right is “not without limitations.” Fields v.

Palmdale Sch. Dist., 427 F.3d 1197, 1204 (9th Cir. 2005).

States may require school attendance and mandatory school

uniforms, and they may impose curfew laws applicable only

to minors. See id. at 1204–05 (collecting cases demonstrating

PICKUP V. BROWN 51

the “wide variety of state actions that intrude upon the liberty

interest of parents in controlling the upbringing and education

of their children”). In the health arena, states may require the

compulsory vaccination of children (subject to some

exceptions), see Prince v. Massachusetts, 321 U.S. 158, 166

(1944), and states may intervene when a parent refuses

necessary medical care for a child, see Jehovah’s Witnesses

v. King Cnty. Hosp., 278 F. Supp. 488, 504 (W.D. Wash.

1967) (three-judge panel) (per curiam), aff’d, 390 U.S. 598

(1968) (per curiam). “[A] state is not without constitutional

control over parental discretion in dealing with children when

their physical or mental health is jeopardized.” Parham v.

J.R., 442 U.S. 584, 603 (1979).

We are unaware of any case that specifically addresses

whether a parent’s fundamental rights encompass the right to

choose for a child a particular type of provider for a particular

treatment that the state has deemed harmful, but courts that

have considered whether patients have the right to choose

specific treatments for themselves have concluded that they

do not. For example, we have held that “substantive due

process rights do not extend to the choice of type of treatment

or of a particular health care provider.” NAAP, 228 F.3d at

1050. Thus, we concluded that “there is no fundamental right

to choose a mental health professional with specific training.”

Id. The Seventh Circuit has also held that “a patient does not

have a constitutional right to obtain a particular type of

treatment or to obtain treatment from a particular provider if

the government has reasonably prohibited that type of

treatment or provider.” Mitchell v. Clayton, 995 F.2d 772,

775 (7th Cir. 1993). Moreover, courts have held that there is

no substantive due process right to obtain drugs that the FDA

has not approved, Carnohan v. United States, 616 F.2d 1120,

1122 (9th Cir. 1980) (per curiam), even when those drugs are

52 PICKUP V. BROWN

sought by terminally ill cancer patients, see Rutherford v.

United States, 616 F.2d 455, 457 (10th Cir. 1980) (“It is

apparent in the context with which we are here concerned that

the decision by the patient whether to have a treatment or not

is a protected right, but his selection of a particular treatment,

or at least a medication, is within the area of governmental

interest in protecting public health.”). Those cases cut against

recognizing the right that Plaintiffs assert; it would be odd if

parents had a substantive due process right to choose specific

treatments for their children—treatments that reasonably have

been deemed harmful by the state—but not for themselves.

It would be all the more anomalous because the Supreme

Court has recognized that the state has greater power over

children than over adults. Prince, 321 U.S. at 170 (stating

that “the power of the state to control the conduct of children

reaches beyond the scope of its authority over adults”).

Further, our decision in Fields counsels against

recognizing the right that Plaintiffs assert. In that case,

parents of school children argued that a school violated their

parental rights when it administered to students a survey that

contained several questions about sex. Fields, 427 F.3d at

1203. We rejected that argument, holding that, although

parents have the right to inform their children about sex when

and as they choose, they do not have the right to “compel

public schools to follow their own idiosyncratic views as to

what information the schools may dispense.” Id. at 1206.

Similarly, here, to recognize the right Plaintiffs assert would

be to compel the California legislature, in shaping its

regulation of mental health providers, to accept Plaintiffs’

personal views of what therapy is safe and effective for

minors. The aforementioned cases lead us to conclude that

the fundamental rights of parents do not include the right to

choose a specific type of provider for a specific medical or

PICKUP V. BROWN 53

mental health treatment that the state has reasonably deemed

harmful.

Therefore, SB 1172 does not infringe on the fundamental

rights of parents.

CONCLUSION

Senate Bill 1172 survives the constitutional challenges

presented here. Accordingly, the order granting preliminary

relief in Welch, No. 13-15023, is REVERSED, and the order

denying preliminary relief in Pickup, No. 12-17681, is

AFFIRMED. We remand both cases for further proceedings

consistent with this opinion.