The opinion
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In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-10604
____________________
ROBERT W. OTTO,
JULIE H. HAMILTON,
Plaintiffs-Appellants,
versus
CITY OF BOCA RATON, FLORIDA,
COUNTY OF PALM BEACH, FL,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:18-cv-80771-RLR
____________________
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Before WILLIAM PRYOR, Chief Judge, WILSON, JORDAN,
ROSENBAUM, JILL PRYOR, NEWSOM, BRANCH, GRANT, LUCK, LAGOA,
and BRASHER, Circuit Judges.
BY THE COURT:
A petition for rehearing having been filed and a member of
this Court in active service having requested a poll on whether this
case should be reheard by the Court sitting en banc, and a majority
of the judges in active service on this Court having voted against
granting rehearing en banc, it is ORDERED that this case will not
be reheard en banc.
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19-10604 GRANT, J., Concurring 1
GRANT, Circuit Judge, joined by BRANCH and LAGOA, Circuit
Judges, concurring in the denial of rehearing en banc:
First Amendment jurisprudence is straightforward in at least
one respect: it “requires that content-based speech restrictions
satisfy strict scrutiny. And unless restrictions meet that demanding
standard, whether the speech they target should be tolerated is
simply not a question that we are allowed to consider, or a choice
that we are allowed to make.” Otto v. City of Boca Raton, 981 F.3d
854, 870 (11th Cir. 2020) (quotation and citations omitted). The
city and county ordinances in this case, which prohibit talk therapy
on a particular—and particularly controversial—subject, are no
exception to this rule.
The challenged ordinances “prohibit therapists from
engaging in counseling or any therapy with a goal of changing a
minor’s sexual orientation, reducing a minor’s sexual or romantic
attractions (at least to others of the same gender or sex), or
changing a minor’s gender identity or expression—though support
and assistance to a person undergoing gender transition is
specifically permitted.” Id. at 859. The perspective enforced by
these local policies is extremely popular in many communities.
And the speech barred by these ordinances is rejected by many as
wrong, and even dangerous. But the First Amendment applies
even to—especially to—speech that is widely unpopular.
The panel opinion thoroughly explains why a fair-minded
and neutral application of longstanding First Amendment law
dooms the ordinances. We write separately here to address our
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colleagues’ dissenting opinions and to reiterate the importance of
the First Amendment protections at stake. Today’s dissenters
decry the result of the panel decision—namely, that speech they
consider harmful is (or may be) constitutionally protected. But to
reach their preferred outcomes, they ask us to ignore settled First
Amendment law.
Consider our well-established standard of review for First
Amendment cases. When reviewing constitutional facts
underlying possible violations of the freedom of speech, we apply
de novo, or plenary, review. ACLU of Florida, Inc. v. Miami-Dade
Cnty. Sch. Bd., 557 F.3d 1177, 1203 (11th Cir. 2009); see also Bose
Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 501 n.17, 505-
–06 & 506 n.24 (1984). Judge Jordan correctly applied this standard
when writing for this Court in Wollschlaeger v. Governor of
Florida, an en banc case in which we held that the government
could not block doctors from speaking to their patients about guns.
See 848 F.3d 1293, 1301 (11th Cir. 2017) (en banc). Remarkably, he
now attacks that standard, emphasizing that we ordinarily review
a district court’s “factual findings for clear error” in an appeal from
the grant or denial of a preliminary injunction. Indep. Party of
Florida. v. Sec’y, Florida, 967 F.3d 1277, 1280 (11th Cir. 2020).
Jordan Dissent at 1.
That is true—but “First Amendment issues are not
ordinary.” ACLU of Florida, 557 F.3d at 1203. It has long been the
rule that when we consider a preliminary injunction implicating
the freedom of speech, “our review of the district court’s findings
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19-10604 GRANT, J., Concurring 3
of ‘constitutional facts,’ as distinguished from ordinary historical
facts, is de novo.” Id. (quoting CAMP Legal Def. Fund, Inc. v. City
of Atlanta, 451 F.3d 1257, 1268 (11th Cir.2006)). Historical facts are
the straightforward findings of the circumstances surrounding a
case—here, for example, the dates on which the ordinances were
passed. Constitutional facts, in contrast, are the “core facts” that
determine whether a First Amendment violation has occurred. Id.
at 1205.
Because “the reaches of the First Amendment are ultimately
defined by the facts it is held to embrace,” appellate courts must
ourselves decide “whether a given course of conduct falls on the
near or far side of the line of constitutional protection.” Hurley v.
Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, Inc., 515 U.S.
557, 567 (1995). Here, the question of whether the ordinances
regulate speech or conduct—as Judge Jordan puts it, whether the
therapy is “just talk”—goes well beyond historical fact. See Jordan
Dissent at 13. To defer on a factual issue so intertwined with the
legal questions at stake would be to implicitly delegate legal
judgment to the district court as well.
We cannot duck controversial issues by evading the
standard of review for constitutional facts. The panel, as our
precedents require, applied the proper standard: “plenary review.”
Wollschlaeger, 848 F.3d at 1301. And we are puzzled that Judge
Jordan objects to applying the same standard he used in
Wollschlaeger.
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The next dissent also ignores the law of this Circuit and the
Supreme Court. Citing dozens of interest group publications—
none of which are in the record—Judge Rosenbaum criticizes the
panel majority’s “uninformed take on talk therapy.” Rosenbaum
Dissent at 2; see id. at 3–7, 71–75 (citing publications). But we are
not charged with performing our own internet investigation on the
questions that come before us. In fact, doing so is out of bounds.
See, e.g., Turner v. Burnside, 541 F.3d 1077, 1086 (11th Cir. 2008)
(“We do not consider facts outside the record.”). Our role is to
independently review the record, not to develop it further.
Our role is also to apply the precedents that bind us, and
Judge Rosenbaum’s attempts to justify the ordinances only reveal
that it is impossible to do so under existing law. To start, the
dissent recognizes that ordinances like these are “necessarily
content-based and would not survive the general presumption
against content-based regulations and strict scrutiny.” Rosenbaum
Dissent at 24. Exactly. As the panel opinion explains, the studies
offered to the district court in support of the regulations contained
“ambiguous proof” and “equivocal conclusions.” Otto, 981 F.3d at
868–69 (quoting Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 800
(2011)). That is not enough to meet the “demanding standard” that
strict scrutiny requires. Id. at 868 (quoting Brown, 564 U.S. at 799).
Indeed, the dissent also concedes that—even considering the
dramatic number of interest group publications and press releases
that it identifies—these specific regulations cannot survive strict
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scrutiny. See Rosenbaum Dissent at 24, 3–7, 71–75 (interest group
publications).
Because ordinary First Amendment law will displace these
speech bans, creative thinking is required to save them. In its
attempt to persuade the reader otherwise, the dissent misreads
First Amendment precedents. Take National Institute of Family &
Life Advocates v. Becerra (NIFLA). Judge Rosenbaum cites that
case as showing that the Supreme Court “permit[s] governments
to impose content-based restrictions on speech with[] persuasive
evidence . . . of a long (if heretofore unrecognized) tradition to that
effect.” Rosenbaum Dissent at 11; NIFLA, 138 S. Ct. 2361, 2372
(2018) (quotations omitted). Those brackets do a lot of work. Here
is the unaltered quotation: “This Court’s precedents do not permit
governments to impose content-based restrictions on speech
without ‘“persuasive evidence . . . of a long (if heretofore
unrecognized) tradition”’ to that effect.” Id. (quoting United States
v. Alvarez, 567 U.S. 709, 722 (2012) (plurality opinion) (quoting
Brown, 564 U.S. at 792)) (ellipsis in original). Again—the Supreme
Court’s precedents “do not” permit content-based speech
restrictions without persuasive evidence that a long tradition of
such restrictions exists.
Read correctly, NIFLA emphasizes that content-based
regulation is heavily disfavored and that there is no tradition of
regulating professional speech. Id. “As with other kinds of
speech,” it explains, “regulating the content of professionals’
speech poses the inherent risk that the Government seeks not to
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advance a legitimate regulatory goal, but to suppress unpopular
ideas or information.” Id. at 2374 (quotation and brackets omitted).
That is why speech does not lose First Amendment protection
“merely because it is uttered by ‘professionals’”—including doctors
or therapists. Id. at 2371–72. It is impossible to rewrite NIFLA to
make a loophole for this one category of speech bans, no matter
how popular they may be.
Make no mistake: these regulations are content-based
restrictions of speech, not conduct. Talk therapy is certainly a form
of treatment. But it “consists—entirely—of words.” Otto, 981 F.3d
at 865. If this speech is conduct, “the same could be said of teaching
or protesting,” of “[d]ebating” and “[b]ook clubs.” Id. The
professional setting of this speech does not transform it into
conduct. Nor does characterizing it as a “scientifically based
healthcare treatment technique” governed by a standard of care.
Rosenbaum Dissent at 24–25. And NIFLA’s refusal to recognize a
lesser-protected category of “professional speech” only confirmed
what this Court already understood in Wollschlaeger: “Speech is
speech, and it must be analyzed as such for purposes of the First
Amendment.” 848 F.3d at 1307 (alteration and quotation omitted);
see NIFLA, 138 S. Ct. at 2371–75.
Having fully exhausted existing free speech doctrine, the
dissent attempts to trailblaze its own. Yet again, that move is
barred by precedent. The Supreme Court has admonished that the
Constitution bars “any freewheeling authority to declare new
categories of speech outside the scope of the First Amendment.”
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Alvarez, 567 U.S. at 722 (quotation omitted). And it reiterated that
warning in NIFLA, reminding us that courts must be “reluctant to
mark off new categories of speech for diminished constitutional
protection”—especially when such categories would be exempt
from “the normal prohibition on content-based restrictions.” 138
S. Ct. at 2372 (quotations omitted).
Those rebukes should always be enough to induce caution.
But they carry even more force here because in NIFLA the
Supreme Court was specifically criticizing other circuit courts’
approval of “professional speech” bans just like the ones we now
consider. Id. at 2371–72 (citing King v. Governor of New Jersey,
767 F.3d 216, 220, 232–33 (3d Cir. 2014) (upholding a therapist
speech ban virtually identical to the ones here after concluding that
“a licensed professional does not enjoy the full protection of the
First Amendment when speaking as part of the practice of her
profession”), and Pickup v. Brown, 740 F.3d 1208, 1222, 1227–1229
(9th Cir. 2014) (upholding a similar ban, again on the rationale that
it regulates conduct, not speech)); see also Wollschlaeger, 848 F.3d
at 1309. Nor can we forget that the Court specifically “stressed the
danger of content-based regulations in the fields of medicine and
public health.” NIFLA, 138 S. Ct. at 2374 (quotation omitted).
The Supreme Court’s warnings, like so much else from
NIFLA, find no place in the dissent. Judge Rosenbaum proposes a
brand-new category of speech regulation exempt from strict
scrutiny—one that not only rejects our well-established aversion to
viewpoint-based speech restrictions, but actually builds viewpoint
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into the analysis. The dissent suggests that we give special
treatment to speech restrictions prohibiting “licensed professionals
from practicing, on populations from whom informed consent
cannot reliably be obtained, treatment techniques that (1) do not
meet the prevailing standard of care, (2) are not shown to be
efficacious, and (3) are associated with a significant increase in the
risk of death”—in short, restrictions that apply only to what the
dissent calls “Life-threatening Treatment Techniques.”
Rosenbaum Dissent at 46. This is not a category at all. It is a
description of disfavored speech that bears no resemblance to the
other analytical brackets set out by the Supreme Court. It
privileges the current views of certain professional organizations.
And it requires significant work to even decipher. As a “category,”
this misses the constitutional mark by a mile.
The innovation does not stop there. Although Judge
Rosenbaum “concede[s]” that the talk therapy banned in this case
is “speech, not conduct,” one would not know it from the analysis
that follows. Rosenbaum Dissent at 34. The dissent rejects the
existing frameworks for evaluating laws that burden free speech,
turning instead to caselaw relating to substantive due process and
fundamental rights, concepts that are unrelated to this case and
invoked by none of the parties. Using Washington v. Glucksberg
to support a speech restriction is a novel approach. 521 U.S. 702
(1997). Glucksberg, after all, did not involve a First Amendment
challenge; it outlined limits on substantive due process. Id. at 727–
28. Yet the dissent insists that Glucksberg erects “three guardrails”:
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it “focuses on the informed opinion of the healthcare community”;
“suggests that the standard of care in question must be supported
by research on the matter” (requiring, of course, that the research
be “acceptable”); and “suggests that informed consent must be
unable to mitigate the dangers of the Life-threatening Treatment
Technique within the universe of clients on whom the law
prohibits the practice of the Life-threatening Treatment
Technique.” Rosenbaum Dissent at 60, 62, 64. That is a
remarkable set of takeaways from Glucksberg.
Equally remarkable, the dissent pivots to Planned
Parenthood v. Casey in search of a fresh standard of review for its
new category of speech. Rosenbaum Dissent at 67–71. In the
dissent’s view, the plurality opinion in Casey invites us to apply a
“reasonableness” inquiry when testing the constitutionality of
speech restrictions justified under the dissent’s tripartite
Glucksburg analysis. See Planned Parenthood of Se. Pennsylvania
v. Casey, 505 U.S. 833, 883 (1992) (plurality opinion), overruled by
Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2242
(2022).
This approach is a house of cards. To start, NIFLA was clear
that the Casey standard does not apply to regulations of “speech as
speech.” NIFLA, 138 S. Ct. at 2373–74. The rational basis
“reasonableness” standard applies only to regulations of conduct
that incidentally burden speech. Id. And as the dissent (at least
ostensibly) concedes, that category does not fit the speech at issue
here. Rosenbaum Dissent at 34. But despite that concession, the
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dissent excises any traditional levels of scrutiny for speech
restrictions; all that remains is judgment of “reasonableness.” Is it
even plausible that a judge who has already concluded that a
particular kind of speech is a “Life-threatening Treatment
Technique” will then conclude that it would be unreasonable to
ban it? The question answers itself. If there is a standard better
designed to allow speech that judges like and disallow speech that
judges dislike, we do not know what it is.
Indeed, the dissent’s “Glucksburg guideposts,” apart from
their creativity, are designed with one audience in mind. Who
decides which professional bodies qualify as “leading” when
considering the “informed opinion of the healthcare community”?
Who defines the “jurisdiction” of those “leading professional
bodies”? “Acceptable research” by whose standards? “Unable to
mitigate the dangers” according to whom? The answer, of course,
is judges. This category of speech and its circular test would
replace all existing First Amendment doctrines with one
question—whether a judge approves of the speech.
But whether speech is protected does not depend on
whether judges, or communities, like it. The Constitution gives
the government “no power to restrict expression because of its
message, its ideas, its subject matter, or its content.” Reed v. Town
of Gilbert, 576 U.S. 155, 163 (2015) (quotation omitted). The
government cannot be trusted to prohibit only bad speech. And
our role as an independent judiciary is to enforce the First
Amendment, not to decide which ideas are worthy of immunity
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from government regulation—or which professional groups can
make that decision for us.
Truthfully, the dissent’s unfailing trust in professional
groups is surprising given their track records on the very subject at
issue. Well-intentioned professional associations “may hit the right
mark—but they may also miss it.” Otto, 981 F.3d at 869. As the
panel opinion points out, only a few decades ago the exact set of
“leading professional bodies” that the dissent trusts to regulate
speech—and the research they relied on—endorsed treating
homosexuality as a mental disorder. See id. at 869–70; American
Psychiatric Association, DSM-I (1952); DSM-II (1968); DSM-II 6th
printing change (1973); DSM-III (1980). Under the dissent’s
proposed test, this Court would have been required to uphold
government bans on talk therapy that encouraged ideas about
gender identity and sexual orientation that fell outside the social
orthodoxy of that era. But that defies the First Amendment’s
“fundamental principle that governments have no power to restrict
expression because of its message, its ideas, its subject matter, or its
content.” NIFLA, 138 S. Ct. at 2371 (quotations omitted). This
country’s guarantee of free expression has fostered many political,
social, and religious debates, with our citizens encouraging one
another to consider and reconsider the consensus position. It has
never been the judiciary’s role to moderate those debates, and we
should not start now.
Even less convincing is the claim made by today’s dissenters
that our decision in Wollschlaeger has no bearing on this case. See
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Rosenbaum Dissent at 41–45; Jordan Dissent at 10–11. Judge
Jordan argues that a different procedural posture and a lack of
disputed facts render Wollschlaeger so inapplicable that it can
provide “no support” for the panel’s decision in Otto. Jordan
Dissent at 11. And Judge Rosenbaum simply draws lines between
the substantive content prohibited in Wollschlaeger and those
prohibited here, concluding that our earlier decision “does not in
any way conflict with” her proposed approach because the statute
there “could be understood to require” doctors to “violate the
standard of care” rather than follow it. Rosenbaum Dissent at 43,
45.
These attempts to distinguish our most relevant recent
precedent are not persuasive. Wollschlaeger explicitly held that
“content-based restrictions on speech by those engaged in a certain
profession” deserve heightened review. 848 F.3d at 1311 (rejecting
both a comparison to Casey and application of rational basis
review). Indeed, it expressed “serious doubts” about the Ninth
Circuit’s characterization of the same kind of therapy as conduct
rather than speech. Id. at 1309. And it emphasized that “the
enterprise of labeling certain verbal or written communications
‘speech’ and others ‘conduct’ is unprincipled and susceptible to
manipulation.” Id. at 1308 (quotation omitted). It is no wonder
that the district court found itself “stymied by the Eleventh
Circuit’s analysis in Wollschlaeger” when it considered the
possibility that it could uphold the ordinances as regulating some
form of conduct. Wollschlaeger squarely precludes that argument.
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It also precludes pulling a lax conduct-based standard of review out
of Casey to perform an end-run on free speech doctrine in the
professional context: “state officials cannot successfully rely on a
single paragraph in the plurality opinion of three Justices . . . to
support the use of rational basis review here.” Id. at 1311. The
dissenting opinion’s attempt to convert a case striking down a
speech ban for doctors into a case supporting a speech ban for
therapists is spirited, but it fails to get the job done.
One final point. States need not shutter their licensing
boards in light of this Court’s decision in Otto. Regulatory
authority is alive and well—just as robust as it was before the
opinion. Indeed, though Otto was published nearly two years ago,
we have no indication that therapy has become “a Wild West of
anything goes—no matter how detrimental to clients’ health.”
Rosenbaum Dissent at 25. Nor was there any such result in the
years following our decision in Wollschlaeger, which also refused
to allow content-based restrictions on professional speech. And
that’s no surprise, because “[t]his case, like Wollschlaeger, is not
about licensure requirements. It is about speech.” Otto, 981 F.3d
at 866–67 (footnote and citation omitted). The State did not lose
its ability to regulate the medical profession simply because it was
compelled to respect constitutional boundaries. Nor, we add, have
the parties raised the specter of thwarted health and safety
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regulation so vividly imagined by Judge Rosenbaum. That concern
is of the dissent’s own making.1
We take some comfort in the fact that NIFLA’s dissenters
also lobbed charges that the majority there imperiled health and
safety regulations. See NIFLA, 138 S. Ct. at 2380–81 (Breyer, J.,
dissenting); id. at 2376 (majority opinion) (responding). And we
are confident that the fears of regulatory impotence expressed here
will be similarly relieved in good time. The panel opinion itself
explains that states can penalize harmful speech and hold
accountable those who hurt children. Otto, 981 F.3d at 870.
License revocations, professional suspensions, malpractice suits,
even criminal charges—all are on the table for professionals who
violate the public trust. But “broad prophylactic rules in the area
of free expression” remain suspect, no matter how much a judge
may wish to engineer an exception for speech that seems
particularly risky. Id. (quoting NAACP v. Button, 371 U.S. 415, 438
(1963)) (brackets omitted).
1We add that the panel opinion does not directly affect Florida’s regulatory
authority at all. The ordinances here are the legislative products of local
governments, but Florida law commits regulatory authority to the State. See
Fla. Stat. ch. 491 (regulatory authority over therapists); id. ch. 456 (regulatory
authority over health professionals); see also Vazzo v. City of Tampa, 415 F.
Supp. 3d 1087, 1107 (M.D. Fla. 2019).
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* * *
Neither the panel opinion nor this Circuit’s decision against
en banc review express any view on the efficacy or desirability of
the speech at issue in this case. Nor do they condone or ignore the
struggles faced by many LGBTQ youth. But “we cannot react to
that pain by punishing the speaker. As a Nation we have chosen a
different course.” Snyder v. Phelps, 562 U.S. 443, 461 (2011). What
this Circuit has done—indeed, all it has done—is uphold the
protections of the First Amendment for unpopular speech. That
can be hard to do. But if the First Amendment only protected
speech that judges and politicians approved of, it would not be of
much use. We concur in the Court’s decision not to rehear this
case en banc.
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19-10604 JORDAN, J., Dissenting 1
JORDAN, Circuit Judge, joined by WILSON, Circuit Judge, and by
ROSENBAUM and JILL PRYOR, Circuit Judges, as to Parts I-IV, dis-
senting from the denial of rehearing en banc:
Judge Rosenbaum makes a number of salient points in her
dissent as to why, insofar as the First Amendment is concerned,
SOCE therapy should be evaluated as a form of medical treatment.
As the author of Wollschlaeger v. Governor of Florida, 848 F.3d
1293 (11th Cir. 2017) (en banc), I think the characterization of
SOCE therapy presents a difficult question. And although I am not
sure who is right—Judge Rosenbaum or the panel majority—with
respect to the First Amendment analysis, the issue is sufficiently
important to merit en banc review.
I also believe en banc consideration is warranted for a less
complex but no less important reason. As I hope to explain, the
panel majority in this preliminary injunction appeal ignored the
clear error standard of review—never acknowledging or applying
it —and substituted its own factual findings for those of the district
court on important issues.
I
When we hear an appeal from the denial or grant of a pre-
liminary injunction, we review the district court’s “factual findings
for clear error.” Indep. Party of Fla. v. Sec’y, 967 F.3d 1277, 1280
(11th Cir. 2020). That standard of review is so long-standing and
unremarkable that it is by now gospel. Here is the way Judge Mar-
cus put the matter some 20 years ago: “Preliminary injunctions are,
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by their nature, products of an expedited process often based on an
underdeveloped and incomplete evidentiary record. As is usually
the case, the [district] court is in a far better position than this Court
to evaluate the evidence, and we will not disturb its factual findings
unless they are clearly erroneous.” Cumulus Media, Inc. v. Clear
Channel Commc’ns, Inc., 304 F.3d 1067, 1171 (11th Cir. 2002) (ci-
tations omitted). It’s hard to improve on that explanation.
The district court in this case took evidence from the parties
and received proposed findings of fact and conclusions of law from
them following oral argument. Then, in its order denying a pre-
liminary injunction, the district court evaluated the evidence and
made a number of important factual determinations. See Otto v.
City of Boca Raton, 353 F. Supp. 3d 1237, 1241, 1258–70 (S.D. Fla.
2019) (Otto I).
The panel majority acknowledged the general abuse of dis-
cretion standard for preliminary injunction appeals, but it did not
mention, much less apply, the subsidiary clear error standard for
underlying factual findings. See Otto v. City of Boca Raton, 981
F.3d 854, 862 (11th Cir. 2020) (Otto II). Indeed, the phrases “clear
error” or “clearly erroneous” are nowhere to be found in the panel
majority’s opinion.
Maybe the panel majority thought that the clear error stand-
ard was inapplicable because the district court did not base its fac-
tual findings on credibility determinations. But if that was the un-
stated reason for its failure to acknowledge and apply the clear er-
ror standard, the panel majority was mistaken. “Findings of fact,
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19-10604 JORDAN, J., Dissenting 3
whether based on oral or other evidence, must not be set aside un-
less clearly erroneous.” Fed. R. Civ. P. 52(a)(6). Not surprisingly,
the Supreme Court has held that under Rule 52(a) the clear error
standard applies not only to factual findings based on credibility de-
terminations but also to findings based on “physical or documen-
tary evidence or inferences from other facts.” Anderson v. Besse-
mer City, 470 U.S. 564, 573 (1985).
II
A factual finding “is clearly erroneous when[,] although
there is evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake
has been committed.” Anderson, 470 U.S. at 573 (internal quota-
tion marks and citation omitted). But a finding is not clearly erro-
neous simply because the reviewing court would have weighed the
evidence differently or reached a different outcome. See id. at 574.
If there are two permissible views of the evidence or the district
court’s account of the evidence is “plausible in light of the record
viewed in its entirety,” then the district court’s finding is not clearly
erroneous. Id. The clear error standard is therefore “highly defer-
ential.” Bellitto v. Snipes, 935 F.3d 1192, 1197 (11th Cir. 2019) (in-
ternal quotation marks and citation omitted).
Here the district court made several important findings of
fact that the panel majority ignored, mischaracterized, or revised.
In the interest of brevity, I will highlight two of the important find-
ings by the district court and the findings that the panel majority
substituted in their place.
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A
The district court found that there is a distinction between
the plaintiffs’ “expression of their views about SOCE, their advo-
cacy of SOCE, . . . their discussions with minor clients about
SOCE,” and their “efforts, through a medical intervention, by a li-
censed provider, to therapeutically change a minor’s sexual orien-
tation.” Otto I, 353 F. Supp. 3d at 1244, 1264, 1269. In other words,
the district court found that the “practice” or “perform[ance]” of
SOCE therapy is different from “a dialogue between patient and
provider” about that treatment, even one in which a plaintiff “com-
mend[ed] and recommend[ed]” it. Id. at 1256, 1269 (emphasis
omitted).
The distinction is highlighted in the district court’s factual
determination that the speech in SOCE therapy is “both a treat-
ment to be provided and an utterance to be said,” i.e., that it “is the
manner of delivering the treatment.” Id. at 1254, 1256. The district
court further found that SOCE therapy is “administered by a li-
censed medical professional, as part of ‘the practice of medicine,’”
and that the “[p]laintiffs are essentially writing a prescription for a
treatment that will be carried out verbally.” Id. at 1256. The dis-
trict court found “the focus of the law on licensed providers signif-
icant” because “[a]s licensed providers, doctors are cloaked with
the authority of science and the state [and t]hey are expected to be
objective providers of care.” Id. at 1269–70. See also id. at 1257–58
(“What is limited is the therapy (delivered through speech and/or
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19-10604 JORDAN, J., Dissenting 5
conduct) by a licensed practitioner to his or her minor patient,
within the confines of a therapeutic relationship.”).
Contrary to the district court’s findings, the panel majority
found that SOCE therapy is “not medical at all” (although it pur-
ported to temper that pronouncement by saying that it “would not
make a difference” if SOCE therapy was medical). See Otto II, 981
F.3d at 866 n.3. The panel majority characterized the practice of
speech-based SOCE therapy as merely “advice that therapists may
give their clients.” Id. at 866. And it implied that SOCE therapy
consists only of “conversations” which involve “ideas” and “view-
points” that are “controversial,” “unpopular,” “disagreeable,” and
“offensive.” Id. at 859, 861–64, 868–69, 872.
The panel majority erred in coming up with its own factual
resolution of what SOCE therapy is. Whether a practice or course
of treatment (oral or physical) is medical in nature is a factual de-
termination, and the panel majority made no effort to explain why
the district court’s factual findings about SOCE therapy were
clearly wrong. A “reviewing court oversteps the bounds of its duty
under Rule 52(a) if it undertakes to duplicate the role of the lower
court,” Anderson, 470 U.S. at 573, and that is what happened here.
This mistake, moreover, matters because it affects the na-
ture of the governmental interest at stake. If SOCE therapy is med-
ical in nature, as the district court found and as Judge Rosenbaum
explains, then the government has a role in determining what is
acceptable, even if the treatment consists merely of the spoken
word. Psychiatrists, for example, often provide treatment to
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6 JORDAN, J., Dissenting 19-10604
patients in ways that involve only speech (sessions, questions, dis-
cussions, advice, goals, etc.). That, however, does not mean that
the psychiatrist’s words must go unregulated absent a peer re-
viewed study with documented outcomes about each type of ad-
vice or counseling that can be provided. No one would doubt that
the government can forbid a psychiatrist from advising a patient
with severe depression to take his or her own life immediately and
put an end to the suffering. And that content-based prohibition, it
seems to me, would be sound under the First Amendment even if
there was not a controlled study showing that most depressed pa-
tients given that advice followed it and committed suicide. That is
what the district court sensibly concluded here as to SOCE therapy.
See Otto I, 353 F. Supp. 3d at 1262 (“[T]he Defendants need not
wait for a minor to publicly confess that the minor had agreed to
try to change his or her sexual orientation through therapy only to
experience self-hatred and suicidal ideation after the therapy
failed.”).
B
The district court also found that the defendants had “exten-
sive credible evidence” that SOCE therapy “is harmful or poten-
tially harmful to all people, and especially to minors,” and deter-
mined that the defendants had “legitimate, substantial, and com-
pelling” interests in protecting minors from SOCE therapy. See
Otto I, 353 F. Supp. 3d at 1242, 1258, 1262. In making these find-
ings, the district court grappled with the nuances of the available
evidence. It discussed multiple pieces of documentary evidence,
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19-10604 JORDAN, J., Dissenting 7
including reports and statements from various medical profession-
als and major research and professional organizations. These
sources included (a) the American Academy of Pediatrics, (b) the
American Psychiatric Association, (c) the American Psychological
Association, (d) the American Psychological Association Council of
Representatives, (e) the Pan American Health Organization (an of-
fice of the World Health Organization), (f) the American Psycho-
analytic Association, (g) the American Academy of Child and Ado-
lescent Psychiatry, (h) the American School Counselor Association,
and (i) the U.S. Department of Health and Human Services. See
id. at 1258–62. The district court found that the evidence was per-
suasive and “far from anecdotal remarks that constitute mere con-
jecture.” Id. at 1262. It understood that the “findings and views”
in the literature “differ[ed] as to degree,” but it ultimately found
that they “present[ed] a consistent position that [SOCE] is harmful
or potentially harmful.” Id.
In addition, the district court considered the testimony pro-
vided to the local commissioners before the enactment of the chal-
lenged ordinances. It noted that mental health professionals had
“spoke[n] out against conversion therapy,” that a psychologist/sex
therapist had advised that SOCE therapy can result in a number of
health issues for minors, and that the leader of a local human rights
group reported receiving complaints about minors who were be-
ing subjected to SOCE therapy. See id. at 1261.
Finally, the district court addressed the plaintiffs’ contention
that the evidence presented in support of the ordinances amounted
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8 JORDAN, J., Dissenting 19-10604
to “no evidence at all.” Id. at 1262. It thoughtfully considered the
plaintiffs’ argument that “rigorous research on the safety . . . of
[SOCE] is deficient,” as well as the reasons explained in the availa-
ble evidence for why there wasn’t more research. Id. at 1260. After
considering and weighing the evidence presented, the district court
found that the “substantial evidence and consensus in the medical
community” was sufficient and that the defendants could find that
it was “overwhelming.” Id. at 1260–63. See also id. at 1260 (“The
sources cited in the ordinances all conclude that rigorous research
on the safety and effectiveness of seeking to change sexual orienta-
tion is deficient, but that there already is substantial evidence and
consensus in the medical community that conversion therapy can
cause harm, including depression, self-harm, self-hatred, suicidal
ideation, and substance abuse.”) (footnote omitted).
Despite the district court’s factual findings, the panel major-
ity here came up with its own view of the evidence, much of which
conflicted with the district court’s assessment. And in doing so it
didn’t once mention the clear error standard of review.
For example, in direct contradiction of the district court’s
finding that there was overwhelming persuasive evidence as to the
harmful (or potentially harmful) effects of SOCE therapy, the panel
majority incorrectly stated that the district court found that “evi-
dence [was] not necessary when the relevant professional organi-
zations are united.” Otto II, 981 F.3d at 869. Not only is that a
mischaracterization of the district court’s analysis, but it is also tan-
tamount to saying that the consensus (i.e., agreement) of several
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19-10604 JORDAN, J., Dissenting 9
professional organizations on the propriety of a treatment cannot
constitute probative evidence.
The panel majority also found, again contrary to the district
court’s determination, that the defendants offered “assertions ra-
ther than evidence.” Id. at 868. The panel majority focused almost
exclusively on the American Psychological Association’s 2009 task
force report, saying that it made sense to do so because the report
reviewed other literature and “[m]any of the other reports” relied
on it. See id. at 868–69 & 869 n.8. The panel majority then placed
more emphasis than the district court did on the “mixed views” in
the report, the purported lack of rigorous research, and the task
force’s statement that the studies provide “no clear indication of
the prevalence of harmful outcomes.” Id. The panel majority
found that the evidence in support of the challenged ordinances “is
in serious tension with th[e] acknowledgement of the lack of rigor-
ous research on nonaversive SOCE.” Id. at 868 n.7. And it “fail[ed]
to see how, even completely crediting the report,” there was
enough evidence. See id. at 869.
But this was the panel majority acting as the initial fact-
finder and reweighing the evidence. The district court quoted the
task force’s conclusion at length, which included its “no clear indi-
cation” statement. See Otto I, 353 F. Supp. 3d at 1259. The district
court, however, also quoted and considered the task force’s next
statement—that although the task force couldn’t conclude how
likely it was that harm would occur, studies indicated that SOCE
therapy “may cause or exacerbate distress and poor mental health
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10 JORDAN, J., Dissenting 19-10604
in some individuals, including depression and suicidal thoughts.”
Id. The district court also noted that the American Psychological
Association Council of Representatives “adopted a policy state-
ment against SOCE.” Id. And, to repeat what has already been
said, the district court considered evidentiary sources in addition to
the task force’s report, including testimony and submissions pro-
vided to the local commissioners.
Even if the panel majority thought that its view of the evi-
dence was preferable to that of the district court, that belief was
insufficient to overcome the clear error standard. “A finding that
is ‘plausible’ in light of the full record—even if another is equally
or more so—must govern.” Cooper v. Harris, 137 S. Ct. 1455, 1465
(2017).
III
Faced with these problems, the panel majority provides two
responses in its concurrence to the denial of rehearing en banc.
First, it says that in applying de novo review to the district court’s
factual findings it acted just like the en banc court did in Woll-
schlaeger, and finds it “puzzl[ing]” that I—the author of Woll-
schlaeger—could think otherwise. Second, the panel majority con-
tends that I have ignored cases holding that in First Amendment
cases review of the facts is plenary. Neither response is convincing.
Let’s begin with Wollschlaeger. It is true that we applied a
de novo standard of review in that case, see Wollschlaeger, 848
F.3d at 1301, but that does not take away from my criticism of the
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19-10604 JORDAN, J., Dissenting 11
panel majority’s appellate fact-finding here. For starters, Woll-
schlaeger was a summary judgment appeal, and the review in such
a case—unlike a preliminary injunction appeal—is plenary. See,
e.g., Eastman Kodak Co. v. Image Tech. Services, Inc., 504 U.S.
451, 465 n.10 (1992); Lewis v. City of Union City, 918 F.3d 1213,
1220 n.4 (11th Cir. 2019) (en banc). More importantly, there were
no disputed issues of fact in Wollschlaeger, as the parties filed cross-
motions for summary judgment and agreed on the facts. The dis-
trict court order we reviewed on appeal makes that abundantly
clear. See Wollschlaeger v. Farmer, 880 F. Supp. 2d 1251, 1257
(S.D. Fla. 2012) (“The parties do not dispute the facts in this case;
the sole issue before me is an issue of law. . . . I will therefore pro-
ceed to resolve this case on its merits through summary judg-
ment.”).1
In sum, there was no appellate fact-finding on disputed is-
sues in our en banc Wollschlaeger opinion. That case therefore
provides no support for the panel majority acting as the trier of fact
here.
The panel majority also defends its opinion and approach by
pivoting to cases holding that, in certain First Amendment scenar-
ios, the clearly erroneous standard does not govern. See, e.g., Hur-
ley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S.
1If there were any doubt on this point, our en banc opinion in Wollschlaeger
recited the relevant facts by citing to and quoting from the parties’ joint state-
ment of undisputed facts. See Wollschlaeger, 848 F.3d at 1301-02.
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12 JORDAN, J., Dissenting 19-10604
557, 567 (1995) (explaining that appellate courts must decide
“whether a given course of conduct falls on the near or far side of
the line of constitutional protection”). I do not dispute that certain
First Amendment questions—e.g., whether a statement receives
First Amendment protection, whether a jury verdict is consistent
with the First Amendment—are legal and require plenary review.
See, e.g., Peel v. Atty. Registration and Disciplinary Comm’n of Il-
linois, 496 U.S. 91, 108 (1990) (“Whether the inherent character of
a statement places it beyond the protection of the First Amend-
ment is a question of law over which Members of this Court should
exercise de novo review.”); Harte-Hanks Communications, Inc. v.
Connaughton, 491 U.S. 657, 685 (1989) (“[W]hether the evidence
in the record in a defamation case is sufficient to support a finding
of actual malice is a question of law.”). What I do take issue with
is the suggestion that the clear error standard vanishes altogether
when First Amendment cases are reviewed on appeal.
We have explained, in a First Amendment appeal involving
the denial of a preliminary injunction, that findings on “ordinary
historical facts”—those which concern “the who, what, where, and
how of the controversy”—receive traditional clear error review.
See Bloedorn v. Grube, 631 F.3d 1218, 1229 (11th Cir. 2011) (brack-
ets omitted and capitalization deleted). It is only the “why” facts—
the “motive” facts—that constitute “core constitutional facts” trig-
gering de novo review. See id. at 1230 (“We must find the disputed
‘why’ facts—the motive facts—ourselves, as though the district
court had never made any findings about them.”) (citation
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19-10604 JORDAN, J., Dissenting 13
omitted). See also Keister v. Bell, 879 F.3d 1282, 1287 (11th Cir.
2018) (same); Henry P. Monaghan, Constitutional Fact Review, 85
Colum. L. Rev. 229, 235–36 (1985) (“Fact identification . . . is a case-
specific inquiry into what happened here. It is designed to yield
only assertions that can be made without significantly implicating
the governing legal principles. Such assertions, for example, gen-
erally respond to inquiries about who, when, what, and where—
inquiries that can be made ‘by a person who is ignorant of the ap-
plicable law.’ . . . . [W]hile ‘what happened’ may be viewed as a
question of fact, the legal sufficiency of the evidence may be
viewed as the equivalent of a question of law.”) (footnotes omit-
ted).
Bloedorn relied on ACLU of Florida, Inc. v. Miami-Dade
County, 557 F.3d 1177, 1206–07 (11th Cir. 2009), the very case cited
by the panel majority in its concurrence. But the concurrence does
not tackle the nuanced distinctions that Bloedorn and ACLU call
for.2
Determining the nature of SOCE therapy requires answers
to a number of questions. Is SOCE therapy just talk? Is SOCE ther-
apy medical treatment rendered by licensed professionals? Is
SOCE therapy a combination of the two? These are quintessential
2 Again, the panel majority did not apply clear error review to any findings of
fact. So it apparently believed (though it did not explain) that all of the facts
were constitutional core facts. As explained by cases like Bloedorn, that broad-
brush approach is not appropriate.
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14 JORDAN, J., Dissenting 19-10604
“what” or “how” questions. The inquiry, which seeks to determine
what SOCE therapy is and how it is performed on the ground, is
inherently factual.
As described earlier, the district court found that SOCE ther-
apy is medical treatment or advice delivered orally by a licensed
professional. See Otto I, 353 F. Supp. 3d at 1254, 1256-58. The
panel majority should have applied the clear error standard to this
finding, and should not have engaged in de novo review to find that
SOCE therapy is “not medical at all.” Otto II, 981 F.3d at 866 n.3.
That leaves the evaluation of the evidence relied on by the
defendants in enacting the ordinances. The district court found that
the defendants had “extensive credible evidence” that SOCE ther-
apy “is harmful or potentially harmful to all people, and especially
to minors,” and determined that the defendants had “legitimate,
substantial, and compelling” interests in protecting minors from
SOCE therapy. See Otto I, 353 F. Supp. 3d at 1242, 1258, 1262. The
panel majority made a contrary finding, choosing to view and
weigh the evidence in a different way. See Otto II, 981 F.3d at 868-
69.
It is one thing to say that the evidence presented to the de-
fendants did not support the ordinances in question—that would
be a core constitutional question. See, e.g., Keeton v. Anderson-
Wiley, 664 F.3d 865, 872 (11th Cir. 2011) (“We conclude that the
evidence in this record does not support Keeton’s claim that ASU’s
officials imposed the remediation plan because of her views on ho-
mosexuality.”). It is quite another, I submit, to use plenary review
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19-10604 JORDAN, J., Dissenting 15
to take all of the evidence head on, resolve disputes about what it
demonstrated, make choices among conflicting inferences, and en-
gage in a qualitative weighing analysis. See Prete v. Bradbury, 438
F.3d 949, 960-61 (9th Cir. 2006) (“When the issue presented in-
volves the First Amendment, . . . the standard of review is modified
slightly. Historical questions of fact (such as credibility determina-
tions or ordinary weighing of conflicting evidence) are reviewed
for clear error, while constitutional questions of fact (such as
whether certain restrictions constitute a ‘severe burden’ on an in-
dividual’s First Amendment rights) are reviewed de novo.”); Mon-
aghan, Constitutional Fact Review, 85 Colum. L. Rev. at 236 n.37
(“Inferences drawn from such assertions [the who, when, what,
and where] are also facts, so long as they rest on general experi-
ence.”).
IV
From my perspective, what the panel majority did here—
ignoring and/or revising the district court’s factual findings and
failing to apply the clear error standard—is seemingly becoming
habit in this circuit. See United States v. Brown, 996 F.3d 1171,
1196–99, 1202–05 (11th Cir. 2021) (en banc) (Wilson, J., dissenting);
Jones v. Governor of Fla., 975 F.3d 1016, 1066 (11th Cir. 2020) (en
banc) (Jordan, J., dissenting); Keohane v. Fla. Dep’t of Corr. Sec’y,
952 F.3d 1257, 1279 (11th Cir. 2020) (Wilson, J., dissenting). If this
trend continues, the bench and bar will be forgiven for thinking
that a district court’s factual findings are only inconvenient speed
bumps on the road to reversal.
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19-10604 ROSENBAUM, J., Dissenting 1
ROSENBAUM, Circuit Judge, joined by JILL PRYOR, Circuit Judge,
dissenting from the denial of rehearing en banc:
Mere “conversation” and “not medical at all.” See Otto v.
City of Boca Raton, 981 F.3d 854, 866, 866 n.3 (11th Cir. 2020).
That’s how the panel opinion characterizes talk therapy (psycho-
therapy) that is practiced by a licensed mental-healthcare profes-
sional who has attended years of school and clinical training, and
that is administered in a private setting for the purpose of helping
a client with a mental-health condition. In the Concurrence’s view,
there’s no difference between this mental-healthcare treatment and
“political, social, and religious debates.” See Conc. at 11.
But of course, no one goes to a doctor or therapist to engage
in a “political, social, [or] religious debate[]”; they go to obtain
treatment of their health condition.1 By incorrectly labeling talk-
therapy mental-healthcare treatments as mere “conversation” and
“not medical at all,” the panel opinion necessarily subjects to First
Amendment strict scrutiny all government regulations that require
licensed mental-healthcare professionals to comply with the gov-
erning substantive standard of care in administering talk therapy.
And that scrutiny rings the death knell for any such regulation.
1 I use the term “health condition” in this context to refer to the distress some
individuals who are gay or transgender experience, often because of some oth-
ers’ treatment of gay and transgender individuals. See generally supra at notes
3–5.
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2 ROSENBAUM, J., Dissenting 19-10604
Indeed, under our Circuit’s uninformed take on talk therapy
as set forth in the panel opinion, no state or local government can
require licensed mental-healthcare professionals to comply with
any substantive standard of care at all in administering talk therapy.
And no state or local government can even discipline licensed men-
tal-healthcare professionals who violate the standard of care in ad-
ministering talk therapy—no matter how incompetent or danger-
ous a practitioner’s practice of psychotherapy may be.
That cannot be right. For that reason alone, this case de-
mands en banc review.
But that’s not the only reason. Because the panel opinion
effectively precludes all regulation of substantive talk therapy, it
necessarily ensures that the government cannot regulate types of
talk therapy that significantly increase the risk of suicide and have
never been shown to be efficacious.
That includes the practice this case is about—sexual-orienta-
tion change efforts2 (“SOCE”), which is associated with more than
2 SOCE refers generally to attempts to change an individual’s sexual orienta-
tion or gender identity. In using the term “SOCE,” I echo the panel opinion’s
caution: “We are mindful that the terminology itself is contested. Plaintiffs
reject the often-used label ‘conversion therapy,’ which they associate with
‘shock treatments, involuntary camps, and other chimerical or long-aban-
doned practices.’ We will proceed with the broad (if imperfect) term ‘sexual
orientation change efforts.’ This term is used in both [the City and County]
ordinances [at issue], and all parties seem to accept it.” Otto v. City of Boca
Raton, 981 F.3d 854, 859 n.1 (2020).
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19-10604 ROSENBAUM, J., Dissenting 3
doubling suicide attempts in the many LGBTQ youths who have
been subjected to it.3 Take a moment to think about that profound
human toll4—on those subjected to SOCE, those who care about
3 See The Trevor Project, National Survey on LGBTQ Youth Mental Health
(“Trevor Project Survey”) 2021, at 12, https://www.thetrevorpro-
ject.org/wp-content/uploads/2021/05/The-Trevor-Project-National-Sur-
vey-Results-2021.pdf; see also 2020 Trevor Project Survey, at 5,
https://www.thetrevorproject.org/wp-content/uploads/2020/07/The-Tre-
vor-Project-National-Survey-Results-2020.pdf; 2019 Trevor Project Survey, at
1, 3, https://www.thetrevorproject.org/wp-content/uploads/2019/06/The-
Trevor-Project-National-Survey-Results-2019.pdf; Q Christian Fellowship,
The Good Fruit Project: A Christian Case Against LGBTQ Change Efforts, at
6,
https://static1.squarespace.com/static/5faeade71e53e609dae94549/t/61816f
9e8035324436737c7b/1635872672829/The+Good+Fruit+Pro-
ject+Guide+%7C+Q+Christian+Fellowship+%26+The+Trevor+Pro-
ject.pdf; The Williams Institute on Sexual Orientation and Gender Identity
Law, UCLA School of Law, Conversion Therapy and LGBT Youth (Jun. 2019),
https://williamsinstitute.law.ucla.edu/publications/conversion-therapy-
and-lgbt-youth/ (“Efforts to change someone’s sexual orientation or gender
identity are associated with poor mental health for LGBT people”).
4 As of September 2020, about 1,994,000 minors between the ages of 13 and 17
in the United States were estimated to be LGBT. See The Williams Institute
on Sexual Orientation and Gender Identity Law, UCLA School of Law (Kerith
J. Conron), LGBT Youth Population in the United States (Sept. 2020),
https://williamsinstitute.law.ucla.edu/publications/lgbt-youth-pop-us/.
Considering that 12% of LGBTQ youth in this age range have reported being
subjected to SOCE, see 2021 Trevor Project Survey at 12, that suggests that
239,280 youths will be more than twice as likely to try to kill themselves. And
tragically, many will succeed.
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4 ROSENBAUM, J., Dissenting 19-10604
them, and the world, which forever loses out on their talents and
contributions.
Given this sobering fact, perhaps it is unsurprising that every
leading medical and mental-health organization within whose ju-
risdiction the practice of SOCE falls and that has commented on it
has uniformly denounced it. See, e.g., American Medical Associa-
tion, Issue brief: LGBTQ change efforts (so-called “conversion
therapy”), https://www.ama-assn.org/system/files/2019-12/con-
version-therapy-issue-brief.pdf (“All leading professional medical
and mental health associations reject ‘conversion therapy’ as a le-
gitimate medical treatment. In addition to the clinical risks associ-
ated with the practice, the means through which providers or
counselors administer change efforts violate many important ethi-
cal principles, the foremost of which: ‘First, do no harm.’”).5 Not
5 See also, e.g., American Psychiatric Association, APA Reiterates Strong Op-
position to Conversion Therapy (Nov. 15, 2018), https://web.ar-
chive.org/web/20181123042000/https://www.psychiatry.org/news-
room/news-releases/apa-reiterates-strong-opposition-to-conversion-therapy
(stating that “efforts to [change same-sex orientation] represent a significant
risk of harm by subjecting individuals to forms of treatment which have not
been scientifically validated and by undermining self-esteem when sexual ori-
entation fails to change”); American Academy of Child and Adolescent Psychi-
atry, Conversion Therapy (2018),
https://www.aacap.org/AACAP/Policy_Statements/2018/Conversion_Th
erapy.aspx#:~:text=The%20AACAP%20Policy%20on%20%E2%80%9CCon
version%20Therapies%E2%80%9D%20The%20American,orientation%2C%
20gender%20identity%2C%20and%2For%20gender%20expression%20is%20
pathological (concluding that, “based on the scientific evidence, . . . ‘conver-
sion therapies’ . . . lack scientific credibility and clinical utility[,] . . . [and] there
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19-10604 ROSENBAUM, J., Dissenting 5
is evidence that such interventions are harmful[,] . . . [so they] should not be
part of any behavioral treatment of children and adolescents”); American Psy-
chological Association, Sexual Orientation and Homosexuality,
https://www.apa.org/topics/lgbt/orientation (“All major national mental
health organizations have officially expressed concerns about therapies pro-
moted to modify sexual orientation. To date, there has been no scientifically
adequate research to show that therapy aimed at changing sexual orientation
. . . is safe or effective.”); World Health Organization, “Therapies” to change
sexual orientation lack medical justification and threaten health (May 17,
2012), https://www.paho.org/hq/index.php?option=com_content&view=
article&id=6803:2012-therapies-change-sexual-orientation-lack-medical-justifi
cation-threaten-health&Itemid=1926&lang=en (stating that SOCE is “against
fundamental principles of psychoanalytic treatment and often result[s] in sub-
stantial psychological pain by reinforcing damaging internalized attitudes”);
American Academy of Pediatrics, Homosexuality and Adolescence (Oct. 1,
1993), https://pediatrics.aappublications.org/content/pediatrics/92/4/
631.full.pdf, and Ensuring Comprehensive Care and Support for Transgender
and Gender-Diverse Children and Adolescents (Oct. 1, 2018), https://pediat-
rics.aappublications.org/content/142/4/e20182162 (“Reparative approaches
have been proven to be not only unsuccessful[] but also deleterious . . . “);
American College of Physicians, Lesbian, Gay, Bisexual, and Transgender
Health Disparities: Executive Summary of a Policy Position Paper From the
American College of Physicians (Jul. 21, 2015), https://www.acpjournals.
org/doi/10.7326/M14-2482?articleid=2292051& (“All major medical and
mental health organizations . . . denounce the practice of reparative therapy
for treatment of LGBT persons. . . . Available research does not support the
use of reparative therapy as an effective method in the treatment of LGBT
persons. Evidence shows that the practice may actually cause emotional or
physical harm to LGBT individuals, particularly adolescents or young per-
sons.”); American College of Physicians, Society for Adolescent Health &
Medicine, Recommendations for Promoting the Health and Well-Being of
Lesbian, Gay, Bisexual, and Transgender Adolescents: A Position Paper of the
Society for Adolescent Health and Medicine, https://www.jahonline.org/ar-
ticle/S1054-139X(13)00057-8/fulltext (“Reparative ‘therapy,’ which attempts
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6 ROSENBAUM, J., Dissenting 19-10604
to change one’s sexual orientation or gender identity, is inherently coercive
and inconsistent with current standards of medical care.”); American Mental
Health Counselors Association, AMHCA Statement on Reparative or Conver-
sion Therapy, https://www.amhca.org/viewdocument/amhca-statement-
on-reparative-or-co?LibraryFolderKey=&DefaultView=folder (expressing
concern that “reparative therapy has been documented to . . . increas[e] inter-
nalized stigma and potentially result[] in numerous negative side effects”); Na-
tional Association of School Psychologists, Key Messages and Talking Points
for School Psychologists (2019), https://www.nasponline.org/x53289.xml
(stating that “[c]onversion . . . therapy is an unscientific, unproven and uneth-
ical practice that harms LGBTQ+ youth” and “has been shown to worsen in-
ternalized homophobia, interrupt healthy identity development, increase de-
pression, anxiety, self-hatred, and self-destructive behaviors, and create mis-
trust of mental health professionals,” and [t]here is no valid or methodologi-
cally sound research that demonstrates sexual orientation change efforts are
effective or beneficial to the person”); American Association of Family Physi-
cians, Reparative or Conversion Therapy, https://www.aafp.org/about/pol-
icies/all/reparative-therapy.html (“The American Academy of Family Physi-
cians (AAFP) opposes the use of ‘reparative’ or ‘conversion therapy for sexual
and gender minority individuals of all ages. The AAFP recommends that pa-
tients and their families seek services that provide accurate information on
sexual orientation and sexuality, gender identity, and increase social support,
and reduce stigma and rejection of sexual and gender minority persons.”); Na-
tional Association of Social Workers, National Committee on Lesbian, Gay,
Bisexual, and Transgender Issues, Sexual Orientation Change Efforts (SOCE)
and Conversion Therapy with Lesbians, Gay Men, Bisexuals, and Transgender
Persons (May 2015), https://www.socialwork-
ers.org/LinkClick.aspx?fileticket=yH3UsGQQmYI%3D (“The NASW Na-
tional Committee on Lesbian, Gay, Bisexual, and Transgender Issues believes
that SOCE can negatively affect one’s mental health and cannot and will not
change sexual orientation or gender identity.”); American Counseling Associ-
ation, Conversion Therapy Bans, https://www.counseling.org/government-
affairs/state-issues/conversion-therapy-bans (“The American Counseling As-
sociation opposes conversion therapy because it does not work, can cause
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19-10604 ROSENBAUM, J., Dissenting 7
only is SOCE associated with great harm to LGBTQ youth, but
SOCE does not even “meet the criteria to be deemed efficacious or
well-established.” Amy Przeworski, et al., A Systematic Review of
the Efficacy, Harmful Effects, and Ethical Issues Related to Sexual
Orientation Change Efforts, Vol 28, No. 1, Clinical Psychology:
Science and Practice 94 (Am. Psychological Ass’n 2021).
Yet after the panel opinion here, in the states of Florida,
Georgia, and Alabama, state and local governments cannot pre-
clude their licensed mental-healthcare providers from performing
any type of talk therapy—including SOCE talk therapy—on mi-
nors, even if it is associated with significantly increasing their risk
of death and even if the “therapy” is not shown to work.6
harm, and violates our Code of Ethics.”); American Academy of Nursing,
American Academy of Nursing Opposes Reparative Therapy and Employ-
ment Discrimination Against LGBT Individuals (Jun. 17, 2015), https://www.
prweb.com/releases/2015/06/prweb12793416.htm (stating that there is
“strong scientific evidence concluding that techniques used in reparative ther-
apies are ineffective by failing to achieve intended results and imparting inher-
ently harmful effects on mental and physical health on individuals being pres-
sured to change”).
6 Judges Grant and Lagoa’s Concurrence contends that “the panel opinion
does not directly affect Florida’s regulatory authority at all” because “[t]he or-
dinances here are the legislative products of local governments, but Florida
law commits regulatory authority to the State.” Conc. at 14 n.1. But that
distinction is irrelevant because the panel opinion equally precludes both state
and local governments from regulating the substantive practice of talk therapy
by licensed mental-healthcare professionals. That is so because substantive
regulations of talk therapy are necessarily content-based, so the panel opin-
ion’s (and the Concurrence’s) misunderstanding of talk therapy as “not
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8 ROSENBAUM, J., Dissenting 19-10604
Because the panel opinion incorrectly—and to grievous ef-
fect—precludes government substantive regulation of talk therapy
its licensed professionals perform, I respectfully dissent from the
denial of rehearing en banc.
There’s a better answer. And contrary to the Concurrence’s
mischaracterization of my dissent, see Conc. at 7, it doesn’t involve
targeting speech because we’re not fond of the viewpoint it ex-
presses.
Rather, under the police power to regulate the public health
and safety, the government can preclude the mental-healthcare
medical at all” and mere “conversation” means that such regulations—
whether enacted by the state or local government—equally violate the First
Amendment because they equally discipline on the basis that the content of
the talk therapy fails to conform to the substantive standard of care.
To the extent that footnote 1 in the Concurrence now tries to suggest
a new basis for the panel opinion’s ruling—preemption—the panel opinion
had the chance to address that argument but expressly chose not to do so. See
Otto, 981 F.3d at 871 (explaining that the panel opinion was not deciding the
preemption issue). Interestingly, it declined to rule on preemption despite the
Concurrence’s apparent belief that resolving that issue would have ended the
case, and “[g]enerally, we don’t answer constitutional questions that don’t
need to be answered.” Burns v. Town of Palm Beach, 999 F.3d 1317, 1348
(11th Cir. 2021). Now that the panel opinion has gone ahead and answered
the constitutional question (while taking a pass on the preemption issue) and
we are bound by its holdings, I respectfully disagree that raising the preemp-
tion issue at this point somehow excuses the Concurrence from acknowledg-
ing the reality that the panel opinion directly precludes states from regulating
the substantive practice of talk therapy by licensed mental-healthcare profes-
sionals.
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19-10604 ROSENBAUM, J., Dissenting 9
professionals it licenses from practicing talk therapy that is life-
threatening and inefficacious—whatever its content—on children
who aren’t able to say no. As I show, a long tradition of states’
permissible regulations requiring licensed healthcare professionals
to comply with the governing substantive standard of care—for
health (not speech) reasons—establishes that.
One final note before I show why this is necessarily so: the
Concurrence criticizes some of the ideas expressed in this dissent.
And that’s only fair. After all, I criticize the ideas set forth in the
panel opinion and the Concurrence because I think they are incor-
rect. But the Concurrence also mischaracterizes my arguments in
important ways. Attacks on phantom arguments are, of course,
easier to make, but they’re also irrelevant. So along the way, I
point out these mischaracterizations and ask the reader to watch
for them. With that, let’s begin.
I. The First Amendment generally allows states to discipline
licensed mental-healthcare providers who fail to comply
with the substantive standard of care in engaging in talk
therapy.
In this section, I show that the First Amendment generally
allows states to discipline licensed mental-healthcare providers
who fail to comply with the substantive standard of care when they
administer talk therapy. I divide Section I into three subsections.
Section A briefly explains the First Amendment framework rele-
vant here. Section B describes how government regulation has
long required licensed healthcare professionals—including licensed
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10 ROSENBAUM, J., Dissenting 19-10604
mental-healthcare professionals—to comply with the substantive
standard of care. And Section C explains that, given that fact, reg-
ulations that require licensed mental-healthcare professionals to
comply with the substantive standard of care that generally gov-
erns talk therapy are permissible content-based restrictions on
speech.
A. The Supreme Court has recognized that, under the First
Amendment, governments constitutionally may impose
content-based restrictions on speech when persuasive evi-
dence of a long tradition to that effect exists and the re-
strictions survive appropriate scrutiny.
I begin with the controlling Supreme Court precedent: Na-
tional Institute of Family & Life Advocates v. Becerra, 138 S. Ct.
2361 (2018) (“NIFLA”). NIFLA addressed the constitutionality of
two notices that California required certain pregnancy clinics to
post. See id. One notice contained information about free preg-
nancy-related care, including abortion services, available at places
other than the clinics that were required to post the notice. Id. at
2368–69. The other notice informed potential patrons that the
healthcare providers at the facility where the notice was posted
were not licensed, and it offered information on how to obtain
healthcare services from licensed providers. Id. at 2369–70.
The Ninth Circuit affirmed the district court’s denial of a
preliminary injunction enjoining the California law, concluding
that both notices survived “the ‘lower level of scrutiny’ that applies
to regulations of ‘professional speech.’” Id. at 2370. In reversing,
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19-10604 ROSENBAUM, J., Dissenting 11
the Supreme Court stated that it “has not recognized ‘professional
speech’ as a separate category of speech[,]” and “[s]peech is not un-
protected merely because it is uttered by ‘professionals.’” Id. at
2371–72.
But the Court acknowledged that “a persuasive reason for
treating professional speech as a unique category that is exempt
from ordinary First Amendment principles[] . . . [may] exist[].” Id.
at 2375. And it expressly recognized that although content-based
regulations are presumptively unconstitutional, Supreme Court ju-
risprudence “permit[s] governments to impose content-based re-
strictions on speech with[] “‘persuasive evidence . . . of a long (if
heretofore unrecognized) tradition’” to that effect.”7 Id. at 2372 (ci-
tations omitted) (bracketed alterations added; other alterations in
original). Categories of speech that satisfy that exception are very
rare, but they do exist.8
7 Of course, NIFLA was not the first Supreme Court opinion to expressly iden-
tify this exception. See, e.g., United States v. Stevens, 559 U.S. 460, 472 (2010).
But NIFLA is one of the most recent iterations of the exception, and the panel
opinion relies substantially on it, so I focus on NIFLA.
8 The complete sentence where the quotation appears states, “This Court’s
precedents do not permit governments to impose content-based restrictions
on speech without persuasive evidence of a long (if heretofore unrecognized)
tradition to that effect.” NIFLA, 138 S. Ct. at 2372 (cleaned up) (emphasis
added). The Concurrence implies that I have inaccurately represented NIFLA
as recognizing an exception to the rule that governments generally cannot im-
pose content-based restrictions on speech. See Conc. at 5–6. But a straight-
forward reading of the quotation (not to mention the opinion) shows that is
not so. Indeed, if the Concurrence were correct, the quotation would end
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12 ROSENBAUM, J., Dissenting 19-10604
In fact, NIFLA identified two subcategories of “professional
speech” to which this exception applies and for which the Supreme
Court has recognized that the government may issue content-
based regulations: (1) laws that “require professionals to disclose
factual, noncontroversial information in their ‘commercial
speech,’” NIFLA, 138 S. Ct. at 2372 (citations omitted), and (2) “reg-
ulations of professional conduct that incidentally burden speech,”
id. at 2373. And, as I have noted, it left open the possibility that
other subcategories of “professional speech” for which the
after the word “speech.” But it doesn’t. And the plain language of the phrase
after the word “speech” sets forth an exception to the rule.
Similarly, the Concurrence also quotes the first half of a sentence in
United States v. Alvarez, 567 U.S. 709, 722 (2012)—the opinion that NIFLA
quotes—for the proposition that the Constitution bars “any freewheeling au-
thority to declare new categories of speech outside the scope of the First
Amendment.” Conc. at 6–7 (quotation marks omitted). But the second half
of that very same sentence in Alvarez observes that “the Court has acknowl-
edged that perhaps there exist some categories of speech that have been his-
torically unprotected . . . but have not yet been specifically identified or dis-
cussed . . . in our case law.” Alvarez, 567 U.S. at 722 (quotation marks and
citation omitted). And in the next sentence, Alvarez states, “Before exempting
a category of speech from the normal prohibition on content-based re-
strictions, however, the Court must be presented with persuasive evidence
that a novel restriction on content is part of a long (if heretofore unrecognized)
tradition of proscription.” Id. (quotation marks and citation omitted) (empha-
sis added). The Concurrence’s refusal to acknowledge that NIFLA (and Alva-
rez) identify a very limited exception to the general content-based-regulations
rule does not make the exception go away.
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19-10604 ROSENBAUM, J., Dissenting 13
government may promulgate content-based regulations may exist.
See id. at 2372.
B. There is a long tradition of government regulation requiring
licensed professionals to adhere to the governing standard
of care when administering healthcare treatments—includ-
ing talk therapy.
1. Talk therapy is a healthcare treatment technique.
Talk therapy is also known as psychotherapy.9 The National
Institute of Mental Health (“NIMH”), “the lead federal agency for
research on mental disorders,”10 describes “talk therapy” as “a term
for a variety of treatment techniques that aim to help a person iden-
tify and change troubling emotions, thoughts, and behavior.” See
Nat’l Inst. of Mental Health, Psychotherapies,
https://www.nimh.nih.gov/health/topics/psychotherapies (last
visited July 15, 2022) (emphasis added); see also Psychotherapy,
Online Etymology Dictionary, https://www.ety-
monline.com/word/psychotherapy (last visited July 15, 2022)
9 See Nat’l Inst. of Mental Health, Psychotherapies,
https://www.nimh.nih.gov/health/topics/psychotherapies (last visited July
15, 2022); American Psychiatric Ass’n, What is Psychotherapy?,
https://www.psychiatry.org/patients-families/psychotherapy (last visited
July 15, 2022); Joseph Saling, Guide to Psychiatry and Counseling,
https://www.webmd.com/mental-health/guide-to-psychiatry-and-counsel-
ing (last visited July 15, 2022).
10Nat’l Inst. of Mental Health, https://www.nimh.nih.gov/ (last visited July
15, 2022).
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14 ROSENBAUM, J., Dissenting 19-10604
(etymology of term “psychotherapy” (“psycho-” + “therapy”)
stems from Greek words “psykhē” (meaning “the soul, mind, spirit
. . .”) and “therapeuein” (meaning “to cure, treat medically”) (em-
phasis added)).
As a mental-healthcare “treatment technique,” talk therapy
falls within the overarching category of healthcare treatment tech-
niques—just as drug therapy, physical therapy, and surgery do.
Like any other healthcare treatment technique, talk therapy is sci-
entifically based and occurs entirely between the healthcare profes-
sional and her client, and its sole purpose is to treat a health condi-
tion.11 Also as with any other healthcare treatment technique, to
learn to practice talk therapy competently, mental-healthcare pro-
fessionals must attend school and train clinically. See, e.g., Fla.
Stat. § 491.003(9) (“The term ‘practice of mental health counseling’
means the use of scientific and applied behavioral science theories,
methods, and techniques for the purpose of describing, preventing,
and treating undesired behavior and enhancing mental health and
human development and is based on the person-in-situation per-
spectives derived from research and theory . . . .”) (emphasis
added); Fla. Stat. § 491.003(7)(b) (“The use of specific methods,
techniques, or modalities within the practice of clinical social work
11See, e.g., American Psychological Association, Understanding psychother-
apy and how it works (last updated Mar. 16, 2022), https://www.apa.org/top-
ics/psychotherapy/understanding (“In psychotherapy, psychologists apply
scientifically validated procedures to help people develop healthier, more ef-
fective habits.”).
USCA11 Case: 19-10604 Date Filed: 07/20/2022 Page: 47 of 110
19-10604 ROSENBAUM, J., Dissenting 15
is restricted to clinical social workers appropriately trained in the
use of such methods, techniques, or modalities.”) (emphasis
added); Fla. Stat. § 491.003(8)(b) (“The use of specific methods,
techniques, or modalities within the practice of marriage and fam-
ily therapy is restricted to marriage and family therapists appropri-
ately trained in the use of such methods, techniques, or modali-
ties.”) (emphasis added); Fla. Stat. § 491.003(8) (“The ‘practice of
clinical social work’ is defined as the use of scientific and applied
knowledge, theories, and methods for the purpose of . . . treating
individual . . . behavior . . . . The practice of clinical social work
includes, but is not limited to, psychotherapy . . . .”) (emphasis
added).
For these reasons, states have long required mental-
healthcare professionals who wish to practice talk therapy to be li-
censed professionally—just as internists, physical therapists, and
surgeons who desire to practice the treatment techniques they
learn in school and perfect in training must be.
2. Governments have long required licensed profession-
als to comply with the governing standard of care
when administering healthcare treatment tech-
niques—including talk therapy.
“[F]rom time immemorial,” states have constitutionally ex-
ercised their police power to regulate the public health and safety,
to enact standards for obtaining and maintaining a professional li-
cense. Dent v. West Virginia, 129 U.S. 114, 122 (1889). Indeed, the
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16 ROSENBAUM, J., Dissenting 19-10604
Supreme Court has “recognize[d] that the States have a compelling
interest in the practice of professions within their boundaries, and
that as part of their power to protect the public health, safety, and
other valid interests they have broad power to establish standards
for licensing practitioners and regulating the practice of profes-
sions.” Goldfarb v. Va. State Bar, 421 U.S. 773, 792 (1975) (empha-
sis added). And it has singled out healthcare professionals in par-
ticular as appropriately subject to such regulation. In this respect,
the Supreme Court has commented that, among professions,
“[t]here is perhaps no profession more properly open to such regu-
lation than that which embraces the practitioners of medicine.”
Watson v. Maryland, 218 U.S. 173, 176 (1910).
This, of course, applies equally to the mental-healthcare pro-
fessions. More than a century ago, in Crane v. Johnson, 242 U.S.
339, 340, 344 (1917), the Supreme Court upheld California’s licens-
ing requirement for “drugless [healthcare] practitioner[s] [who]
employ in practice faith, hope, and processes of mental suggestion
and mental adaptation” as falling within “the general scope of the
police power of the state.” After all, “the word ‘health[]’ . . . in-
cludes psychological as well as physical well-being.” United States
v. Vuitch, 402 U.S. 62, 72 (1971); see also Planned Parenthood of
Se. Penn. v. Casey, 505 U.S. 833, 882 (1992) (O’Connor, J., separate
portion of plurality opinion) (“It cannot be questioned that psycho-
logical well-being is a facet of health.”), abrogated on other
grounds by Dobbs v. Jackson Women’s Health Org., ___ S. Ct.
___, No. 19-1392, 2022 WL 2276808 (June 24, 2022). And a mental-
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19-10604 ROSENBAUM, J., Dissenting 17
health condition can be just as life-threatening as a physical-health
condition.
So Florida (and other states) enacted licensing and discipli-
nary statutes that mental-healthcare practitioners must comply
with to practice in the state of Florida (and those other states, re-
spectively). See, e.g., Fla. Stat. §§ 491.0046(1)(b), 491.0046(1)(c),
491.005. Taking Florida as an example, the state went to this trou-
ble because it concluded that “the practice of clinical social work,
marriage and family therapy, and mental health counseling by per-
sons not qualified to practice such professions presents a danger to
public health, safety, and welfare.” Fla. Stat. § 491.002.
No wonder. The difference between skilled and inept talk
therapy—no less than that between deft and botched surgery—
can, in some cases, mean the difference between life and death. En-
suring a competent quality of those who practice talk therapy in
Florida, then, furthers Florida’s legitimate (and “compelling,”
Goldfarb, 421 U.S. at 792) concern for the public health and safety
of its citizens.
Towards this end, Florida’s licensing scheme makes certain
acts by licensed professionals who practice talk therapy subject to
discipline and penalties, including revocation of their licenses. For
example, those licensed in clinical social work, marriage and family
therapy, mental-health counseling, and psychological services may
not “[f]ail[] to meet the minimum standards of performance in pro-
fessional activities when measured against generally prevailing
peer performance.” Fla. Stat. §§ 490.009(1)(r); 491.009(1)(r). In
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18 ROSENBAUM, J., Dissenting 19-10604
other words, licensed professionals must comply with the standard
of care in their mental-healthcare practices.
Historically, Florida has enforced these rules and others like
them.12 So when it comes to talk therapy, under Fla. Stat. §§
490.009(1)(r) and 491.009(1)(r), Florida has undertaken disciplinary
actions against licensed practitioners whom the State concludes
have failed to meet the substantive standard of care. That is, the
content of the talk therapy these licensed practitioners have admin-
istered to their clients has violated the standard of care. And Flor-
ida has subjected them to disciplinary proceedings for the incom-
petent aspects of the content of their talk therapy.
For instance, Florida’s Department of Health Discipline and
Administration instituted an action against a licensed marriage and
family therapist for violating “the standard of care for a marriage
and family therapist assisting couples with domestic violence or
abusive relationship issues” by, among other deficiencies, not fo-
cusing on anger management in the treatment administered. Fla.
Dep’t of Health Discipline & Admin. Action No. 1999-60963. The
state could not have undertaken this disciplinary action without re-
viewing the content of the talk therapy administered and finding it
deficient under the substantive standard of care. And to avoid this
12Other states have long had similar rules. See, e.g., Ga. Code §§ 43-10A-2,
43-10A-6; Ala. Code §§ 22-56-3, 22-56-4(b)(16). I focus on Florida for conven-
ience, since Defendants-Appellees City of Boca Raton and Palm Beach County
are located there.
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19-10604 ROSENBAUM, J., Dissenting 19
sanction, the professional would have had to have included and
“focus[ed]” on anger-management content in the talk therapy pro-
vided in this case. In other words, though the state punished the
therapist for his failure to comply with the substantive standard of
care in administering talk therapy, the only way to determine that
failure had occurred was to consider the content of his talk therapy.
Action No. 1999-60963 is not a one-off. Florida’s healthcare-
provider professional discipline files contain more cases of this type
where that one came from. In Action No. 2020-05957, the Depart-
ment brought a complaint against a licensed clinical social worker
that alleged he “failed to meet the minimum standards of perfor-
mance in clinical social work when measured against generally pre-
vailing peer performance,” in violation of Fla. Stat. § 491.009(1)(r).
Fla. Dep’t of Health Discipline & Admin. Action No. 2020-05957.
Specifically, the Department took issue with the professional’s fail-
ure to “discuss [with the suicidal patient] the patient’s reasons to
live, hope for the patient’s future, coping skills the patient can en-
gage in, and identify individuals the patient can turn to or a crisis
number they can call if needed.” Again, this action punished the
professional for failing to comply with the substantive standard of
care in administering talk therapy—an action that necessarily re-
quired consideration of the content of his talk therapy.
And in Action No. 2016-14260, the Department brought a
complaint against a licensed social worker and marriage family
therapist that alleged she “fail[ed] to meet the minimum standards
of performance in professional activities when measured against
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20 ROSENBAUM, J., Dissenting 19-10604
generally prevailing peer performance,” in violation of Fla. Stat. §
491.009(1)(r). Fla. Dep’t of Health Discipline & Admin. Action No.
2016-14260. Here, the Department disciplined the professional for
“utilizing incorporation therapy” in treatment and “failing to use a
therapy approach in her treatment . . . [that] involved or encour-
aged increased interaction” between her client and the client’s fa-
ther. Once again, this action punished the professional for failing
to comply with the substantive standard of care in administering
talk therapy—an action that necessarily required consideration of
the content of her talk therapy.
The list continues. See, e.g., Dep’t of Health Discipline &
Admin. Action No. 2006-00013 (Department brought a complaint
against a licensed mental-health counselor that alleged she “fail[ed]
to meet the minimum standards of performance in professional ac-
tivities when measured against generally prevailing peer perfor-
mance,” in violation of Fla. Stat. § 491.009(1)(r), by, among other
things, “showing a lack of professionalism in [her] written commu-
nications to the [client]”); Fla. Dep’t of Health Discipline & Admin.
Action No. 2008-08922 (Department brought a complaint against a
licensed psychologist that alleged she “fail[ed] to meet the mini-
mum standards of performance in professional activities when
measured against generally prevailing peer performance,” in viola-
tion of Fla. Stat. § 490.009(1)(r), by, “[u]pon termination of services
by [the] patient [], failing to remind [the] patient [] that she could
find a replacement psychologist, therapist, or psychiatrist by con-
sulting her insurer’s provider directory”). At the risk of being
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19-10604 ROSENBAUM, J., Dissenting 21
redundant and once again pointing out the obvious, the state pun-
ished these professionals for the content of their speech.
These types of disciplinary actions, when healthcare profes-
sionals have violated the governing standard of care, have long
been a critical component of—indeed, inextricably intertwined
with—the state’s power to license professionals. Without the abil-
ity to ensure its licensees’ continuing minimum standards of com-
petency, a state’s licensing system would be virtually worthless in
protecting public health and safety. See Ohralik v. Ohio State Bar
Ass’n, 436 U.S. 447, 460 (1978) (“[T]he state bears a special respon-
sibility for maintaining standards among members of the licensed
professions.”) (emphasis added); Semler v. Or. State Bd. of Dental
Exam’rs, 294 U.S. 608, 612 (1935) (“That the state may regulate the
practice of dentistry, prescribing the qualifications that are reason-
ably necessary, and to that end may require licenses and establish
supervision by an administrative board, is not open to dispute. The
state may thus afford protection against ignorance, incapacity and
imposition.”) (citations omitted).
Imagine, for example, a licensed surgeon whose lack of pro-
ficiency in surgery causes patients regularly to bleed out and die. If
a state did not retain the related ability to discipline its licensed pro-
fessionals for the quality of care they delivered, it could not revoke
that incompetent surgeon’s license. Nor could it otherwise ban
that surgeon from continuing to butcher unknowing patients who
rely on the doctor’s state licensure as an imprimatur of a certain
level of competence. But of course, states can and do revoke
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22 ROSENBAUM, J., Dissenting 19-10604
professional healthcare licenses for incompetence (among other
reasons) as a permissible exercise of the police power to protect the
public health and safety.
As the mental-healthcare-professional disciplinary actions I
have discussed show, the same is true of the states’ record of disci-
plining the incompetent mental-healthcare professional who prac-
tices talk therapy. If a state could not revoke the license of (or oth-
erwise discipline) a professional whose inept talk therapy contrib-
uted in a significant way to, for example, clients’ decisions to kill
themselves, the state’s police power to protect public health and
safety would be effectively worthless in that context. See Semler,
294 U.S. at 612 (emphasizing the state’s ability to engage in contin-
uing oversight of dentists to protect against, among other things,
“incapacity”).
That the treatment technique of talk therapy is administered
through words does not somehow render it any less of a healthcare
treatment technique or any less subject to government regulation
in the interest of protecting the public health. See Crane, 242 U.S.
at 344; Vuitch, 402 U.S. at 72 (explaining that “the word ‘health[]’ .
. . includes psychological as well as physical well-being.”). Talk
therapy can be just as lifesaving or deadly as surgery, depending on
who administers it and how.
So practitioners of talk therapy have not historically been ex-
empt from complying with the governing standard of care simply
because they administer their healthcare treatment with words ra-
ther than scalpels. Rather, government has long recognized that
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19-10604 ROSENBAUM, J., Dissenting 23
speech used by mental-healthcare providers as a treatment tech-
nique is still a healthcare treatment technique. And so it has regu-
lated that speech as it is used as a healthcare treatment technique.
In sum, a “long . . . tradition” exists, NIFLA, 138 S. Ct. at 2372, of
regulating licensed professionals and their use of healthcare treat-
ment techniques—including talk therapy—to ensure compliance
with the applicable standard of care.
3. By misperceiving talk therapy as “not medical at all”
and mere “conversation,” the panel opinion incor-
rectly effectively eradicates the states’ ability to regu-
late talk therapy.
Yet the panel opinion—without a single citation to support
its pronouncement—says talk therapy is “not medical at all” but is
a mere “conversation” like any other. Otto, 981 F.3d at 866 n.3,
863; see also id. at 865 (“What the plaintiffs call a ‘medical proce-
dure’ consists—entirely—of words.”). That’s like saying surgery is
“not medical at all” but is mere cutting and sewing like tailoring
clothing.13 The panel opinion’s mischaracterization fails to appre-
ciate that people’s health, and sometimes lives, are at stake when
licensed professionals perform healthcare treatment techniques—
whether they administer them through drugs, a scalpel, or words—
and that how they perform those techniques affects their clients’
13To be sure, tailoring clothing requires great skill (much more than I have).
But no one dies if a tailor makes a mistake sewing together a suit jacket. And
that’s one reason why doctors must be licensed, and tailors need not be.
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24 ROSENBAUM, J., Dissenting 19-10604
health. Indeed, unlike “political, social and religious debates,”
Conc. at 11, that is their purpose.
And so the panel opinion’s invocation of the presumption
against content-based regulations and its application of strict scru-
tiny fail to account for the reality that states have long and tradi-
tionally recognized: Talk therapy is a scientifically based
healthcare treatment technique—not regular speech—applied in
the confines of the mental-health-professional–client relationship,
for the sole purpose of treating a health condition. Cf. Fla. Bar v.
Went For It, Inc., 515 U.S. 618, 623 (1995) (“We have always been
careful to distinguish commercial speech from speech at the First
Amendment’s core.”). It is not a “political, social and religious de-
bate[].” Conc. at 11.
If the panel opinion were correct that talk therapy is “not
medical at all” and mere “conversation,” no regulation of substan-
tive psychotherapy would be permissible. Any substantive regula-
tion of talk therapy is necessarily content-based and would not sur-
vive the general presumption against content-based regulations
and strict scrutiny, which govern normal speech. Williams-Yulee
v. Fla. Bar, 575 U.S. 433, 444 (2015) (emphasizing the “rare[ness]”
of “cases in which a speech restriction withstands strict scrutiny”).
As the panel opinion points out, “[t]he ‘mere assertion of a content-
neutral purpose’ is not enough ‘to save a law which, on its face dis-
criminates based on content.’” Otto, 981 F.3d at 862 (quoting
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642–43 (1994)).
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19-10604 ROSENBAUM, J., Dissenting 25
And because the panel opinion mistakenly views the treat-
ment technique of talk therapy as “not medical at all” and mere
“conversation,” Otto misunderstands state regulations requiring li-
censed professionals to comply with the substantive standard of
care when they administer talk therapy as a healthcare treatment
as an impermissible “free-floating power to restrict the ideas to
which [talk-therapy clients] may be exposed.” Otto, 981 F.3d at 868
(citation and quotation marks omitted). But regulations requiring
licensed professionals to adhere to the substantive standard of care
when they perform talk therapy leave mental-healthcare providers
free to speak with their clients, in any capacity other than as a
healthcare professional administering a treatment technique, about
matters that fall outside the talk-therapy standard of care.
Under Otto, though, the mental-healthcare psychotherapy
landscape is a Wild West of anything goes—no matter how detri-
mental to clients’ health. Regardless of how compelling the inter-
est may be, states cannot exercise their police power to protect the
public health and safety by requiring those licensed professionals
who practice talk therapy to comply with the governing standard
of care.
In fact, after the panel opinion, the state can’t even revoke
the license of a professional whose practice of talk therapy causes
harm and death. That is so because, under the panel opinion, talk
therapy is mere “conversation” and “not medical at all”—and we
all agree that government can’t stop people in general from having
regular old “conversation[s]” about things that might come up in
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26 ROSENBAUM, J., Dissenting 19-10604
talk therapy. So it is hard to see how anything would preclude a
licensed professional whom the state seeks to discipline from in-
voking the First Amendment as a successful defense. And licensed
professionals who perform talk therapy now operate with effective
immunity, however deeply below the standard of care their ther-
apy sinks.
Consider Erwin Chemerinsky’s posited examples of “talk
therapy” that states can’t regulate, given the panel opinion’s refusal
to recognize talk therapy as a healthcare treatment technique: the
mental-healthcare professional who “endanger[s] a person with an-
orexia by telling her ‘you are too fat,’ or . . . [the mental-healthcare
professional who] treat[s] a condition such as ‘female hysteria’ that
has long since ceased to be recognized by modern medical author-
ities as a psychiatric disorder.” Erwin Chemerinsky, “Gay Conver-
sion” Therapy Is Not Protected Free Speech, The Atlantic (Dec. 10,
2012), https://www.theatlantic.com/national/ar-
chive/2012/12/gay-conversion-therapy-is-not-protected-free-
speech/266102/. I’ll add another: the therapist who, as a part of
talk “therapy,” tells a client with suicidal ideation that he thinks the
client is worthless and is better off dead. Regulation of all these
practices necessarily requires review of the content of the words a
mental-health professional uses to administer the healthcare treat-
ment technique. So after the panel opinion, any regulation is sub-
ject to strict scrutiny, and states can’t discipline for any these viola-
tions of the standard of care.
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19-10604 ROSENBAUM, J., Dissenting 27
Nor may they now impose the very discipline that the Flor-
ida Department of Health Discipline and Administration has long
meted out in cases like those I describe at pages 18 through 21 of
this dissent.
The Concurrence conclusorily insists that is not so. See
Conc. at 13–14 (“[T]hough Otto was published nearly two years
ago, we have no indication that therapy has become ‘a Wild West
of anything goes—no matter how detrimental to clients’ health.”).
It asserts—without any explanation as to how—that even after the
panel opinion, states can revoke licenses and suspend professionals
for these same types of failures to comply with the standard of care,
and that states can bring criminal charges against licensed talk ther-
apists who administer talk therapy whose content does not comply
with the standard of care—all without running afoul of the panel’s
interpretation of the First Amendment.
But how? Neither the panel opinion nor the Concurrence
even attempts to explain how states could constitutionally con-
tinue to engage in these activities in our Circuit now.
Take, for example, Florida Department of Health Discipline
and Administration Action No. 2020-05957. As I mentioned, the
Department disciplined the mental-health professional because he
did not “discuss [with the suicidal patient] the patient’s reasons to
live, hope for the patient’s future, coping skills the patient can en-
gage in, and identify individuals the patient can turn to or a crisis
number they can call if needed.” Id. In other words, the state
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28 ROSENBAUM, J., Dissenting 19-10604
punished the professional for violating the substantive standard of
care, based necessarily on the content of the talk therapy he admin-
istered. See Otto, 981 F.3d at 862 (“One reliable way to tell if a law
restricting speech is content-based is to ask whether enforcement
authorities must ‘examine the content of the message that is con-
veyed’ to know whether the law has been violated.”) (citation
omitted).
Or consider Administration Action No. 2016-14260—where
Florida disciplined a licensed social worker and marriage and fam-
ily therapist for “[f]ailing to meet the minimum standards of per-
formance in professional activities when measured against gener-
ally prevailing peer performance,” in violation of Fla. Stat. §
491.009(1)(r), by, among other things, “utilizing incorporation
therapy” in treatment and “failing to use a therapy approach in her
treatment . . . [that] involved or encouraged increased interaction”
between her client and the client’s father. Again, to impose this
discipline, Florida necessarily had to “‘examine the content of the
message that [was] conveyed,’” Otto, 981 F.3d at 862 (citation omit-
ted), and then, based on that content, decide whether to take disci-
plinary action.
These professional disciplinary actions are no different from
disciplining a licensed professional for “[f]ailing to meet the mini-
mum standards of performance in clinical social work when meas-
ured against generally prevailing peer performance,” in violation
of Fla. Stat. § 491.009(l)(r), by “utilizing [SOCE] therapy.” All these
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19-10604 ROSENBAUM, J., Dissenting 29
examples sanction a licensed professional because the content of
the talk therapy they provided failed to comply with the standard
of care. That is, all have the effect of “penaliz[ing] speech on the
basis of that speech’s content.” Otto, 981 F.3d at 862. So if one
cannot stand under the normal First Amendment rules, none can.
The Concurrence offers no explanation as to how that is not
so. Instead, it merely points to the panel opinion and to Woll-
schlaeger v. Governor, 848 F.3d 1293 (11th Cir. 2017) (en banc);
notes that since those opinions issued, Florida has disciplined men-
tal-health professionals for engaging in talk therapy that did not
comply with the standard of care; and conclusorily insists based
solely on that one fact that “[t]he State did not lose its ability to
regulate the medical profession simply because” of our holdings in
those cases.14 Conc. at 13.
14 The Concurrence also asserts that “the parties [have not] raised the specter
of thwarted health and safety regulation so vividly imagined by [me].” Conc.
at 13–14. But actually, the Florida Psychological Association (“FPA”) and the
Florida Chapter of the American Academy of Pediatrics, Inc. (“FCAAP”), filed
an amicus brief in support of the City and County’s petition for rehearing en
banc, worrying about exactly that. More specifically, the FPA noted that the
panel opinion “incorrectly characterized psychotherapy as a forum for expres-
sive speech[] [and] eliminated governments’ authority to ensure compliance
with professional norms.” See Br. for FPA and FCAAP, as Amicus Curiae, at
3. And the FCAAP remarked that its “mission of promoting the highest stand-
ards of healthcare for children and young adults is undermined by the panel
majority’s effectively exempting psychotherapy from regulation.” Id.
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30 ROSENBAUM, J., Dissenting 19-10604
But that is no answer.
Even assuming the panel opinion went no further than
Wollschlaeger (an invalid proposition, see infra at 41–46), as I have
shown, past state enforcement actions violate the First Amend-
ment under the panel opinion. And the mere fact that no licensed
professional has challenged such regulations or administrative ac-
tions does not somehow magically render them constitutional un-
der the First Amendment after the panel opinion. Cf. New York
State Rifle & Pistol Ass’n, Inc. v. Bruen, __ S. Ct. ___, No. 20-843,
2022 WL 2251305, at *32 (Jun. 23, 2022) (“[B]ecause these territorial
laws were rarely subject to judicial scrutiny, we do not know the
basis of their perceived legality.”) For the same reasons, state crim-
inal actions based on a licensed professional’s failure to conform
the content of his talk therapy to the governing standard of care
fare no better. Nor does the Concurrence even try to explain how
they could. No wonder. It can’t.
This state of affairs makes licensed practitioners of talk ther-
apy unique among healthcare providers in their insulation from
state regulation of their use of the healthcare tool of their trade.
And if the state can’t hold these professionals to abide by the basic
standard of care in their day-to-day practice, what is the point of
licensing them at all? See Barsky v. Bd. of Regents of Univ. of State
of N.Y., 347 U.S. 442, 451 (1954) (“It is equally clear that a state’s
legitimate concern for maintaining high standards of professional
conduct extends beyond initial licensing. Without continuing
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19-10604 ROSENBAUM, J., Dissenting 31
supervision, initial examinations afford little protection.”); Dent,
129 U.S. at 233 (“It would not be deemed a matter for serious dis-
cussion that a knowledge of the new acquisitions of the profession,
as it from time to time advances in its attainments for the relief of
the sick and suffering, should be required for continuance in its
practice . . . .”).
Yet that is precisely the result the panel opinion’s position
yields. That result defies years of state regulatory tradition, prac-
tice, and, as I have noted, Supreme Court precedent allowing states
to regulate the substantive practice of healthcare professions.
It also defies common sense. The panel opinion simply can-
not be right on this point. At the very least, we should all be very
concerned that the panel opinion’s conclusion that talk therapy is
“not medical at all” and is mere “conversation” strips states of their
ability to police mental-healthcare professionals who practice talk
therapy within their borders. For this reason alone, this case de-
mands en banc rehearing.
C. Regulations that require licensed mental-healthcare profes-
sionals to comply generally with the governing standard of
care are permissible content-based restrictions on speech.
As I have mentioned, the Supreme Court has identified two
subcategories of “professional speech” for which the usual First
Amendment rules do not apply and for which the government may
issue content-based regulations: (1) laws that “require profession-
als to disclose factual, noncontroversial information in their
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32 ROSENBAUM, J., Dissenting 19-10604
‘commercial speech,’” NIFLA, 138 S. Ct. at 2372 (citations omit-
ted), and (2) “regulations of professional conduct that incidentally
burden speech,” id. at 2373.
For purposes of this dissent, I assume without deciding that
regulations that generally require licensed mental-healthcare pro-
fessionals to comply with the standard of care in administering
their healthcare treatment techniques (including talk therapy)
don’t qualify for either subcategory set forth in NIFLA as exempt
from the regular First Amendment rules for content-based laws:
non-controversial factual information and speech incidental to con-
duct.15 I pause here to emphasize that, contrary to the
15That said, good arguments can be made for why these regulations come
within the subcategory of “regulations of professional conduct that inci-
dentally burden speech.” In NIFLA, the Supreme Court reviewed the cate-
gory of content-based regulations of professional conduct that incidentally
burden speech. 138 S. Ct. at 2373. In recognizing that the provisions in Casey,
505 U.S. 833, fell within that category, the NIFLA Court described Casey as
holding that where a law “regulate[s] speech only ‘as part of the practice of
medicine, [it is] subject to reasonable licensing and regulation by the State.’”
NIFLA, 138 S. Ct. at 2373.
As I’ve mentioned, talk therapy is a scientifically based mental-
healthcare treatment technique practiced by licensed, specially trained and ed-
ucated mental-health professionals, solely within the confines of the mental-
health-professional–client relationship, for the singular purpose of treating
their clients’ mental-health conditions. Thus, its sole value lies in its ability to
safely and efficaciously treat the client on whom it is administered. That
makes talk therapy fundamentally just like any other healthcare treatment
technique—such as surgery, for instance—that is not administered with
words: its sole value rests in its ability to treat the patient’s ailment (though
in the case of surgery, of course, the ailment is physical instead of mental). So
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19-10604 ROSENBAUM, J., Dissenting 33
Concurrence’s mischaracterization of my dissent, see Conc. at 6
(asserting that “characterizing [talk therapy] as a ‘scientifically
based healthcare treatment technique’ governed by a standard of
care” and “[t]he professional setting of this speech [do] not trans-
form it into conduct”), 8 (“Although Judge Rosenbaum ‘con-
cede[s]’ that the talk therapy banned in this case is ‘speech, not con-
duct,’ one would not know it from the analysis that follows”), 12
(incorrectly suggesting my analysis is the same as that of the Ninth
Circuit before NIFLA issued and suggesting that I argue licensed
talk therapy is just as much the “practice of medicine” as these other
healthcare treatment techniques that are performed without words. Mean-
while, talk therapy is unmistakably different from speech engaged in for the
purpose of “political, social, and religious debates.” Conc. at 11. See also, e.g.,
Buckley v. Valeo, 424 U.S. 1, 14–15 (1976) (per curiam) (“[I]t can hardly be
doubted that the constitutional guarantee has its fullest and most urgent ap-
plication precisely to the conduct of campaigns for political office.”); Meyer
v. Grant, 486 U.S. 414, 421–22 (1988) (holding that the circulation of a petition
seeking a ballot initiative is an “interactive communication concerning politi-
cal change that is appropriately described as ‘core political speech’”); Mills v.
Alabama, 384 U.S. 214, 2218 (1966) (“[T]here is practically universal agreement
that a major purpose of [the First] Amendment was to protect the free discus-
sion of governmental affairs . . . .”); New York Times Co. v. Sullivan, 376 U.S.
254, 270 (1964) (noting our “profound commitment to the principle that de-
bate on public issues should be uninhibited, robust, and wide-open”); McIn-
tyre v. Ohio Elections Comm’n, 514 U.S. 334, 347 (1995) (“[H]anding out leaf-
lets in the advocacy of a politically controversial viewpoint [] is the essence of
First Amendment expression[.]”). For another reason why government regu-
lations requiring licensed mental-healthcare professionals to comply with the
substantive standard of care may qualify under this exception as not subject to
the usual content-based First Amendment rules, see infra at note 20.
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34 ROSENBAUM, J., Dissenting 19-10604
professionals’ administration of talk therapy is conduct, not
speech), I do not argue here that regulations that generally require
licensed mental-healthcare professionals to comply with the stand-
ard of care in administering their healthcare treatment techniques
as those techniques employ speech are “regulations of professional
conduct that incidentally burden speech,” NIFLA, 138 S. Ct. at 2373
(emphasis added). Again, I’ll concede for the purposes of this dis-
sent that talk therapy is speech, not conduct.
Rather, I contend that speech used exclusively as a
healthcare treatment technique by a licensed mental-healthcare
professional in the course of administering that treatment tech-
nique comprises its own third subcategory of professional speech
that is not subject to the usual presumption against content-based
regulations.
This limited subcategory is a very narrow one. After all, the
common-sense conclusion that the government may require li-
censed professionals who administer talk therapy to comply with
the standard of care does not throw open the legislative doors to
regulation of all so-called “professional speech.” Talk therapy is
unique among the speech professionals engage in while practicing
their various professions (e.g., lawyers, accountants, general con-
tractors). It’s (1) scientifically based, (2) performed wholly within
the confines of the licensed professional-client relationship, and,
most significantly, (3) has as its only purpose the treatment of the
client’s health condition.
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19-10604 ROSENBAUM, J., Dissenting 35
In this way, talk therapy is exactly like all non-speech-deliv-
ered healthcare treatment techniques that states require licensed
healthcare professionals to provide in compliance with the govern-
ing standard of care. But it is entirely different from the services all
non-healthcare professions offer.
And unlike with the states’ regulation of most non-
healthcare professions (but exactly like with the states’ regulation
of the rest of the healthcare profession), the states’ ability to require
compliance with the general standard of care for talk therapy stems
from their police power to protect the public health and safety.
Regulation of talk therapy is not “social and economic regulation,”
unlike the states’ regulation of other professions.
In these important ways, talk therapy differs from other
types of professional speech in which other professionals may en-
gage in the practice of their professions. So any First Amendment
principle applicable to the speech involved in talk therapy may be
neatly and easily limited to regulations requiring licensed profes-
sionals to comply with the standard of care when they administer
talk therapy.
In subsection 1 below, I argue that regulations that generally
require licensed mental-healthcare professionals to comply with
the governing standard of care in administering their healthcare
treatment techniques (like talk therapy) are excepted from the First
Amendment’s usual rules for content-based laws. I then respond
in subsection 2 to the Concurrence’s criticism of my theory.
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36 ROSENBAUM, J., Dissenting 19-10604
1. Regulations that generally require licensed mental-
healthcare professionals to comply with the substan-
tive standard of care in administering talk therapy
comprise a third exception to the regular First
Amendment rules that govern content-based laws.
Having explained how an exception for regulations requir-
ing licensed professionals to comply with the substantive standard
of care in administering talk therapy is readily limited to that dis-
crete type of professional speech, I turn to why such regulations
must comprise a third subcategory of “professional speech” for
which the government can prescribe appropriate content-based
regulations. Five reasons support this conclusion.
First, as I have noted, “a long . . . tradition” of state regula-
tions requiring mental-healthcare providers to comply with the
standard of care in administering talk therapy exists. See NIFLA,
138 S. Ct. at 2372. Though that “long . . . tradition” may have been
“heretofore unrecognized,” id., there’s no denying it. So such reg-
ulations satisfy the express terms of the test NIFLA identifies.
Second, states have a compelling interest in protecting the
health and safety of their citizens from healthcare professionals to
whom states grant their seal of approval through licensing. Cf.
Goldfarb, 421 U.S. at 792. Indeed, health and welfare laws are gen-
erally “entitled to a strong presumption of validity.” Dobbs v. Jack-
son Women’s Health Org., ___ U.S. ___, No. 19-1392, 2022 WL
2276808, at *42 (June 24, 2022).
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19-10604 ROSENBAUM, J., Dissenting 37
Third, if regulations requiring mental-healthcare profession-
als to comply with the standard of care could not be content-based,
states would have no way to exercise their police power to protect
the public health and safety as it relates to the substandard practice
of talk therapy. That would make talk therapy unique as the only
healthcare treatment technique that states could not require to
comply with the governing standard of care. And that cannot be
right—especially when we consider that talk therapy that does not
comply with the standard of care can contribute to a client’s death
or serious harm. Yet the Supreme Court has recently said that
states have “legitimate interests” in “respect for and preservation
of . . . life[,]” “the elimination of particularly . . . barbaric medical
procedures[,] [and] the preservation of the integrity of the medical
profession.” Id.
Fourth, talk therapy occurs wholly within the confines of the
professional–client relationship, and its sole purpose is to treat the
client on whom it is administered. In other words, assuming that
talk therapy is considered pure speech, it is speech on “purely pri-
vate matters” in a purely private context. Snyder v. Phelps, 562
U.S. 443, 452 (2011). The Supreme Court has recognized that “re-
stricting speech on purely private matters does not implicate the
same constitutional concerns as limiting speech on matters of pub-
lic interest . . . .” Id. That’s because “[t]here is no threat to the free
and robust debate of public issues; there is no potential interference
with a meaningful dialogue of ideas; and the threat of liability does
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38 ROSENBAUM, J., Dissenting 19-10604
not pose the risk of a reaction of self-censorship on matters of pub-
lic import.” Id. (cleaned up).
Fifth, and for similar reasons, there is a significant common-
sense difference between speech used by a licensed healthcare pro-
fessional wholly to administer a healthcare treatment technique,
on the one hand, and other varieties of speech, on the other. Cf.
Zauderer v. Off. of Disciplinary Couns. of Sup. Ct. of Ohio, 471
U.S. 626, 637 (1985) (concluding that a meaningful “common-sense
distinction [exists] between speech proposing a commercial trans-
action and other varieties of speech,” and “commercial speech doc-
trine rests heavily” on that distinction (cleaned up)). And that com-
mon-sense difference warrants a carveout of the category of pro-
fessionally practiced talk therapy from the scrutiny that generally
applies to what might be described as regular speech. Mental-
healthcare clients seek talk therapy from licensed professionals be-
cause clients want to address a mental-health concern, and they
rely on licensed professionals’ status as licensed professionals in
trusting their treatment to these individuals. Clients do not visit
licensed mental-healthcare providers because they want to have
“political, social, and religious debates.” Conc. at 11.
For all the reasons I’ve just explained, then, speech used by
licensed professionals to administer the healthcare treatment tech-
nique of talk therapy to their clients must be subject to appropriate
licensing and regulation by the state. See NIFLA, 138 S. Ct. at 2373.
2. The Concurrence’s critique of Section I of this dissent
cannot withstand scrutiny.
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19-10604 ROSENBAUM, J., Dissenting 39
As I have mentioned, the Concurrence gets portions of my
argument wrong. Below, I identify more of these mischaracteriza-
tions and show how, when they are corrected, the Concurrence’s
criticism disintegrates.
First, the Concurrence suggests that I propose a “‘profes-
sional speech’ ban[] just like the ones” the Supreme Court criticized
in NIFLA. Conc. at 7. That’s just not accurate. In NIFLA, the
Supreme Court described King v. Governor of New Jersey,16
Pickup v. Brown,17 and Moore-King v. County of Chesterfield,18 as
having wrongly recognized “‘professional speech’ as a separate cat-
egory of speech that is subject to different [First Amendment]
rules.” 138 S. Ct. at 2371. Significantly, the Court defined this cat-
egory of “professional speech” as “any speech by [‘individuals who
provide personalized services to clients and who are subject to a
generally applicable licensing and regulatory regime’] that is based
on their expert knowledge and judgment, or that is within the con-
fines of the professional relationship.” Id. (cleaned up).
That is obviously a very broad category. It includes within
its bounds the speech of all kinds of professionals—not just
healthcare professionals. And it is much broader than and different
from the narrow subcategory of speech I propose: speech used ex-
clusively as a healthcare treatment technique by a licensed mental-
16 767 F.3d 216 (3d Cir. 2014).
17 740 F.3d 1208 (9th Cir. 2014).
18 708 F.3d 560 (4th Cir. 2013).
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40 ROSENBAUM, J., Dissenting 19-10604
healthcare professional in the course of administering that treat-
ment technique. As I’ve explained, see supra at 34–35, the limiting
principle that governs this narrow subcategory does not ensnare
within it any so-called “professional speech” other than talk ther-
apy (or other speech as treatment or in aid of treatment) adminis-
tered by a licensed healthcare professional within the confines of
the healthcare professional–client relationship, for the sole purpose
of treating the client’s health condition.
So contrary to the Concurrence’s criticism, Conc. at 5–8, an
excepted subcategory that is cabined to talk therapy administered
by licensed mental-health professionals accounts for the concern
NIFLA identifies for not subjecting to content-based regulation the
gargantuan category of all professional speech by any type of pro-
fessional; it doesn’t defy NIFLA. It also doesn’t capture “teaching
or protesting,” “[d]ebating . . . [or] [b]ook clubs.” Otto, 981 F.3d at
865; Conc. at 6. None of those things are healthcare treatments
administered for the purpose of treating a client’s health condition.
Nor does any power the government may enjoy to regulate
these other activities generally stem from the police power to pro-
tect the public health. And unlike mental-healthcare treatment
techniques practiced by licensed professionals, none of these things
have a “long (if heretofore unrecognized) tradition” of content-
based government regulation. So NIFLA’s rejection of the mam-
moth and undifferentiated category of “professional speech” as an
exception to the First Amendment’s usual presumption against
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19-10604 ROSENBAUM, J., Dissenting 41
content-based laws does not apply to the subcategory of speech I
propose.
Second, the Concurrence contends that Wollschlaeger, 848
F.3d 1293, precludes the analysis I have set forth. See Conc. at 11–
13. This criticism reflects a fundamental misunderstanding of both
Wollschlaeger and NIFLA.
In Wollschlaeger, we considered the constitutionality of cer-
tain aspects of Florida’s Firearms Owners’ Privacy Act (“FOPA”).
As relevant here, FOPA, on pain of disciplinary sanctions, pre-
cluded licensed healthcare professionals from asking their patients
about firearm and ammunition presence in the home unless the
professional in “good faith believe[d] that this information [wa]s
relevant to the patient’s medical care or safety, or the safety of oth-
ers[.]” Fla. Stat. § 790.338(2). Wollschlaeger, 848 F.3d at 1302–03,
1305. Several physicians challenged the statute under the First
Amendment. Id.
In evaluating the statute, we noted that the provision was
“content-based.” Id. at 1301. As Wollschlaeger predated NIFLA,
we did not consider whether exceptions to the usual First Amend-
ment rules might apply to the content-based prohibition on firearm
inquiry. See id. Nor did we address whether strict scrutiny or
heightened scrutiny applied to our analysis, since we determined
that, the statute could not survive even heightened scrutiny. Id.
Heightened scrutiny required us to consider whether the provision
directly advanced “a substantial governmental interest and
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42 ROSENBAUM, J., Dissenting 19-10604
[whether] the measure[] [was] drawn to achieve that interest.” Id.
at 1312 (cleaned up).
As relevant here, Florida identified its interest as “the need
to regulate the medical profession in order to protect the public.”19
Id. at 1316. Though we recognized that Florida has “a substantial
interest in regulating professions like medicine,” we concluded that
interest was “not enough” in Wollschlaeger to save the FOPA pro-
vision. Id.
We explained that Florida had made “no claim, much less
[presented] any evidence, that routine questions to patients about
the ownership of firearms are medically inappropriate, ethically
problematic, or practically ineffective.” Id. And we observed that
there was “no contention (or, again, any evidence) that blanket
questioning on the topic of firearm ownership [was] leading to bad,
unsound, or dangerous medical advice.” Id.
On the contrary, we emphasized, “[a] number of leading
medical organizations” encouraged their members to ask about the
presence of firearms in the home as part of childproofing the home,
to educate patients about the dangers of firearms to children, to
encourage patients to educate their children and neighbors about
19 Florida also identified three other interests: (1) “protecting, from ‘private
encumbrances,’ the Second Amendment right of Floridians to own and bear
firearms,” id. at 1312; (2) protecting patient privacy, id. at 1314; and (3) ensur-
ing access to healthcare without discrimination or harassment, id. Because
these interests are not directly relevant to the issue before the Court today, I
do not discuss them further.
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19-10604 ROSENBAUM, J., Dissenting 43
the dangers firearms can pose, and to routinely remind patients to
use firearm safety locks, store firearms under lock and key, and
store ammunition separately from firearms. Id. at 1301–02. So, we
recognized, asking about firearms for preventative-care purposes
was the standard of care. See id. at 1317 (referring to this as the
“applicable standard of care”). And we found it significant that the
FOPA provision forbade healthcare professionals from complying
with that standard of care. See id. at 1317 (holding that Florida’s
interest in regulating the medical profession was not sufficient to
satisfy heightened scrutiny, “[g]iven [among other things] that the
applicable standard of care encourages doctors to ask questions
about firearms (and other potential safety hazards)[]”).
The differences between Wollschlaeger and this case are
stark.
For starters, the FOPA provision in Wollschlaeger could not
survive scrutiny because, among other reasons, while the state pro-
fessed an interest in protecting the public health, FOPA could be
understood to require licensed healthcare providers to violate the
standard of care—and to do so based on no evidence that the stand-
ard of care was dangerous or medically wrong. I’m unaware of any
“long (if heretofore unrecognized) tradition” of state laws that de-
mand that licensed professionals intentionally fail to comply with
a standard of care that is not dangerous or medically wrong. And
it’s difficult to imagine how such a law would fall within the state’s
police power to protect the public health and welfare.
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44 ROSENBAUM, J., Dissenting 19-10604
Unlike the invalidated FOPA provision, the exception to the
normal First Amendment rules I rely on requires licensed
healthcare providers to comply with the standard of care (and to
do so based on evidence)—exactly the type of regulation that states
have long and traditionally imposed. So while a long tradition ex-
ists of government regulation requiring healthcare providers who
use speech to administer healthcare treatment techniques to com-
ply with the substantive standard of care, there’s no tradition of
government regulations requiring licensed healthcare profession-
als to violate the substantive standard of care.
That’s not surprising, of course. Laws that require licensed
healthcare professionals to violate the substantive standard of care
would not satisfy even rational-basis scrutiny because they would
not be “reasonable,” the standard of scrutiny Casey, 505 U.S. at 884,
applied to the NIFLA exception encompassed there.
The Concurrence misguidedly dismisses these distinctions
as meaningless. See Conc. at 11–13. But the distinction between a
long tradition of government regulation requiring healthcare pro-
fessionals to comply with the standard of care in one case and the
absence of any tradition of government regulation requiring
healthcare professionals to violate the standard of care in the other
is exactly the difference NIFLA said was meaningful. NIFLA, 138
S. Ct. at 2372 (explaining that speech could not be regulated “with-
out persuasive evidence of a long (if heretofore unrecognized) tra-
dition to that effect”). And this distinction is the reason why regu-
lations requiring licensed professionals to comply with the
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19-10604 ROSENBAUM, J., Dissenting 45
substantive standard of care can fall into a NIFLA subcategory of
reasonable and otherwise-permissible content-based regulations
and the regulation at issue in Wollschlaeger never can. The mean-
ingfulness of the other distinction is self-evident: laws that require
compliance with the prevailing standard of care are reasonable
while laws that require violation of that standard are not.
Plus, in Wollschlaeger, Florida’s preclusion of compliance
with the standard of care where Florida had made neither any
claims nor presented any evidence to show that the standard of
care was wrong or harmful, was not consistent with Florida’s
stated interest in “regulat[ing] the medical profession in order to
protect the public.” 848 F.3d at 1316. So it could not be justified as
a proper exercise of the police power to protect the public health.
On the other hand, when a healthcare treatment technique violates
the standard of care and causes clients serious harm and even
death, prohibiting its practice is consistent with the state’s police
power to protect the public health.
One last point: Wollschlaeger—issued before NIFLA—
obviously did not have the benefit of NIFLA’s discussion of the
overbroad category of “professional speech” and exceptions to the
usual First Amendment rules. So it never considered whether—or
rejected the notion that—any exceptions to the usual First Amend-
ment presumption against content-based laws might apply.
For these reasons, my argument about a third subcategory
of content-based exceptions to the usual First Amendment rules
does not in any way conflict with Wollschlaeger.
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46 ROSENBAUM, J., Dissenting 19-10604
II. Laws that altogether prohibit licensed professionals from
performing Life-threatening Treatment Techniques on vul-
nerable populations from whom informed consent cannot
be reliably obtained (and thus prohibit the administration of
SOCE talk therapy on minors) do not violate the First
Amendment.
For the reasons I’ve just described, this third subcategory of
professional-speech regulation—laws requiring licensed profes-
sionals to comply with the substantive standard of care when they
administer healthcare treatments through words—is excepted
from the content-based usual First Amendment rules. So state and
local governments can generally require licensed professionals to
comply with the standard of care.
This section explains why, within that authority, state and
local governments may prohibit licensed professionals from prac-
ticing, on populations from whom informed consent cannot relia-
bly be obtained, treatment techniques that (1) do not meet the pre-
vailing standard of care, (2) are not shown to be efficacious, and (3)
are associated with a significant increase in the risk of death. For
ease of reference, I call this category of speech that meets all of
these criteria “Life-threatening Treatment Techniques.”
Section A explains how informed consent can expand what
treatments can be considered to comply with the standard of care.
Section B discusses the unique problems of obtaining reliable in-
formed consent from vulnerable populations in certain circum-
stances. And Section C shows that governments may prohibit the
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19-10604 ROSENBAUM, J., Dissenting 47
practice of Life-threatening Treatment Techniques on vulnerable
populations from whom informed consent cannot reliably be ob-
tained and that SOCE is one such treatment technique.
A. Under the standard of care (and under regulations that re-
quire compliance with it), licensed providers generally may
be able, after obtaining proper informed consent, to admin-
ister talk therapy that otherwise would violate the standard
of care.
The Supreme Court has expressly recognized the authority
of the states to require licensed healthcare professionals to obtain
informed consent from their clients before proceeding with
healthcare treatment—even though doing so requires healthcare
providers to speak certain words. See Casey, 505 U.S. at 881 (“Our
prior decisions establish that as with any medical procedure, the
State may require a woman to give her written informed consent
to an abortion.”). To obtain their clients’ voluntary and informed
consent to proceed, these laws require healthcare providers to in-
form their clients about the good, the bad, and the ugly of the
healthcare treatment techniques they propose to use on them. As
the Supreme Court has acknowledged, these types of laws “regu-
late[] speech only as part of the practice of medicine, subject to rea-
sonable licensing and regulation by the State.” NIFLA, 138 S. Ct.
at 2373 (cleaned up). They therefore do not violate the First
Amendment. See id.
Obtaining informed consent is not only often required by
the law, but it is also the standard of care in healthcare treatment.
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48 ROSENBAUM, J., Dissenting 19-10604
See, e.g., Timothy J. Paterick, “Medical Informed Consent: Gen-
eral Considerations for Physicians,” Mayo Clinic Proceedings, Vol.
83(3), 313 (Mar. 2008), https://www.mayoclinicproceed-
ings.org/article/S0025-6196(11)60864-1/pdf (last visited July 15,
2022) (“Physicians need to understand informed medical consent
from an ethical foundation, as codified by statutory law in many
states, and from a generalized common-law perspective requiring
medical practice consistent with the standard of care.”); Erica S.
Spatz, M.D., M.H.S., et al., “The New Era of Informed Consent:
Getting to a Reasonable-Patient Standard Through Shared Deci-
sion Making,” JAMA, 2063 (2016),
https://jamanetwork.com/journals/jama/fullarticle/2516469
(describing the obtaining of informed consent as a “well-ingrained
ethical-legal process”); Daniel E. Hall, M.D., M. Div., et al., “In-
formed consent for clinical treatment,” Canadian Med. Ass’n J.,
Mar. 20, 2012, v. 184(5), 533 (“Informed consent has become the
primary paradigm for protecting the legal rights of patients and
guiding the ethical practice of medicine.”); “A Practical Guide to
Informed Consent,” https://landing.templehealth.org/ic-
toolkit/html/ictoolkitpage5.html (last visited July 15, 2022) (“In-
formed consent is an ethical concept—that all patients should un-
derstand and agree to the potential consequences of their care—
that has become codified in the law and in daily practice at every
medical institution.”).
I’ll assume for the purposes of this dissent that, if the
healthcare provider’s disclosure of the healthcare treatment
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19-10604 ROSENBAUM, J., Dissenting 49
technique is accurate and complete and the client still knowingly
and voluntarily agrees to undergo the technique, the healthcare
provider generally does not violate the standard of care by admin-
istering that technique to the client—even if the treatment tech-
nique itself would otherwise violate the substantive standard of
care.20
20 Because the standard of care demands healthcare professionals who admin-
ister healthcare techniques that violate it first obtain informed consent, laws
requiring licensed professionals to comply with the substantive standard of
care are effectively laws requiring licensed professionals to obtain informed
consent if they perform healthcare treatment techniques that do not comply
with the substantive standard of care. This fact is another reason a strong ar-
gument can be made that regulations that require licensed mental-healthcare
professionals who administer talk therapy to comply with the substantive
standard of care qualify as permissible content-based regulations of speech in-
cidental to the conduct of practicing medicine, in accordance with the Casey
exception. See supra at note 15; see also Casey, 505 U.S. at 881 (recognizing
that “with any medical procedure, the State may require a [client] to give her
written informed consent”). When we view as informed-consent regulations
those regulations requiring licensed mental-healthcare professionals to com-
ply with the substantive standard of care in administering talk therapy, that
also distinguishes them from any kind of regulations of “teaching or protest-
ing,” “[d]ebating . . . [or] [b]ook clubs.” Otto, 981 F.3d at 865; Conc. at 6. And
prohibiting the practice of talk therapy on vulnerable populations for which
informed consent cannot reliably be obtained is simply a consequence of the
inability to reliably obtain informed consent. Again, though, while I note
these facts, the argument in my dissent assumes that laws that require licensed
professionals to comply with the substantive standard of care when they ad-
minister talk therapy do not fall into the Casey category.
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50 ROSENBAUM, J., Dissenting 19-10604
B. Informed consent to SOCE talk therapy cannot be reliably
obtained from minors.
But for some treatments that do not meet the standard of
care, informed consent cannot be reliably obtained from popula-
tions who are uniquely vulnerable for reasons unrelated to the na-
ture of the treatment.
Take SOCE talk therapy, for example. Unemancipated mi-
nors are generally entirely reliant on their parents for their shelter,
food, and day-to-day living environments. Caitlin Ryan, et al.,
“Parent-Initiated Sexual Orientation Change Efforts With LGBT
Adolescents: Implications for Young Adult Mental Health and Ad-
justment,” J. of Homosexuality 1, 3 (Nov. 7, 2018),
https://www.utah.gov/pmn/files/513643.pdf. Not only that, but
children often crave their parents’ acceptance and love. So parents
who disapprove of their child’s sexual orientation or gender iden-
tity have several strings they can easily and forcefully pull to coerce
their child to undergo SOCE. Id. (“SOCE with minors raises dis-
tinct ethical concerns. These include determining what constitutes
appropriate consent, the potential for pressure from parents and
other authority figures, the minor’s dependence on adults for emo-
tional and financial support, and the lack of information regarding
the impact of SOCE on their future health and wellbeing.”); cf.,
e.g., Hannah Clay Wareham, Survivor: MIT grad student remem-
bers ‘ex-gay’ therapy (Aug. 25, 2011),
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19-10604 ROSENBAUM, J., Dissenting 51
https://providence.edgemedianet-
work.com/story.php?ch=news&sc=local&id=123810&survi-
vor:_mit_grad_student_remembers_%22ex-gay%22_therapy (re-
porting that a 12-year-old whose father inflicted injuries on him
that landed him in the hospital “seven times in quick succession”
after he admitted to his father that he had same-sex attractions sub-
mitted to physical conversion therapy to appease his parents).
The Q Christian Fellowship reported that “[s]ome youth
have told [the] Trevor [Project] that, after coming out to their par-
ents as LGBTQ, their family members responded by threatening to
cut off contact and support unless they agreed to attend conversion
therapy.” Q Christian Fellowship, supra, at 12. And “[o]thers have
been estranged from family, with the restoration of relationships
conditioned explicitly on their consent to attempt to change.” Id.
As a result, “too many youth feel[] like conversion therapy might
be their ‘only’ option.” Id.
By definition, minors in this situation cannot give consent
because their submission to SOCE is coerced. Cf. Schneckloth v.
Bustamonte, 412 U.S. 218, 228 (1973) (noting that consent cannot
be coerced for Fourth and Fourteenth Amendment purposes); Fla.
Stat. § 794.011(1)(a) (defining “consent” as used in Florida Statutes
chapter on sexual battery as “intelligent, knowing, and voluntary
consent and does not include coerced submission”). But as a prac-
tical matter, it’s obviously not possible to preclude licensed profes-
sionals from performing SOCE talk therapy on only coerced mi-
nors because many of them will not reveal the coercion for the
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52 ROSENBAUM, J., Dissenting 19-10604
same reasons that they are coerced into submitting to SOCE in the
first place.
Nor is it any answer to say that the parents are the ones who
must provide their informed consent. Att’y ad Litem for D.K. v.
Parents of D.K., 780 So. 2d 301, 310 (Fla. Dist. Ct. App. 2001) (“We
recognize the tension apparent in the law between the rights and
responsibilities of parents and the rights of children. Certainly, to
promote strong families, parents should be involved and active in
the lives of their children, including their health care, for which the
parents are held responsible. Unfortunately, sometimes the par-
ents are the cause of abuse, both emotional and physical, of their
children.”). After all, we are talking about an affirmative purported
healthcare “treatment” with no proven benefits and significant life-
threatening consequences to the child client—who is the only one
who must endure the technique and its consequences—without
their consent. See, e.g., Caitlin Ryan, supra, at 9 (“Results from this
study clearly document that parent/caregiver efforts to change an
adolescent’s sexual orientation are associated with multiple indica-
tors of poor health and adjustment in young adulthood.”). Plus,
courts have recognized minors’ rights in their relationships with
their therapists. See, e.g., Att’y ad Litem for D.K., 780 So. 2d at 301
(holding in the circumstances of the case that minor child’s parents
were not entitled to either assert or waive the psychotherapist-pa-
tient privilege on their minor child’s behalf).
C. Government can adopt, as a subset of permissible laws reg-
ulating treatment techniques that do not comply with the
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19-10604 ROSENBAUM, J., Dissenting 53
substantive standard of care, regulations prohibiting the
practice of Life-threatening Treatment Techniques on those
from whom consent cannot reliably be obtained.
When performed by licensed professionals for the purpose
of addressing a health condition, talk therapy—even talk therapy
that is not proven efficacious and is associated with a significant
increase in death—is still, at least in name, a healthcare treatment
technique. And the government’s ability to regulate licensed pro-
fessionals’ practice of the healthcare treatment technique of talk
therapy—regardless of the talk therapy at issue—still arises from its
police power to protect the public health and safety. See Dobbs,
2022 WL 2276808, at *42 (observing that “health and welfare laws
[are] entitled to a ‘strong presumption of validity’”) (internal cita-
tion omitted). It would make little sense if the government’s ability
to protect the public health and safety from talk therapy because it
did not comply with the standard of care extended to only disci-
plining licensed professionals after they had used life-threatening
and unproven types of talk therapy, but not to protecting vulnera-
ble populations from being subjected against their will to such
treatment techniques in the first place.
Indeed, the government has a legitimate (actually, compel-
ling) interest in protecting the health and safety of these vulnerable
populations from the practice of purported talk therapy adminis-
tered solely to address a client’s health condition—but that (1)
doesn’t conform to the standard of care, (2) is not shown to be ef-
ficacious, and (3) is associated with a significantly increased risk of
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54 ROSENBAUM, J., Dissenting 19-10604
death. (As a reminder, I refer to talk therapy with these three char-
acteristics as “Life-threatening Treatment Techniques.”) After all,
the Supreme Court has said that “respect for and preservation of
prenatal life” is a legitimate and substantial governmental interest.
Dobbs, 2022 WL 2276808, at *42; see also Casey, 505 U.S. at 876
(characterizing states as having “a substantial interest in potential
life”). So respect for and protection of the lives of children who
already walk this earth must be at least that as well. To be sure,
the Supreme Court has recognized as much in upholding state laws
prohibiting physician-assisted suicide. Washington v. Glucksberg,
521 U.S. 702, 728 (1997) (recognizing the state’s “unqualified inter-
est in the preservation of human life”) (citation and quotation
marks omitted). And laws that prohibit the performance of Life-
threatening Treatment Techniques by licensed professionals on
vulnerable populations from which informed consent cannot relia-
bly be obtained certainly are reasonable and can be narrowly
drafted to further a compelling interest.
In this section, I will show that (1) the category of laws re-
quiring compliance with a standard of care includes (as a subset)
laws prohibiting Life-threatening Treatment Techniques; (2) the
definition of Life-threatening Treatment Techniques has legally as-
certainable guardrails; (3) laws regulating Life-threatening Treat-
ment Techniques must be (at least) “reasonable” but could also sur-
vive heightened scrutiny; and (4) SOCE therapy is a Life-threaten-
ing Treatment Technique and so a law prohibiting its practice on
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19-10604 ROSENBAUM, J., Dissenting 55
those from whom informed consent cannot reliably be obtained
does not violate the First Amendment.
1. Laws that prohibit licensed professionals from per-
forming Life-threatening Treatment Techniques for
which informed consent cannot reliably be obtained
are a subset of laws requiring licensed professionals to
comply with the substantive standard of care.
As I have explained, the law has long had a tradition of reg-
ulations that require licensed healthcare professionals—including
mental-healthcare professionals—to comply with the substantive
standard of care in administering their treatment techniques
(“Standard-of-Care Compliance Laws”). The laws at issue here—
which prohibit licensed healthcare professionals from practicing
Life-threatening Treatment Techniques for which informed con-
sent cannot reliably be obtained—necessarily compose a subset of
these Standard-of-Care Compliance Laws.
Put another way, obtaining informed consent is an essential
part of the standard of care when the healthcare treatment tech-
nique would otherwise violate the standard of care.21 But for some
identifiable vulnerable populations, informed consent cannot reli-
ably be obtained. So it necessarily follows that practicing Life-
threatening Treatment Techniques (which always require
21 Of course, informed consent is often required, regardless of the healthcare
treatment technique.
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56 ROSENBAUM, J., Dissenting 19-10604
informed consent) on populations from whom informed consent
cannot reliably be obtained will always violate the standard of care.
And government may prohibit the practice of these Life-
threatening Treatment Techniques on vulnerable populations. In
fact, the Supreme Court upheld a law in Glucksberg that had es-
sentially that effect, though it was challenged on substantive-due-
process grounds, not on a First Amendment basis.
In Glucksberg, several physicians wished to treat their ailing
clients’ terminal pain by assisting them in committing suicide. 521
U.S. at 707. They challenged a state ban on assisted suicide as un-
constitutional, asserting a violation of their patients’ alleged sub-
stantive-due-process liberty interest in “determining the time and
manner of one’s death.” Id. at 722.
The Supreme Court upheld the ban. It observed that state
law had long recognized that “[i]f one counsels another to commit
suicide, and the other by reason of the advice kills himself, the ad-
visor is guilty of murder as principal.” Id. at 714 (citation and quo-
tation marks omitted) (emphasis added).
Then the Court noted that consent makes no difference. See
id. at 716 (stating that under the Model Penal Code, “the interests
in the sanctity of life that are represented by the criminal homicide
laws are threatened by one who expresses a willingness to partici-
pate in taking the life of
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