Amicus Curiae Brief — Brian Tingley, Petitioner v. Robert W. Ferguson, Attorney General of Washington, et al.

No. 22-942

In the

Supreme Court of the United States

_________________________

BRIAN TINGLEY,

Petitioner,

v.

ROBERT W. FERGUSON, in his official capacity as

Attorney General for State of Washington, et al.,

Respondents.

_________________________

On Writ of Certiorari to the United States Court of

Appeals for the Ninth Circuit

_________________________

BRIEF OF AMICUS CURIAE

CATHOLICVOTE.ORG EDUCATION FUND IN

SUPPORT OF PETITIONER

_____________________

Scott W. Gaylord

201 North Greene Street

Greensboro, NC 27401

Phone: (336) 279-9331

Email: sgaylord@elon.edu

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................... ii

INTERESTS OF AMICUS ....................................... 1

ARGUMENT ........................................................... 2

I. SB 5722 imposes a content-based restriction

on government-disfavored speech, severely

limiting the rights of professionals to speak

and the rights of their patients to receive

professional advice. ....................................... 3

II. Tingley’s “speech is conduct” rule conflicts

with NIFLA and impermissibly empowers

governments to regulate disfavored speech

just by labeling that speech as conduct. ....... 12

CONCLUSION ...................................................... 24

ii

TABLE OF AUTHORITIES

Cases

Ashcroft v. ACLU,

535 U.S. 564 (2002) .............................................. 4

Brown v. Ent. Merchs. Ass’n,

564 U.S. 786 (2011) ............................................ 10

Cohen v. California¸

403 U.S. 15 (1971) .............................. 5, 11, 13, 20

EMW Women’s Surgical Center, P.S.C. v. Beshear,

920 F.3d 421 (6th Cir. 2019) .............................. 11

Erznoznik v. City of Jacksonville,

422 U.S. 205 (1975) ............................................ 10

FCC v. League of Women Voters of Cal.,

468 U.S. 364 (1984) .............................................. 5

First Nat. Bank of Boston v. Bellotti,

435 U.S. 765 (1978) .............................................. 9

Giboney v. Empire Storage & Ice Co.,

336 U.S. 490 (1949) ...................................... 14, 15

Gonzales v. Carhart,

550 U.S. 124 (2007) ............................................ 11

Holder v. Humanitarian Law Project,

561 U.S. 1 (2010) .................................... 5, 6, 7, 13

iii

Hurley v. Irish-American Gay, Lesbian, and Bisexual

Group of Boston,

515 U.S. 557 (1995) ............................ 8, 16, 17, 24

King v. Governor of New Jersey,

767 F.3d 216 (3d Cir. 2014) ..................... 2, 13, 15,

Kleindienst v. Mandel,

408 U.S. 753 (1972) ............................................ 10

Marbury v. Madison,

5 U.S. 137 (1803) ................................................ 11

McCullen v. Coakley,

573 U.S. 464 (2014) .............................................. 5

Moore-King v. County of Chesterfield,

708 F.3d 560 (4th Cir. 2014) ................................ 3

NAACP v. Button,

371 U.S. 415 (1963) ...................................... 12, 20

Nat’l Inst. of Family and Life Advocates v. Becerra,

138 S.Ct. 2361 (2018) ...................... .2-4, 11-15, 21

Ohralik v. Ohio State Bar Ass’n,

436 U.S. 447 (1978) ............................................ 15

Otto v. City of Boca Raton,

981 F.3d 854 (11th Cir. 2020) ..... 2, 5-9, 13, 15, 18

Pacific Gas & Electric Co. v. Public Utilities

Comm’n of Cal.,

475 U.S. 1 (1986) ..............................................9, 16

iv

Pickup v. Brown,

740 F.3d 1208 (9th Cir. 2014)...... 2-4, 6, 14, 19, 21

Planned Parenthood of Se. Pa. v. Casey,

505 U.S. 833 (1992) ............................................ 15

Pleasant Grove City v. Summum,

555 U.S. 460 (2009) .............................................. 9

R.A.V. v. St. Paul,

505 U.S. 377 (1992) ............................................ 15

Reed v. Town of Gilbert,

576 U.S. 155 (2015) .............................................. 5

Riley v. Nat’l Fed. of the Blind of N.C., Inc.,

487 U.S. 781 (1988) ............................... 12,, 17, 20

Rosenberger v. Rector and Visitors

of Univ. of Va.,

515 U.S. 819 (1995) .............................................. 9

Rumsfeld v. Forum for Academic and

Inst. Rights, Inc.,

547 U.S. 47 (2006) .............................................. 15

Seattle Times Co. v. Rhinehart,

467 U.S. 20 (1984) ................................................ 6

Snyder v. Phelps,

562 U.S. 443 (2011) ............................................ 10

Sorrell v. IMS Health Inc.,

564 U.S. 552 (2011) .................................. 6, 10, 14

v

Telescope Media Group v. Lucero,

936 F.3d 740 (8th Cir. 2019) .............................. 20

Texas v. Johnson,

491 U.S. 397 (1989) .................................. 9, 18, 20

Tingley v. Ferguson,

47 F.4th 1055 (9th Cir. 2022) ..................................

...................................... 1, 4, 7, 11, 14, 18-21, 23, 24

Tingley v. Ferguson,

57 F.4th 1072 (9th Cir. 2023) .................... 1, 12, 14

Turner Broad. Sys., Inc. v. FCC,

512 U.S. 622 (1994) .......................................... 5, 7

United States v. Stevens,

559 U.S. 460 (2010) ..................................15, 17, 18

W. Va. State Bd. of Ednew vuc. v. Barnette,

319 U.S. 624 (1943) .......................................... 7, 8

Wollschlaeger v. Governor of Florida,

848 F.3d 1293 (11th Cir. 2017) ........ 13, 17, 19, 21

Zauderer v. Office of Disciplinary Counsel of

Supreme Court of Ohio,

471 U.S. 626 (1985) ............................................ 13

Statutes

Wash. Rev. Code § 18.130.020

(SB 5722) ................................ 1, 3, 5-7, 13-17, 24

vi

Other Authorities

ABA, Model Rules of Professional Conduct,

Rule 8.4 (Aug. 2016) ....................... 21, 22, 23, 24

Memorandum, Standing Committee on Ethics and

Professional Responsibility,

December 22, 2015 ...............................................23

Ronald D. Rotunda, Heritage Foundation Legal

Memorandum (No. 191), “The ABA Decision to

Control What Lawyers Say: Supporting

‘Diversity’ but not Diversity of Thought”

(Oct. 6, 2016) ........................................................23

1

INTERESTS OF AMICUS1

CatholicVote.org Education Fund (“CVEF”) is a

nonpartisan voter education program devoted to

serving the Nation by supporting educational

activities that promote an authentic understanding

of ordered liberty and the common good. Given its

educational mission, CVEF is deeply concerned that

Tingley v. Ferguson, 47 F.4th 1055 (9th Cir. 2022)

poses a threat to the ability of professionals in any

licensed field to speak freely when treating,

counseling, representing, or advising their patients

and clients. If States are permitted to transform a

professional’s speech into conduct whenever they

impose a licensing requirement, the government will

be able to censor specific topics and viewpoints with

which it disagrees. Wash. Rev. Code § 18.130.020(4)

(“SB 5722”) does just that, precluding disfavored

speech during counseling sessions between licensed

counselors and their minor clients. The Ninth

Circuit’s analysis vests Washington with the

authority to impose content-based restrictions on

expression in any professional field. Tingley v.

Ferguson, 57 F.4th 1072, 1077 (9th Cir. 2023)

(O’Scannlain, J., statement respecting the denial of

rehearing en banc) (explaining that under the

panel’s analysis “the First Amendment would not

protect legal advice …, education, …, or

1 Each party received notice of the filing of this amicus

brief as required by Rule 37.2. Pursuant to Rule 37.6,

amicus states that no counsel for a party authored this

brief in whole or in part, and no person other than the

amicus and its counsel made any monetary contribution

intended to fund the preparation or submission of this

brief.

2

advertising”). This holding conflicts with Nat’l Inst.

of Family and Life Advocates v. Becerra, 138 S.Ct.

2361 (2018) as well as decisions from the Third and

Eleventh Circuits. King v. Governor of New Jersey,

767 F.3d 216 (3d Cir. 2014), abrogated in part by

NIFLA, 138 S.Ct. at 2371-72; Otto v. City of Boca

Raton, 981 F.3d 854 (11th Cir. 2020). CVEF,

therefore, comes forward to support the right of all

professionals to practice their vocation (and convey

their views) in a manner that is consistent with their

training, expertise, and (as here) religious faith.

ARGUMENT

This case centers on (what appears to be) an easy

and straightforward question: Is professional speech

speech? This Court, along with the Third and

Eleventh Circuits, has said that the answer is “yes:”

“Speech is not unprotected merely because it is

uttered by ‘professionals.’ ” NIFLA, 138 S.Ct. at

2371; King, 767 F.3d at 224; Otto, 981 F.3d at 861.

Although some types of speech (e.g., commercial

speech and expressive conduct) receive somewhat

diminished protection and a few types fall within a

narrow subset of unprotected speech (e.g., obscenity

and fighting words), speech is speech. Accordingly,

“this Court has not recognized ‘professional speech’

as a separate category of speech” subject to a unique

set of rules. NIFLA, 138 S.Ct. at 2371.

Surprisingly, the Ninth Circuit reached the

opposite conclusion, contradicting its sister circuits

and NIFLA. Relying directly on Pickup v. Brown,

Tingley held that professional speech is non-speech

conduct

under

certain,

largely

unspecified

circumstances. 740 F.3d 1208, 1230 (9th Cir. 2014)

(“We further conclude that the First Amendment

3

does not prevent a state from regulating treatment

even when that treatment is performed through

speech alone.”).

Tingley upheld SB 5722 even

though it imposed a content-based and viewpointbased restriction on Tingley, preventing him from

engaging in talk therapy with his minor clients. The

panel neither provided a test for its novel “speech is

conduct” rule nor articulated any limiting principles

that might cabin that rule. As a result, States in the

Ninth Circuit may regulate—and even ban—

disfavored professional speech simply by labeling it

conduct. Certiorari is required to resolve the circuit

split and to ensure that the government cannot

sidestep the First Amendment by reclassifying

professional speech as professional conduct.

I. SB 5722 imposes a content-based restriction

on government-disfavored speech, severely

limiting the rights of professionals to speak

and the rights of their patients to receive

professional advice.

The now-discredited professional speech doctrine

viewed professional speech as unique and, therefore,

not subject to traditional First Amendment rules.

The doctrine defined “professionals” as “individuals

who provide personalized services to clients and who

are subject to ‘a generally applicable licensing and

regulatory regime.’ ” NIFLA, 138 S.Ct. at 2371

(quoting Moore-King v. County of Chesterfield, 708

F.3d 560, 569 (4th Cir. 2014)). “Professional speech”

included “any speech by these individuals that is

based on ‘[their] expert knowledge and judgment’ or

that is ‘within the confines of [the] professional

relationship.’ ” Id. (citations omitted). In Pickup,

the Ninth Circuit went farther, holding that

4

professional speech falls along a continuum, with

professional speech on matters of public concern on

one end (greatest protection), professional conduct on

the other (least protection), and speech “within the

confines of a professional relationship” in the middle

(diminished protection). Pickup took California’s

conversion therapy ban to be a regulation of conduct

that at most had “an incidental effect on speech.”

740 F.3d at 1228-29.

In Tingley, the Ninth Circuit revisited Pickup in

the wake of NIFLA’s express criticism of the

professional speech doctrine.

Undeterred, the

Tingley panel doubled down on the Pickup

framework, contending that “NIFLA abrogated only

the ‘professional speech’ doctrine—the part of Pickup

in which we determined that speech within the

confines of a professional relationship (the ‘midpoint’

of the continuum) categorically receives lesser

protection.” 47 F.4th at 1073. Pickup “survive[d]

NIFLA” because Pickup’s “holding rest[ed] upon that

exception [for the regulation of professional conduct

that incidentally burdens speech].” Id. at 1075.

According to the panel, Washington’s ban on

conversion therapy (even when conducted exclusively

through speech) was constitutional because it

regulated only a form of treatment, which was

subject to the States’ police powers: “States do not

lose the power to regulate the safety of medical

treatments performed under the authority of a state

license merely because those treatments are

implemented through speech rather than through

scalpel.” Id. at 1064.

Tingley directly conflicts with NIFLA and the

protection afforded speakers against content-based

and viewpoint-based laws. Ashcroft v. ACLU, 535

5

U.S. 564, 573 (2002) (“[A]s a general matter, the

First Amendment means that government has no

power to restrict expression because of its message,

its ideas, its subject matter, or its content.”). SB

5722 contravenes “the usual rule that governmental

bodies may not prescribe the form or content of

individual expression.” Cohen v. California¸ 403

U.S. 15, 24 (1971). Content-based regulations “pose

the inherent risk that the Government seeks not to

advance a legitimate regulatory goal, but to suppress

unpopular ideas or information.” Turner Broad.

Sys., Inc. v. FCC, 512 U.S. 622, 641 (1994). A

government regulation of expression “is content

based if a law applies to particular speech because of

the topic discussed or the idea or message conveyed.”

Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015). A

hallmark of a content-based regulation is that “it

require[s] ‘enforcement authorities’ to ‘examine the

content of the message that is conveyed to determine

whether’ a violation has occurred.” McCullen v.

Coakley, 573 U.S. 464, 479 (2014) (quoting FCC v.

League of Women Voters of Cal., 468 U.S. 364, 383

(1984)).

There is no doubt that SB 5722 "regulates speech

on the basis of its content,” precluding talk therapy

while allowing professionals to convey reinforcing

messages about sexual orientation and gender

identity. Holder v. Humanitarian Law Project, 561

U.S. 1, 27 (2010) (“HLP”); Otto, 981 F.3d at 863

(“Whether therapy is prohibited depends only on the

content of the words used in that therapy, and the

ban on that content is because the government

disagrees with it.”). Tingley “want[s] to speak to [his

minor clients], and whether [he] may do so under

[SB 5722] depends on what [he] say[s].” HLP, 561

6

U.S. at 27. If Tingley’s speech with minor clients

involves “efforts to change behaviors or gender

expressions, or to eliminate or reduce sexual or

romantic attractions or feelings toward individuals of

the same sex,” Wash. Rev. Code § 18.130.020(4)(a),

“then it is barred” even though it “communicates

advice derived from [his] ‘specialized knowledge.’ ”

HLP, 561 U.S. at 27.

Tingley’s expression is

permitted, however, if it conveys “counseling or

psychotherapies that provide acceptance, support,

and understanding of clients or the facilitation of

clients’ coping, social support, and identity

exploration and development that do not seek to

change sexual orientation or gender identity.” Wash.

Rev. Code, § 18.130.020(4)(b). Thus, state-approved

messages are allowed, while Tingley’s desired

message is barred. Sorrell v. IMS Health Inc., 564

U.S. 552, 5687 (2011) (“An individual’s right to speak

is implicated when information he or she possesses is

subjected to ‘restraints on the way in which the

information might be used’ or disseminated.”)

(quoting Seattle Times Co. v. Rhinehart, 467 U.S. 20,

32 (1984)).

Allowing Tingley to express other statements

related to conversion therapy does not cure the

constitutional violation.

Otto, 981 F.3d at 863

(“[T]he constitutional problem posed by speech bans

like this one is not mitigated when closely related

forms of expression are considered acceptable.”);

Pickup, 740 F.3d at 1217 (O’Scannlain, J., dissenting

from the denial of rehearing en banc) (“The

reasoning of [HLP] specifically forecloses courts from

approving a statutory restriction on speech simply

because it still permits various and extensive

political expression.”). While SB 5722 allows Tingley

7

to “communicat[e] with the public about conversion

therapy; express[ his] personal views to patients

(including minors) about conversion therapy, sexual

orientation, or gender identity; … or refer[] minors

seeking conversion therapy to” others not covered by

SB 5722, it still precludes him from engaging in talk

therapy. Tingley, 47 F.4th at 1065. Because some

topics are permitted while others are not, whether

his speech is banned “depend[s] on what is said.”

Otto, 981 F.3d at 861. This is a content-based

restriction of speech the government dislikes: “[t]he

First Amendment does not protect the right to speak

about banned speech; it protects speech itself, no

matter how disagreeable that speech might be to the

government.” Id. at 863; HLP, 561 U.S. at 25-26

(finding a violation of the First Amendment even

though plaintiffs remained able to “say anything

they wish on any topic,” including the ability to

“speak and write freely about the PKK and LTTE,

the governments of Turkey and Sri Lanka, human

rights, and international law”). Where, as here, “the

conduct triggering coverage under the statute

consists of communicating a message,” First

Amendment protections adhere. Id.; W. Va. State

Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943)

(“[N]o official, high or petty, can prescribe what shall

be orthodox in politics, nationalism, religion, or other

matters of opinion or force citizens to confess by

word or act their faith therein.”); Turner, 512 U.S. at

641 (affirming that “[a]t the heart of the First

Amendment lies the principle that each person

should decide for himself or herself the ideas and

beliefs deserving of expression, consideration, and

adherence”).

8

Drawing on their training and experience,

professionals, such as Tingley, convey specific

messages to their patients and clients, exercising

their “right as a private speaker to shape [their]

expression by speaking on one subject while

remaining silent on another.”

Hurley v. IrishAmerican Gay, Lesbian, and Bisexual Group of

Boston, 515 U.S. 557, 574 (1995). Washington

disagreed with the message Tingley sought to

communicate through talk therapy.

And “[t]he

message it disfavored is not difficult to identify.” Id.

The State opposed conversion therapy based on its

“particular viewpoint about sex, gender, and sexual

ethics.” Otto¸ 981 F.3d at 864. In its place,

Washington codified its own perspective—that

“sexual orientation is immutable, but gender is

not”—and prevented therapists from engaging in

counseling that was inconsistent with the State’s

view.

Id.

By barring particular viewpoints,

Washington skewed the marketplace of ideas,

permitting only state-approved speech on the specific

topic.

The First Amendment prohibits such

expressive gerrymandering:

The very idea that a noncommercial

speech restriction be used to produce

thoughts and statements acceptable to

some groups or, indeed, all people,

grates on the First Amendment, for it

amounts to nothing less than a proposal

to limit speech in the service of

orthodox expression.

The Speech

Clause has no more certain antithesis.

Hurley, 515 U.S. at 579; Barnette, 319 U.S. at 642

(“But freedom to differ is not limited to things that

do not matter much. That would be a mere shadow

9

of freedom. The test of its substance is the right to

differ as to things that touch the heart of the existing

order.”); Otto, 981 F.3d at 862 (“Forbidding the

government from choosing favored and disfavored

messages is at the core of the First Amendment’s

free-speech guarantee.”).

Washington remains free to engage in its own

expression to promote its preferred messages

regarding medical treatments, conversion therapy,

and other issues. Pleasant Grove City v. Summum,

555 U.S. 460, 467 (2009) (explaining that the

government “has the right to speak for itself, … to

say what wishes, and to select the views that it

wants to express”) (cleaned up). But in the realm of

“private speech or expression, government regulation

may not favor one speaker over another.”

Rosenberger v. Rector and Visitors of Univ. of Va.,

515 U.S. 819, 828 (1995). Nor can it censor messages

it dislikes: “Our cases establish that the State cannot

advance some points of view by burdening the

expression of others.” Pacific Gas & Electric Co. v.

Public Utilities Comm’n of Cal., 475 U.S. 1, 20 (1986)

(plurality opinion); First Nat. Bank of Boston v.

Bellotti, 435 U.S. 765, 785-86 (1978) (“Especially

where … the legislature’s suppression of speech

suggests an attempt to give one side of a debatable

public question an advantage in expressing its views

to the people, the First Amendment is plainly

offended.”). The way for the government to promote

its views on sexual orientation and gender identity

(or any other issue) “is not to punish those who feel

differently about these matters. It is to persuade

them that they are wrong.” Texas v. Johnson, 491

U.S. 397, 419 (1989).

10

Unfortunately, Washington takes a different

path. By banning talk therapy, the State violates

both Tingley’s right to speak and the right of his

patients to receive desired information. Sorrell, 564

U.S. at 578 (“The defect in Vermont’s law is made

clear by the fact that many listeners find detailing

instructive.”); Kleindienst v. Mandel, 408 U.S. 753,

762 (1972) (“In a variety of contexts this Court has

referred to a First Amendment right to ‘receive

information and ideas.’ ”).

While Washington

believes talk therapy is ineffective and harmful to

minors, “the Constitution does not permit

government to decide which types of otherwise

protected speech are sufficiently offensive to require

protection for the unwilling listener or viewer.”

Erznoznik v. City of Jacksonville, 422 U.S. 205, 210

(1975); Snyder v. Phelps, 562 U.S. 443, 450 (2011)

(protecting speech even though a jury found it

“outrageous” and experts testified it “had resulted in

severe depression and had exacerbated pre-existing

health conditions”). The First Amendment shields

speech even when the government seeks to protect

children from expression it views as harmful. Brown

v. Ent. Merchs. Ass’n, 564 U.S. 786, 804-05 (2011)

(“Even where the protection of children is the object,

the constitutional limits on governmental action

apply.”). As this Court confirmed in Erznoznik,

“[s]peech that is neither obscene as to youths nor

subject to some other legitimate proscription cannot

be suppressed solely to protect the young from ideas

or images that a legislative body thinks unsuitable

for them.” 422 U.S. at 213-14; Brown, 564 U.S. at

794-95 (holding that the State’s power to protect

children “does not include a free-floating power to

restrict the ideas to which children may be

11

exposed”). Otherwise, the government could “shut

off discourse solely to protect others from hearing it

… effectively empower[ing] a majority to silence

dissidents simply as a matter of personal

predilections.” Cohen, 403 U.S. at 21. This Court

long ago rejected the view that the Constitution

“prescribe[es] limits, and declar[es] that those limits

may be passed at pleasure.” Marbury v. Madison, 5

U.S. 137, 178 (1803). To protect children (or anyone

else) through content-based regulations, the

government must satisfy heightened scrutiny.

NIFLA, 138 S.Ct. at 2371.

Furthermore, Washington cannot justify its

content-based restriction by invoking “the medical

recommendations of expert organizations.” Tingley,

47 F.4th at 1078. While appeals to authority may be

rhetorically powerful, they do not alter the First

Amendment analysis. For example, Casey upheld

Pennsylvania’s informed consent law even though

the district court had “found that ‘[t]he informed

consent requirements of the [Pennsylvania law]

represent a substantial departure from the ordinary

medical requirements of informed consent’ … and

that various provisions of the Pennsylvania law

conflicted with the official positions of ACOG and the

American Public Health Association.”

EMW

Women’s Surgical Center, P.S.C. v. Beshear, 920 F.3d

421, 438 (6th Cir. 2019) (citation omitted). Similarly,

in Gonzales v. Carhart, 550 U.S. 124 (2007) this

Court upheld a federal ban on partial-birth abortion

“despite the district court’s findings that the law was

contrary to certain medical-profession views,

including that ACOG ‘told Congress several times

that the procedure should not be banned.’ ” Beshear,

920 F.3d at 438 (citation omitted).

12

As these cases demonstrate, the views of

professional organizations do not determine the

scope

of

constitutionally

protected

speech.

Professionals

“have

a

host

of

good-faith

disagreements, both with each other and with the

government, on many topics in their respective

fields.” NIFLA, 138 S.Ct. at 2374-75. To protect the

marketplace of ideas, the Court—not the legislature

and not professional organizations—must determine

the constitutionality of the regulation at issue. Id. at

2375 (“[T]he people lose when the government is the

one deciding which ideas should prevail.”); Tingley,

57 F.4th at 1077 (O’Scannlain, J., dissenting from

denial of rehearing en banc) (“But it would make no

sense for the First Amendment to protect speech

through heightened scrutiny while subjecting

legislative determinations of the line between speech

and conduct only to rational basis review.”).

Accordingly, review is needed to determine the

appropriate level of scrutiny for content-based

regulations of professional speech.

II. Tingley’s “speech is conduct” rule conflicts

with NIFLA and impermissibly empowers

governments to regulate disfavored speech

just by labeling that speech as conduct.

Tingley confronts a significant problem. Contentbased regulations of professional speech run

headlong into the First Amendment. NAACP v.

Button, 371 U.S. 415, 438 (1963) (rejecting Virginia’s

attempt to ban the litigation related speech of

NAACP attorneys through a statute precluding

“improper solicitation”); Riley v. Nat’l Fed. of the

Blind of N.C., Inc., 487 U.S. 781, 798 (1988) (finding

speech

compulsions

related

to

professional

13

fundraising unconstitutional); Zauderer v. Office of

Disciplinary Counsel of Supreme Court of Ohio, 471

U.S. 626, 637 n.7 (1985) (noting that, if

communicated outside the commercial speech

context, the lawyer’s statements would have been

“fully protected speech”). This is true even when

“[t]he law … may be described as directed at

conduct, as the law in Cohen was directed at

breaches of the peace, but as applied to plaintiffs the

conduct triggering coverage under the statute

consists of communicating a message.” HLP, 561

U.S. at 28. Moreover, NIFLA confirmed, “[s]peech is

not unprotected merely because it is uttered by

‘professionals.’ ” 138 S.Ct. at 2371-72; King, 767 F.3d

at 225 (“Given that the Supreme Court had no

difficulty characterizing legal counseling as ‘speech,’

we see no reason here to reach the counter-intuitive

conclusion that verbal communications that occur

during SOCE counseling are ‘conduct.’ ”); Otto, 981

F.3d at 867 (“What the governments call a ‘medical

procedure’ consists—entirely—of words…. ‘Speech is

speech, and it must be analyzed as such for purposes

of the First Amendment.’ ”) (quoting Wollschlaeger v.

Governor of Florida, 848 F.3d 1293, 1307 (11th Cir.

2017)).

To avoid subjecting SB 5722’s content-based

restrictions to strict scrutiny, Tingley had three

options. First, the panel could show that there is

“ ‘persuasive evidence … of a long (if heretofore

unrecognized) tradition’ of allowing content-based

restrictions on professional speech.” NIFLA, 138

S.Ct. at 2372. In the alternative, the panel could

argue that SB 5722 should be afforded less

protection

because,

second,

it

“require[s]

professionals to disclose factual, noncontroversial

14

information in their ‘commercial speech,’ ” or, third,

it “regulate[s] professional conduct, even though that

conduct incidentally involves speech.” Id.; Giboney

v. Empire Storage & Ice Co., 336 U.S. 490, 502 (1949)

(“[I]t has never been deemed an abridgement of

freedom of speech or press to make a course of

conduct illegal merely because the conduct was in

part initiated, evidenced, or carried out by means of

language, either spoken, written, or printed.”).

The panel did not pursue the second option for

obvious reasons—SB 5722 does not regulate

commercial speech. Two members of the panel

tried—unsuccessfully—to pigeonhole SB 5722 into

the first exception. The difficulty was that NIFLA

previously held there was no tradition of regulating

professional speech generally or medical speech in

particular. 138 S.Ct. at 2372; Tingley, 57 F.4th at

1078-79 (O’Scannlain, J., dissenting from denial of

rehearing en banc). In addition, having ruled that

talk therapy (consisting entirely of speech) is

conduct, the panel members could not turn around

and assert that this conduct was actually speech

subject to a longstanding, albeit previously

unrecognized, tradition of content-based regulations.

Speech is speech or speech is conduct; the panel

cannot have it both ways.

Not surprisingly, then, Tingley’s central

argument was that SB 5722 is a regulation of

professional conduct that incidentally involves

speech. Tingley, 47 F.4th at 1073 (adopting Pickup’s

position that a ban on “conversion therapy treatment

… was a regulation of conduct” subject only to

“rational basis review”); Sorrell, 564 U.S. at 567

(“[T]he First Amendment does not prevent

restrictions directed at commerce or conduct from

15

imposing incidental burdens on speech.”). To fall

within this category of diminished protection, there

must be some conduct—other than the act of

communication itself—that is the object of the

governmental regulation. Otto, 981 F.3d at 866

(explaining that “the State punishes speech, not

conduct” when “the only conduct which the State

[seeks] to punish [is] the fact of communication”). As

a result, the threshold question is whether SB 5722

regulates expression or conduct. King, 767 F.3d at

224 (recognizing that “the preliminary issue”

involving New Jersey’s ban on conversion therapy “is

whether [the law] has restricted Plaintiffs’ speech or

… merely regulated their conduct”).

Although

“drawing the line between speech and conduct can be

difficult,” this Court “ha[s] long drawn it, and the

line is ‘long familiar to the bar.’ ” NIFLA, 138 S.Ct.

at 2373 (quoting Stevens, 559 U.S. at 468) (cleaned

up).

Examples of regulations of conduct that

incidentally burden speech abound.

Planned

Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 884

(1992) (upholding mandatory disclosures as part of

obtaining informed consent to a physician’s

performing an abortion); Ohralik v. Ohio State Bar

Ass’n, 436 U.S. 447, 456 (1978) (“In-person

solicitation by a lawyer of remunerative employment

is a business transaction in which speech is an

essential but subordinate component.”); Rumsfeld v.

Forum for Academic and Inst. Rights, Inc., 547 U.S.

47, 62 (2006) (bans on discrimination in hiring

prohibiting a “White Applicants Only” sign); R.A.V.

v. St. Paul, 505 U.S. 377, 385 (1992) (“an ordinance

against outdoor fires” preventing “burning a flag”);

Giboney, 336 U.S. at 502 (antitrust laws precluding

16

“agreements in restraint of trade”). In these cases,

the government regulated the underlying conduct,

not the speech itself.

SB 5722 does the opposite; it regulates

professional speech directly—even though the First

Amendment

precludes

such

speech-focused

regulations. Hurley illustrates the point. Although

public

accommodations

laws

generally

are

constitutional when applied to a business’s conduct,

Hurley, 515 U.S. at 572 (noting that on its face the

Massachusetts

public

accommodations

law

prohibited “the act of discriminating against

individuals in the provision of publicly available

goods, privileges, and services on the proscribed

grounds”), the Court held that such laws must yield

to the First Amendment when “the sponsors’ speech

itself [is taken] to be the public accommodation.” Id.

at 573. Massachusetts could not treat expression as

conduct and then claim a broader authority to

regulate that expression: “While the law is free to

promote all sorts of conduct in place of harmful

behavior, it is not free to interfere with speech for no

better reason than promoting an approved message

or discouraging a disfavored one, however

enlightened either purpose may strike the

government.” Id. at 579. The Massachusetts public

accommodations law could not be “applied in a

peculiar way”—to the organizers’ expression itself—

because “this use of the State’s power violates the

fundamental rule of protection under the First

Amendment, that a speaker has the autonomy to

choose the content of his own message.” Id. at 573.

The same analysis applies to professional speech.

PG&E, 475 U.S. at 11 (noting that “all speech

inherently involves choices of what to say and what

17

to leave unsaid”). That Hurley involved a speech

compulsion while SB 5722 imposes a speech

restriction does not alter the constitutional analysis.

Riley, 487 U.S. at 796 (“[I]n the context of protected

speech, the difference [between compelled speech

and compelled silence] is without constitutional

significance.”). The government generally has no

power to compel speech it likes or to censor speech it

disfavors given that the point of the First

Amendment’s “general rule, that the speaker has the

right to tailor the speech, … is simply the point of all

speech protection, which is to shield just those

choices of content that in someone’s eyes are

misguided, or even hurtful.” Hurley, 515 U.S. at

573-74. Labeling expression (whether the selection

of parade components or talk therapy) as conduct

(marching in the street or treatment) does not

magically transform speech into conduct. If it did,

Hurley would have come out the other way.

Wollschlaeger, 848 F.3d at 1308 (citation omitted)

(“[T]he enterprise of labeling certain verbal or

written communications ‘speech’ and others ‘conduct’

is unprincipled and susceptible to manipulation.”).

Instead, Hurley recognized that if the

Massachusetts law was permitted to regulate the

organizers’ expression, “any contingent of protected

individuals with a message would have the right to

participate in petitioners’ speech.” Hurley, 515 U.S.

at 573. Similarly, if SB 5722 is permitted to ban

professional speech, state legislatures would have

the authority to regulate a professional’s speech with

her patient based “ ‘upon a categorical balancing of

the value of the speech against its societal costs.’ ”

Stevens, 559 U.S. at 470 (citation omitted). That is

what Washington did—banned conversion therapy

18

because its legislature concluded that such therapy

was ineffective, disfavored by various professional

groups, and harmful to minors. Tingley, 47 F.4th at

1064-65.

The problem is that Stevens expressly rejected

this type of balancing test:

The First Amendment’s guarantee of

free speech does not extend only to

categories of speech that survive an ad

hoc balancing of relative social costs

and benefits. The First Amendment

itself reflects a judgment by the

American people that the benefits of its

restrictions

on

the

Government

outweigh the costs. Our Constitution

forecloses any attempt to revise that

judgment simply on the basis that some

speech is not worth it.

559 U.S. at 470. The Washington legislature may

view talk therapy as “valueless or unnecessary,” but

its “ad hoc calculus of costs and benefits” does not

determine the scope of First Amendment protection.

Id. at 471; Johnson, 491 U.S. at 414 (“If there is a

bedrock principle underlying the First Amendment,

it is that the government may not prohibit the

expression of an idea simply because society finds

the idea itself offensive or disagreeable.”). Whether

Washington disagrees with talk therapy (or any

other type of professional speech) “for good reasons,

great reasons, or terrible reasons has nothing at all

to do with it. All that matters is that a therapist’s

speech to a minor client is legal or illegal under the

ordinances based solely on its content.” Otto, 981

F.3d at 863.

19

Tingley approaches talk therapy from a

particular professional and religious background;

“his Christian views inform his work,” and “many of

his clients share his religious viewpoints and come to

him specifically because he holds himself out as a

‘Christian provider[].’ ” Tingley, 47 F.4th at 1065.

Drawing on his training and faith, Tingley “help[s]

patients make deeply personal decisions, and [his]

candor is crucial. If anything, the doctor-patient

relationship provides more justification for free

speech, not less.” Wollschlaeger, 848 F.3d at 1328.

Washington disagreed with Tingley so strongly

that it prohibited him from speaking. What stops

the legislature from doing the same to other

professionals? Given that the First Amendment does

not protect professional speech under Tingley, the

answer seems to be “the discretion of the

legislature.” Why? Because the panel provides no

test to determine which speech counts as conduct

and under what circumstances. The outer limits of

the “speech is conduct” rule are left undefined:

The panel provides no principles

doctrinal basis for its dichotomy; by

what criteria do we distinguish between

utterances that are truly “speech,” on

the one hand, and those that are, on the

other hand, somehow “treatment” or

“conduct”?

The panel, contrary to

common sense and without legal

authority, simply asserts that some

spoken words—those prohibited by SB

1172—are not speech.

Pickup, 740 F.3d at 1215-16 (O’Scannlain, J.,

dissenting from denial of rehearing en banc). If

20

Tingley is correct, a State can declare disfavored

speech to be conduct and then impose a contentbased restriction on that speech/conduct.

Tellingly, the panel cites no authority to support

giving Washington the authority to declare pure

expression to be something that it is not—conduct—

and then regulate such “conduct” free from the

strictures of the First Amendment. In fact, this

Court’s precedents cut in the opposite direction.

Riley, 487 U.S. at 796 (“[S]tate labels cannot be

dispositive of [the] degree of First Amendment

protection.”); Button, 371 U.S. at 439 (explaining

that “a State may not, under the guise of prohibiting

professional misconduct, ignore [First Amendment]

rights”); Cohen, 403 U.S. at 18 (upholding an

individual’s right to wear a jacket displaying

offensive words because “[t]he only ‘conduct’ which

the State sought to punish is the fact of

communication,” which meant that the “conviction

rest[ed] solely upon ‘speech’ ”); Telescope Media

Group v. Lucero, 936 F.3d 740, 752 (8th Cir. 2019)

(“Speech is not conduct just because the government

says it is.”). And they do so for good reason—the

dangers to free speech are the same whether the

government is allowed to regulate professional

speech or professional “conduct” that consists in

communicating a message. Johnson, 491 U.S. at

416 (“The State’s argument cannot depend here on

the distinction between written or spoken words and

nonverbal conduct. That distinction, we have shown,

is of no moment where the nonverbal conduct is

expressive, as it is here, and where the regulation of

that conduct is related to expression, as it is here.”).

Unmoored from the First Amendment, the scope

of Tingley’s rule is alarming—“cover[ing] a wide

array of individuals—doctors, lawyers, nurses,

21

physical therapists, truck drivers, bartenders,

barbers, and many others.” NIFLA, 138 S.Ct. at

2375. Attorneys, teachers, social workers, physician

assistants, registered nurses, therapists, and other

licensed professionals counsel clients, treat patients,

and teach through various speech acts. Protesting,

debating, and meeting to discuss books are other

forms of expression that the government might

classify as conduct under the Ninth Circuit’s

analysis.

Pickup, 740 F.3d at 1221 n.10

(O’Scannlain, J., dissenting from rehearing en banc)

(“If a state may freely regulate speech uttered by

professionals in the course of their practice without

implicating the First Amendment, then targeting

disfavored moral and political expression may only

be a matter of creative legislative draftsmanship.”).

Having the authority to regulate the act of

communication itself, the government could “easily

tell architects that they cannot propose buildings in

the style of I.M. Pei, or general contractors that they

cannot suggest the use of cheaper foreign steel in

construction projects, or accountants that they

cannot discuss legal tax avoidance techniques, and

so on and so on.” Wollschlaeger, 848 F.3d at 1311.

A recent example from the legal field further

illustrates how Tingley jeopardizes professional

speech. In 2016, the American Bar Association

proposed Model Rule 8.4(g). Under the proposed

Rule:

It is professional misconduct for a

lawyer to: … (g) Engage in conduct that

the lawyer knows or reasonably should

know is harassment or discrimination

on the basis of race, sex, religion,

national origin, ethnicity, disability,

age, sexual orientation, gender identity,

22

marital status or socioeconomic status

in conduct related to the practice of

law….

This paragraph does not

preclude legitimate advice or advocacy

consistent with these rules.

ABA, Model Rules of Professional Conduct, Rule 8.4

(Aug.

2016)

(“Rule

8.4(g)”)

(available

at

https://www.americanbar.org/groups/professional_re

sponsibility/publications/model_rules_of_professional

_conduct/rule_8_4_misconduct/). While the Rule’s

text referred only to conduct, Comment 3 revealed

that the Rule also operated as a speech code,

regulating written and oral expression:

Discrimination and harassment by

lawyers in violation of paragraph (g) …

includes harmful verbal or physical

conduct that manifests bias or prejudice

towards others. Harassment includes

sexual harassment and derogatory or

demeaning verbal or physical conduct.

Sexual harassment includes unwelcome

sexual advances, requests for sexual

favors, and other unwelcome verbal or

physical conduct of a sexual nature.

ABA, Model Rules of Professional Conduct, Rule 8.4,

Comments

(Aug.

2016)

(available

at

https://www.americanbar.org/groups/professional_re

sponsibility/publications/model_rules_of_professional

_conduct/rule_8_4_misconduct/comment_on_rule_8_

4/). The purpose of the Rule was to foster a “cultural

shift” in views on discrimination and harassment:

“There is a need for a cultural shift in understanding

the inherent integrity of people regardless of their

race, color, national origin, religion, age, sex, gender

identity, gender expression, sexual orientation,

23

marital status, or disability, to be captured in the

rules of professional conduct.” December 22, 2015

Memorandum, Standing Committee on Ethics and

Professional

Responsibility

(available

at

https://www.americanbar.org/content/dam/aba/admi

nistrative/professional_responsibility/rule_8_4_amen

dments_12_22_2015.pdf).

To bring about this

“cultural shift,” the ABA sought to regulate both

“physical conduct” and “verbal conduct.”

Among other problems, Model Rule 8.4(g)

conflated speech and conduct in the same way as

Tingley.

Discriminatory and harassing conduct

included speech with which the ABA disagreed. By

labeling the disfavored speech as “verbal conduct,”

the ABA attempted to move the Rule outside the

protection of the First Amendment. Consistent with

Tingley, the ABA’s “speech is conduct” rule had

broad scope, applying to all “[c]onduct related to the

practice of law[, which] includes representing clients;

interacting with witnesses, coworkers, court

personnel, lawyers and others while engaged in the

practice of law.”

Rule 8.4, Comment 4.

Transforming speech into conduct, Rule 8.4(g) sought

to codify viewpoint-based discrimination in relation

to the practice of law. Speech that did not “manifest

bias or prejudice” was permissible, and “[l]awyers

may engage in conduct undertaken to promote

diversity and inclusion without violating this rule….”

Rule 8.4(g). As Professor Rotunda aptly put the

point, “[t]he ABA rule is not about forbidding

discrimination based on sex or marital status; it is

about punishing those who say or do things that do

not support the ABA’s particular view of sex

discrimination or marriage.” Ronald D. Rotunda,

Heritage Foundation Legal Memorandum (No. 191),

“The ABA Decision to Control What Lawyers Say:

Supporting ‘Diversity’ but not Diversity of Thought”

24

(Oct.

6,

2016)

(available

at

http://thfreports.s3.amazonaws.com/2016/LM-191.pdf).

If

Tingley stands, States could adopt Model Rule 8.4(g)

and silence lawyers who hold views that interfere

with the ABA’s “cultural shift.”

CONCLUSION

The object of SB 5722 “is simply to require

[professionals] to modify the content of their

expression to whatever extent” the legislature may

want, thereby promoting “messages of [its] own.”

Hurley, 515 U.S. at 578. Given that SB 5722

prohibits speech based on content and viewpoint,

“this object is merely to allow exactly what the

general rule of speaker’s autonomy forbids”—

governmental control over the content of expression

on disputed and controversial topics. Id. This Court

should grant certiorari, therefore, not because of

“any particular view about [Tingley’s] message,” but

because of “the Nation’s commitment to protect

freedom of speech,” including the speech of

professionals. Id. at 581.

Respectfully submitted,

Scott W. Gaylord

201 North Greene Street

Greensboro, NC 27401

Phone: (336) 279-9331

Email: sgaylord@elon.edu

Counsel for Amicus Curiae

April 27, 2023