Otto v. City of Boca Raton
This text of 353 F. Supp. 3d 1237 (Otto v. City of Boca Raton) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
ROBIN L. ROSENBERG, UNITED STATES DISTRICT JUDGE
Table of Contents
I. Introduction...1241
II. Summary of Analysis...1241
III. Background...1242
A. The Plaintiffs...1242
B. The Ordinances...1243
C. Procedural Posture of the Litigation...1245
IV. Plaintiffs' Standing...1245
V. Preliminary Injunction Standard of Review...1247
VI. Success on the Merits: Plaintiffs' Free Speech Claim...1248
A. The First Amendment Landscape...1248
B. Determining the Appropriate Standard of Review...1249
C. The Governments' Interest in the Ordinances...1258
D. The Relationship between the Ordinances and the Governments' Interest...1263
E. Viewpoint Discrimination...1268
F. Conclusions on Plaintiffs' Free Speech Claim...1270
VII. Plaintiffs' Prior Restraint Claim...1270 *1241VIII. Plaintiffs' Vagueness Claim...1271
IX. Plaintiffs' Ultra Vires Claim...1271
X. Conclusions...1273
I. INTRODUCTION
"[T]his case presents a conflict between one of society's most cherished rights-freedom of expression-and one of the government's most profound obligations-the protection of minors." American Booksellers v. Webb ,
The case is before the Court on Plaintiffs Robert Otto and Julie Hamilton's Renewed Motion for Preliminary Injunction ("the Motion"), DE 8. In their Motion, Plaintiffs seek to enjoin Defendants from enforcing the two ordinances, passed in 2017, which ban the use of conversion therapy by licensed medical providers on minor patients.
Defendants City of Boca Raton (the "City") and Palm Beach County (the "County") (collectively referred to as "Defendants") filed responses at DE 83 and DE 85, and Plaintiffs filed a consolidated reply at DE 95. The Court granted leave to the Trevor Project, Equality Florida, and the Alliance for Therapeutic Choice to file amicus briefs at DE 73 and DE 116, which were filed at DE 90 (Trevor Project), DE 91 (Equality Florida), and DE 115 (Alliance for Therapeutic Choice). The Court also had the benefit of a full day of oral argument regarding the Motion on October 18, 2018. Following oral argument, the Court requested that the parties submit proposed findings of fact and conclusions of law, and they were filed at DE 132, DE 133, and DE 134. The Motion is fully ripe for review.
The Court has considered all of the briefings referenced above, the record, and is otherwise fully advised in the premises. For the reasons stated below, the Renewed Motion for Preliminary Injunction is DENIED .
II. SUMMARY OF ANALYSIS
In moving for a preliminary injunction, Plaintiffs must demonstrate that they have a substantial likelihood of success on the merits, that they will suffer irreparable harm in the absence of this preliminary relief, that the balance of equities tip in their favor, and that an injunction serves the public interest.
The Court concludes that the Plaintiffs have not met their burden of showing that the ordinances violate the Free Speech Clause of the First Amendment, and thus a preliminary injunction barring their enforcement shall not issue. In reaching this result, the Court examines the three possible standards of review for Plaintiffs' free speech claim. Succinctly, rational basis review requires Plaintiffs to show that Defendants acted irrationally or unreasonably in enacting the ordinances. Intermediate scrutiny requires Defendants to show that they had a substantial interest in passing the ordinances and that the ordinances are narrowly drawn to achieve that interest. Strict scrutiny requires Defendants to show that they had a compelling interest in passing the ordinances, that the ordinances are narrowly tailored to achieve that interest, and that no other less restrictive means could serve that interest.
*1242The Court concludes that the law is unsettled as to which of these standards should apply to the facts of this case. The ordinances regulate conversion therapy that is effectuated entirely through speech, which suggests that the ordinances are subject to a standard greater than rational basis review. The ordinances also arguably are content-based, as they apply "to particular speech because of the topics discussed or the idea or message expressed."
While content-based laws ordinarily are subject to strict scrutiny, that conclusion in this case is not clear. The case does not involve a heartland content-based speech regulation. No public forum restrictions exist in the ordinances. The ordinances define the reach of their prohibitions by topic or subject matter, but they do so only to identify the type of therapy covered, not the content of communications outside of the therapy itself. It is the type of therapy that is regulated. The regulation touches speech only when it is a part of conversion therapy. The ordinances do not prohibit or limit proponents or opponents of conversion therapy to speak about gender or sexual orientation conversion publicly and privately, including to their minor clients in forms other than therapy. And, the therapeutic prohibition of conversion therapy is plenary; it does not choose sides.
Regardless of the level of review applied to the ordinances, the Court concludes that Defendants have identified a compelling interest in protecting the safety and welfare of minors. Protecting minors may be the paradigm example of a compelling interest. Defendants have pointed to and relied upon extensive credible evidence of the damage that conversion therapy inflicts. This body of information comes from well-known research organizations and subject matter experts.
At this early stage of the litigation, the Court need not resolve whether strict scrutiny is the applicable standard and whether the ordinances are the least restrictive means that Defendants could have used to achieve their interest in order to reach a decision regarding the Motion.
Free access — add to your briefcase to read the full text and ask questions with AI
ROBIN L. ROSENBERG, UNITED STATES DISTRICT JUDGE
Table of Contents
I. Introduction...1241
II. Summary of Analysis...1241
III. Background...1242
A. The Plaintiffs...1242
B. The Ordinances...1243
C. Procedural Posture of the Litigation...1245
IV. Plaintiffs' Standing...1245
V. Preliminary Injunction Standard of Review...1247
VI. Success on the Merits: Plaintiffs' Free Speech Claim...1248
A. The First Amendment Landscape...1248
B. Determining the Appropriate Standard of Review...1249
C. The Governments' Interest in the Ordinances...1258
D. The Relationship between the Ordinances and the Governments' Interest...1263
E. Viewpoint Discrimination...1268
F. Conclusions on Plaintiffs' Free Speech Claim...1270
VII. Plaintiffs' Prior Restraint Claim...1270 *1241VIII. Plaintiffs' Vagueness Claim...1271
IX. Plaintiffs' Ultra Vires Claim...1271
X. Conclusions...1273
I. INTRODUCTION
"[T]his case presents a conflict between one of society's most cherished rights-freedom of expression-and one of the government's most profound obligations-the protection of minors." American Booksellers v. Webb ,
The case is before the Court on Plaintiffs Robert Otto and Julie Hamilton's Renewed Motion for Preliminary Injunction ("the Motion"), DE 8. In their Motion, Plaintiffs seek to enjoin Defendants from enforcing the two ordinances, passed in 2017, which ban the use of conversion therapy by licensed medical providers on minor patients.
Defendants City of Boca Raton (the "City") and Palm Beach County (the "County") (collectively referred to as "Defendants") filed responses at DE 83 and DE 85, and Plaintiffs filed a consolidated reply at DE 95. The Court granted leave to the Trevor Project, Equality Florida, and the Alliance for Therapeutic Choice to file amicus briefs at DE 73 and DE 116, which were filed at DE 90 (Trevor Project), DE 91 (Equality Florida), and DE 115 (Alliance for Therapeutic Choice). The Court also had the benefit of a full day of oral argument regarding the Motion on October 18, 2018. Following oral argument, the Court requested that the parties submit proposed findings of fact and conclusions of law, and they were filed at DE 132, DE 133, and DE 134. The Motion is fully ripe for review.
The Court has considered all of the briefings referenced above, the record, and is otherwise fully advised in the premises. For the reasons stated below, the Renewed Motion for Preliminary Injunction is DENIED .
II. SUMMARY OF ANALYSIS
In moving for a preliminary injunction, Plaintiffs must demonstrate that they have a substantial likelihood of success on the merits, that they will suffer irreparable harm in the absence of this preliminary relief, that the balance of equities tip in their favor, and that an injunction serves the public interest.
The Court concludes that the Plaintiffs have not met their burden of showing that the ordinances violate the Free Speech Clause of the First Amendment, and thus a preliminary injunction barring their enforcement shall not issue. In reaching this result, the Court examines the three possible standards of review for Plaintiffs' free speech claim. Succinctly, rational basis review requires Plaintiffs to show that Defendants acted irrationally or unreasonably in enacting the ordinances. Intermediate scrutiny requires Defendants to show that they had a substantial interest in passing the ordinances and that the ordinances are narrowly drawn to achieve that interest. Strict scrutiny requires Defendants to show that they had a compelling interest in passing the ordinances, that the ordinances are narrowly tailored to achieve that interest, and that no other less restrictive means could serve that interest.
*1242The Court concludes that the law is unsettled as to which of these standards should apply to the facts of this case. The ordinances regulate conversion therapy that is effectuated entirely through speech, which suggests that the ordinances are subject to a standard greater than rational basis review. The ordinances also arguably are content-based, as they apply "to particular speech because of the topics discussed or the idea or message expressed."
While content-based laws ordinarily are subject to strict scrutiny, that conclusion in this case is not clear. The case does not involve a heartland content-based speech regulation. No public forum restrictions exist in the ordinances. The ordinances define the reach of their prohibitions by topic or subject matter, but they do so only to identify the type of therapy covered, not the content of communications outside of the therapy itself. It is the type of therapy that is regulated. The regulation touches speech only when it is a part of conversion therapy. The ordinances do not prohibit or limit proponents or opponents of conversion therapy to speak about gender or sexual orientation conversion publicly and privately, including to their minor clients in forms other than therapy. And, the therapeutic prohibition of conversion therapy is plenary; it does not choose sides.
Regardless of the level of review applied to the ordinances, the Court concludes that Defendants have identified a compelling interest in protecting the safety and welfare of minors. Protecting minors may be the paradigm example of a compelling interest. Defendants have pointed to and relied upon extensive credible evidence of the damage that conversion therapy inflicts. This body of information comes from well-known research organizations and subject matter experts.
At this early stage of the litigation, the Court need not resolve whether strict scrutiny is the applicable standard and whether the ordinances are the least restrictive means that Defendants could have used to achieve their interest in order to reach a decision regarding the Motion. While at trial Defendants will have the burden of demonstrating the constitutionality of their ordinances, at the preliminary injunction stage, the burden is on the Plaintiffs to establish that they have a substantial likelihood of success on the merits at trial. The Court analyzes the challenged ordinances through the lenses of all three methods of review, and concludes that the ordinances pass rational basis review, withstand intermediate scrutiny, and may survive strict scrutiny. The Plaintiffs, therefore, have not met their burden of showing that they have the requisite substantial likelihood of success on the merits. As such, the preliminary injunction shall not issue on Plaintiffs' free speech claim.
The Court also concludes that Plaintiffs have not demonstrated a substantial likelihood of success on the merits as to their prior restraint and vagueness claims, so the preliminary injunction shall not issue on these grounds.
Finally, on their claim that Defendants acted outside their authority based on Florida state law, Plaintiffs have not demonstrated that an irreparable injury will occur in the absence of a preliminary injunction. Accordingly, the preliminary injunction shall not issue on this ground.
III. BACKGROUND
A. The Plaintiffs
Plaintiff Robert W. Otto, Ph.D, LMFT, is a licensed marriage and family therapist. DE 1 ¶ 122.1 Dr. Otto maintains a counseling *1243practice in the City of Boca Raton and in other parts of Palm Beach County, including regular appointments in unincorporated Palm Beach County. DE 121-7, Otto Dep. 19:21-20:5, 143:23-144:2; DE 1 ¶¶ 125, 127. Dr. Otto practices exclusively talk therapy, consisting of client-centered and client-directed conversations with his clients, concerning the clients' goals. DE 121-7, Otto Dep. 20:23-21:22 ("I want to make a distinction that the therapy I provide is 100 percent speech...."). Dr. Otto's talk therapy practice does not include any form of aversive treatment, which is treatment involving reprimand, punishment, or shame to turn a person away from certain thoughts or behaviors. DE 1 ¶ 72; DE 121-7, Otto Dep. 121:22-23.
Plaintiff Julie H. Hamilton, Ph.D., LMFT, is a licensed marriage and family therapist as well. DE 1 ¶ 140. Dr. Hamilton practices throughout Palm Beach County, including in the City of Boca Raton. DE 121-8, Hamilton Dep. 329:3-335:15; DE 96-1. In her current practice, Dr. Hamilton provides individual, marital, and family therapy for a wide variety of issues, including the issues of "unwanted same-sex attractions" and "gender identity confusion." DE 1 ¶ 142. Dr. Hamilton's practice also consists only of talk therapy, which is a conversation that takes place between herself and the client. Dr. Hamilton does not engage in aversive or coercive techniques. DE 1 ¶ 72. Dr. Hamilton does not coerce her clients into any form of counseling, engages in SOCE counseling only with those clients who desire and consent to it, and permits her clients to set the goals of any counseling she offers. DE 1 ¶¶ 77, 131, 144.
B. The Ordinances
Drs. Otto and Hamilton challenge two ordinances passed by Defendants in the fall of 2017 that ban mental health providers from engaging in conversion therapy with minor patients. The two ordinances are very similar, although not identical.2
1. The City Ordinance
On October 10, 2017, the City enacted the Ordinance, which prohibits the practice of conversion therapy on minors by licensed providers (the "City Ordinance"). DE 1-4. The City Ordinance defines conversion therapy as:
Any counseling, practice or treatment performed with the goal of changing an individual's sexual orientation or gender identity, including, but not limited to, efforts to change behaviors, gender identity or gender expression, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same gender or sex.
Id. at 6:10-14.
The City Ordinance does not restrict anyone's conduct or speech outside of a formal therapy session. Id. at 4:21-22 ("[The City Ordinance] does not intend to prevent mental health providers from speaking to the public about SOCE.").
The Ordinance also excludes from its definition of conversion therapy, any counseling that provides support and assistance to a person undergoing gender transition or counseling that provides acceptance, support, and understanding of a person or facilitates a person's coping, social support, and development, including sexual orientation-neutral interventions to prevent or address unlawful *1244conduct or unsafe sexual practices, as long as such counseling does not seek to change sexual orientation or gender identity.
Id. at 6:14-19.
The City Ordinance only prohibits formal treatment by licensed providers that has the goal of changing an individual's sexual orientation or gender identity. Thus, even within a therapy session, the City Ordinance does not prevent licensed therapists from "expressing their views to patients; recommending SOCE to patients … or referring minors to unlicensed counselors, such as religious leaders." Id. at 4:21-5:2.
The City's Ordinance defines "provider" as:
[A]ny person who is licensed by the State of Florida to provide professional counseling, or who performs counseling as part of his or her professional training under chapters 456, 458, 459, 490 or 491 of the Florida Statutes, as such chapters may be amended, including but not limited to, medical practitioners, osteopathic practitioners, psychologists, psychotherapists, social workers, marriage and family therapists, and licensed counselors. The term "provider" does not include members of the clergy or other religious leaders who are acting in their roles as clergy or pastoral counselors, or are providing religious counseling or instruction to congregants, provided they do not hold themselves out as providing conversion therapy pursuant to any of the aforementioned Florida Statutes licenses.
Id. at 6:21-7:3.
2. The County Ordinance
On December 19, 2017, the County passed Ordinance 2017-046 (the "County Ordinance").3 DE 1-5; DE 121-3, 12/19/17 County Commissioners' Meeting Tr. 100. The County Ordinance bans providers from engaging in "conversion therapy" on minors. Conversion therapy is defined as:
[T]he practice of seeking to change an individual's sexual orientation or gender identity, including but not limited to efforts to change behaviors, gender identity, or gender expressions or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same gender or sex.
DE 1-5, 13.
The County Ordinance states:
Conversion therapy ... does not include counseling that provides support and assistance to a person undergoing gender transition, or counseling that: provides acceptance, support, and understanding of a person or facilitates a person's coping, social support, and identity exploration and development, including sexual-orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices; and does not seek to change an individual's sexual orientation or gender identity.
Id.
The County's Ordinance defines "provider" as "any person who is licensed by the State of Florida to perform counseling pursuant to Chapters 456, 458, 459, 490 or 491 of the Florida Statutes..." Id. at 13. The County Ordinance does not "prevent mental health providers from speaking to the public about SOCE; expressing their views to patients; recommending SOCE to patients; administering SOCE to any person who is 18 years of age or older; or referring minors to unlicensed counselors, such as religious leaders." Id. at 11. Furthermore, *1245the County Ordinance does not prevent "unlicensed providers, such as religious leaders, from administering SOCE to children or adults" or "minors from seeking SOCE from mental health providers in other political subdivisions" outside of Palm Beach County. Id. The County Ordinance does not ban advertisement. DE 121-1, County Ordinance 2017-046; see also DE121-7, Otto Dep. 149:16-18.
C. Procedural Posture of the Litigation
Plaintiffs filed the instant case on June 13, 2018, at DE 1, to permanently enjoin enforcement of the ordinances, and moved for a preliminary injunction the following day, DE 3. After serving Defendants, Plaintiffs filed this Renewed Motion for Preliminary Injunction. DE 8. The Court set the case for trial at DE 11, and set a limited discovery plan for the purposes of considering the preliminary injunction, DE 25 (amended at DE 50). In addition to briefing the Motion addressed by the Order, the parties also have briefed Defendants' Motions to Dismiss, filed on August 1, 2018. See DE 34; DE 39; DE 62; DE 82; DE 84. The Motions to Dismiss are ripe, and the Court will address those in a separate order.
Plaintiffs allege that the ordinances violate their constitutional rights and state law in eight separate counts. In Count I, Plaintiffs allege that the ordinances violate their free speech rights as protected by the First Amendment. DE 1, 36. Count II alleges that the ordinances violate Plaintiffs' clients' First Amendment right to receive information. Id. at 39. Count III alleges violations of Plaintiffs' First Amendment free exercise rights. Id. at 40. Counts IV and V allege violations of the Florida Constitution, specifically, Plaintiffs' rights to liberty of speech and right to free exercise. Id. at 43, 46. Count VI alleges that the ordinances are ultra vires . Id. at 48. Count VII alleges that the ordinances violate Plaintiffs' rights under Florida's Patient's Bill of Rights and Responsibilities. Id. at 51. Finally, Count VIII alleges that the ordinances violate Florida's Religious Freedom Restoration Act ("FRFRA"),
Plaintiffs moved for a preliminary injunction on fewer grounds than alleged in their Complaint, which seeks a permanent injunction. See Hr'g. Tr. 107:9-18. The Motion contends that a preliminary injunction should issue based on Plaintiffs' freedom of speech and ultra vires arguments. See DE 8, ii. Specifically, Plaintiffs argue that the ordinances are viewpoint discriminatory, and therefore per se unconstitutional. In the alternative, they assert that the ordinances are content-based, and do not survive strict scrutiny. Plaintiffs also contend that the ordinances are unconstitutional prior restraints on their expression and unconstitutionally vague. Finally, Plaintiffs claim that the ordinances were passed outside of the Defendants' authority, and therefore are void.
IV. PLAINTIFFS' STANDING
In their Motions to Dismiss, DE 34 and DE 39, Defendants challenge the Plaintiffs' standing to pursue this case. Defendants also address standing in their responses to the Motion. See DE 83; DE 85. The City challenges Dr. Hamilton's standing, as she does not currently practice in the City. DE 83, 14. Both Defendants challenge Dr. Otto's standing, alleging that he does not seek to change his clients, and therefore does not have a practice of performing SOCE. DE 83, 15; DE 85, 1-2. Defendants also challenge the named Plaintiffs' ability to sue on behalf of their minor clients. DE 83, 16; DE 85, 2.
To establish standing, a plaintiff must establish three elements, which are the "irreducible constitutional minimum" to pursue a case in federal court. Lujan v. Defenders of Wildlife ,
*1246"First, the plaintiff must have suffered an 'injury in fact'-an invasion of a legally protected interest which is (a) concrete and particularized, and (b) 'actual or imminent, not 'conjectural' or 'hypothetical.' '
The Court finds that Dr. Otto and Dr. Hamilton have standing to challenge both ordinances. Both are practitioners in Palm Beach County, with practices that would be impacted by the City's Ordinance: Dr. Otto maintains a counseling practice in the City of Boca Raton and in other parts of Palm Beach County, including regular appointments in unincorporated Palm Beach County. DE 121-7, Otto Dep. 19:21-20:5, 143:23-144:2; DE 1 ¶¶ 125, 127. Dr. Hamilton practices throughout Palm Beach County, including in the City of Boca Raton. DE 121-8, Hamilton Dep. 329:3-335:15; DE 96-1, Hamilton Dec. Dr. Hamilton has not consistently practiced in Boca Raton, but the Court is satisfied that she likely will be regulated by the City's Ordinance if enforced. DE 121-8, Hamilton Dep. 341:7-342:3; DE 126-29, Hamilton Decl. (describing Hamilton's efforts to obtain Boca Raton and Palm Beach County business tax receipts for annual periods ending September 30, 2018 and September 30, 2019). And, both named Plaintiffs have counseled minors on their unwanted same sex attractions. DE 1, ¶¶ 132- 36, 149-57 (describing Plaintiffs' performance of SOCE on minors prior to the ordinances' enactment); DE 121-7, Otto Dep. 59:19-25 ("Q: How many clients have you had where the issue to be addressed is the minor's same-sex sexual attractions? A: I've dealt with four."). Therefore, the Court finds that Drs. Otto and Hamilton will be regulated by the ordinances, and, if they establish their constitutional claims, will suffer "an injury in fact" that is not "hypothetical."
As to the Plaintiffs' minor clients: A person "generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties." Kowalski v. Tesmer ,
This rule is not absolute. Third-party standing may be appropriate when "the party asserting the right has a 'close' relationship with the person who possesses the right" and when "there is a 'hindrance' to the possessor's ability to protect his own interests."
While Plaintiffs may have "close" relationships with their clients, they have not sufficiently demonstrated that their clients would be hindered in advancing their own litigation challenging the ordinances. Plaintiffs argue that their minor clients would not want to bring litigation *1247for fear of stigma and exposing intimate details of their therapy. DE 95, 14. These generalized statements are not enough to confer third-party standing. "While a fear of social stigma can in some circumstances constitute a substantial obstacle to filing suit, Plaintiffs' evidence does not sufficiently establish the presence of such fear here." King v. Gov. of N.J. ,
V. PRELIMINARY INJUNCTION STANDARD OF REVIEW
The party seeking a preliminary injunction must establish:
(1) it has a substantial likelihood of success on the merits; (2) irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest.
Wreal, LLC v. Amazon.com, Inc. ,
A preliminary injunction is "never awarded as of right." Winter v. Natural Resources Defense Council, Inc. ,
Furthermore, granting a preliminary injunction is a "powerful exercise of judicial authority." Ne. Fla. Chapter of the Ass'n of Gen. Contractors of Am. v. Jacksonville ,
When a federal court before trial enjoins the enforcement of a municipal ordinance adopted by a duly elected city council, the court overrules the decision of the elected representatives of the people and, thus, in a sense interferes with the processes of democratic government. Such a step can occasionally be justified by the Constitution (itself the highest product of democratic processes). Still, preliminary injunctions of legislative enactments-because they interfere with the democratic process and lack the safeguards against abuse or error that come with a full trial on the merits-must be granted reluctantly and only upon a clear showing that the injunction before trial is definitely demanded by the Constitution and by the other strict *1248legal and equitable principles that restrain courts.
VI. SUCCESS ON THE MERITS: PLAINTIFFS' FREE SPEECH CLAIM
The Court begins its analysis of Plaintiffs' primary claim - that the ordinances violate their free speech rights under the First Amendment - with the first prong of the standard for a preliminary injunction: substantial likelihood of success on the merits.
Plaintiffs' first two claims allege that the ordinances unconstitutionally discriminate on the basis of viewpoint, or in the alternative, unconstitutionally discriminate on the basis of content. The parties vigorously contest whether the ordinances implicate the First Amendment's Free Speech Clause, and if so, what level of scrutiny is appropriate - rational basis review, some form of heightened but intermediate review, or strict scrutiny.
A. The First Amendment Landscape
The Free Speech Clause of the First Amendment commands that Congress, and the states, through the Fourteenth Amendment, "shall make no law...abridging the freedom of speech." U.S. Const. amend. I ; see, e.g. , Gitlow v. New York ,
This case and the instant Motion present a matter of first impression in the Southern District of Florida and the Eleventh Circuit4 regarding whether prohibitions on *1249the use of SOCE therapy by licensed medical providers in treating minor patients are constitutional.
Similar bans have survived constitutional challenges however, in other federal courts. The Third and Ninth Circuits have considered the conversion therapy bans passed in New Jersey and California, respectively. Both concluded that such bans, which are nearly identical to those at issue here, are constitutional. The Ninth Circuit held in Pickup v. Brown , that the California law was constitutional because it regulated professional conduct, and thereby did not implicate the First Amendment at all.
Since these cases were decided, the Supreme Court has issued two opinions, Reed v. Town of Gilbert and National Institute of Family and Life Advocates v. Becerra ("NIFLA "), which raise questions as to the validity of the Third and Ninth Circuits' reasoning. --- U.S. ----,
These opinions and others show that the landscape of relevant First Amendment precedent is a morass when trying to address the specific facts in this case, that is, licensed professionals administering treatments, effectuated through speech, on minors. At least three possible approaches emerge from the case law, employing different standards of review.
B. Determining the Appropriate Standard of Review
1. Conduct v. Speech
A preliminary question, before applying the appropriate level of review, is whether the ordinances regulate speech or conduct. The Free Speech Clause of the First Amendment prohibits regulation of speech , so it is only implicated by laws that regulate or restrict speech or certain types of expressive conduct .
The difference between speech and conduct is not always easy to discern and the distinction is frequently criticized. Wollschlaeger ,
Where speech and conduct overlap, courts have recognized that restrictions on non-expressive conduct that only incidentally burden speech, do not implicate the First Amendment's protections.
*1250See Sorrell ,
In the space between speech and conduct, the Supreme Court also has recognized that some conduct is inherently expressive and deserving of some degree of First Amendment protection. See United States v. O'Brien ,
[W]e think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no great than is essential to the furtherance of that interest.
Since the speech/conduct issue is germane to all three levels of scrutiny, the analysis is further discussed and incorporated into each section below as appropriate.
In Pickup v. Brown , the Ninth Circuit reviewed two district court decisions5 on preliminary injunction motions in cases very similar to this case.
Defendants urge the Court to adopt the Ninth Circuit's reasoning and conclude that the ordinances regulate conduct, or only incidentally burden speech. See DE 83, 2; DE 85, 5-6. Defendants' theory is appealing in its simplicity and its consistency with common conceptions of talk therapy as a form of mental health care.
This outcome, however, is stymied by the Eleventh Circuit's analysis in Wollschlaeger ,
The ordinances in this case regulate therapies.8 But as applied to the Plaintiffs in this case, the ordinances impact their speech to patients because Plaintiffs Otto and Hamilton's therapeutic practices are entirely speech-based. "Speech is the only tool [they] use in their counseling with minors seeking to reduce or eliminate their unwanted same-sex attractions, behaviors, or identity. The only thing that happens in their counseling sessions is speech." DE 1, ¶ 74 (emphasis added). The Plaintiffs' treatment of their patients is not just carried out in part through speech: the treatment provided by Drs. Otto and Hamilton is entirely speech. "Saying that restrictions on writing and speaking are merely incidental to speech is like saying that limitations on walking and running are merely incidental to ambulation." Wollschlaeger ,
2. Content Based v. Content Neutral Regulations: Application of Strict Scrutiny
Assuming that the ordinances regulate protected speech, the Court must next determine whether the ordinances are content-based or content-neutral. "[C]ontent-based laws - those that target speech based on its communicative content - are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve a compelling government interest." Reed v. Town of Gilbert , --- U.S. ----,
If the ordinances are content-based, the Court also must consider whether the ordinances are viewpoint discriminatory, and therefore, unconstitutional. DE 8, 3; Hr'g. Tr. 26-29. "In the ordinary case it is all but dispositive to conclude that a law is content-based and, in practice, viewpoint discriminatory." Sorrell v. IMS Health Inc. ,
"Deciding whether a particular regulation is content-based or content-neutral is not always a simple task." Turner Broadcasting System, Inc. v. FCC ,
Reed would seem to compel the conclusion that if the ordinances are content-based, they are subject to strict scrutiny. The ordinances identify certain speech-speech aimed at changing minor patients' sexual orientation-for prohibition because the speech constitutes conversion therapy. The ordinances target what Plaintiffs say to their minor patients.
3. Content-Based Regulations Subject to less than Strict Scrutiny
Beyond the content-based/content-neutral dichotomy, there are several lines of cases that exempt content-based laws from automatically being considered under strict scrutiny. "[C]ontent-based restrictions on speech have been permitted, as a general matter, [but] only when confined to the few 'historic and traditional categories [of expression] long familiar to the bar.' " United States v. Alvarez ,
One set of categories of content-based laws that are not subject to strict scrutiny include "inciting imminent lawless action,...obscenity,...defamation,...speech integral to criminal conduct,...so-called 'fighting words,'...fraud,...child pornography,...true threats,...and speech presenting some grave and imminent threat [that] the government has the power to prevent." Alvarez ,
Another category of content-based speech, "commercial speech," also is subject to heightened review, and not strict scrutiny. See Sorrell,
The ordinances in this case may not fit neatly into any of the categories outlined above. However, they demonstrate that a strict First Amendment rule will not always work for all cases.
4. The Speech of Licensed Providers
Against this backdrop of First Amendment case law, the Court must also consider how the First Amendment applies to doctors in treating their patients. Talk-based conversion therapy, as both a treatment to be provided and an utterance to be said, cannot easily be analyzed using case law decided in the context of public hearings, signage regulations, and school-based activities, yet so much of traditional First Amendment case law is decided in those contexts. As a result, the Court must pay close attention to cases that bear directly on the question of how provider speech can be regulated.
The speech of medical providers is routinely limited through prescription drug laws, medical malpractice lawsuits, accreditation requirements, and other means. As discussed below, case law demonstrates a simultaneous judicial commitment to protecting the conversation between doctors and their patients, and a recognition of the government's ability to regulate the practice of medicine and to protect patients from harmful practices. Quite simply, "[t]here is a difference, for First Amendment purposes, between regulating professionals' speech to the public at large versus their direct, personalized speech with clients." Locke v. Shore ,
Planned Parenthood v. Casey considered the constitutionality of certain disclosures about pregnancy and abortion that Pennsylvania required its doctors to make to their patients prior to performing an abortion.
In NIFLA , the Supreme Court considered a challenge to California's Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (the "FACT Act"), which, among other directives, required licensed clinics to "notify women that California provides free or low-cost services, including abortions, and give them a phone number to call."
*1255found that California's FACT Act violated the First Amendment in compelling certain disclosures about abortion to patients, but the FACT Act is distinguishable from the ordinances at issue here. There, the doctors were compelled to speak, despite the fact that the required notice "is not an informed-consent requirement or...tied to a procedure at all."
In Wollschlaeger , the Eleventh Circuit declined to say whether intermediate or strict scrutiny would be the appropriate standard of review.
Furthermore, the Third Circuit recognized professional speech as a category of speech subject to intermediate scrutiny. In King , the Third Circuit considered New Jersey's ban on SOCE performed on minors and reviewed the district court's order on summary judgment, which was entered against the plaintiff-doctors who challenged the statewide SOCE ban. See
Plaintiffs insist that NIFLA abrogated the "professional speech" standard that the Third Circuit employed,
Taken collectively, these cases instruct that this case may fall outside of Reed 's *1256onerous edict that all content-based laws must be subject to strict scrutiny. While NIFLA disparaged the use of "professional speech" as a separate category of speech, it did not foreclose the possibility that reasons might exist for treating professional speech as a separate category. See
The ordinances here are much closer to the regulation at issue in Casey than the regulations in Wollschlaeger , Conant , and NIFLA . The speech not only is directly related to the treatment, it is the manner of delivering the treatment. Plaintiffs are essentially writing a prescription for a treatment that will be carried out verbally. In contrast to Wollschlaeger , Conant , and NIFLA , the ordinances do not prohibit a dialogue between patient and provider. See Wollschlaeger ,
Accordingly, applying intermediate scrutiny to medical treatments that are effectuated through speech would strike the appropriate balance between recognizing that doctors maintain some freedom of speech within their offices, and acknowledging that treatments may be subject to significant regulation under the government's police powers. The First Amendment is of paramount importance to our democracy, but, as quoted above, "the freedom of speech...does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language." Gitlow v. New York ,
5. First Principles of the First Amendment
Furthermore, this case demonstrates why an unbending, categorical approach to the First Amendment proves unwieldy to the point of unworkable. In fact, the exemptions to the automatic "trigger" of strict scrutiny illustrate a recognition that an ironclad, categorical approach is untenable in applying the First Amendment to seemingly endless permutations and circumstances. "[C]ategories alone cannot satisfactorily resolve the legal problem before us. The First Amendment requires greater judicial sensitivity both to the Amendment's expressive objectives and to the public's legitimate need for regulation than a simple recitation of categories, such as 'content discrimination' and 'strict scrutiny' would permit." Reed v. Town of Gilbert , --- U.S. ----,
Applying intermediate scrutiny to this case is entirely consistent with the historic understandings of the First Amendment and its purpose. The First Amendment's "purpose [is] 'to preserve an uninhibited marketplace of ideas in which the truth will ultimately prevail.' " McCullen v. Coakley ,
"At 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." Turner Broadcasting System, Inc. v. FCC ,
This case presents facts in which speech is not always expressive, and thus warrants less scrutiny. Cf. O'Brien ,
The ordinances do not limit or change in any way advocacy for SOCE. Plaintiffs retain their right and prerogative to seek greater acceptance of SOCE, to lobby Defendants to repeal the ordinances, and to lobby the State of Florida to explicitly preempt the ordinances. The public marketplace of ideas is not limited in any way. What is limited, is the therapy (delivered through speech and/or conduct) by a licensed practitioner to his or her minor patient, within the confines of a therapeutic *1258relationship. In the context of the relationship between a minor and his or her therapist, there is no competitive marketplace of ideas to infringe upon. Given the multitude of avenues of expression available to Plaintiffs, intermediate or heightened level of review is consistent with the justifications for and principles of the First Amendment.
6. Conclusions Regarding the Appropriate Standard of Review
The Court concludes that it is unclear what standard of review should apply to this case. It seems likely that the ordinances are subject to more than rational basis review, but beyond that determination, it is unclear whether intermediate or strict scrutiny should apply. Reed suggests that strict scrutiny is appropriate, but case law specifically addressing the regulation of licensed providers indicates that a lower standard of review would be appropriate. As such, intermediate review may be the correct standard to apply, to acknowledge that licensed providers are not completely stripped of their freedom of expression in their offices and exam rooms, but governments can readily regulate treatments provided by licensed providers.
In the following two sections, the Court evaluates the ordinances using the principles found in all three levels of review.
C. The Governments' Interest in the Ordinances
If the ordinances are subject to rational basis review, it is the Plaintiffs' burden to show that there was no legitimate government interest in passing the ordinances. See Pickup v. Brown ,
In this case, both Defendants assert a "compelling interest in protecting the physical and psychological well-being of minors...and in protecting its minors against exposure to serious harms caused by sexual orientation and gender identity change efforts" within the body of the ordinances. DE 1-4; DE 1-5. This Court finds these interests are legitimate, substantial, and compelling. See Sable Commc'ns of Cal., In. v. FCC ,
In concluding that SOCE is harmful and should be prevented, the Defendants considered multiple publications by major research and professional organizations. The following are examples of the conclusions of studies and position papers regarding the harms of conversion therapy (including therapy relating to both same-sex attractions and gender identity on both minors and adults), which Defendants relied upon in enacting the ordinances:
• According to the American Academy of Pediatrics, "Therapy directed at specifically changing sexual orientation is contraindicated, since it can provoke guilt and anxiety while having little or no potential for achieving changes in orientation." DE 1-4, 2;
*1259DE 1-5, 9; DE 128-2, 633; DE 121-12, 633.
• In 1998, the American Psychiatric Association "published its opposition to any psychiatric treatment, including reparative or conversion therapy." DE 1-4, 3; DE 1-5, 9. "The potential risks of 'reparative therapy' are great and include depression, anxiety, and self-destructive behavior, since therapist alignment with societal prejudices against homosexuality may reinforce self-hatred already experienced by the patient." DE 128-3; DE 121-13.
• The American Psychological Association ("APA") created a task force in 2009 to conduct a "systematic review of peer-reviewed journal literature on sexual orientation change efforts (SOCE)." DE 128-4 at v; DE 121-14 at v. The report "concluded that efforts to change sexual orientation are unlikely to be successful and involve some risk of harm, contrary to the claims of SOCE practitioners and advocates."Id. See also DE 1-4, 3; DE 1-5, 9.
• The APA Task Force found:
[S]ome recent studies document that there are people who perceive that they have been harmed though SOCE....Among those studies reporting on the perceptions of harm, the reported negative social and emotional consequences include self-reports of anger, anxiety, confusion, depression, grief, guilt, hopelessness, deteriorated relationships with family. Loss of social support, loss of faith, poor self-image, social isolation, intimacy difficulties, intrusive imagery, suicidal ideation, self-hatred, and sexual dysfunction.
DE 128-4, 42; DE 121-14, 42.
• The Task Force also found that children may not understand the consequences of SOCE. "Children and adolescents are often unable to anticipate the future consequences of a course of action and are emotionally and financially dependent on adults. Further, they are in the midst of developmental processes in which the ultimate outcome is unknown. Efforts to alter that developmental path may have unanticipated consequences." Id. at 77.
• The Task Force concluded:
[T]here is a dearth of scientifically sound research on the safety of SOCE. Early and recent research studies provide no clear indication of the prevalence of harmful outcomes among people who have undergone efforts to change their sexual orientation or the frequency of occurrence of harm because no study to date of adequate scientific rigor has been explicitly designed to do so. Thus, we cannot conclude how likely it is that harm will occur from SOCE. However, studies from both periods indicate that attempts to change sexual orientation may cause or exacerbate distress and poor mental health in some individuals, including depression and suicidal thoughts. The lack of rigorous research on the safety of SOCE represents a serious concern, as do studies that report perceptions of harm.
Id. at v.
• The American Psychological Association Council of Representatives has adopted a policy statement against SOCE, which noted that "[d]istress and depression were exacerbated" in individuals subjected to such therapy. DE 121-15; DE 128-5. See also DE 1-4, 3; DE 1-5, 9.
• The Pan American Health Organization, an office of the World Health Organization, has stated, " 'Reparative'
*1260or 'conversion therapies' have no medical indication and represent a severe threat to the health and human rights of the affected persons. They constitute unjustifiable practices that should be denounced and subject to adequate sanctions and penalties." DE 121-19, 2012 Pan American Health Organization Position Statement 2. See also DE 1-4, 4; DE 1-5, 10.
• "Psychoanalytic technique does not encompass purposeful attempts to 'convert,' 'repair,' change or shift an individual's sexual orientation, gender identity or gender expression. Such directed efforts are against fundamental principles of psychoanalytic treatment and often result in substantial psychological pain by reinforcing damaging internalized attitudes," according to the American Psychoanalytic Association in 2012. DE 121-16; DE 128-6. See also DE 1-4, 3-4; DE 1-5, 9-10.
• The American Academy of Child & Adolescent Psychiatry's Practice Parameter states, "Just as family rejection is associated with problems such as depression, suicidality, and substance abuse in gay youth, the proposed benefits of treatment to eliminate gender discordance in youth must be carefully weighed against such possible deleterious effects." DE 121-17, 969; DE 128-7, 969. See also DE 1-4, 4; DE 1-5; 10.
• "Given that there is no evidence that efforts to alter sexual orientation are effective, beneficial, or necessary, and the possibility that they carry the risk of significant harm, such interventions are contraindicated," contrary to the claims of SOCE practitioners and advocates. DE 121-17, 968; DE 128-7, 968.
• According to the American School Counselor Association, "School counselors recognize the profound harm intrinsic to therapies alleging to change an individual's sexual orientation or gender identity and advocate to protect LGBTQ students from this harm." DE 121-20, 37; DE 128-9, 37. See also DE 1-4, 4; DE 1-5, 10.
• The report prepared by U.S. Department of Health and Human Services, Substance Abuse and Mental Health Services Administration found as follows: "Conversion therapy perpetuates outdated views of gender roles and identities as well as the negative stereotype that being a sexual or gender minority or identifying as LGBTQ is an abnormal aspect of human development. Most importantly, it may put young people at risk of serious harm." DE 121-21; DE 128-10, SAMHSA Report. See also DE 1-4, 4-5; DE 1-5, 10-11.
The sources cited in the ordinances all conclude that rigorous research on the safety and effectiveness of seeking to change sexual orientation is deficient,12 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. See, e.g. , DE 1-6, 59 ("Participants in studies...described the harm they experienced as (a) decreased self-esteem and *1261authenticity to others; (b) increased self-hatred and negative perceptions of homosexuality; (c) confusion, depression, guilt, helplessness, hopelessness, shame, social withdrawal, and suicidality; (d) anger at and a sense of betrayal by SOCE providers; (e) an increase in substance abuse and high-risk sexual behaviors; (f) a feeling of being dehumanized and untrue to self; (g) a loss of faith; and (h) a sense of having wasted time and resources. Interpreting SOCE failures as individual failures was also reported in this research, in that individuals blamed themselves for the failure (i.e. weakness, and lack of effort, commitment, faith, or worthiness in God's eyes)."). See generally DE 121, Exhibits 12, 13, 15; 17-22; DE 128, Exhibits 2-11. The small number of reports of harm from minors is understood in light of the retrospective reports and delayed perceptions of harm noted by the sources cited by the ordinances. See DE 121-21, 2015 SAMHSA Position Statement 33; DE 121-15, 2009 APA Resolution 50.
The County identified six providers within incorporated parts of Palm Beach County who practiced conversion therapy. See DE 121-39, 1. At the first reading of the County Ordinance, on December 5, 2017, mental health professionals spoke out against conversion therapy. A resident of Palm Beach County and mental health professional stated:
As a therapist, the first rule of thumb is to do no harm. Conversion therapy not only violates this ethic, but it implies that a therapist has the ability to change one's sexual orientation. As great as we are, therapists are far and wide [sic] unable to pinpoint the therapeutic intervention which can make an individual change this part of who they are....
DE 121-2, 12/05/17 County Commissioners' Meeting Tr. 49-50. A psychologist and certified sex therapist, who practices in the County, also advised the County that:
Research has actually found that efforts and so-called therapies aimed at changing one's gender, identity, or sexual orientation can result in a number of mental health issues for minors; including shame, guilt, depression, decreased self-esteem, increased self-hatred,...feelings of anger and betrayal, loss of friends, social withdrawal, problems in sexual and emotional intimacy, high-risk behaviors, confusion, self-harm, substance abuse, and suicidal ideation.
Id. at 11-14.
The County Commission heard from the leader of a local human rights group, who reported receiving complaints about minors who were being subjected to conversion therapy within Palm Beach County. Id. at 65; see also DE 121-3, 12/19/17 County Commissioners' Meeting Tr. 80-81.
On December 19, 2017, the County heard from a local licensed clinical social worker and a family therapist who had been practicing for more than thirty years. DE121-3, 12/19/17 County Commissioners' Meeting Tr. 15. He advised the County that he had "worked with youth and families [his] entire career" and that "conversion therapy" was "an extremely dangerous and unethical practice that does not work." Id. The County also heard testimony from many community members and practitioners who strongly opposed the ban. See, e.g. , DE 121-2, 21-22 (community member explaining that voluntary SOCE worked for him); DE 121-2, 34-36 (licensed mental health counselor urging the Board of Commissioners to oppose the ordinance because "if a minor, an adolescent, wants to line their life up with a belief, a core heart belief that they want a heterosexual life and marriage and wants help," counselors should be allowed to provide that help).
At oral argument on the Motion, Plaintiffs challenged the quality of the above-cited *1262authorities, describing them as "no evidence at all." Hr'g. Tr. 48:9-13. The Court disagrees. Far from anecdotal remarks that constitute mere conjecture, the authorities relied upon by Defendants in adopting the ordinances are overwhelmingly the official position statements of major medical and mental health organizations. While their findings and views may differ as to degree, they present a consistent position that conversion therapy is harmful or potentially harmful to all people, and especially to minors. Defendants could properly find that the research about the dangers of conversion therapy, particularly for minors, was "overwhelming." DE 128-1, 11. But, cf. Wollschlaeger v. Gov. of Fla. ,
To the extent Plaintiffs quarrel with the empirical nature of the cited position papers and studies, courts "have permitted litigants to justify speech restrictions by reference to studies and anecdotes pertaining to different locales altogether, or even, in a case applying strict scrutiny, to justify restrictions based solely on history, consensus, and 'simple common sense.' " Lorillard Tobacco Co. v. Reilly ,
Moreover, the 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. See King ,
Plaintiffs also argue that Defendants' failure to outright ban all SOCE or conversations about SOCE vitiates Defendants' interest in preventing the identified harm from SOCE. However, the limits of the SOCE ban, for instance to apply only to licensed professionals, does not defeat the compelling interest here. "We will not punish [a government] for leaving open more, rather than fewer, avenues of expression, especially when there is no indication that the selective restriction of speech reflects a pre-textual motive." Williams-Yulee v. Fla. Bar , --- U.S. ----,
Having considered Defendants' evidence, and Plaintiffs' objection to this body of publications, the Court concludes that Defendants have a legitimate, compelling interest in protecting minors in their communities from the harms of SOCE. This compelling interest satisfies Defendants' burden under all levels and types of scrutiny.
D. The Relationship between the Ordinances and the Governments' Interest
All levels of judicial review require a relationship between the government interest and the ordinances, and an evaluation of the closeness of that relationship. If the ordinances are subject to rational basis review, it is Plaintiffs' burden to show that there is no "rational relationship" between the ordinances and the governments' legitimate interest. See Pickup ,
The Court first evaluates the scope of the ordinances.
1. The Scope of the Ordinances: Application to Minor Clients Only
The ordinances are drafted to prohibit only the practice of, as opposed to any discussion or recommendation of, conversion therapy by licensed professionals on minors, which is condemned by numerous professional organizations as contraindicated, harmful, and ineffective, because minors' "immaturity, inexperience, and lack of judgment may sometimes impair their ability to exercise their rights wisely."13
*12642. The Scope of the Ordinances: General Speech vs. the Performance of SOCE
The ordinances were drafted in such a way that Plaintiffs are not hindered in their expression of their views about SOCE, their advocacy of SOCE, and even their discussions with minor clients about SOCE. See DE 1-4; DE 1-5. As mentioned supra , "There is a difference, for First Amendment purposes, between regulating professionals' speech to the public at large versus their direct, personalized speech with clients." Locke v. Shore ,
The Court next addresses whether the Defendants considered alternative means to the ordinances.
3. Alternative Means
Defendants concluded that their interest in preventing harm to minors was not adequately protected by existing regulations. Plaintiffs argue the ordinances are not narrowly tailored to the government interests. Plaintiffs rely heavily on McCullen v. Coakley , in which the Supreme Court considered the constitutionality of a thirty-five foot buffer zone around entrances to abortion providers in Massachusetts,
As in McCullen , Defendants arguably could have used other laws to prevent harm to minors from SOCE. When asked, the Florida Department of Health had no records regarding complaints against medical providers regarding SOCE. See DE 1-9. The lack of complaints to the Florida Department of Health, however, is not dispositive of whether the Defendants could have taken less restrictive actions, such as engaging in a publicity campaign - urging minors who feel they have been harmed to make a formal complaint about their providers - or passing a resolution condemning SOCE and encouraging concerned citizens to come forward with their complaints.14
The lack of SOCE-based complaints to the State could instead lead to the conclusion that existing regulations, such as the providers' codes of ethics and child abuse laws, were not sufficient to prevent this harm. Indeed, Plaintiffs have not interpreted the blanket and general prohibitions against discrimination and "harming minors" to prohibit them from exposing minors to the risk of conversion therapy. See DE 1, ¶¶ 132-36, 149-57 (describing Plaintiffs' performance of SOCE on minors prior to the ordinances' enactment); DE 121-7, Otto Dep. 59:19-25 ("Q: How many *1265clients have you had where the issue to be addressed is the minor's same-sex sexual attractions? A: I've dealt with four."). Nor has the requirement that Plaintiffs "meet the minimum standards of performance in professional activities when measured against generally prevailing peer performance" caused Plaintiffs to heed the judgments of prevailing professional organizations that conclude that conversion therapy is contraindicated. See
Furthermore, the communities and states that have addressed the problem of SOCE have adopted nearly identical ordinances and laws to the ordinances here. Thus, this case is distinguishable on its facts from McCullen , where the Commonwealth of Massachusetts had not considered methods that other jurisdictions had found to be effective.
4. Alternative Means: Informed Consent or Voluntary SOCE
Plaintiffs also argue that informed consent protocols could have protected minors from coerced SOCE. However, Defendants maintain that informed consent does not adequately prevent the harms associated with conversion therapy. See King v. Gov. of N.J. ,
Indeed, Defendants have presented evidence that the alleged desires of some minors to eliminate same sex attractions may be generated by the minor's parents. DE 1-6, 81 ("There is no published research suggesting that children are distressed about their sexual orientation per se. Parental concern or distress about a child's behavior, mental health, and possible sexual orientation plays a central role in referrals for psychotherapy."); see also DE 1-6, 55-60, 82 ("The absence of evidence for adolescent sexual orientation distress that results in requests for SOCE and the few studies in the literature on religious adolescents seeking psychotherapy related to sexual orientation suggest that such distress is most likely to occur among adolescents in families for whom a religion that views homosexuality as sinful and undesirable is important.").
In addition, even if minors were legally able to consent, publications "have cautioned against providing interventions that have very limited evidence of effectiveness, run counter to current scientific knowledge, and have the potential for harm, despite client requests ." DE 1-6, 78 (emphasis added) (quotations omitted). Defendants were entitled to conclude that an informed consent protocol would not adequately protect minors from this harm.
Plaintiffs also criticize the studies relied upon by Defendants, because they argue that the studies do not differentiate between coerced and consented-to SOCE. To the contrary, the studies relied upon by Defendants demonstrate that most of the collected data about SOCE comes from individuals who did voluntarily engage in the practice. DE 1-6, 8 ("[T]he task force concluded that the population that undergoes SOCE tends to have strongly conservative religious views that lead them to seek to change their sexual orientation."); DE 1-6, 13 ("Many religious individuals desired to live their lives in a manner consistent with their values (telic congruence),..."); DE 1-6, 25 ("Most of the recent studies on SOCE focus on populations *1267with strong religious beliefs" who seek SOCE) (citing seven separate publications).
5. Alternative Means: Prohibition of Aversive Therapies Only
Plaintiffs also argue that Defendants could have passed ordinances that ban aversive therapy, but not talk therapy. To the extent this alternative was raised in public hearings before the County, the County did consider this alternative, and apparently rejected it. See, e.g. , DE 121-3, 38. No community members spoke at the City's public hearing. See DE 128-17, 3.
The publications relied upon by the Defendants recognize a lack of research on non-aversive SOCE: "We found that nonaversive and recent approaches to SOCE have not been rigorously evaluated." DE 1-6, 52. This may be due to the reluctance of practitioners and research institutions to engage in any SOCE practices. Still, Defendants' cited authorities did not limit their recommendations against conversion therapy to only coercive, behavioral, or aversive techniques. See, e.g. , DE 128-6, Am. Psychoanalytic Ass'n Position Statement ("Psychoanalytic technique does not encompass purposeful attempts to 'covert,' 'repair,' change or shift an individual's sexual orientation, gender identity or gender expression. Such directed efforts are against fundamental principles of psychoanalytic treatment and often result in substantial psychological pain by reinforcing internalized attitudes"); DE 128-10, SAMHSA Report 1 ("[C]onversion therapy - efforts to change an individual's sexual orientation, gender identity, or gender expression - is a practice that is not supported by credible evidence and has been disavowed by behavioral experts and associations….Most importantly, it may put young people at risk of serious harm."). Rather, the authorities that the Defendants relied upon for enactment of the ordinances warn against all conversion therapy, including the type of "talk therapy" performed by Plaintiffs on minors.
Requiring Defendants to produce specific evidence that engaging in SOCE through talk therapy is as harmful as aversive techniques would likely be futile when so many professional organizations have declared their opposition to SOCE. See, e.g. , DE 1-6, 20, 33.
6. Conclusions Regarding the "Fit" of the Ordinances to the Governments' Interests
If the ordinances are subject to rational review, the ordinances are "rationally related" to their purpose. Under intermediate scrutiny as well, these limitations are sufficient to show that the ordinances were "narrowly drawn."
However, if the ordinances are subject to strict scrutiny, Defendants must also demonstrate that the ordinances are the least restrictive means to accomplish their objectives of limiting harmful SOCE therapeutic practices on minors. This is a heavy burden for Defendants: "[I]t is the rare case" in which a government is able to demonstrate "that a speech restriction is narrowly tailored to serve a compelling interest." Williams-Yulee v. Fla. Bar , --- U.S. ----,
E. Viewpoint Discrimination
Finally, the Court returns to Plaintiffs' argument that the ordinances are viewpoint discriminatory. Although this issue is theoretically dispositive, courts often may not reach this question, because they decide the challenged law fails under a strict scrutiny analysis. See, e.g. , Conant v. Walters ,
Plaintiffs argue that the ordinances discriminate against the viewpoint of those "who wish to reduce or eliminate behaviors, identity, or expressions that differ from their biological sex." DE 8, 4; see also Hr'g. Tr. 26-29 ("So, what makes th[is] viewpoint discriminatory is not that it prohibits equally change in either direction, from heterosexual to homosexual, that is not discriminatory; what is discriminatory is the viewpoint that they share is one that affirms the current state of affairs and disaffirms or disavows any kind of change, your Honor.") (emphasis added). In addition, Plaintiffs argue that the exclusion of counseling that "provides support and assistance to a person undergoing gender transition" from the definition of conversion therapy demonstrates that the ordinances are viewpoint discriminatory. DE 1-4, 6; DE 1-5, 13; see DE 8, 4.
The Court finds that the alleged viewpoint discrimination against those who believe that it is possible to change a person's sexual orientation or attractions is not distinguishable from the subject matter being regulated. The ordinances may be construed to be content-discriminatory, because they may prohibit speech based on the ideas, or the message that it conveys. But, "[w]hen the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable, no significant danger of idea or viewpoint discrimination exists." R.A.V. v. City of St. Paul ,
The plaintiffs in R.A.V. challenged a statute which prohibited displays that would arouse "anger, alarm, or resentment...on the basis of race, color, creed, religion or gender." 505 U.S. at 380,
In this case, Defendants purport that SOCE is regulated because the harm or *1269potential harm is in the treatment itself, not because of the viewpoint or beliefs of the speaker. The ordinances do not regulate Plaintiffs' views about SOCE, homosexuality, or human attraction more generally. The ordinances also do not indicate a preference between heterosexual or homosexual individuals seeking to change their sexual orientation one way or another. See DE 1-4; DE 1-5; Hr'g. Tr. 26-29 ("So, what makes the viewpoint discriminatory is not that it prohibits equally change in either direction, from heterosexual to homosexual, that is not discriminatory.") (emphasis added); see also Hr'g. Tr. 119:2-8. The ordinances do regulate the practices of licensed medical providers in trying to change a child's sexual orientation. This practice is what is regulated, not any particular viewpoint on the subject. And, the "proposition that a particular instance of speech can be proscribable on the basis of one feature (e.g., obscenity) but not on the basis of another (e.g., opposition to the city government) is commonplace." R.A.V. , 505 U.S. at 385,
In addition, the ordinances do not prohibit or affect the expression of Plaintiffs' views regarding the benefits of SOCE, sexual orientation or any issue related to it. The ordinances do not ban change, or the expression of the viewpoint that change in sexual orientation is possible. The ordinances do ban efforts, through a medical intervention, by a licensed provider, to therapeutically change a minor's sexual orientation. Presented with a minor client seeking to change his or her sexual orientation or gender identity, Plaintiffs may commend and recommend conversion therapy. Plaintiffs cannot perform SOCE in Palm Beach County or the City Boca Raton. See Keeton v. Anderson-Wiley ,
The Court does not agree that the ordinances are viewpoint-based because they exclude from the definition of "conversion therapy" practices that support a minor who is already undergoing gender transition. See DE 126-20, 5; DE 126-27, 6. The "counseling" and "support" that is excluded from the definition of conversion therapy is different in kind from SOCE, and is consistent with the modes of communication still available to Plaintiffs. The exclusion of counseling for persons undergoing gender transition underscores the fact that the ordinances only ban the practice of SOCE , but licensed professionals are entitled to provide counseling and support to their minor patients on a wide variety of topics, including the benefits of SOCE and/or coping strategies for patients undergoing gender transition. "The First Amendment does not require States to regulate for problems that do not exist." McCullen v. Coakley ,
Finally, the exclusion of religious leaders, and the focus of the law on licensed providers makes sense in light of doctors' role in society. "It is of course true that 'an exemption from an otherwise permissible *1270regulation of speech may represent a governmental 'attempt to give one side of a debatable public question an advantage in expressing its views to the people." McCullen ,
For the foregoing reasons, the Court concludes that the ordinances likely are viewpoint neutral, and therefore are not per se unconstitutional.
F. Conclusions on Plaintiffs' Free Speech Claim
For all of the foregoing reasons, the Court declines to announce a standard of review for this case. Based on Wollschlaeger , the ordinances likely affect protected speech, and are therefore subject to a higher level of review than rational basis review. The ordinances also seem to regulate on the basis of their content, which would compel strict scrutiny under Reed . However, the Court is unconvinced that strict scrutiny is necessarily the appropriate standard of review, when the ordinances apply to a licensed provider's treatment of a minor patient.
The Court finds that if either rational basis review or intermediate review were applied to the ordinances, the ordinances would survive this constitutional challenge. The analysis under strict scrutiny is a closer call, and the Court is unconvinced that Plaintiffs have demonstrated that they are substantially likely to succeed on the merits.
VII. PLAINTIFFS' PRIOR RESTRAINT CLAIM
Plaintiffs next argue that the ordinances are unconstitutional prior restraints on protected speech. DE 8, 22-23. "The term prior restraint is used to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur." Alexander v. United States ,
A prior restraint on speech is distinguishable from a penalization of past speech. See Alexander ,
VIII. PLAINTIFFS' VAGUENESS CLAIM
Plaintiffs also argue that the ordinances are unconstitutionally vague because "sexual orientation and gender identity are fluid and changing concepts," and, therefore, licensed professionals and officers who would enforce the ordinances are uncertain about what the ordinances prohibit. DE 8, p. 23-24. A law is impermissibly vague if it (1) fails to provide a person of ordinary intelligence a reasonable opportunity to understand what conduct is prohibited or (2) authorizes or encourages arbitrary and discriminatory enforcement. Hill v. Colorado ,
However, "perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity." Ward v. Rock Against Racism ,
Although Plaintiffs are correct that the ordinances do not define the phrases "sexual orientation" and "gender identity," the Court is unconvinced that Plaintiffs will succeed on their claim that the use of those phrases renders the ordinances *1272vague. Both phrases have a common and readily-ascertainable meaning, such that a person of ordinary intelligence would understand the type of therapy that is prohibited. See, e.g. , The American Heritage Dictionary of the English Language (5th ed. 2019) (defining "gender identity" as "[a]n individual's self-identification as being male, female, neither gender, or a blend of both genders" and defining "sexual orientation" as "[t]he direction of a person's sexual interest, as toward people of a different sex, toward people of the same sex, or without regard to sex").
In fact, the Supreme Court has used the phrase "sexual orientation" in numerous opinions, with no apparent difficulty in understanding the phrase's meaning. See, e.g. , Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n , --- U.S. ----,
Consequently, the Court is unconvinced that licensed professionals and officers who would enforce the ordinances would be unclear about what the ordinances prohibit. Plaintiffs have not demonstrated a substantial likelihood of succeeding on the merits of their claim that the ordinances are unconstitutionally vague, so a preliminary injunction shall not issue on this ground. See Wreal, LLC v. Amazon.com, Inc. ,
IX. PLAINTIFFS' ULTRA VIRES CLAIM
In their Motion, Plaintiffs finally contend that that the ordinances are ultra vires because "the State has impliedly preempted the field of regulation of mental health professionals" and because "the Ordinances conflict with Florida law." DE 8, 18. On these bases, Plaintiffs maintain that they are entitled to a preliminary injunction. Plaintiffs argue in just three paragraphs that they are suffering an irreparable injury, and they focus their argument entirely on the irreparable injury they suffer at the loss of their speech. DE 8, 19-20. Plaintiffs have not articulated a separate irreparable injury for the Defendants' alleged overreach into a subject area preempted by the State of Florida. If the County and City have overstepped their legislative mandate, Plaintiffs may have suffered and continue to suffer, during the pendency of this action, an injury insofar as they are unable to engage in a form of treatment that they would otherwise perform for their minor clients. This may result in the loss of current clients who seek SOCE and the loss of future clients who are specifically seeking SOCE-providers. See DE 1, ¶¶ 132-36, 149-57.
However difficult it may be to calculate the lost income and professional growth from this injury, this is not the "irreparable" injury required to justify the extraordinary remedy of a preliminary injunction. "The basis of injunctive relief in the federal courts has always been irreparable harm and inadequacy of legal remedies." Sampson v. Murray ,
*1273showing of irreparable harm is 'the sine qua non of injunctive relief.' " Ne. Fla. Chapter of the Ass'n of Gen. Contractors of Am. v. City of Jacksonville ,
The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.
Ne. Fla. Chapter of the Ass'n of Gen. Contractors of Am. ,
Plaintiffs have not met their burden of demonstrating that they will suffer an irreparable injury if the County and City have outstepped their bounds. The Court need not reach the remaining three elements for a preliminary injunction. Am. Civil Liberties Union of Fla., Inc. v. Miami-Dade Cty. Sch. Bd. ,
X. CONCLUSIONS
Accordingly, for the all of the reasons stated above, it is hereby ORDERED AND ADJUDGED
1. The Renewed Motion for Preliminary Injunction [DE 8] is DENIED .
2. The Court will set a status conference in this case in a separate order.
DONE AND ORDERED in Chambers, West Palm Beach, Florida, this 13th day of February, 2019.
Related
Cite This Page — Counsel Stack
353 F. Supp. 3d 1237, Counsel Stack Legal Research, https://law.counselstack.com/opinion/otto-v-city-of-boca-raton-flsd-2019.