Supporters wave rainbow flags and signs at the annual Pride Parade as it passes through Greenwich Village in New York City.
People have intense moral, religious, and spiritual views about these matters鈥攐n all sides. And that is exactly why the First Amendment does not allow communities to determine how their neighbors may be counseled about matters of sexual orientation or gender.
鈥 Judge (for the majority)
The majority invalidates laws enacted to curb these therapeutic practices, despite strong evidence of the harm they cause, as well as the laws鈥 narrow focus on licensed therapists practicing on patients who are minors.
The case is (11th Cir., 2020), a case likely to find its way to the Supreme Court's docket.
Facts
Per the district court :
Plaintiffs, licensed therapists, seek to provide talk therapy to minors with the goal of changing their sexual orientation and/or gender identity. Defendants, governmental entities, have passed ordinances to prohibit this practice by the therapists, because they believe that such "conversion therapy" or "sexual orientation change efforts" ("SOCE") are contraindicated and harmful to all persons, but especially minors. At its core, this case is about whether Defendants can prohibit the licensed therapists from administering SOCE therapy to minors where the available medical and subject matter literature concludes that the therapy is harmful to minors.
The applicable law
The ordinance bars those providers covered by the law from treating minors with:
any counseling, practice or treatment performed with the goal of changing an individual鈥檚 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.
The county enacted a similar ordinance banning covered providers from engaging in SOCE with minor clients.
Hon. Britt C. Grant (majority opinion)
Legal challenges
From the circuit majority opinion:
The plaintiffs claim that the SOCE ordinances violate [the self-autonomy] principle by restricting speech-based therapy because the local governments disagree with the message, ideas, subject matter, and content of the words spoken during their clients鈥 therapy.
The local governments counter that their only intention is to protect minors from the harm that is surely caused by that speech, and say that because it is professional speech or conduct they have the power to limit it.
Content-based restrictions
The local governments鈥 characterization of their ordinances as professional regulations cannot lower that bar. The Supreme Court has consistently rejected attempts to set aside the dangers of content-based speech regulation in professional settings: 鈥淎s with other kinds of speech, regulating the content of professionals鈥 speech 鈥榩ose[s] the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information.鈥欌 Nat鈥檒 Inst. of Fam. & Life Advocs. v. Becerra, 138 S. Ct. 2361, 2374 (2018)
Viewpoint discrimination
So the ordinances discriminate on the basis of content鈥攁t a minimum. They also discriminate on the basis of viewpoint. After all, the plaintiffs鈥 counseling practices are grounded in a particular viewpoint about sex, gender, and sexual ethics. The defendant governments obviously hold an opposing viewpoint鈥攐ne that they surely have the right to promote.
Conduct not speech argument
Nor can the local governments evade the First Amendment鈥檚 ordinary presumption against content-based speech restrictions by saying that the plaintiffs鈥 speech is actually conduct. We can understand why they would make this claim; if the ordinances restricted only non-expressive conduct, and not speech, then they would not implicate the First Amendment at all. Our Court, though, has already rejected the practice of relabeling controversial speech as conduct. In a case quite similar to this one, we laid down an important marker: 鈥渢he enterprise of labeling certain verbal or written communications 鈥榮peech鈥 and others 鈥榗onduct鈥 is unprincipled and susceptible to manipulation.鈥 Wollschlaeger v. Governor, Fla., 848 F.3d 1293, 1308 (11th Cir. 2017) (en banc).
Hon. Beverly B. Martin (dissenting)
Professional speech exception
The idea that the ordinances target 鈥減rofessional speech鈥 does not loosen the First Amendment鈥檚 restraints. Although [Nat鈥檒 Inst. of Fam. & Life Advocs. v. Becerra] did 鈥渘ot foreclose the possibility鈥 that some reason might exist for finding that professional speech is a 鈥渦nique category that is exempt from ordinary First Amendment principles,鈥 the defendants have not provided one.
Standard of review
Strict scrutiny ordinarily applies to content-based restrictions of speech, and this case is no different. That means we must consider whether the ordinances are 鈥渘arrowly tailored to serve compelling state interests.鈥 Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015). Laws or regulations almost never survive this demanding test, and these ordinances are not outliers. . . .
One reliable way to tell if a law restricting speech is content-based is to ask whether enforcement authorities must 鈥渆xamine the content of the message that is conveyed鈥 to know whether the law has been violated. McCullen v. Coakley, 573 U.S. 464, 479 (2014) (quoting FCC v. League of Women Voters of Cal., 468 U.S. 364, 383 (1984)). Take a recent example from the Supreme Court. To see if a robocall was legal, authorities needed to know what the call was about: collecting government debt or anything else. 鈥淭hat is about as content-based as it gets.鈥 Barr v. Am. Ass鈥檔 of Pol. Consultants, Inc., 140 S. Ct. 2335, 2346 (2020) (plurality opinion).
Alternative remedies
While the First Amendment rejects the governments鈥 approach here, it does not stand in the way of 鈥淸l]ongstanding torts for professional malpractice鈥 or other state-law penalties for bad acts that produce actual harm. NIFLA, 138 S. Ct. at 2373 (citing NAACP v. Button, 371 U.S. 415, 438 (1963)). People who actually hurt children can be held accountable, but 鈥淸b]road prophylactic rules in the area of free expression are suspect.鈥
Holding
We . . . conclude that these ordinances are content- and viewpoint-based restrictions on speech. . . .
[T]he therapists meet the first requirement for a preliminary injunction. They also meet the remaining requirements as a necessary legal consequence of our holding on the merits. . . .
鈥淚f 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.鈥 Texas v. Johnson, 491 U.S. 397, 414 (1989). The challenged ordinances violate that principle, and the district court should have enjoined their enforcement. We therefore REVERSE the district court鈥檚 order and REMAND for entry of a preliminary injunction consistent with this opinion.
Split in the circuits
From the :
Two other federal appeals courts have upheld bans on conversion therapy, according to Slate and Courthouse News Service. They are the 9th Circuit at San Francisco and the 3rd Circuit at Philadelphia. Twenty states ban the therapy for minors, along with Washington, D.C., and at least 83 municipalities, according to Slate.
Related
(counsel: Mathew D. Staver, Horatio G. Mihet, Roger K. Gannam / Liberty Counsel)
of American Psychological Association
Muri Assuncao, "," New York Daily News (Nov. 20)
"," Law Journal for Social Justice (Oct. 6)
Clay Calvert, "," Pepperdine Law Review (2020)
Will the Trump Twitter case be mooted?
The case is . The issue in the case according to SCOTUSblog is: "Whether the First Amendment deprives a government official of his right to control his personal Twitter account by blocking third-party accounts if he uses that personal account in part to announce official actions and policies." President Trump lost that case in the .
On November 18th the case was rescheduled. The name Petitioners are Donald Trump, in his official capacity as President of the United States, and Daniel Scavino, in his official capacity as White House Director of Social Media and Assistant to the President.
Given the real likelihood that Donald Trump will not be in office after January 20th, might his case be mooted out?
Related
"" with , , and , First Amendment Salon (Jan. 22)
"," CNN (Nov. 22)
Defamation suit: Nunes sues The Washington Post
This from :
Representative Devin Nunes (R-CA) has filed yet another defamation suit against a media company.
Congressman Devin Nunes
On November 11th, Nunes filed a libel suit in the U.S. District Court for the Eastern District of Virginia against The Washington Post and reporter Ellen Nakashima.
According to the complaint, ThePost published an article entitled, 鈥淲hite House official and former GOP political operative Michael Ellis named as NSA general counsel.鈥 The article 鈥渇alsely accused鈥 Nunes of 鈥渄ishonesty, deception, lying to the American public, spreading disinformation, lack of integrity, and ethical improprieties,鈥 the complaint states.
The complaints cites two statements that Nunes claims are defamatory:
鈥淚n March 2017, [Michael Ellis] gained publicity for his involvement in a questionable episode involving Nunes, who was given access at the White House to intelligence files that Nunes believed would buttress his baseless claims of the Obama administration spying on Trump Tower.鈥
鈥淣ews reports stated that Ellis was among the White House officials who helped Nunes see the documents 鈥 reportedly late at night, earning the episode the nickname 鈥榯he midnight run鈥.鈥
Related
"," First Amendment Watch (Nov. 13)
Court denies cert in off-campus speech case
This from the filed by :
In 2012, Petitioner Paul Hunt was a student at the University of New Mexico School of Medicine. Mr. Hunt posted comments on his personal Facebook page concerning abortion and the recent presidential election. He did not identify himself as being affiliated with the University, did not reference the Medical School, and did not direct his comments to faculty, classmates, or any other individual. Yet Mr. Hunt was punished for violating the University鈥檚 Respectful Campus Policy and Social Media Policy because his political speech was deemed 鈥渦nprofessional.鈥
Related
Eugene Volokh, "," The Volokh Conspiracy (Nov. 21)
New York's new anti-SLAPP law
"" First Amendment Watch (Nov. 19)
'Black Preborn Lives Matter' chalk on the sidewalk gives rise to First Amendment suit
Sam Dorman, "," Fox News (Nov. 19)
Bowser is facing a fresh lawsuit alleging that the city discriminated against viewpoints in the way it handled expression during "Black Lives Matter" (BLM) protests.
The issue arose out of a headline-catching confrontation between FIREfor Life of America (SFLA) members and the Metropolitan Police Department (MPD), which arrested them as they attempted to chalk "Black Preborn Lives Matter" on the sidewalk outside of a Planned Parenthood affiliate.
Filed on Wednesday, the lawsuit alleges that D.C. violated the First Amendment by applying a defacement ordinance to those individuals, but not to others who wrote anti-cop or "Black Lives Matter" messages in the city.
In its filing, SFLA and the Frederick Douglass Foundation note that Bower commissioned a "Black Lives Matter" mural that was painted on D.C. street. Another mural reading, "Defund the Police" was also painted on the same street by BLM D.C.
It's unclear the extent to which MPD enforced the defacement ordinance with other forms of speech, as the lawsuit alleged. But according to NPR, the city's Department of Public Works was later seen refreshing some of the paint but left "defund the police" on the street. "Well it鈥檚 not a part of the mural," Bowser told ABC News in June. "And we certainly encourage expression but we are using the city streets for city art." When ABC's Martha Raddatz pressed her further, Bowser said she hadn't "even had an opportunity to review it."
FIRE launches free speech hotline to combat student press censorship
Last week, FIREPresident and CEO Greg Lukianoff wrote about how his experiences as a student journalisttransformed him into a First Amendment advocate. I came to First Amendment advocacy via a similar path, having wrestled with student press censorship in both my high school and college newsrooms. I still distinctly remember the moment my college provost 鈥 responding to a journalistic investigation I was leading into allegations of wrongdoing that had been made against him 鈥 called me to his office and told me to 鈥渂e careful.鈥 Other FIREstaffers can tell similar stories.
Our own experiences as student journalists tell us that, while student press censorship can look very similar to other forms of campus censorship, it also comes with its own set of challenges. Student press censorship is often subtle; it can take unique formslike denial of access to necessary information, and it often requires quick resolution because it makes it difficult for journalists to report on current events in a timely manner.
In recognition of these unique challenges, as Greg mentioned in his blog last week, FIREhas renewed its efforts to offer resources and outreach targeted toward student journalists.
Today, we鈥檙e excited to announce our latest effort: FIRE鈥檚 new hotline for student journalists: 1-833-451-果冻传媒app官方.
FIRE always strives to offer a quick turnaround for those who reach out with case submissions from those concerned about potential violations of their rights on campus. Our case submission page allows us to receive and promptly respond to the concerns of students and faculty, generally within a few days.
However, student journalists are often in the position of not being able to wait a few days. It鈥檚 production night and you just got a call from an administrator demanding that you hold a story. Or your deadline is tomorrow and you just heard that the source you were set to interview was told he isn鈥檛 allowed to speak with you. The hypothetical examples are many, but the upswing is the same: Sometimes, student journalists need help today.
The new hotline allows student journalists to leave a brief voice message, which gets quickly transmitted to staff members. While we can鈥檛 promise we鈥檒l answer the phone 24/7, this system allows us to triage the needs of the student press in order to offer more rapid response in urgent situations.
We included the hotline number, 1-833-451-FIRE鈥 and, yes, fans of dystopian literature, the number is intentional 鈥 on posters sent to 602 student publications last week, and we encourage student journalists to hang these posters in their newsrooms and save it as a phone contact as a reminder that help is only a quick call away. (And if your newsroom didn鈥檛 receive a poster, shoot us an email at media@thefire.org and we鈥檒l make sure one arrives in your mailbox!)
New & forthcoming scholarly articles
John Acevedo, "" U of Alabama Legal Studies Research Paper No. 3694579, SSRN (Sept. 15) (Re: obscenity)
Prof. John Acevedo
When looking at a sexualized image the viewer is both subject and object of the artwork because the gaze of the viewer is turned back on themselves. Thus, the Supreme Court's jurisprudence on obscene speech tells us more about the viewer of an image than we do about the image itself. The existence of the gaze is revealed in the Court鈥檚 obscenity jurisprudence and its inability to settle on a definition of obscenity for most of the 20th century. In all of these instances, the court looks upon pornographic materials as the object upon which the court gazes, but in reality, the nature of these materials flips the view so the Court becomes the object on which pornography gazes At the same time the fixation on criminalizing obscenity has led to the silencing of the models who appear in sexual images.
Drawing on social theories, this article argues that the failure of obscenity law was inevitable because at the heart of obscenity lies unending subjectivity. This subjectivity means that obscenity should be protected under the FirstAmendment. But it also proposes changes to the law that will continue to protect children and give voice to models.
Related
Robert Corn-Revere, "The Mind of the Censor & The Eve of the Beholder" (Cambridge University Press, June 2020)
Caroline Keen, Ronald Kramer & Alan France, "," Media Culture & Society (2020)
Jareb A. Gleckel, "," Journal of Animal and Environmental Law (forthcoming 2021)
Barbara Pfeffer Billauer, "," SSRN (Nov. 12)
First Amendment Salon with Nossel & West
"" with Suzanne Nossel & Sonja West, First Amendment Salon (Oct. 29)
A federal court today halted enforcement of a California law that officials deployed to suppress journalism about a controversial tech CEO's sealed arrest records.
