Therapy as free speech

Here’s the 36-page ruling that was published:

I also attached the pdf file.
The ABA’s brief analysis:

A federal appeals court has upheld a California law that bars therapists from providing “conversion therapy”—which seeks to change sexual orientation from gay to heterosexual—for patients under age 18.

The San Francisco-based 9th U.S. Circuit Court of Appeals said the ban does not violate the free speech or associational rights of therapists and patients. Nor does the law violate the fundamental rights of parents to make important medical decisions for children, the court said.

“Under its police power,” the court said, “California has authority to prohibit licensed mental health providers from administering therapies that the legislature has deemed harmful, and … the fact that speech may be used to carry out those therapies does not turn the prohibitions of conduct into prohibitions of speech. … We further conclude that the First Amendment does not prevent a state from regulating treatment even when that treatment is performed through speech alone.”

California is one of only two states which prohibit mental health providers from providing therapy for sexual orientation change to minors. There are rumors that Washington State legislator Marko Liias may introduce similar legislation in Washington.

NJ weighed in:

On Monday, New Jersey became the second state to pass a law banning licensed counselors from practicing a controversial therapy on minors that attempts to change their sexual orientations.

Gay rights advocates were quick to applaud the move as a critical measure to protect minors and the latest sign that the United States is moving in the right direction. Two conservative legal organizations pledged that they would soon bring lawsuits challenging the law.


The idea of a therapist “curing” patients of same-sex attractions through talk therapy goes back to a time when homosexuality was widely considered a mental illness and “sodomy” was a crime. But in recent decades, practically all mainstream mental health organizations have disavowed the practice.

Supporters of the New Jersey law point to the overwhelming consensus of the mainstream mental health community where organizations, including the American Psychological Association and the American Academy of Pediatrics, have warned that there is no scientific proof the therapy changes sexual orientation and that attempting to do so could harm the patient. They also point to the fact that the United States government has a history of regulating medical treatment for minors. Opponents of the law, however, said these bans are an unconstitutional infringement on free speech and parental rights.

The rub is weighing what amounts to a parens patriae state authority of regulating in a manner that protects the public v. free speech (and tacked onto this, parental rights; of course, parental rights are “challenged” routinely in Family Court).

In the United States, the parens patriae doctrine has had its greatest application in the treatment of children, mentally ill persons, and other individuals who are legally incompetent to manage their affairs.

And, very briefly, unprotected forms of speech:

  • Subversive advocacy
  • Fighting words
  • True threats
  • Obscenity
  • Child pornography
  • Commercial speech (that concerns illegal activity or commercial
    speech that is false or misleading)