In The Atlantic, former Washington Post reporter Garrett Epps defended a federal district judge's decision to put a new California law banning “ex-gay” therapy on hold, lending credence to the shoddy claim that the law limits the free speech of therapists hoping to cure their patients of homosexuality.

California is in the midst of a legal battle over SB-1172, a law adopted in September that bans the harmful practice of “ex-gay” therapy. On December 4, U.S. District Court Judge William Shubb granted a preliminary injunction against the law, handing a victory to the plaintiffs who have argued that the law restricts the free speech of therapists. 

In his December 5 article, Epps references this argument, embracing the claim that the law would prohibit therapists from even suggesting “ex-gay” therapy - also known as “sexual orientation change efforts” (SOCE) - to their patients:

At its heart, the statute forbids a therapist's communication to a patient: I think that you can change your sexual orientation and if you want to, I will help you. And thus it embodies what First Amendment lawyers call a “viewpoint-based restriction.” Therapists are free to counsel patients that their gay sexual orientation is a good thing, and are free to counsel against SOCE; those who give the opposite advice face state-mandated loss of their therapists' licenses.

Epps cites Conant v. Walters, a 2002 case in which the Ninth Circuit struck down a policy that prohibited doctors from recommending medical marijuana to their patients on first amendment grounds.

But SB-1172 does not prohibit doctors from discussing or even recommending “ex-gay” therapy to their patients. It only prohibits them from performing that therapy, as the text of the law clearly states: “this bill would prohibit a mental health provider... from engaging in sexual orientation change efforts.”

In fact,  another U.S. district judge, Kimberly J. Mueller, rejected a separate, similar injunction against the law for that very reason, explicitly dismissing comparisons to the Conant decision:

Here, plaintiffs have not demonstrated a likelihood of success on the merits of their claim that SB 1172 will subject mental health professionals to discipline if they merely recommend SOCE to minor patients, or discuss it with them, or even present them with literature about SOCE.  This case is thus unlike Conant, where the government was unable “to articulate exactly what speech [was] proscribed, describing it only in terms of speech the patient believes to be a recommendation of marijuana.” Here, in contrast, the state's insistence that the statute bars treatment only, and not the mention of SOCE or a referral to a religious counselor or out-of-state practitioner, is consistent with a fair reading of the statute itself. [emphasis added, citations removed for clarity]

Mueller went on to conclude that “the provision of healthcare and other forms of treatment is not expressive conduct” entitled to First Amendment protection, writing:

As SOCE therapy is subject to the state's legitimate control over the professions, SB 1172′s restrictions on therapy do not implicate fundamental rights and are not properly evaluated under strict scrutiny review, but rather under the rational basis test... SB 1172 passes the rational basis test.

Indeed, adopting Judge Shubb's view of therapy and the First Amendment would make it extremely difficult for the state to regulate not only psychotherapy, but all forms of medical treatment. As Shannon Minter, Legal Director for the National Center for Lesbian Rights (NCLR), wrote in a statement to Equality Matters:

If health care professionals have a first amendment right to express any opinion when they are treating their patients, then even medical doctors can't be prohibited from disregarding medical science and telling patients to do things that are harmful or even deadly.  For example, under current law, a doctor can't tell you that it would be good for your health to smoke a couple of packs of cigarettes a day.  But if Judge Shubb's analysis were right, a doctor could not be disciplined by a medical board or sued for malpractice for voicing his or her “opinion.”