David L. Hudson, Jr.: ‘Gay-conversion therapy’: Is it speech or conduct?

  Whether something is labeled speech or conduct can make all the difference in the outcome of First Amendment lawsuits.

  Two cases in point are recent decisions by two federal district judges reaching opposite conclusions about whether to halt a new California law that prohibits mental-health providers from conducting sexual-orientation change therapy — sometimes called “gay-conversion therapy” — with minors.

  Both lawsuits feature different groups of therapists suing in federal court, contending that the new law violates their right to free speech and the minor patients’ right to receive information. The therapists argue the law prohibits them from engaging in speech essential to the therapy. In fact, they contend it violates a fundamental free-speech principle — that government should not engage in viewpoint discrimination by favoring some views over others.

  U.S. District Judge Kimberly J. Mueller for the Eastern District of California avoided much of this First Amendment analysis by labeling the therapy conduct, ruling against the therapists in her Dec. 4 opinion in Pickup v. Brown.

  The First Amendment provides some protection for certain types of conduct if that conduct is expressive enough. Seminal U.S. Supreme Court decisions through the years have determined that certain forms of expressive conduct are akin to pure speech — such as wearing a black armband in Tinker v. Des Moines Independent Community School District (1969) or burning a flag as a form of political protest in Texas v. Johnson (1989).

  But Mueller distinguished these famous cases from the one at hand: “Giving or receiving healthcare is not a statement in the same sense as wearing a black armband or burning a flag,” she wrote. “[The therapists] have not shown that the treatment, the end product of which is a change of behavior, is expressive conduct entitled to First Amendment protection.”

  However, U.S. District Judge William B. Shubb for the Eastern District of California reached a different conclusion Dec. 3 in Welch v. Brown. Temporarily blocking the law, Shubb said it at least incidentally affected speech: “Even if SB 1172 (the new law) is characterized as primarily aimed at regulating conduct, it also extends to forms of [sexual-orientation change efforts] that utilize speech and, at a minimum, regulates conduct that has an incidental effect on speech.”

  The bottom line is that calling an activity “conduct” means the First Amendment challenge will likely fail. Calling it speech or focusing on its impact on speech may lead to a much different result.

  About the author: David L. Hudson Jr. is a scholar at the First Amendment Center.

  This article was published by the First Amendment Center.