F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

D A V I D H. P I C K

U P ; C H R I S T O P H E R H. R O S I C K ; J O S E P H N I C O L O S I ; R O B E R T V A Z Z O ; N A T I O N

A L A S S O C I A T I O N
F O R R E S E A R

C H A N D T H E R

A P Y O F H O M O S E X

U A L I T Y , a Utah non-profit
org aniz ation; A M E R

I C A N A S S O C I A T I O N O F C H R I S T I A N C O U N S E L O R S , a Virg inia non-profit association; J A C K D O E 1, Parent of J ohn Doe 1; J A

N E D O E 1, Parent of J ohn Doe 1; J O H

N D O E 1, a minor,
g uardian ad litem J ane Doe, g uardian ad litem J ack Doe; J A C K D O E 2, Parent of J o hn Doe 2; J A N E D O E 2, Parent of J o hn Doe 2; J O H N D O E 2, a minor, g uardian ad litem J ack Doe,
g uardian ad litem J ane Doe,

Plaintiffs-Appellants
,

v

.

E D M U N D G. B R

O W N , J R

. , Governor of the State of California, in his official capacity ; A N

N A M. C A B A L L E R

O , Secretary of the California State and Consumer Services Ag ency , in her official capacity ; S H A R

O N L E V I N E , President of the Medical B o a

r d of California, in her official capacity ; K I M N o. 12-17681

D.C. No. 2:12-CV-02497- KJ M-EF BP I C K U P V

. B R

O W N 2

M A D S E N , Ex ecutive Officer of the California B oard of B ehavioral Sciences, in her official capacity ; M I C H A E L E R

I C K S O N , President of the California B oard of Psy c h olog y , in his official capacity
,

Defendants-Appellees
,

and

E Q U A L I T Y C A L I F O R

N I A , Intervenor-Defendant-Appellee

.

A ppeal from the United States District Court for the Eastern District of California Kimberly J . Mueller, District J u dg e, Presiding

D O N A L D W E L C H ; A

N T H O N Y D U K ; A A R O N B I T Z E R , Plaintiffs-Appellees
,

v

.

E D M U N D G. B R

O W N , J R

. , Governor of the State of California, in his official capacity ; A N

N A M. C A B A L L E R

O , Secretary of California State and Consumer Services Ag ency , in her official capacity ; D E N I S E B R O W N , Case Manag er, Director of Consumer Affairs, in her official capacity ; C H R I S T I N E N o. 13-15023

D.C. No. 2:12-CV-02484- W B S-KJ N

OPI NI ONP I C K U P V

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W I E T L I S B A C H , P A T R

I C I A L O C K

D A W S O N , S A M

A R A A S H L E Y , H A

R R Y D O U G L A S , J U L I A J O H

N S O N , S A

R I T A K O H L I , R E

N E E L O N

N E R , K A R E N P I N E S , C H R

I S T I N A W O N G , in their official capacities as members of the California B oard of B ehavioral Sciences; S H A R

O N L E V I N E , M I C H A E L B I S H O P , S I L

V I A D I E G O , D E V G N A N A D E V , R E G I

N A L D L O W , D E

N I S E P I N E S , J A N E T S A L O M O N S O

N , G E R R I E S C H I P S K

E , D A V I D S E R R A N O S E W E L L , B A R B A R A Y A R O S L A V S K Y , in their official capacities as members of the Medical B oard of California,

Defendants-Appellants

.

A ppeal from the United States District Court for the Eastern District of California W illiam B . Shubb, Senior District J udg e, Presiding

Arg ued and Submitted April 17, 2013—San F rancisco, California

F iled Aug ust 29, 2013

B efore: Alex Koz inski, Chief J udg e, and Susan P. Graber,

and Morg an Christen, Circuit J udg es.

Opinion by

J udg e GraberP I C K U P V

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SUMMARY *

Civil Rights

Reversing an order g r anting preliminary injunctive relief in W elch v

. B rown , 13-15023, a n d affirming the denial o f preliminary injunctive relief in Pickup v. Brown
, 12-17681, the panel held that C a l i f

ornia Senate B ill 1172, which bans
stat e

- l i censed mental health providers from eng ag ing in “sex ual o rientation c hang e e fforts” with patients under 18
y ears o f ag e, does not vi o l a t e t he f ree speech rig hts o f practit i o n ers or minor patients, is neither v ag ue nor overbroad, and does not violate p arents’ fundamental rig hts.

The p anel held that Senate B ill 1172 r eg u lates professional conduct, not speech and therefore was subject only to a rational basis review. The panel held that u nder its police power, California h as authority to prohibi t l i c ensed mental h ealth providers from administering therapies that the leg islature 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 spee c h

. T he panel further concluded that the F irst Amendment d o e s not prevent a state from r eg ulating treatment even when that
t r e atment is performed throug h speech alone. T h e p a n el concluded that the record demonstrated that the leg islature

a c t e d rationally when it decided to protect the well-being o f minors by prohibitin g m e ntal h ealth providers from using “sex ual orientation chang e efforts” on persons under 18.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.P I C K U P V

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The panel further held that: (1) SB 1 172 did not implicate the rig ht to freedom of association b e c a u s e freedom o f association does n o t encompass the therapist-client relationship; ( 2) SB 1172 was neither void for vag u eness nor overbroad bec a u se the tex t of SB 1172 was c lear to a reasonable person and any incidental effect that the ban h ad

on speech was small in comparison to its leg itimate s weep; and (3) the ban did not infring e on the fundamental rig hts o f parents b ecause parents do n o t have the rig ht to c hoose a specific ty

pe o f provider for a specific medical o r m en tal health treatment that the state has r e asonably deemed harmful.

COUNSEL

No. 12-17681

M a t h e w D. Staver ( arg u ed) and Anita L

. Staver, L iberty Counsel, Maitland, F lorida; Mary E. McAlister, Stephen M. Crampton, and Daniel J

. Schmid, L iberty Counsel, L y nchburg, V irg inia, for Plaintiffs-Appellants David H

. Pickup et al.

Alex a ndra Rober t Gordon (arg ued), Deputy Attorney General, Kamala D. Harris, A ttorney Gen e r al of California, Doug las J

. W oods, Senior Assistant Attorney General, Tamar Pachter, Supervising Deputy Attorney General, and Daniel J

. Powell and Rei R. Onishi, Deputy Attorney s G e n e ral, San F rancisco, California, for Defendants-Appellees Edmund G

. B rown, J r., et al.P I C K U P V

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Shannon P. Minter (arg

u ed), National Center for L esbian Rig hts, San F r ancisco, California; David C. Dinielli, Mung er, Tolles & Olson L L P, L os Ang eles, California, for I ntervenor/Defendant-Appellee.

Robert P. Tay lor, Arnold & Porter L L P, San Francisco, C a lifornia, for Amici Curiae American Association fo r Marria ge and F amily Therapy

- California Division, et al.; Eliz abeth O. G ill, ACL U F oundation of Northern California, I nc., San F rancisco, California, for Amicus Curiae American Civil L iberties Union F oundation of Northern Cali f o r n i a; Eric Alan I saacson, San Dieg o, California, and Stacey M. Kaplan, San F rancisco, California, for A mici Curiae California F aith for E quality
, e t al.; B rad W

. Seiling
, B enjamin G. Shatz
, a nd J ustin J ones Rodriquez
, Manatt, Phelps & Phillips, L L P, L os Ang eles, California, and Ha y ley Gorenberg
, L ambda L eg al Defense and Education F und, I n c., Ne w Y o rk, New York, and Shelbi D. Day
, L ambda L eg al Defense and E d u cation F und, I nc., L os Ang eles, California, for Amici Curiae Children’s L aw Center of California, e t al.; J a y Rapaport, Coving ton & B urling L L P, San F rancisco, California, f o r Am i c u s C uriae Dr. J ack Drescher, M.D.; J on B

. Eisenberg and B a rry R. L evy , Encino, California, for Amicus C u r i a e F irst Amendment Scholars; Eileen R. Ridley
, Th o m as F

. C a r lucci, Patrick T. W ong , and Kristy K. Marino, F oley & L ardner L L P, San F rancisco, California, for Amicus Curiae Health L aw Scholars; Adam L

. G r ay and J ames Max w ell Cooper, K irkland & E llis L L P, San F rancisco, California, for Amici Curiae Medical Professionals T ony a Chaffee, MD, MPH, et al.; Tara M. Steeley
, Deputy City A t t o r n ey , a nd Dennis J

. H errera, City Attorney
, and Therese Stewart, Mollie L ee, and Sara Eisenberg
, Deputy City At t orney s, San F rancisco, California
, for Amicus Curiae The City a nd County of San F rancisco; and Sanford J ay Rosen, Rosen B ienP I C K U P V

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G a lvan & Grunfeld L L P, San F rancisco, California, f o r Amicus Curiae Survivors of Sex ua l Orientation Chang e Efforts.

No. 13-15023

Alex a ndra Robert Gordon (arg ued), Deputy Atto r n ey General, Kamala D. Harris, A ttorney General of Cal i f ornia, Doug las J

. W oods, Senior A ssistant Attorney General, Tamar Pachter, Supervising Deputy Attorney General, and Daniel J

. Po well and Rei R. Onishi, D eputy Attorney s G e neral, a nd Craig J

. Konnoth, Deputy Solicitor General, Sa n Fr ancisco, C a l i f o r n i a , for Defendants-Appellants Edmund G. B rown, J r ., et al.

Kevin T. Snider (arg

ued), Matt h e w B

. McRey nolds, a nd Michael J

. Peffer, Pacific J ustice I nstitute, Sacramento, California, for Plaintiffs-Appellees Donald W elch et al.

Eliz abeth O. G ill, ACL U F o undation of N orthern California, I nc., San F rancisco, California, for Amicus Curiae American Civil L iberties Union F oundation of Northern Cal ifornia; Peter D. L episcopo, W illiam P. Morrow, J ames M. G riffiths, and Michael W. Healy
, L episc o p o & Associates L aw F irm, San Dieg o, California, for Amicus Curiae American Colleg e of Pediatric i a ns; Eric Alan I saacson, San Dieg o, California, and Stacey M. Kaplan, San F rancisco, California, for Amici Curiae California F aith for Equality
, et al.; B rad W

. Seiling and B enjamin G. Shatz
, Manatt, Phelps & Phillips, L L P, L os Ang eles, California, and Hayley Gorenberg
, L ambda L eg al Defense and Education F und, I nc, New York, New York, a nd Shelbi D. Day , L ambda L e g al Defense a nd Education F und, I nc., L os Ang eles, Califo rn i a, for Amici Curiae Children’s L aw Center of California, et al.; Shannon P. Minter, NationalP I C K U P V

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Center for L esbian R i g hts, San F rancisco, California, a nd David C. Dinielli, Mung er, Tolles & Olson L L P, L os Ang eles, California, f

or Amicus Curiae Equality California; J on B

. Eisenberg and B arry R. L evy , E ncino, California, for Amicus Curiae F irst Amendment Scholars; J ohn A. Eidsmoe and J oshua M. Penderg ras s , Foundation f or Moral L aw, M o n tg omery , Alabama, for Amicus Curiae F oundation fo r Moral L aw; Eileen R. Ridley
, Thomas F

. Carlucci, Patrick T. W o ng , and Kristy K. Marino, F o ley & L ardner L L P, San F rancisc o , California, for Amicus Curiae Health L aw Scholars; D ean R. B roy les, The National Center for L aw & Policy
, Escondido, California, for Amicus Curiae Parents a nd F riends o f E x

- G a y s & Gay s; and Sanford J a y Rosen, Rosen B ien Galvan & Grunfeld L L P, San F rancisco, California, for Amicus Curiae Survi v ors o f Sex ual Orientation Chang e Efforts.

OP INION

GRAB ER, Circuit J udg e:

The California leg islature enacted Senate B ill 1172 to b an state-licensed ment a l h e alth providers from eng ag ing in “sex ual orientation chang e efforts” (“SO C E ”) with patients under 18 y e ars of a g e. T w o g roups of p l a i n tiffs soug ht to enjoin enforcement of the law, arg uing that SB 1172 violates the F irst Amendment and infri n ge s on several other constitutional rig hts.

I n W elch v

. Brown
, No. 13-15023, the district court ruled that Plaintiffs were likely to s u c c eed on the merits of their F irst Ame n dment claim and that the balance of the other preliminary -injunction factors tipped in their favor; thus, theP I C K U P V

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court g ranted a p r e l i m inary injunction. I n Pickup v

. Brown
, No. 12-17681, the district court r u l e d that Plaintiffs were unlikel y t o s ucceed o n the merits o f any of their claims a nd denied preliminary relief. The losing parties timely appealed. W e address both appeals in this opinion.

Althoug h we g ener a l l y review for a buse o f discretion a distri ct court’s decision to g r ant or d eny a preliminary injunction, we may

undertake p lenary review of the issues if

a district court’s ruling “‘rests solely on a p r e m i se as to the applicable rule of law, and the facts are established or of no controlling relevance.’” Gorba c h v

. Reno
, 219 F

. 3d 1087, 1091 (9th Cir. 2000) (en banc) ( q u o ting Thornburgh v. A m

. Coll. of Obs t e tricians & Gynecologists
, 4 76 U.S. 747, 755–57 (1986)). B e cause thos e co n ditions are met here, we undertake p lenary review and h o l d t h a t SB 1172, as a reg ulat ion of professional conduct, does not violate the free speech rig hts of SOCE practitioners o r minor p atients, is neither vag u e nor overbroad, and d o es n o t violate parents’ f undamental rig hts. According ly
, w e reverse the order
g ranting preliminary

relief in W

e lch and affirm the denial o f preliminary

relief in P ickup

.

F ACTUAL

AND PROCEDURAL

B ACKGROUND

A. Sexual Orientation Change Efforts ( “SOCE”)

S O CE, sometimes called r eparative or conversi o n therapy
, beg an at a time when the medical and psy cholog ical community considered h omosex u a lity an illness. SOCE
encompasses a variety of methods, including both a v e rsive and non-aversive treatments, that share the g oal of chang ing

an individual’s sex ua l o r ientation from homosex ual to heterosex ual. I n the past, a v e rsive treatments includedP I C K U P V

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inducing nausea, vomiting
, or paraly s i s ; providing electric shocks; or having an individual snap an elastic band around the wrist when a

r ou s e d by same-sex erotic imag es o r thoug hts. E ven more drastic methods, such as castration, have been u sed. Today
, some non-aversive treatments use assertiveness and affec t i o n training with phy sical and social reinforcement to increase other-sex sex ual behaviors. Other non-aversive treatments attempt “to c hang e g ay men’s a nd lesbians’ thoug ht patterns by reframi n g desires, redirecting thoug hts, or using h y

pnosis, w ith the g o al of chang ing sex ual arousal, behavior, a

nd orientation.” American Psy cholog ical Association, Appro

priate Therapeutic Responses to Sexual Orientation 2 2 (2009). The plaintiff mental health providers in these cases use only non-aversive treatments.

I n 1973, homosex uality was removed from the Diag nostic and Statistical Manual o f Mental Disorder s

. Shortly thereafter the A merican Psy c holog ical As s o ciation declared that homosex uality is not an illness. Other major mental health associations followed suit. Subsequentl y , m a ny m e ntal health providers beg an questioning and r ejecting the efficacy and appropriateness of SOCE thera p y

. C u rrently
, mainstream mental health professional associations support affirmative therapeutic a

pproaches to sex ual o r i entation that focus on coping with the effects of stress and stig ma. B ut a small number of mental heal t h p roviders continue to practice, a nd advocate for, SOCE therapy

.P I C K U P V

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B

. Senate Bill 1172

Senate B ill 1172 defines SOCE a s “any practices b y mental h ealth providers[ 1 ] that seek to chang e an individual’s

sex ual orientation[ ,]

. . . i n clud[ ing ] efforts to chang e behaviors or g ender ex pressions, or to eliminate or re d u c e

sex ual or romantic attractions o r f eeling s toward individuals of the same sex .” Cal. Bu s

. & Prof. Code § 8 65(b)(1). SOCE, however,

do es n ot include p sy chotherapies that: (A)
p r o v i d e a c c e p t a n c e , s u p p o r t , a n d understanding of clients or th e facilitation o f clients’ coping
, social support, and identity

ex p loration and development, including

sex ual orientation-neutral interventions to prevent or address u nlawful conduct or unsafe

sex ual practices; and (B ) do not s e ek to chang e sex ual orientation.

1 Calif o rn ia B u sin ess an d P ro fe ss i o n s C o d e sectio n 8 6 5(a) d ef in es

“ m en tal h ealth p ro v id er” as

a p h y s ician an d su rg eo n

sp ecializin g in th e p ractice of
p sy ch iatry
, a psy ch olo g ist, a p sy ch o lo g ic a l assistan t, in tern , o r train ee, a licen sed m arriag e an d f am ily th erap ist, a reg i stered m arriag e an d f am ily t h erap ist, in tern , o r train ee, a licen s ed ed u catio n al p sy ch o lo g ist,

a cred en ti a l ed sch o o l p sy ch o lo g ist, a licen sed clin i cal

so cial w o rk er, an a s s o c i ate clin ical so cial w o rk er, a licen sed p ro f

essio n a l c lin ical co u n selo r, a reg istered clin ical co u n selo r, in t ern , o r train ee, o r an y o th er p erso n d esig n ated as a m en tal h ealth p ro f essio n al u n der Calif o rn ia law o r reg u l atio n

.P I C K U P V

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Id. § 8 65(b)(2). A licensed mental health provider’s use o f SOCE on a p atient under 1 8 y ears of ag e is “considered unprofessional conduct,” which will subject that provider to

“ discipline by the licensing e ntity for that mental he a l t h provider.” Id. § 865.2.

I mportantly , SB 1172 does not do any of the following :

• Prevent mental health providers from communicating with the public about SOCE

• Prevent mental health providers f rom ex pressing their views to patients, w hether children o r a d ults, about SOCE, homosex uality , or any other topic

• Prevent mental health providers from recommending SOCE to patients, whether children or adults

• Prevent mental health p r o v iders from administering SOCE to any

person who is 18 y ears of ag e or older

• Prevent menta l h e a l t

h providers from referring minors to unlicensed counselors, such as relig ious leaders

• Prevent unlicensed providers, such as re lig ious leaders, from a dministering SOCE to children o r adults

• Prevent minors from seekin g SOCE from mental health providers in other states

I nstead, SB 1172 does just one thing : it requires licensed mental h ealth providers in California who wish to eng ag e in “practi c es

. . . that seek to chang e a [ minor’s] sex ualP I C K U P V

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o r i entation” e ither to wait until the minor turns 18 o r b e subject to p r o f

e s s ional d iscipline. Thus, SB 1172 r eg u lates the provision of medical treatment, but leaves mental health providers f

ree to disc u s s or r ecommend treatment and to

ex p ress their views on any topic.

The leg islature’s stated purpose in enacting SB 1172 was to “protect[ ] the phy sical and psy cholog ical well- b ei ng o f minors, including lesbian, g a y , bisex ual, and transg ender
y outh, and [ t o ] protect[ ] its minors ag ainst ex posure to serious h arms caused by sex ual orientation chang e efforts.” 2012 Cal. L eg is. Serv. c h

. 835, § 1(n). T he leg islature relied

on the well documented, prevaili n g o p inion of the medical and psy c holog ical community that SOCE has not been shown
to be effective and that it creates a potential risk of s erious harm to those who ex perience it. Specifically
, the leg islature relied on p osition statements, articles, and reports published by the f ollowing org aniz ations: the American Psy cholog ical Association, the American Psy chiatric Associati o n , the American School Counselor Associatio n, the American Academy of Pediatrics, the American Medical Association, the National Association of Social W orkers, the American Counseling Association, t he American Psy c hoanaly tic Association, the American Academy of Child and Adolescent Psy c hiatry , and the Pan American Health Org aniz ation.

I n p articular, the leg islature relied on a report created b y

a Task F o rce of the American Psy c h o log ical Association. That report resulted from a sy stematic review of the scientific literature on SOCE. Methodolog ical problems with some o f the reviewed studies limite d the conclusions that the Task F orce could draw. Neverth el e ss, the report concluded that SOCE practitioners have n o t demonstrated the efficacy o fP I C K U P V

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SOCE and that anecdotal reports of harm raise serious concerns about the safety of SOCE.

C. Procedural History

Plaintiffs in W

elch include two SOCE practitioners and an aspiring SOCE practitioner. Plaintiffs in Pickup include SOCE pra c titioners, org a niz ations that advocate SOCE, children underg oing SOCE, and their parents. A ll soug ht a declaratory judg ment that SB 1 1 7 2 is u nconstitutional a nd asked for injunctive relief to p rohibit enforcement of the law. 2

I n W elch
, Plaintiffs moved for preliminary injunctive

r elief, arg uing that SB 1172 violates their free speech a n d privacy rig hts. T hey also arg ued that the law violates the relig ion clauses and is u ncons t i t utionally vag ue a nd overbroad under the F irst Amendment.

The W elch court held that SB 1172 is subject to strict scrutiny because it would restrict the con t e n t o f speech a nd
suppress the ex pression o f particular viewpoints. I t reasoned that the fact that the law is a p rofessional reg ulation does not chang e the level of scrutin y

. The court g ranted preliminary relief because it determine d t h at the state was unlikely to satisfy strict scrutiny
, Plaintiffs would suffer irreparable harm

2 In Picku

p , Eq u ality Calif

o rn ia, an ad v o cacy g r o u

p f o r g ay rig h ts,

s o u g h t an d receiv ed in terv en o r statu s to def en d SB 1 1 7 2. Pick u

p P lain tif f s arg u e th at th e Su

p rem e Co u rt’ s recen t d ecisio n in Ho llin g swo r th

v. Perry
, 13 3 S

. Ct. 2 6 52 (2 0 1 3), m ean s th at Eq u ality Calif o rn ia d o es n o t h av e stan d in g to d ef

e n d th e statu te. W e n eed n o t reso lv e th at q u estio n , h o w ev er, b ecau se th e S tate o f Calif o r n ia u n d ou

b ted ly h as stan d in g to d ef en d its statu te, an d “ th e p resen ce in a su it o f ev en o n e p a r ty w i th
stan d in g su f

f ices t o m ak e a claim j u s ticiab le.” Bro wn v. City o f L o s An g eles , 5 2 1 F.3 d 1 2 38 , 1 24 0 n .1 (9 th Cir. 2 00 8) (p er cu riam ).P I C K U P V

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in the absence of a n injunction, the balance of the equities tipped in their favor, a

nd the inj u n c t i o n was in the public interest. B ecause the district court g ranted r elief on their free speech claim, it did not r each Plaintiffs’ other constitutional challeng es. 3

I n Pickup
, Plaint i f

fs moved f

or p reliminary injunctive relief, a rg uing that SB 1172 violates the F irst and F ourteenth Amendment s by infring ing on SOCE p r actitioners’ rig ht to free speech, minors’ r ig ht to receive information, and parents’ rig ht to d irect the upbringi n g o f their children. They also
arg ued that SB 1172 is unconstitutionally vag ue.

The Picku

p c o urt d enied Plaintiffs’ motion because it determined that they were unlikely to prevail on the merits o f
any of their claims. I t reasoned that, because the plain tex t o f SB 1172 bars only treatment, b u t n ot discussions about treatment, the law reg ulates primarily c o n d uct r a ther than speech. Apply ing the rational basis test, the court ruled that

3 T h e W elch P lain tif

f s’ resp o n se brief co n tain s a s in g l e p a r a g r a p h assertin g th at SB 1 17 2 v io lates th e relig i o n clau ses o f th e First A m en d m en t. T h at p arag rap h
, w h ich cites n eith er th e reco rd n o r an y case, is p art o f P lain tif

f s’ arg u m en t th at SB 1 1 7 2 is n o t n a r r o w ly tailo red to ach iev e a co m

p ellin g g o v ern m en t p u rp o se, as req u ired b y th e Free Sp eech Clau se, b ecau se it co n tain s n o clerg y ex em ptio n

. T h e rel i g i o n c laim
, h o w ev er, i s n o t “ s p ecif

ically an d d istin ctly arg u ed ,” as o rd i n arily req u ired f o r u s t o co n sid er an issu e o n ap p eal. T h o m p s o n v. Ru n n els
, 7 05 F.3 d 1 0 8 9
, 10 9 9

– 1 1 00 (9 th Cir. 20 1 3) (in tern al q u o tatio n m ark s o m i t t e d ),
p etitio n f or cert. filed
,

_

_ U.S.L .W

.

_

_ (U.S. J u n e 2 8, 2 0 1 3 ) (No

. 1 3

- 5 1 27 ); see a l

so Ma ld o n a d o v. Mo ra les
, 55 6 F .3 d 1 0 3 7
, 10 4 8 n .4 (9 th Cir. 2 0 0 9 ) ( “Ar g u m en ts m ad e in p assin g an d in ad eq u ately b rief ed are

w aiv ed .”). Mo reo v er, alth o u g h th e W elch P lain tif

f s raised th e claim in th e d istrict co u rt, th e co u rt d id n o t ru le o n it b ecau se it g ran t ed relief o n th eir f ree sp eech claim

. I n t h e s e circu m stan ces, w e d eclin e to ad d ress th e relig io n claim . T h e d istrict co u rt m ay d o so in th e f

irst in s tan ce.P I C K U P V

. B R

O W N 16

Plaintiffs w ere u nlikely to show a violat i o n of the SOCE practitioners’ free speech rig hts or the minors’ rig ht to receive information. As for vag ueness, the court ruled that the tex t o f the statute is clear enoug h to put me n t a l health providers on notice of what is prohibited. F inally
, the court ruled that SB 1172 does not implicate parents’ rig ht to c o n t r ol the upb r i n gi ng of their children because that rig ht does not encompass the rig ht to c h o ose a specific mental health
treatment that the state has r e a s onably deemed harmful to minors.

D I SCUSSI ON

A. Free Speech Rights

At the outset, we must decid e w h et her the F irst Amendment requires heig h tened scrutiny of SB 1172. A s

ex p lained below, we hold that it does not.

The first step in our analy sis is to determine whether SB 1172 is a reg

ulation of conduct or speech. Two of our cases
g uide o u r decision: National Association for the Advancement of Psychoanalysis v. California B oard of Psychology
, 228 F .3d 1 043 (9th Cir. 2000) (“ NAAP ”), a

nd Conant v. W

a lters , 309 F .3d 629 (9th Cir. 2002).

I n NAAP
, 228 F .3d a t 1053, psy choanaly sts w ho were not licensed in California broug ht a F irst Amendment challeng e to California’s licensing scheme for mental health providers. The licensing scheme r equired that persons who provide
psy cholog ical services to the public for a fee obtain a license, which in turn required particular educational and ex periential

c r edentials. I

d. at 1047. T h e plaintiffs alleg ed that the licensing scheme violated th e i r First Amendment rig ht toP I C K U P V

. B R

O W N 17

freedom of speech because the license ex a m i n a t ion tested only certain psy cholog ical theories and requ i r e d c ertain trainin g; plaintiffs had studied and trained under different
psy choanaly

tic theories

. I

d

. at 1055. W e were equivocal

a b o ut whether, and to what ex tent, the licensing sche m e i n NAAP implicated a

n y free speech concerns. Id. at 1053 (“W e conclude that, even if a speech interest is implicated, California’s licensing scheme p asses F irst A me n dment scrutiny .” (emphasis added)) ; i d. at 1056 (“Althoug h some speech interest may be implicated, California’s contentneutral mental health licensing scheme is a valid ex ercise o f its police power

. . . . ” (emphasis added)). W e reasoned that
p rohibitions of conduct have “‘never been deeme d a n abridg ement of freedom o f speech

. . . merely because the

c onduct was in part initiated, evidenced, or carried o u t b y

me ans o f lang uag e.’” See id. at 1053 (ellipsis in orig inal) (quoting Giboney v. Empire S torage & Ice Co.
, 336 U.S. 490, 502 (1949)). And, importantly
, we specifically reje c t ed the
arg ument that “because psy choanaly sis is the ‘ t a l k i n g cure,’ it deserves special F irst Amendment p rotection because it is

‘ p u r e s peech.’” Id. at 1054. W e reasoned: “[ T] he k e y component o f psy c hoanaly sis is the treatm ent of emotional suffering and depression, not speec h. That psy choanaly sts employ speech to t re a t their c lients does not entitle them, o r their profession, to special F irst Amendment protection.” Id. (internal quotation marks and ellipsis omitted).

Nevertheless, we concluded that the “communication that

occurs during psy choanaly sis i s entitled to constitutional protection, but it is not immune from reg u lation.” Id. B ut we neither decided how m uc h protection that communication should receive nor considered whether the level of protection mig ht vary depending on the function of the communication. Given California’s strong interest in reg ulating mental health,P I C K U P V

. B R

O W N 18

we held that the licensing scheme at issu e i n N A AP w as a valid ex e rcise of its police power. Id. at 1054–55.

W e went on to conclude that, even if the licensing scheme i n NAAP reg ulated speech, it did not trig g er strict scrut i n y because it was both content neutral and viewpoint n eutral. Id.
at 1055. W e reasoned that the licensing laws did not “dictate what c an be said between psy cholog ists and patient s during treatment.” I

d

. F urther, w e observed that those laws were

“ n o t a d o p t e d b e c a u s e o f a n y d i s a gr e e m en t w i t h
psy choanaly

tical theories” but for “the important purpose of protecting public heal t h, safety
, and welfare.” Id. a t 1056 (internal quotation marks omitted). We ag ain concluded that the laws wer e a valid ex e rcise of California’s police power. Id.

I n Conant
, 309 F .3d at 633–34, we af f i r m e d a district court’s order g ranting a permanent injunction that prevented the federal g overnment fr o m revoking a doctor’s DEA
reg istration or initiating an investig atio n if he or she

recomme n ded medical marijuana. The federal g overnment had adopted a policy that a doctor’s “recommenda t i o n ” o f marijuana would lead to revocation of his or her license. Id.
at 632. B ut the g overnment was “unable to articulate ex actly what speech [ the policy ] proscribed, describing it o nly in
terms of speech the patient b e lieves to be a recommendation of marijuana.” Id. a t 639. N e v e r t h eless, the demarcation between conduct and speech in Conant was clear. T he p olicy
p rohibited doctors f

rom prescribing o r d

i s t r i b u t i n g m a

r i j u a n a , and neither we n o r t he parties disputed the g overnment’s authority to prohibit d octors from treating patien t s with marijuana. I

d. at 632, 635–36. F urther, t h e p arties ag reed that “revocation of a lic ense was not authoriz ed where aP I C K U P V

. B R

O W N 19

doctor merely discussed the pros and cons of marijuana use.” Id. at 634 (emphasis added).

W e ruled that the policy ag ainst merely “recommending ” marijuana was both content- and v iewpoint-based. Id. at 637. I t was content-based b ecause it c o vered only doctor-patient speech “that include[ d] di s c ussions of the medical u se o f marijuana,” and it was viewpoint-based because it “condemn[ ed] ex pression of a particular viewpoint, i.e., that medical marijuana would likely help a specific patient.” Id. W e held that the p o licy did not withstand heig h t e n e d First Amendment scrutiny because it lacked “the requisite narrow specificity ” and left “doctors and patients no security for free discussion.” Id. at 639 (internal quotation marks omitted).

W e distill the following r el evant principles from NAAP and Conant : (1) doctor-patient communica t ions about medical treatment r eceive substantial F irst A mendment protection, but the g overnment has more l ee way to reg ulate the c onduct necessary to administering tre a t m en t itself; (2)
psy chotherapists are not entitled to special F irst A mendment
pr o t e ction merely b ecause the mechanism used to deliver mental h ealth treatment i s t h e spoken word; and (3)

n e v e r t h e l e s s , c o m m u n i c a t i o n t h a t o c c u r s d u r i n g psy chotherapy does receive some c o n s titutional protection, but it is not immune from reg u lation.

B e cause th ose principles, standing alone, do n ot tell us whether or how the F irst Am e n d m e nt applies to the
reg ulatio n o f specific mental h ealth treatments, we must g o

on to consider more g enerally the F irst Amendment rig h ts o f
pro f essionals, such as doctors and mental health providers. I n determining whether SB 1 172 is a reg ulation of speech o rP I C K U P V

. B R

O W N 20

conduct, we find it helpful t o view this issue along a continuum.

At o ne e nd of the continuum, where a p rofessional is
eng ag ed in a public dialog ue, F irst Amendment protection is

a t its g reatest. T hus, for ex ample, a d octor who pu b l i cl y advocates a treatment that the medi c a l establishment considers outside the mainstream, or even d a n ge rous, is entitled to robust protection under t h e F i r s t A mendment—just

as any person is—even thoug h the state has the power to reg ulate medicine. See Lowe v. SEC
, 472 U.S. 1 8 1
, 2 3 2 (1985) (W hite, J
., concurring ) ( “W h ere the personal nex us between professional and client does not ex ist, and a speaker d oes not purport to be e x ercising judg ment on behalf of a n y particular individual with whose circumstances he is directly acquainted, g overnment reg u l a tion c e ases to function a s leg itimate reg ulation of professi o n al practice with only incidental impact on speech; it becomes reg ul a tion o f speaking or publishing as such, subject to the F irst Amendment’s command that ‘Cong ress shall m a k e no law

. . . abridg ing the freedom of speech, or of the press.’”); Robert Post
, Informed Consent to Abortion: A F irst Amendment Analysis of C o m pelled Physician Speech
, 2007 U. I ll. L

. Rev. 939, 949 (2007) (“W h en a phy sician speaks to the public, h is opinions cannot be c en s ored a nd suppressed, e ven if they are at odds with preponderant opinion within the medical esta b l i s hment.”); cf. Bailey v

. Huggins D iagnostic & Rehab. Ctr., Inc.
, 952 P.2 d 7 6 8
, 773 (Colo. Ct. App. 1997) (holding that t h e Fi r st A mendment does not permit a court to hold a dentist liable for statements published in a book or made d uring a n ews prog r am, even when those statements a r e contrary to the opinion of the medical e stablishment). T h at p rinciple makes sense because communicating to the public on matters of public concern liesP I C K U P V

. B R

O W N 21

at the core of F i r s t A m e n dment values. See, e .g. , Snyder v

. Phelps
, 131 S. Ct. 1207, 1215 (2011) (“Speech on matters o f public concern is a t t h e heart of the F irst Amendment’s protection.” ( internal quo t a t i o n markets, brackets, and e llipsis omitted)). Thus, outside the doctor-patient relation s h i p, doctors are c onstitutionally equivalent to soapbox orators a nd pamphleteers, and their speech receives robust protection under the F irst Amendment.

At the midpoint of the continuum, within the c onfines o f

a professional relationship, F irst Amendment protection of a professional’s speech is somewhat diminished. F or ex ample, i n Planned P arenthood o f Southeastern Pennsylvania v

. Casey
, 505 U.S. 8 3 3
, 8 8 4 (1992), the plurality upheld a requirement that doctors disclose t r u thful, nonmisleading information to patients about certain risks of abortion:

All t hat is left of petitioners’ arg u ment is

an asserted F ir s t Amendment rig ht of a phy sician not to provide information about the

r isks o f abortion, and childbirth, in a manne r mandated by the State. To be su r e, the phy sician’s F irst Amendment r i ghts not to speak are implicated, b u t only as part of the practice of medicine
, subject to reasonable licensing and regulation by the State

. W e see

no constitutional infirmity in the requirement th at the phy sician provide the information mandated by

the State here.[ 4 ]

4 A lth o u g h th e p lu rality o pin io n g arn ered o n ly th ree v o tes, f ou r ad d itio n al j u stices w o ul d h a v e u p h eld th e ch allen g ed law in its en t i rety

. Ca sey , 5 05 U.S. at 9 4 4 (Reh n q u ist, C.J
., co n c u r r in g in th e j u dg m en t inP I C K U P V

. B R

O W N 22

(Citations omitted; emphasis added.) Outside the
p rofessional relationship, such a requirement would almo s t certainly be considered impermissible compelled speech. Cf. W ooley v. Maynard
, 430 U .S. 705, 717 (1977) (holding that

a state could not r equire a person to display the state motto on his or her license plate).

Moreover, doctors are r o utinely held liable for g iving
neg lig ent med i cal advice to their patients, without serious
sug g estion t h at the F irst Amendment protects their r ig ht to g ive advice that is not consistent w ith the accep t e d standard of care. A doctor “may not counsel a patient to rely on quack medicine. The F irst Amendment would not prohibit the doctor’s loss of license for doing so.” Conant v. McCaffrey
, No. C 97-00139 W HA, 2000 W L 1281174, at *13 ( N.D. Cal. Sept. 7, 2000) (order) (unpublished); see also Shea v. Bd. of Med. Exam’rs
, 146 Cal. Rptr. 653, 6 62 (Ct. App. 1978) (“The state’s oblig ation and power to prote c t i t s citiz ens b y reg ulation o f t he professional conduct of its health practitioners is well settled. . . . [ T] h e F irst Amendment . . . does not insulate the v erbal charlatan from r esponsibility for hi s conduct; nor does it impede the State in the proper

ex e r cise of its reg ulatory functions.” (citations omitted)); c f. Post, 2007 U. I ll. L

. Rev. at 949 (“[ W ] h en a phy sician speaks
to a patient i n the course of medical treatment, his o p inions

are normally reg ulated on the theory that they a re inseparable f rom the practice of medicine.”). And a lawy er m ay b e disciplined f

o r divulg ing confidences of his cl i ent, even thoug h such d i s c l o s ure is pure speech. See, e.g. , In re Isaacson
, State B a

r Court of California, C a s e No. 08-O10684, 2012 W L 658966 6
, a t *4–5 (Dec. 6, 2 012)

p art an d d i ssen tin g in p art). T h u s, th ere w ere sev en v o tes to u p h o ld th e d isclo su re req u irem en t.P I C K U P V

. B R

O W N 23

(unpublished) (notin g p r i or suspension of bar license for failure to preserve c l i en t confidences). Thus, the F irst A mendment tolerates a substantial amount of spe e c h
reg ulation w i t h i n the professional-client relationship that it would not tolerate outside o f it. And that toleration makes

sense: W hen professionals, by means of their state- issued licenses, form relationships with clients, the purpose of those relationships is to advance the welfar e o f the clients, rather than to contribute to public debate. Cf. Lowe
, 4 7 2 U.S. at 232 (W hite, J
., concurring ) ( “One who takes the affairs of a client
pe rs o nally in hand a

n d purports to e x ercise judg ment on behalf of the client in the lig ht of the client’s individual needs and c ircumst a n ces is properly v iewed as eng a g ing in the practice of a profession.”).

At the other end of the cont i n u u m, and where we conclude that SB 1172 lands, is the reg ulation of professional conduct
, where the state’s power is g r eat, even thoug h such
reg ulation may have an incidental effect on spe e c h

. S e e id. (“J ust as offer and acceptance are communications incidental
t o the reg ulable transaction called a contract, t h e professional’s speech is incidental to th e conduct of the profession.”). Most, if n o t all, medical treatment requires speech, but that fact d oes not g ive r ise to a F irst A mendment claim when the state bans a particular treat m e n t. W hen a drug is banned, for e x ample, a doctor who treats p atients with that drug does not have a F irst Amendment rig ht to speak the words necessary to provide or a dminister the ba n n ed drug

. Cf. Conant
, 309 F .3d at 6 34–35 (notin g t he g overnment’s authority to ban prescription of marijuana). W e r e it otherwise, then any prohibition of a particular m e d ical
treatment would raise F irst Amendment concerns b ecause o f its incidental e ffect on speech. Suc h an application of the F irst Amendment would re strict unduly the states’ power toP I C K U P V

. B R

O W N 24

reg ulate the medical profession and would be inconsistent with the principle that “it has never been deemed an abridg ement of freedom of speech or press to make a course of conduct illeg al mere l y because the conduct was in part initiated, evidenced, or carried out by means of languag e , either spoken, written, or printed.” Giboney
, 3 36 U.S. at 502.

Senate B ill 1 172 r eg ulat es conduct. I t bans a form o f medical t r e a tment for minors; it does nothing to prevent licensed therapists from discussing the pros and cons o f SOCE with their patients. Senate B ill 1172 merely prohibits licensed mental health providers from eng ag ing in SO C E with minors. I t is the limited reach of SB 1 172 that disting uishes the present cases fr o m Conant
, in which the
g overnment’s policy prohibited speech wholly apart from the actual p rovision of treatme n t

. Under its police power, California has authority to p rohibit licensed mental health providers from adminis t e r i n g therapies that the leg islature has deemed harmful and, under G iboney
, 336 U.S. a t 502, the fact that speech may be used to carry out those therapies does not turn the prohibitions of conduct into pr o h i b i t ions of speech. I n fact, the W

elch Plaintiffs co n c ede that the state has the
power t o b a n a v ersive ty p es of SOCE. And we reject the position of the Pickup Plain t iffs—asserted during oral
arg ument—that even a ban on a v ersive ty pes of SOCE requi res heig htened scrutiny because of the incidental effect

on speech. 5 Here, unlike in Conant
, 309 F .3d at 639, the law allows discussions a

bout treatment, recommendations to

5 W e d o n o t m ean t o s u g gest t h at an y Plain tif

f h ere co n d u cts av ersiv e SOCE th erap y

. T h e reco rd sh o w s t h at Plain tif

f s w h o are licen sed m en t al h ealth p ro v id ers p ractice SOCE o n ly th ro u g h talk th erap y

. W e m e nt io n

av ersiv e tech n iq u e s m erely to h ig h lig h t th e state’ s leg itim ate p o w er to reg u late p ro f

essio n al co n d u ct.P I C K U P V

. B R

O W N 25

obtain treatment, and ex p ressions of opinions about SOCE and homosex uality

.

W e further conclude that t h e F irst Amendment does not prevent a state from reg ulating treatment even w hen t h at t r e a t m ent is p erformed throug h speech alone. A s we have already held in NAA P
, talk therapy does not receive special Fi r s t Amendment protection merely because it is administered throug h speech. 228 F .3d at 1054. That holding re s t e d on the understanding o f talk therapy as “the
treatment of emotional suffering and depression, not speech.” Id. (internal quotation marks omitted) (first emphasis added). Thus, under NAAP , to the e x tent that talk therapy implicates speech, it stands on the s a m e First A mendment footing a s other forms of medical or mental health tre a t m e n t

. Senate B i ll 1 172 is subject to d eferential review just as are other
reg ulations of the practice of medicine.

Our conclusion is consistent with NAAP ’s statement that “communication that occurs during psy choanaly sis is entitled
t o constitutional protection, but it is not immune f r o m

re gu l ation.” Id. Certainly
, u nder Conant
, content- o r viewpoint-based reg ulat i o n of communication about
treatment must be closely scrutiniz ed. B ut a reg ulation o f only treatment itself

—whether phy sical medic ine or mental health treatment—implicates free speech interests only incidentally
, if at all. To read NAAP otherwise would contradict its holding that talk therapy is not entitled to “special F irst Amendment protectio n ,” and it would, in fact, make talk therapy

virtually “immune from reg

ulation.” Id.

Nor does NAAP ’s discussion of content and viewpoint discrimination chang e our conclusion. There, we used both

a belt a n d suspenders. I n addition to holding that theP I C K U P V

. B R

O W N 26

licensing scheme at i ssue was a permissible reg ulation o f conduct, we reasoned that even if California’s licensing requirements implicated F irst Amendment interests, the

re q u i rements did not discriminate on the basis of content o r viewpoint. I

d

. at 1053, 1055–56. B ut here, SB 1172
reg ulates only treatment, and nothing in NAAP requires us to analy z e a reg ulation of treatment in terms of content a nd viewpoint discrimination. 6

B e cause SB 1172 reg ulates only treatment, while leaving mental h ealth providers free t o d i s c uss and recommend, o r

recomme n d ag ainst, SOCE, we conclude that any effect it
may h ave on free speech interests is merely incidental. T h e r e f o re, w e hold that SB 1 172 is subject to only ration al b a sis r eview and must be upheld if it “bear[ s]

. . . a ra t i o n al relationship to a leg itimate state interest.” 7 Id. at 1049.

According to the statute, SB 1172 advances California’s interest in “protecting the phy sical and psy cho l o gical wellbeing of m i n ors, including lesbian, g ay , bisex u al a nd
t r a nsg ender y outh, and in protecting its minors ag ai n s t

ex p osure to se r i o u s harms c aused b y sex ual orientation chang e efforts.” 2012 Cal. L eg is. Serv. c h

. 8 3 5
, § 1(n). W ithout a doubt, protecting the well-being o f m i n o rs is a leg itimate state interest. And w e n e e d not decide whether

6 W e ack n o w led g e th at P lain tif

f s ask u s t o ap p ly strict s cru tin y , b u t th ey h av e n ot cited an y

case in w h i ch a co u rt h as ap p lied strict scru tin y to th e reg u latio n

o f a m ed ical o r m en tal h ealth treatm en t. No r are w e aw are o f

an y

.

7 T h e p arties d isp u te w

h eth er w e are lim ited to th e l eg i slativ e reco rd in assessin g t

h e co n stitu

t io n ality o f SB 11 7 2. W e n eed n o t reso l v e th at d isp u te becau se, w

h eth e r o r n o t w e restrict o u r rev iew to th e leg islativ e

reco rd , w e co n clu d e th at th e leg islatu re acted ratio n ally

.P I C K U P V

. B R

O W N 27

SOCE actually causes “serious harms”; it is enoug h that it could “ reasonably be conceived to be t r u e by the
g overnmental decisionmaker.” NAAP
, 228 F .3 d at 1050 (internal quotation marks omitted).

The record demonstrates that the leg islatu r e acted rationally when it d ecided to protect the well-being of minors by prohibiting mental health providers from using SOCE on
persons under 18. 8 The leg islature relied on the report of the Task F orce of the American P s y cholog ical Association, which c oncluded that SOCE h as not been demonstrated to be effective and that there have been anecdotal reports o f harm, including de p r ession, suicidal thoug h ts or actions, a nd substance a

buse. The leg isl ature also relied on the o p inions of many other professional o r ga niz ations. Each of those
org aniz ations opposed the use of SOCE, concluding , among other thing s, that homosex uality is not an illness and does not require treatment (American School Counselor Association), SOCE therap y can provoke g uilt and anx iety (American Academy of Pediatrics), it may be ha rm fu l (National Association of Social W orkers), a nd i t may contribute to an enduring sense of stig ma and self-criticism (American Psy c hoanaly

tic Association). A l t houg h the leg islature also had before it some e v idence that SOCE is safe and e ffective, the overwhelming c onsensus was that SOCE w as harmful a nd ineffective. On this record, we have no trouble concluding

8 W e n eed n ot an d d o n o t d ecid e w h eth er th e leg i s l a t u

re w o u l d h av e acted rat i o n a l ly h ad it b an n ed SOCE f

o r ad u lts. On e co u ld arg u e th at ch ild ren u n d er t

h e ag e o f 18 are esp ecially v u ln erab le w ith resp ect to

sex u al id en t ity an d th at t

h eir p aren ts’ j u d g m en t m ay b e clo u d ed b y th is

em o t io n ally ch arg ed issu e as w ell. T h e co n sid eratio n s w ith resp ect to ad u lts m ay

b e d i f f eren t.P I C K U P V

. B R

O W N 28

that the leg islature acted rationally by rely ing o n that

consensus.

Plaintiffs arg ue that the leg islature a cted irrationally when it banned SOC E for minors because there is a lack o f scientifically credible proof of harm. B ut, under rational bas i s r e view, “[ w] e a sk only whether there are plausible

reasons fo r [ the leg islature’s] action, and if there are, our inquiry i s a t an end.” Romero-Ochoa v. Holder
, 712 F .3d 1328, 1 331 ( 9th C i r. 2013) (internal quotation marks omitted).

Therefore, we hold th at SB 1172 is rationally related to the leg itimate g overnment interest of protec ting the wellbeing of minors. 9

B

. Expressive Association

W e also reject the Pickup Plaintiffs’ arg ument t hat SB 1172 implicates their rig ht to freedom of association because the F irst A mendment protects their “choices to enter into a nd maintain the intimate human relationships b etween counselors and clients.” 1 0

9 T h e f o reg o in g d iscu ssio n relates as w ell t o t h e Picku p P lain t i f f s’ claim th at S B 1 17 2 v i o lates m in o rs’ rig h t to receiv e in f o rm atio n

. See Mo n teiro

v. Temp e Un io n Hig h S

ch

. D ist.
, 1 5 8 F.3 d 1 0 2 2
, 1 0 2 7 n .5 (9 t h Cir. 19 9 8) (reco g n izin g th e “ w ell- estab lish ed ru le th at th e rig h t t o receiv e in f o rm atio n is an in h e r e n t co ro llary o f th e rig h ts o f f ree sp eech an d
p ress”).

10 T h e Picku

p P lain tif f s arg u ab ly w aiv ed t

h eir ex p ressiv e asso ciatio n arg u m en t b y n o t raisin g it in th e d istrict co u rt. B u t “ th e ru le o f w aiv er is

a d i scretio n ary o n e.” Ru iz v. Affin ity L o g istics C o rp

. , 6 6 7 F.3 d 13 1 8
, 1 3 2 2 (9 th Cir. 2 0 1 2 ) (in tern al qu o tatio n m ark s o m itted ). W e h av e d iscretio n toP I C K U P V

. B R

O W N 29

F irst, SB 1172 does not prevent mental health providers

a nd clients from entering into and maintaining therapeut i c relationships. I t prohibits only “practices

. . . that seek to chang e an individual’s sex u al orientation.” Cal. B us. & Prof. Code § 865(b)(1). Therapists a r e f ree, but n ot oblig ated, to provide therapeutic ser v i c e s , as long as they do not “seek to chang e sex ual orientation.”

Moreover, the therapist-client relationship is not the ty pe of relationship that the freedom of association has been held
to p rotect. The Supreme Court’s decisions “have referred to constitutionally protected ‘freedom o f associa t i o n’ in two distinct senses.” Roberts v. U.S. Jaycees
, 468 U.S. 609, 617 (1984). The first ty

pe of protec t ed association concerns “intimate human relati o n s h ips,” which are implicated in personal decisions about marriag e , childbirth, r aising children, cohabiting with relatives, and t h e l ike. Id. at 617–19. That ty

pe of f reedom of associa t i on “ receives protection as a fundamental element of personal liberty .” Id.
at 6 1 8. The second ty

pe protects association “for the purpose of eng agi ng in those activities protected by the F irst Am e n dment—speech, assembly
, petition for the redress o f
g rievances, and the e x ercise o f r elig ion.” Id. at 618. Plaintiffs in Pickup claim an infring ement of only the first ty pe of freedom of association.

ad d ress an arg u m en t th at o th erw ise w o u ld b e w aiv ed “w hen th e issu e p resen t ed is p u rely o n e o f law an d eith er d o es n o t d ep en d o n th e f actu al

reco rd d ev elo ped b elo w , o r th e p ertin en t reco rd h as b een f u l l y d ev elo p ed .” Id

. (in tern al q u o t atio n m ark s o m i tted ). W h eth er SB 1 1 7 2 v io l ates t h e rig h t to ex p ressiv e asso ciatio n is su ch an issu e, an d w e ex ercise o u r d iscretio n to ad d ress it.P I C K U P V

. B R

O W N 30

Althoug h we have n ot specifically addresse d the therapist-client relationship in t erms of freedom o f association, we have ex plained why the therapist-client relationship is not protected by the Due Process Clause of the F ourteenth Amendment: “The relationship between a client and psy choanaly st lasts only a s long as the client is willing to pay the fee. E v e n i f a n aly sts and clients meet reg ularly a nd clients reveal secrets and emotional thoug hts to their analy sts, these r el ationships simply do not rise to the level of a fundamental rig ht.” NAAP
, 2 2 8 F .3d at 1050 (internal quotati o n marks and citation omitted). B ecause the ty pe o f associational protecti on that the Pickup Plaintiffs claim is rooted in “person a l l i b erty ,” U.S. Jaycees
, 468 U.S. at 618, and because we have already d etermined that the therapistclient relationship does not “implicate the fundamental rig hts associated with

. . . c lose-knit relationships,” NAAP
, 228 F .3d
at 1050, we conclude that the freedo m of association also does not encompass the therapist-client relationship.

C. Vagueness

W e nex t hold that SB 1172 is not void for vag ueness.

“I t is a basic principle o f due process that an enactment is void for v ag ueness if its prohibitions are not clearly defined.” Grayned v. City of Rockford
, 408 U.S. 104, 1 0 8 (1972). Neverth e l ess, “perfect clarity a n d precise g uidance have

never been r equired even of reg u lations that restrict

ex p ressive a ctivity .” W

ard v. Rock A gainst Racism
, 491 U.S. 781, 794 (1989). “[ U ] ncertainty a t a statute’s margi n s w i l l
not w a r r ant facial invalidation if it is clear what the statute proscribes ‘in the vast majority of its intended applications.’” Ca l

. Teachers Ass’n v. State B d. of Educ.
, 271 F .3d 1 1 4 1
, 1151 (9th Cir. 2001) (quoting Hill v. Colorado
, 530 U.S. 703,P I C K U P V

. B R

O W N 31

733 (2000)). “A defendant is deemed to have fair notice o f

a n offense if a r easonable p erson o f o rdinary intellig en c e would understand that his or her conduct is prohibited by the law in question.” United States v. W eitzenhoff
, 35 F

. 3d 1275, 1289 (9th Cir. 1994) (internal quotation marks o mitted). B ut, “if the statutory prohibition involves conduct of a s e l ect g roup of persons h aving specializ ed k nowledg e, and the challeng ed p hraseolog y is i n dig enous to the idiom of that

c lass, the standard is lowered and a c ourt may u p h o l d a statute w hich uses words or p h r a s e s having a technical o r other special meaning
, well enoug h known to enable those within its reach to correctly a p p ly them.” Id. (internal quotation marks omitted).

Althoug h the Picku

p Plaintiffs arg ue that they cannot ascertain where the line is between what i s prohibited a nd what is permitted—for e x ample, th e y w o nder whether the

mere dissemination of i nformation a bout SOCE would subject them to discipline—the tex t of SB 1172 i s clear to a reasonable person. I t p r ohibits “mental health p roviders” from e ng a g ing in “practices” that “se e k t o chang e” a minor “patient[ ’s] ” sex ual orientation. Cal. Bu s

. & Prof. Code §§ 865– 8 6 5

. 1. A reasonable person would understand the
statute to prohibit only me ntal health treatment, including
psy chotherapy
, that aims to alter a minor patient’s sex ual orientation. Althoug h Plaintiffs present various hy pothetical situations to support their vag ueness challeng e, the Supreme Court h as held that “speculation about possible vag ueness in hy pothetical situations not before the Court will not support

a facial attack on a statute when it is surely valid in the vast majority of its intended applications.” Hill
, 530 U.S. at 733 (internal quotation marks omitted).P I C K U P V

. B R

O W N 32

M o reover, considering that SB 1172 reg ulates licens e d

m ental health providers, w ho constitute “a select g roup o f
persons having sp e ci aliz ed knowledg e ,” the standard for clarity is lower. W

eitzenhoff
, 35 F .3d at 1289. I n d eed, it is hard to u nderstand how therapists w ho identify themselves a s SOCE practitioners can credibly arg ue that they do not understand what the ban on SOCE prohibits.

Neith er is the term “sex ual orientation” vag ue. I ts meaning is c lear enoug h to a reasonable person and should be

even more appar e n t t o mental health providers. I n fact, several p r o v isions in the California Code—thoug h not SB 1 1 7 2 itself—provide a simple definition: “heterosex uality
, homosex uality
, or bisex uality .” Cal. E d uc. C o d e §§ 212.6, 66262.7; Cal. Gov’t Code § 1 2 9 2 6 ®; Cal. Penal Code §§ 422.56(h), 11410(b)(7). Moreover, courts have repeatedly rejected vag ueness challeng es that rest on the t erm “sex ual orientation.” E .g. , United States v. Jenkins , 909 F . Supp. 2d 758, 778–79 (E.D. Ky

. 2 012); Hyman v. C i ty of Louisville
, 132 F

. Supp. 2d 528, 546 (W .D. Ky

. 2001), vacated on other grounds , 53 F . App’x 740 (6th Cir. 2002) (unpublished).

D. Overbreadth

W e further hold that SB 1172 is not overbroad. 1 1

11 In t erv en o r Eq u ality Calif o rn i a arg u es th at t

h e Picku p P l ain tif f s w aiv ed th eir o v erb read th ch allen g e b y f ailin g t o raise it ad eq u ately in th e d istrict

co u rt. A lth o u g h th ey d id n o t arg u e o v erb read th w ith sp ecif icity
, th ey did alleg e it in th e i r co m

p lain t an d in t

h eir m em o ran du m in su p p o rt of
p relim i n ary in

j u n ctiv e relief

. Mo reo v er, w

h eth er th e s tatu te is o v erb ro ad is a q u estio n o f law th at “ do es n o t d ep en d o n th e f actu al reco rd d ev elo ped b elo w .” Ru iz
, 6 67 F.3 d at 1 3 2 2

. T h eref o re, w e ex ercise o u

r d iscretio n to ad d ress P lain t if

f s’ o v erb read th

ch allen g e.P I C K U P V

. B R

O W N 33

Overbre a d t h doctrine permits the facial invalidation o f laws that prohibit “a substantial amount of constitutionally protected speech.” City of Houston v

. H

ill
, 4 82 U.S. 451, 466 (1987). “ [ T] he mere f

a c t that one can conceive of some impermissible applications o f a statute is not sufficient to render it susceptible to an overbreadth challeng e.” Members of City Council v. Taxpayers for Vincent
, 466 U.S. 789, 800 (1984). Rather, “ p a

r ticularly where conduct and not merely speech is involved, . . . the overbreadth of a statute must not only be real, but substantial as well, judg ed in relation to the statute’s plainly leg itimate sweep.” Broadrick v. Oklahoma
, 413 U.S. 601, 615 (1973).

Senate B ill 1172’s plain l y leg itimate sweep includes the prohibition of SOCE techniques such as inducing vomiting o r paraly sis, administering elect r ic shocks, and p erforming castrations. And, as e x plained above, it also includes SOCE techniques carried out solely throug h words. As with any b an

on a p articular medical treatment, there may be an incidental effect on speech. A ny incidental effect, however, is small in comparison with the “plainly leg itima te sweep” of the ban. Broadrick , 413 U.S. at 615.

Thus, SB 1172 is not overbroad.

E. Parents’ Fundamental Rights

The Pickup Plaintiffs also arg ue that SB 1172 infring es on their fundamental parental rig h t to make important medical decisions for their childr e n

. T h e state does not dispute that parent s h ave a fundamental rig h t to r aise their children a s they see fit, but arg ues that Plaintiffs “cannot compel the State to permit licensed mental health [ professional s ] to eng ag e in unsafe practices, and cannot dictate the prevailingP I C K U P V

. B R

O W N 34

standard of care in C a l i fornia b ased on their own views.” B ecause Plaintiffs arg ue f o r an af f i r m ative rig ht to access SOCE therapy f

rom licensed mental health providers, the precise question at iss u e i s whether parents’ fundamental rig hts include the rig ht to c h oose for their children a particular ty

pe of provider for a particular medical or mental hea l t h t reatment that the state has deemed harmful. See W ashington v. Glucksberg
, 521 U.S. 702, 720–21 (1997) (holding that courts should pre c i s e ly define purported substantive due process r ig hts to d irect and restrain

ex p osition of the Due Process Clause).

Parents have a c o nstitutionally protected rig ht to make d e c i sions r e g arding the care, custody
, and control of the i r children, but that rig ht is “not w ithout limitations.” Fields v

. Palmdale Sch. Dist.
, 427 F .3d 1 197, 1 2 0 4 (9th Cir. 2005). States may require school attendance a n d mandatory school uniforms, and they

may impose curfew laws applicable only
to minors. See id. at 1204–05 (collecting cases d emonstrating the “wide v ariety of state actions that intrude upon the liberty interest of parents in c ontrolling the upbring ing and education of their children”). I n the health a r ena, states may require the compulsory v accination of c hildren (subject to some

ex c e ptions), see Prince v. M assachusetts
, 321 U.S. 158, 166 (1944), and states may intervene wh e n a parent refuses
necessary medical car e f

or a child, see J

ehovah’s W

itnesses

v. King Cnty. Hosp.
, 278 F

. Supp. 488, 504 (W .D. W a sh. 1967) ( three-ju d ge panel) (per curiam), aff’d
, 390 U.S. 598 (1968) (per curiam). “[ A] state is not without constitutional control over parental discretion in dealing with children when their p h y s i c al or mental health is jeopardiz ed.” Parham v

. J.R. , 442 U.S. 584, 603 (1979).P I C K U P V

. B R

O W N 35

W e are u naware of any case th at s pecifically addresses whether a parent’s fundamental rig hts encompass the rig ht to choose for a child a particular ty pe of provider for a particular
tr eatment that the state has deemed harmful, but courts that have considered whether p a t i e n ts have the rig ht to choose specific treatments fo r t h e mselves have concluded that they do n o t. F or ex ample, we have held that “substantive d ue process rig hts d o not ex tend to the choice of ty pe of treatment

or of a particular health c are provid e r

. ” NAAP
, 228 F .3d at 1050. Thus, we concluded that “there is no fundamental rig ht
to choose a mental health professional w ith specific training

. ” Id. The Seventh Circuit has also held that “a patient d oes not have a c onstitutional rig ht to o btain a parti c u l a r ty pe o f
treatment o r to obtain treatment from a p articular provider if the g overnment has reasonably prohibited that ty pe o f
treatment or p rovider.” Mitchell v. Clayton
, 995 F. 2 d 772, 775 (7th Cir. 1993). Moreover, courts have held that there is

no substantive due p rocess rig h t to obtain drug s that the F D A has not approved, Carnohan v

. United States
, 6 16 F

. 2 d 1120, 1122 (9th Cir. 1980) ( per curiam), even w hen those drug s a re soug h t by terminally ill cancer pati e n ts, see Rutherford v

. United States
, 616 F .2d 455, 457 (10th Ci r

. 1 9 8 0 ) (“I t is apparent in the contex t with which w e are here concerned that the decision by the p atient w hether to have a treatment o r not is a protected rig ht, but his selection of a particular treatment,

or at least a m e d i cation, is within the area of g overnmental interest in protecting public health.”). T hose c ases c ut ag ainst
recog niz ing the rig ht that Plaintiffs a ssert; it would be odd if parents had a substantive due process rig ht to choose specific
treatments for their children—treatmen t s t h a t r e a s o n a b ly have been deemed harmful b y the state—but not for themselves. A l l t he more anomalous because the Supreme Court h a s recog niz ed that the state has g reater power over children than

over adults. Prince
, 321 U.S. at 170 (stating that “the powerP I C K U P V

. B R

O W N 36

of the state to control the conduct of children reaches bey ond the scope of its authority

over adults”).

F urther, our decision in F i elds counsels ag ainst
recog niz ing the rig ht that Plaintiffs assert. I n that ca se, parents of school children a rg u ed that a school violated their parental rig hts when it a dministered to students a survey that contained severa l q u e stions about sex

. Fields
, 427 F .3d at 1203. W e r e

j ected that a

rg ument, holding that, althoug h parents have the r ig ht to inform their children about sex when and as they choose, they do n o t h a v e the rig ht to “compel public schools to f

oll o w t h eir own idiosy

ncratic v iews as to what information the schools may dispense.” Id. at 1206. Similarly
, here, to recog niz e the rig h t Plaintiffs assert would be to c ompel the Calif o r n ia leg islature, in shaping its

re gu l ation of mental health providers, to accept Plaintiffs’ personal views of what therapy is s a f e and effective for minors. The a forementioned cases lead u s to conclude that the fundamental rig hts of p arents do not include the rig ht to choose a specific ty

pe of provider f

o r a specific medical o r mental health treatment that the state h as reasonably deemed harmful.

Therefore, SB 1172 does not infring e on the fundamental rig hts of parents.

CONCL USI ON

Senate B ill 1172 survives the constit u t i onal c halleng e s presented here. According ly , the order g ranting preliminary relief in W

e lch
, No. 13-15023, is REVERSED
, and the order deny ing preliminary relief in Pickup
, No. 12-17681, is AF F IRMED

. W e remand both cases for further proceeding s consistent with this opinion.