1 PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 13

- 4429

_____________

TARA KING, ED. D. INDIVIDUALLY AND ON BEHALF OF HER PATIENTS; RONALD NEWMAN, PH. D., INDIVIDUALLY AND

ON BEHALF OF HIS PATIENTS;

NATIONAL ASSOCIATION FOR RESEARCH AND THERAPY OF HOMOSEXUALITY, (NARTH);

AMERICAN ASSOCIATION OF CHRISTIAN

COUNSELORS,

Appellants

v.

GOVERNOR OF THE STATE OF NEW JERSEY;

ERIC T. KANEFSKY,

DIRECTOR OF THE NEW JERSEY DEPARTMENT

OF LAW AND PUBLIC SAFETY: DIVISION OF CONSUMER AFFAIRS, IN HIS

OFFICIAL CAPACITY; MILAGROS COLLAZO, EXECUTIVE DIRECTOR OF

THE NEW JERSEY BO ARD OF MARRIAGE2 AND FAMILY THERAPY EXAMINERS, IN HER OFFICIAL CAPACITY; J. MICHAEL WALKER, EXECUTIVE DIRECTOR OF

THE NEW JERSEY BOARD OF PSYCHOLOGICAL EXAMINERS, IN HIS OFFICIAL CAPACITY; PAUL JORDAN,

PRESIDENT OF THE NEW JERSEY STATE

BOARD OF MEDICAL EXAMINERS,

IN HIS OFFICIAL CAPACITY

GARDEN STATE EQUALITY (Intervenor in D.C.)

_____________

On Appeal from the United States District Court for the District of New Jersey

District Court No. 13

- cv

- 05038 District Judge: The Honorable Freda L. Wolfson

Argued July 9, 2014

Before: SMITH, VANASKIE, and SLOVITER,

Circuit Judges

(Filed: September 11, 2014 )

M ary E. McAlister , Esq.

Daniel J. Schmid , Esq

.3 Liberty Counsel

P.O. Box 11108 Lynchburg, VA 24506

Anita L. Staver , Esq.

Mathew D . Staver [ARGUED] Liberty Counsel

P.O. Box 540774 Orlando, FL 32854

Demetrios K. Stratis , Esq.

10

- 04 River Road Fairlawn, NJ 07410 Counsel for Appellants

Robert T. Lougy , Esq.

Eric S. Pasternack , Esq. Susan M. Scott [ARGUED] Office of Attorney General of New Jersey

P.O . Box 112

25 Market Street Richard J. Hughes Justice Complex Trenton, NJ 08625 Counsel for Appellee

S h i r e e n A

. B a r d a y , Esq. David S. Flugman , Esq. [ARGUED]4 Frank M. Holozubiec , Esq.

Andrew C. Orr

Kirkland & Ellis 601 Lexington Avenue New York, NY 10022

Andrew Bayer , Esq.

Gl uck Walrath

2 nd Floor

428 River View Plaza Trenton, NJ 08611

Shannon P. Minter , Esq. Christopher F. Stoll , Esq. Amy Whelan , Esq. National Center for Lesbian Rights

870 Market Street

Suite 370 San Francisco, CA 94102 Counsel for Intervenor Appellee

Mordechai Biser , Es q. Agud ath Israel of America 42 Broadway

14 th Floor New York, NY 10004

Ronald D. Coleman , Esq. Goetz Fitzpatrick , Esq.5 1 Penn Plaza

Suite 3100 New York, NY 10119

Jonathan C. Dalton , Esq. Alliance Defending Freedom

15100 North 90 th Street Scottsdale, AZ 85260 Amicus Appellant

Kristy K. Marino , Esq. Eileen R. Ridley , Esq. Foley & Lardner

555 California Street

Suite 1700 San Francisco, CA 94104

Suman Chakraborty , Esq. Squire Patton Boggs LLP

1185 Avenue of the Americas

30 th Floor New York, NY 10036

Curtis C. Cutting , Esq. Horvitz & Levy

15760 Ve ntura Boulevard

18 th Floor Encino, CA 914366 Hayley J. Gorrenberg , Esq. Lambda Legal Defense & Education Fund, Inc.

120 Wall Street

19 th Floor New York, NY 10005

Lisa A. Linsky , Esq. McDermott, Will & Emery

340 Madison Avenue New York, NY 10173

Sandford J. Rosen , Esq. Rosen, Bien & Galvan 315 Montgomery Street

10 th Floor San Francisco, CA 94104

Tanya E. Kalivas , Esq.

Arnold & Porter

399 Park Avenue

34 th Floor New York, NY 10022

Emily B. Goldberg , Esq. McCarter & English 100 Mulberry Street Four Gateway Center, 14 th Floor

Newark , NJ 07102 Amicus Appellee7 ________________

OPINION

________________

SMITH, Circuit Judge.

A recently enacted statute in New Jersey prohibits licensed counselors from engaging in “sexual orientation change efforts” 1 with a client under the age of 18

. Individuals and organizations that seek to provide such counseling filed suit in the United States District Court for the District of New Jersey, challenging this law as a violation of their First Amendment rights to free speech

and free exercise of reli gion. Plaintiffs also asserted

claims on behalf of their minor clients under the First and Fourteenth Amendments. The District Court rejected Plaintiffs’ First Amendment claims and held that they lacked standing to bring claims on behalf of their minor

cli ents. Although we disagree with parts of the District Court’s analysis, we will affirm.

1 The term “sexual orientation change efforts” is defined as “the practice of seeking to change a person’s sexual orientation, including . . . efforts . . . to reduce or eliminate

sexual or romantic a ttractions or feelings toward a person of the same gender.” N.J. Stat. Ann. § 45:1

- 55.8 I.

A.

Plaintiffs are individuals and organizations that provide licensed counseling to minor clients seeking to

reduce or eliminate same

- sex attractions (“SSA”). Dr.

Ta ra King and Dr. Ronald Newman are New Jersey licensed counselors and founders of Christian counseling centers that offer counseling on a variety of issues, including sexual orientation change, from a religious perspective. The National Association for Rese arch and Therapy of Homosexuality (“NARTH”) and the

American Association of Christian Counselors are organizations whose members provide similar licensed counseling in New Jersey.

Plaintiffs describe sexual orientation change efforts (“SOCE”) counseling as “talk therapy” that is administered solely through verbal communication. SOCE counselors may begin a session by inquiring into potential “root causes” of homosexual behavior, such as childhood sexual trauma or other developmental issues,

such as a distant relationship with the same

- sex parent. A counselor might then attempt to effect sexual orientation change by discussing “traditional, gender

- appropriate
behaviors and characteristics” and how the client can foster and develop these behaviors and character istics. Many counselors, including Plaintiffs, approach9 counseling from a “Biblical perspective” and may also integrate Biblical teachings into their sessions. 2

On August 19, 2013, Governor Christopher J. Christie signed Assembly Bill A3371 (“A3371”) into

law. 3 A3371 provides:

a. A person who is licensed to provide professional counseling . . . shall not engage in sexual orientation change efforts with a person under 18 years of age.

b. As used in this section, “sexual orientation change efforts” means th e practice of seeking to change a person’s sexual orientation, including, but not limited to, efforts to change behaviors, gender identity, or gender expressions, or to reduce

or eliminate sexual or romantic attractions or feelings toward a person of the s ame gender; except that sexual orientation change efforts

2 As the District Court observed, Plaintiffs provide very few details of precisely what transpires during SOCE counseling sessions. The foregoing is the sum total of

Pl aintiffs’ descriptions, which they compiled in response to the District Court’s inquiries at the October 1, 2013, hearing.

J.A. 556

– 57.

3 Assembly Bill A3371 is now codified at N.J. Stat. Ann. §§ 45:1

- 54, 55. Because the parties still refer to the law

as A3371, we do so in this Opinion as well.10 shall not include counseling for a person seeking to transition from one gender to another, or counseling that:

(1) provides acceptance, support, and understanding of a person or facilitates a perso n’s coping, social support, and identity exploration and development, including orientation

neutral interventions to prevent or

address unlawful conduct or unsafe sexual practices; and

(2) does not seek to change sexual

orientation.

N.J. Stat. Ann. § 45: 1

- 55. Though A3371 does not itself impose any penalties, a licensed counselor who engages in the prohibited “sexual orientation change efforts” may be exposed to professional discipline by the appropriate licensing board. See N.J. Stat. Ann. § 45:1

- 21.

A33 71 is accompanied by numerous legislative findings regarding the impact of SOCE counseling on clients seeking sexual orientation change. N.J. Stat. Ann. § 45:1

- 54. The New Jersey legislature found that “being lesbian, gay, or bisexual is not a disease, dis order, illness, deficiency, or shortcoming” and that “major professional associations of mental health practitioners and researchers in the United States have recognized this fact11 for nearly 40 years.” Id. The legislature also cited reports, articles, reso lutions, and position statements from reputable mental health organizations opposing therapeutic intervention designed to alter sexual orientation. Many of these sources emphasized that such efforts are ineffective and/or carry a significant risk of

harm. According to the legislature, for example, a 2009 report issued by the American Psychological Association (“APA Report”) concluded:

[S]exual orientation change efforts can pose critical health risks to lesbian, gay, and bisexual people, including confusion

, depression, guilt, helplessness, hopelessness, shame, social withdrawal, suicidality, substance abuse, stress, disappointment,

self

- blame, decreased self

- esteem and authenticity to others, increased self

- hatred, hostility and blame toward parents, feelin gs of anger and betrayal, loss of friends and potential romantic partners, problems in sexual and emotional intimacy, sexual dysfunction, high

- risk sexual behaviors, a feeling of being dehumanized and untrue to self, a loss of faith, and a sense of having

wasted time and resources.

Id.

Finally, the legislature declared that “New Jersey12 has a compelling interest in protecting the physical and psychological well

- being of minors, including lesbian, gay, bisexual, and transgender youth, and in protecting its minors against exposure to serious harms caused by sexual orientation change efforts.” Id.

B.

On August 22, 2013, Plaintiffs filed a complaint against various New Jersey executive officials (“State Defendants”) 4 in the United States District Court for the District of New Jersey, alleging that A3371 violated their rights to free speech and free exercise of religion under the First and Fourteenth Amendments. The complaint also alleged constitutional claims on behalf of Plaintiffs’ minor clients and their par ents. Specifically, Plaintiffs
claimed that A3371 violated the minor clients’ First and Fourteenth Amendment rights to free speech and free exercise of religion and the parents’ Fourteenth

4 These State Defendants include Christopher J. Christie, Governor; Eric T. Kanefsky, Director of the New Jersey Department of Law and Public Safety: Division of Consumer Affairs; Milagros Collazo, Executive Direc tor of the New Jersey Board of Marriage and Family Therapy Examiners; J. Michael Walker, Executive Director of the New Jersey Board of Psychological Examiners; and Paul Jordan, President of the New Jersey State Board of Medical

Examiners. Plaintiffs filed suit against each official in his or her official capacity.13 Amendment right to substantive due process. 5

The following day, Pl aintiffs moved for a Temporary Restraining Order and/or Preliminary Injunction to prevent enforcement of A3371. During a telephone conference with the parties, the District Court denied Plaintiffs’ motion for preliminary relief and, at Plaintiffs’ request, converted this motion into a motion for summary judgment. On September 6, 2013, Garden State Equality (“Garden State”), a New Jersey civil rights organization that advocates for lesbian, gay, bisexual, and transgender equality, filed a motion to intervene as a defendant. On September 13, 2013, State Defendants and

Garden State filed cross

- motions for summary judgment. The District Court heard argument on all of these motions on October 1, 2013, and issued a final ruling in an order dated November 8, 2013.

The District Court first considered whether Garden State was required to demonstrate Article III standing to participate in the lawsuit as an intervening party. 6 The

5 The complaint also alleged various claims under the constitution of New Jersey. Plaintiffs abandoned these claims

in the District Court.

6 Article III standing requires (1) an injury in fac t, (2) that is causally related to the alleged conduct of the defendant, and (3) that is redressable by judicial action. Friends of the Earth, Inc. v. Laidlaw Envt’l Servs. (TOC),

Inc. , 528 U.S. 167, 180

– 81 (2000).14 Court acknowledged that this was an open question in the Third Circuit, and adopted the v iew held by a majority of

our sister circuits that an intervenor need not have Article III standing to participate. The Court then held that Garden State fulfilled the requirements for permissive intervention pursuant to Federal Rule of Civil Procedure 24( b), reasoning that Garden State’s motion was timely, it shared a common legal defense with State Defendants, and its participation would not unduly prejudice the adjudication of Plaintiffs’ rights. Accordingly, the Court granted Garden State’s motion to in tervene.

The District Court then considered whether Plaintiffs possessed standing to pursue claims on behalf of their minor clients and their parents. It reasoned first that “Plaintiffs’ ability to bring third

- party claims hinges on whether they suffered any constitutional wrongs by the passage of A3371.” J.A. 24. It then held that because, as it would explain later in its opinion, A3371 did not violate Plaintiffs’ constitutional rights, Plaintiffs did not suffer an “injury in fact” sufficient to confer th ird

- party standing. The Court also held that Plaintiffs failed to demonstrate that these third parties were sufficiently hindered in their ability to protect their own interests. Accordingly, the Court granted summary judgment for
Defendants on Plaintiffs’ third

- party claims.

The District Court then considered whether A3371 violated Plaintiffs’ right to free speech. Relying heavily on the Ninth Circuit’s decision upholding a similar15 statute in Pickup v. Brown , 728 F.3d 1042 (9th Cir. 2013), 7 the Court conc luded that A3371 regulates conduct, not speech. The Court also determined that A3371 does not have an “incidental effect” on speech sufficient to trigger a lower level of scrutiny under
United States v. O’Brien , 391 U.S. 367 (1968). Having

determined that A3371 regulates neither speech nor expressive conduct, the District Court rejected Plaintiffs’ free speech challenge. 8 The District Court also concluded

7 After the District Court issued its o pinion, the Ninth Circuit denied a petition for rehearing en banc in Pickup and, in the process, amended its opinion to include, inter alia , a discussion of Holder v. Humanitarian Law Project , 561 U.S. 1 (2010). Compare Pickup , 728 F.3d 1042 with Pickup v.

Brown , 740 F.3d 1208 (9th Cir. 2013) cert denied , 134 S. Ct. 2871 (2014) and cert denied , 134 S. Ct. 2881 (2014). We will

discuss Pickup and Humanitarian Law Project in more detail infra

. 8 After concluding that A3371 regulates neither speech

nor expres sive conduct, the District Court went on to subject the statute to rational basis review. In a footnote, it explained that it had, by this point, “rejected Plaintiff’s First Amendment free speech challenge,” but that it was applying

rational basis review t o determine “whether there [was] any substantive due process violation.” J.A. 48 n.26. This explanation is puzzling, however, given that Plaintiffs alleged a substantive due process claim only on behalf of their minor patients’ parents, and the District Co urt’s rejection of these

third

- party claims on standing grounds rendered any further analysis unnecessary.16 that A3371 is not unconstitutionally vague or overbroad.

The District Court next rejected Plaintiffs’ free exercise claim. It was not convinced by Plaintiffs’ arguments that A3371 engaged in impermissible gerrymandering, and concluded instead that A3371 was a neutral law of general applicability subject only to

rational basis review. The District Court the n held that A3371 is rationally related to New Jersey’s legitimate interest in protecting its minors from harm and, accordingly, granted Defendants’ motions for summary judgment on Plaintiffs’ free exercise claim. This timely appeal followed.

II.

The Distr ict Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291.

We review a district court’s legal conclusions de novo and ordinarily review its factual findings for clear

error. Pittsburgh League of Young Voters Educ. Fund v. Port Auth. of Allegheny Cnty ., 653 F.3d 290, 295 (3d Cir. 2011). Because this case implicates the First Amendment, however, we are obligated to “make an independent examination of the whole record” to “make sure that the trial court’s judgment does not constitute a forbidden intrusion on the field of free expression.” Id. (internal quotation marks and citations omitted).17 III.

We first turn to the issue of whether A3371, as applied to the SOCE counseling Plaintiffs seek to provide, violates Plain tiffs’ First Amendment right to free speech. The District Court held that it does not, reasoning that SOCE counseling is “conduct” that receives no protection under the First Amendment. We disagree, and hold that the verbal communication that occurs during SOCE counseling is speech that enjoys some degree of protection under the First Amendment. Because Plaintiffs are speaking as state

- licensed professionals within the confines of a professional relationship, however, this level of protection is

diminished. Accordingly, A3371 survives Plaintiffs’ free speech challenge if it directly advances the State’s substantial interest in protecting its citizens from harmful or ineffective professional practices and is not more extensive than necessary to serve that int erest. We hold that A3371 meets these requirements.

A.

With respect to Plaintiffs’ free speech challenge, the preliminary issue we must address is whether A3371 has restricted Plaintiffs’ speech or, as the District Court held, merely regulated their conduc t. The parties agree

that modern

- day SOCE therapy, and that practiced by Plaintiffs in this case, is “talk therapy” that is18 administered wholly through verbal communication. 9 Though verbal communication is the quintessential form of “speech” as that term i s commonly understood, Defendants argue that these particular communications are “conduct” and not “speech” for purposes of the First Amendment because they are merely the “tool” employed by therapists to administer treatment. Thus, the question we confron t is whether verbal communications become “conduct” when they are used as a vehicle for

mental health treatment.

We hold that these communications are “speech” for purposes of the First Amendment. Defendants have not directed us to any authority from the Supreme Court

or this circuit that have characterized verbal or written
communications as “conduct” based on the function these communications serve. Indeed, the Supreme Court rejected this very proposition in Holder v. Humanitarian

9 Prior forms of SOCE therapy included non

- verbal “aversion treatments, such as inducing nausea, vomiting, or paralysis, providing electric shocks; or having the individual snap an elastic band around the wrist when the individual

became aroused to same

- sex erotic images or thoughts.” J.A. 306 (APA Report). Plaintiffs condemn these techniques as
“unethical methods of treatment that have not been used by any ethical and licensed mental health professional in decades” and believe “professionals who engage in such techniques should have their licenses revoked.” J.A. 171 (Decl. of Dr. Tara King).19 Law Project , 561 U.S. 1 (2010). In that case, plaintiffs claimed that a federal statute prohibiting the provision of “material support” to designated terrorist organizations violated their free speech rights by preventing them from providing legal training and advice to the Part iya Karkeran Kurdistan (“PKK”) and the Liberation Tigers of Tamil Eelam (“LTTE”). Id. at 10

– 11. Defendants responded that the “material support” statute should not be subjected to strict scrutiny because it is directed toward conduct and not speech. Id. at 26

– 28.

The Supreme Court, however, expressly rejected the argument that “the only thing actually at issue in [the] litigation [was] conduct.” Id. at 27. It concluded that while the material support statute ordinarily banned conduct, the activity it prohi bited in the particular case

before it

— the provision of legal training and advice

— was speech. Id. at 28. It reached this conclusion based on the straightforward observation that plaintiffs’ proposed activity consisted of “communicating a message.” Id. In

c oncluding further that this statute regulated speech on the basis of content, the Court’s reasoning was again simple and intuitive: “Plaintiffs want to speak to the PKK and the LTTE, and whether they may do so under § 2339B depends on what they say.” Id

. a t 27

. Notably, what the Supreme Court did not do was reclassify this20 communication as “conduct” based on the nature or

function of what was communicated. 10

Given that the Supreme Court had no difficulty characterizing legal counseling as “speech,” we see n o reason here to reach the counter

- intuitive conclusion that the verbal communications that occur during SOCE counseling are “conduct.” Defendants’ citation to Giboney v. Empire Storage & Ice Co. , 336 U.S. 490, 502 (1949), does not alter our conclusion. Th ere, members of

the Ice and Coal Drivers and Handlers Local Union No. 953 were enjoined under a state antitrade restraint statute from picketing in front of an ice company in an effort to

convince it to discontinue ice sales to non

- union buyers.

336 U.S. a t 492

– 494. The Supreme Court rejected the union workers’ free speech claim, reasoning that “it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced , or carried out by means of language, either spoken, written, or printed.” Id. at 502 (citations omitted). This passage, which is now over 60 years old, has been the subject of

much confusion. See Eugene Volokh, Speech as

10 Further, a plurality of the Supreme Court in Planned

Pare nthood of Southeastern Pa. v. Casey , 505 U.S. 833, 884 (1992), acknowledged that a Pennsylvania law requiring physicians to provide information to patients prior to performing abortions regulated speech rather than merely
“treatment” or “conduct.”21 Conduct: Generally Applicable Law s, Illegal Courses of Conduct, “Situation

- Altering Utterances,” and the

Uncharted Zones , 90 Cornell L. Rev. 1277, 1314

– 22 (2005) (discussing eight distinct interpretations of Giboney ’s “course of conduct” language). Yet whatever may be Giboney ’s meaning or scope, Humanitarian Law Project makes clear that verbal or written communications, even those that function as vehicles for delivering professional services, are “speech” for purposes of the First Amendment. 561 U.S. at 27

– 28.

In reaching a contrary concl usion, the District Court relied heavily on the Ninth Circuit’s recent

decision in Pickup

. Pickup involved a constitutional challenge to Senate Bill 1172 (“SB 1172”), which, like A3371, prohibits state

- licensed mental health providers from engaging in “sex ual orientation change efforts” with clients under 18 years of age. 740 F.3d at 1221. As here, SOCE counselors argued that SB 1172 violated their First Amendment rights to free speech and free

exercise. 11

The Ninth Circuit disagreed. Pickup explained that “the First Amendment rights of professionals, such as doctors and mental health providers” exist on a
“continuum.” Id . at 1227. On this “continuum,” First Amendment protection is greatest “where a professional

11 Unli ke the present case, plaintiffs in Pickup included minor patients and their parents.22 is engaged in a public dialogue.” Id . At the m idpoint of this continuum, which Pickup described as speech “within the confines of the professional relationship,” First Amendment protection is “somewhat diminished.”

Id. at 1228. At the other end of this continuum is “the regulation of professional cond uct , where the state’s power is great, even though such regulation may have an incidental effect on speech.” Id. at 1229 (citing Lowe v.

S.E.C. , 472 U.S. 181, 232 (1985) (White, J., concurring in the result)) (emphasis in original).

Pickup concluded that because SB 1172 “regulates conduct,” it fell within this third category on the

continuum. Id. It reasoned that “[b]ecause SB 1172 regulates only treatment, while leaving mental health providers free to discuss and recommend, or recommend against, SOCE, . . . any effect it may have on free speech interests is merely incidental. Therefore, we hold that SB 1172 is subject to only rational basis review and must be upheld if it bears a rational relationship to a legitimate
state interest.” Id. at 1231 (citing P lanned Parenthood of Southeastern Pa. v. Casey , 505 U.S. 833, 884, 967

– 68 (1992) (plurality opinion)). 12 The Ninth Circuit

12 It is not entirely clear why, or on what authority, the original Pickup opinion concluded that rational basis is the proper standard of review for a regulation of prof essional conduct that has an incidental effect on professional speech. The original opinion in Pickup accompanied this conclusion with a quote from National Association for the Advancement23 concluded that “SB 1172 is rationally related to the legitimate government interest of protecting the well

being of minors” and, accor dingly, rejected the plaintiffs’ free speech claim. Id. at 1232.

The Ninth Circuit’s denial of a petition for rehearing en banc drew a spirited dissent from Judge O’Scannlain. Joined by two other Ninth Circuit judges,

he criticized the Pickup majority fo r merely “labeling” disfavored speech as “conduct” and thereby “insulat[ing] [SB 1172] from First Amendment scrutiny.” 740 F.3d at

of Psychoanalysis v. California Board of Psychology , 228 F.3d 1043, 1049 (9th Cir. 2000) (“ NAAP ”). 728 F.3d at 1056. The quoted passage from NAAP , however, refers to the proper standard for reviewing an equal protection challenge to a law that discriminates against a non

- suspect class

— it did not, in any way, establish tha t rational basis is the proper standard for reviewing a free speech challenge to a law that regulates professional conduct. See 228 F.3d at 1049. When the Ninth

Circuit amended Pickup following the denial of the petition for rehearing en banc, the panel su bstituted the citation to

NAAP with one to Planned Parenthood of Southeastern Pa. v. Casey , 505 U.S. 833, 884, 967

– 68 (1992), in which, according to the Ninth Circuit, “a plurality of three justices, plus four additional justices concurring in part and dis senting in part, applied a reasonableness standard to the regulation of medicine where speech may be implicated incidentally.” Pickup , 740 F.3d at 1231. We will discuss infra the proper standard of review for regulation of professional speech, as

well as t he relevance of Casey to this analysis.24 1215 (O’Scannlain, J., dissenting from denial of rehearing en banc). Judge O’Scannlain further explained:

The panel provides no principled doctrinal basis for its dichotomy: by what criteria do we distinguish between utterances that are truly “speech,” on the one hand, and those that are, on the other hand, somehow “treatment” or “conduct”? The panel,
contrary to common sense an d without legal authority, simply asserts that some spoken

words

— those prohibited by SB 1172

— are not speech.

Id. at 1215

– 16.

Judge O’Scannlain’s dissent also relied heavily

upon Humanitarian Law Project . Judge O’Scannlain argued that Humanitarian Law Proj ect “flatly refused to countenance the government’s purported distinction between ‘conduct’ and ‘speech’ for constitutional purposes when the activity at issue consisted of talking and writing.” Id . at 1216. He explained that Humanitarian Law Project stood for the proposition that “the government’s ipse dixit cannot transform ‘speech’ into ‘conduct’ that it may more freely regulate.” Id. 13

13 The amended Pickup opinion acknowledges that Humanitarian Law Project found activity to be “speech” when it “consist[ed] of communicating a message ,” but25 While Pickup acknowledged that SB 1172 may have at least an “incidental effect” on speech and subjected the statute to rational basis review, 14 here the District Court went one step further when it concluded that SOCE counseling is pure, non

- expressive conduct that falls wholly outside the protection of the First Amendment. The District Court’s primary rationale for

contends that “SB 1172 does not prohibit Plaintiffs from

‘c ommunicating a message’” because “[i]t is a state regulation governing the conduct of state

- licensed professionals, and it does not pertain to communication in the public sphere.” Id . at 1230 (quoting Humanitarian Law Project , 561 U.S. at 28) (emphasis add ed by Pickup ). We are not persuaded. Humanitarian Law Project concluded that the “material support” statute regulated speech despite explicitly acknowledging that it did not stifle communication in the public sphere. 561 U.S. at 25

– 26 (“Under the material

support statute, plaintiffs may say anything they wish on any topic. They may speak and write freely about the PKK and LTTE, the governments of Turkey and Sri Lanka, human rights, and international law. They may advocate before the United Nations.”).

14 J udge O’Scannlain’s dissent in Pickup accuses the majority of “entirely exempt[ing] [SB 1172] from the First Amendment.” 740 F.3d at 1215 (O’Scannlain, dissenting from denial of rehearing en banc). We do not believe the

Ninth Circuit went that far. As we ha ve explained, the Ninth Circuit acknowledged that SB 1172 “may” have an “incidental effect” on speech, and thus applied rational basis review; it did not exempt SB 1172 from any review at all.26 this co nclusion was that “the core characteristic of counseling is not that it may be carried out through talking, but rather that the counselor applies methods and procedures in a therapeutic manner.” J.A. 35 (emphasis added). The District Court derived this rea soning in part

from Pickup , in which the Ninth Circuit observed that the “key component of psychoanalysis is the treatment of emotional suffering and depression, not speech.” 740 F.3d at 1226 (quoting National Association for the Advancement of Psychoanaly sis v. California Board of Psychology , 228 F.3d 1043, 1054 (9th Cir. 2000)). On this basis, the District Court concluded that “the line of demarcation between conduct and speech is whether the counselor is attempting to communicate information or a particu lar viewpoint to the client or whether the counselor is attempting to apply methods, practices, and procedures to bring about a change in the client

— the former is speech and the latter is conduct.” J.A. 39.

As we have explained, the argument that verbal communications become “conduct” when they are used to deliver professional services was rejected by Humanitarian Law Project . Further, the enterprise of labeling certain verbal or written communications “speech” and others “conduct” is unprincipled and

sus ceptible to manipulation. Notably, the Pickup majority, in the course of establishing a “continuum” of protection for professional speech, never explained exactly how a court was to determine whether a statute27 regulated “speech” or “conduct.” See Pickup , 7 40 F.3d at

1215

– 16 (O’Scannlain, J., dissenting from denial of rehearing en banc) (“[B]y what criteria do we distinguish between utterances that are truly ‘speech,’ on the one hand, and those that are, on the other hand, somehow ‘treatment’ or ‘conduct’?”) . And the District Court’s analysis fares no better; even a cursory inspection of the
line it establishes between utterances that “communicate information or a particular viewpoint” and those that seek “to apply methods, practices, and procedures” reveals the illusory nature of such a dichotomy.

For instance, consider a sophomore psychology major who tells a fellow student that he can reduce same

sex attractions by avoiding effeminate behaviors and developing a closer relationship with his father. Surely

t his advice is not “conduct” merely because it seeks to apply “principles” the sophomore recently learned in a behavioral psychology course. Yet it would be strange indeed to conclude that the same words, spoken with the same intent, somehow become “conduct ” when the speaker is a licensed counselor. That the counselor is speaking as a licensed professional may affect the level of First Amendment protection her speech enjoys, but this fact does not transmogrify her words into “conduct.” As another example, a law student who tries to convince her friend to change his political orientation is assuredly “speaking” for purposes of the First Amendment, even if she uses particular rhetorical “methods” in the process.28 To classify some communications as “speech” and o thers as “conduct” is to engage in nothing more than a “labeling game.” Pickup , 740 F.3d at 1218 (O’Scannlain, J., dissenting from denial of rehearing en banc).

Lastly, the District Court’s classification of counseling as “conduct” was largely motivated by its reluctance to imbue certain professions

— i.e. , clinical psychology and psychiatry

— with “special First Amendment protection merely because they use the spoken word as therapy.” J.A. 38. According to the District Court, the “fundamental problem” with

cha racterizing SOCE counseling as “speech” is that “it

would mean that any regulation of professional counseling necessarily implicates fundamental First Amendment speech rights.” Id. at 39. This result, reasoned the District Court, would “run[] counter to th e longstanding principle that a state generally may enact laws rationally regulating professionals, including those providing medicine and mental health services.” Id. (citations omitted).

As we will explain, the District Court’s concern is

not without me rit, but it speaks to whether SOCE counseling falls within a lesser protected or unprotected category of speech

— not whether these verbal communications are somehow “conduct.” Simply put, speech is speech, and it must be analyzed as such for purposes of the First Amendment. Certain categories of speech receive lesser protection, see, e.g., Ohralik v.29 Ohio State Bar Ass’n , 436 U.S. 447, 455

– 56 (1978), or even no protection at all, see, e.g., Roth v. United States

, 354 U.S. 476, 483 (1957). But these categorie s are deeply rooted in history, and the Supreme Court has repeatedly cautioned against exercising “freewheeling authority to declare new categories of speech outside the scope of the
First Amendment.” United States v. Alvarez , 132 S. Ct. 2537 (2012) (quoti ng United States v. Stevens , 559 U.S. 460, 472 (2010)). By labeling certain communications as “conduct,” thereby assuring that they receive no First Amendment protection at all, the District Court has effectively done just that.

Thus, we conclude that the verbal communications that occur during SOCE counseling are not “conduct,” but rather “speech” for purposes of the First Amendment. We now turn to the issue of whether such speech falls within a historically delineated category of lesser protected or unpr otected expression.

B.

The District Court’s focus on whether SOCE counseling is “speech” or “conduct” obscured the important constitutional inquiry at the heart of this case: the level of First Amendment protection afforded to speech that occurs as part o f the practice of a licensed profession. In addressing this question, we first turn to whether such speech is fully protected by the First

Amendment. We conclude that it is not.30 The authority of the States to regulate the practice of certain professions i s deeply rooted in our nation’s jurisprudence. Over 100 years ago, the Supreme Court deemed it “too well settled to require discussion” that “the police power of the states extends to the regulation of certain trades and callings, particularly those which closely concern the public health.” Watson v. State of Maryland , 218 U.S. 173, 176 (1910). See also Dent v. West Virginia , 129 U.S. 114, 122 (1889) (“[I]t has been the practice of different states, from time immemorial, to exact in many pursuits a certain degree of skill and learning upon which the community may confidently rely.”). The Court has recognized that States have “broad power to establish standards for licensing practitioners and regulating the practice of professions.” Goldfarb v.

Va. State Bar

, 421 U.S. 773, 792 (1975). See also

Ohralik , 436 U.S. at 460 (“[T]he State bears a special responsibility for maintaining standards among members of the licensed professions.”). The exercise of this authority is necessary to “shield[] the public against th e untrustworthy, the incompetent, or the irresponsible.”

Thomas v. Collins , 323 U.S. 516, 545 (1945) (Jackson, J., concurring).

When a professional regulation restricts what a professional can and cannot say, however, it creates a “collision between the po wer of government to license and regulate those who would pursue a profession or vocation and the rights of freedom of speech and of the31 press guaranteed by the First Amendment.” Lowe v.

S.E.C. , 472 U.S. 181, 228 (1985) (White, J., concurring

in the result ). Justice Jackson first explored this area of
“two well

- established, but at times overlapping, constitutional principles” in Thomas 323 U.S. at 544

– 48 (1945) (Jackson, J., concurring). There, he explained:

A state may forbid one without its license to

pra ctice law as a vocation, but I think it could not stop an unlicensed person from making a speech about the rights of man or the rights of labor . . . . Likewise, the state may prohibit the pursuit of medicine as an occupation without its license but I do n ot think it could make it a crime publicly or privately to speak urging persons to follow or reject any school of medical thought. So the state to an extent not necessary now to determine may regulate one who makes a business or a livelihood of soliciting funds or memberships for unions. But I do not think it can prohibit one, even if he is a salaried labor leader, from making an address to a public meeting of workmen, telling them their rights as he sees them and urging them to unite in general or to join a specific union.

Id. at 544

– 45. Ultimately, Justice Jackson concluded that the speech at issue

— which encouraged a large group of32 Texas workers to join a specific labor union

— “f[ell] in the category of a public speech, rather than that of practicing a voca tion as solicitor” and was therefore fully protected by the First Amendment. See id. at 548.

Justice White expounded upon Justice Jackson’s analysis in Lowe . He and two other justices agreed that “[t]he power of government to regulate the professions is

n ot lost whenever the practice of a profession entails speech” but also recognized that “[a]t some point, a measure is no longer a regulation of a profession but a regulation of speech or of the press.” 472 U.S. at 228, 230 (White, J., concurring in the res ult). Building on Justice Jackson’s concurrence, Justice White defined the contours of First Amendment protection in the realm of professional speech:

One who takes the affairs of a client personally in hand and purports to exercise judgment on behalf of t he client in the light
of the client’s individual needs and circumstances is properly viewed as engaging in the practice of a profession. Just as offer and acceptance are communications incidental to the regulable transaction called a contract, the profess ional’s speech is incidental to the conduct of the profession. . . . Where the personal nexus between professional and client does not exist, and a speaker does not purport to be exercising33 judgment on behalf of any particular

individual with whose circums tances he is directly acquainted, government regulation ceases to function as legitimate regulation of professional practice with only incidental impact on speech; it becomes regulation of speaking or publishing as such, subject to
the First Amendment’s co mmand that “Congress shall make no law . . . abridging the freedom of speech, or of the press.”

Id. at 232.

The Supreme Court addressed the issue of professional speech most recently in Planned Parenthood of Southeastern Pa. v. Casey , 505 U.S. 833 (1992 ) (plurality opinion). Though the bulk of the plurality’s opinion was devoted to a substantive due process claim, it addressed the plaintiffs’ First Amendment claim briefly in the following paragraph:

All that is left of petitioners’ argument is an

assert ed First Amendment right of a physician not to provide information about the risks of abortion, and childbirth, in a manner mandated by the State. To be sure, the physician’s First Amendment rights not to speak are implicated, see Wooley v. Maynard, 430 U.S. 705 (1977) , but only as part of the practice of medicine, subject to34 reasonable licensing and regulation by the State, cf. Whalen v. Roe, 429 U.S. 589, 603 (1977)

. We see no constitutional infirmity in the requirement that the physician provide the information mandated by the State here.

Id. at 884.

A trio of recent federal appellate decisions has read these opinions to establish special rules for the regulation of speech that occurs pursuant to the practice of a licensed profession. See Wollschlaeger v. Florida , No.

12

- cv

- 14009, 2014 WL 3695296, at *13

– 21 (11th Cir. July 25, 2014); Pickup , 740 F.3 d at 1227

– 29; Moore

King v. County of Chesterfield, Va ., 708 F.3d 560, 568

– 70 (4th Cir. 2013). In Moore

- King , for example, the Fourth Circuit drew heavily from the concurrences in

Thomas and Lowe in holding that “professional speech”

does not receive full protection under the First

Amendment. 708 F.3d at 568

– 70. Consistent with Justice
White’s concurrence in Lowe

, Moore

- King explained that “the relevant inquiry to determine whether to apply the professional speech doctrine is whether the speaker is providin g personalized advice in a private setting to a paying client or instead engages in public discussion and commentary.” Id. at 569. It then concluded that plaintiff’s speech, which consisted of “spiritual counseling” that involved “a personalized reading fo r a paying client,” was “professional speech” which the state could regulate35 without triggering strict scrutiny under the First

Amendment. Id.

The Ninth Circuit also embraced the idea of professional speech in Pickup . Although the District Court focused pr imarily on Pickup ’s discussion of whether SOCE counseling is “speech” or “conduct,” the Ninth Circuit also relied heavily on the constitutional principle that a licensed professional’s speech is not afforded the full scope of First Amendment protection

whe n it occurs as part of the practice of a profession. See

740 F.3d at 1227

– 29. In recognizing a “continuum” of First Amendment protection for licensed professionals, Pickup relied heavily on Justice White’s concurrence in

Lowe and the plurality opinion in C asey

. Id. As discussed

supra , Pickup held that First Amendment protection is “at its greatest” when a professional is “engaged in a public dialogue,” id . at 1227 (citing Lowe , 472 U.S. at 232 (White, J., concurring in the result)); “somewhat
diminished” wh en the professional is speaking “within the confines of a professional relationship,” id. at 1228 (citing Casey , 505 U.S. at 884 (plurality opinion)); and at its lowest when “the regulation [is] of professional

conduct . . . even though such regulation may have an incidental effect on speech,” id . at 1229 (citing Lowe

, 472 U.S. at 232 (White, J., concurring in the result)).

Most recently, the Eleventh Circuit also recognized that professional speech is not fully protected

under the First Amendment. Wollsch laeger , 2014 WL36 3695296. While the Eleventh Circuit would afford “speech to the public by attorneys on public issues” with “the strongest protection our Constitution has to offer,” it held that the full scope of First Amendment protection did not apply to a physician speaking “only as part of the practice of medicine, subject to reasonable licensing and regulation by the State.” Id . at *14 (quoting Casey , 505 U.S. at 884 (plurality opinion)). Similar to Moore

- King

, Wollschlaeger explained that “the key to d istinguishing between occupational regulation and abridgment of First Amendment liberties is in finding a personal nexus between professional and client.” Id . (internal quotation marks and citations omitted).

We find the reasoning in these cases to be

inf ormative. Licensed professionals, through their education and training, have access to a corpus of specialized knowledge that their clients usually do not. Indeed, the value of the professional’s services stems largely from her ability to apply this specia lized knowledge to a client’s individual circumstances. Thus, clients ordinarily have no choice but to place their trust in these professionals, and, by extension, in the State that

licenses them. See, e.g., Virginia State Bd. of Pharmacy
v. Va. Citizens C onsumer Council, Inc. , 425 U.S. 748, 768 (1976) (“[H]igh professional standards, to a substantial extent, are guaranteed by the close regulation to which pharmacists in Virginia are subject.”). It is the State’s imprimatur and the regulatory oversight that37 accompanies it that provide clients with the confidence they require to put their health or their livelihood in the hands of those who utilize knowledge and methods with which the clients ordinarily have little or no familiarity.

This regulatory authorit y is particularly important when applied to professions related to mental and physical health. See Watson , 218 U.S. at 176 (“[T]he police power of the states extends to the regulation of certain trades and callings, particularly those which closely concern the public health.”). The practice of most professions, mental health professions in particular, will inevitably involve communication between the professional and her client

— this is, of course, how professionals and clients interact. To handcuff the Stat e’s ability to regulate a profession whenever speech is involved would therefore unduly undermine its authority to protect its citizens from harm. See Robert Post, Informed Consent to Abortion: A First Amendment Analysis of Compelled Physician Speech , 2007 U. Ill. L. Rev. 939, 950 (2007) (“The practice of medicine, like all human behavior, transpires through the medium of speech. In regulating the practice, therefore, the state must necessarily also regulate professional speech.”).

Thus, we conclude that a licensed professional does not enjoy the full protection of the First Amendment when speaking as part of the practice of her profession. Like the Fourth and Eleventh Circuits, we believe a professional’s speech warrants lesser protection only38 when it is u sed to provide personalized services to a client based on the professional’s expert knowledge and judgment. See Wollschlaeger , 2014 WL 3695296, at *14;

Moore

- King , 708 F.3d at 569. By contrast, when a professional is speaking to the public at large or offe ring her personal opinion to a client, her speech remains entitled to the full scope of protection afforded by the

First Amendment. 15

15 While we embrace Pickup ’s conclusion that First Amendment p rotection differs in the context of professional speech, we decline to adopt its three categories of protection. It is indisputable that a professional “engaged in a public dialogue” receives robust protection under the First

Amendment. Pickup , 740 F.3d at 1227. But we find that the other two points on Pickup ’s “continuum” are usually conflated; a regulation of “professional conduct” will in many cases “incidentally” affect speech that occurs “within the confines of a professional relationship.” Id. at 1228

– 29. SB1172 is a prime example: even if, as the Pickup panel reasoned, it only “incidentally” affects speech, the speech that it incidentally affects surely occurs within the confines of the counseling relationship. In fact, Pickup itself conflated these

t wo categories when applying its “continuum” to SB1172. Though it held that SB1172 implicated the least protected
category, Pickup subjected the statute to the level of scrutiny of its midpoint category

— i.e.

, Casey ’s rational basis test. See

id. at 1228

– 29. Thus, we refuse to adopt Pickup ’s distinction between speech that occurs within the confines of a39 With these principles in mind, it is clear to us that speech occurring as part of SOCE counseling is professional speech. S OCE counselors provide specialized services to individual clients in the form of psychological practices and procedures designed to effect a change in the clients’ thought patterns and behaviors. Importantly, A3371 does not prevent these counselors

from en gaging in a public dialogue on homosexuality or sexual orientation change

— it prohibits only a professional practice that is, in this instance, carried out through verbal communication. While the function of this speech does not render it “conduct” that is wholly outside the scope of the First Amendment, it does place it within a recognized category of speech that is not entitled to the full protection of the First Amendment.

C.

That we have classified Plaintiffs’ speech as professional speech does not end our inquiry. While the cases above make clear that such speech is not fully protected under the First Amendment, the question remains whether this category receives some lesser degree of protection or no protection at all. We hold that professional speech receives diminished protection, and, accordingly, that prohibitions of professional speech are constitutional only if they directly advance the State’s

professional relationship and that which is only incidentally affected by a regulation of professional conduct.40 interest in protecting its citizens from harmful or ineffective professional practices and are no more

e xtensive than necessary to serve that interest.

In explaining why this level of protection is appropriate, we find it helpful to compare professional speech to commercial speech. For over 35 years, the Supreme Court has recognized that commercial speech

— tr uthful, non

- misleading speech that proposes a legal

economic transaction

— enjoys diminished protection

under the First Amendment. See Ohralik , 436 U.S. at

454

– 59. 16 Though such speech was at one time considered outside the scope of the First Amendment altoge ther, see Valentine v. Chrestensen , 316 U.S. 52, 54 (1942), the Supreme Court reversed course in Bigelow v. Virginia , 421 U.S. 809, 818

– 26 (1975), and recognized that commercial speech enjoys some degree of protection. The Court has since explained that

co mmercial speech has value under the First Amendment
because it facilitates the “free flow of commercial information,” in which both the intended recipients and society at large have a strong interest. Virginia State Bd. of Pharmacy v. Virginia Citizens Con sumer Council,

Inc. , 425 U.S. 748, 763

– 64 (1976) (“ Virginia

16 Advertisements that are false or misleadin g have never been recognized as protected by the First Amendment. See Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc. , 425 U.S. 748, 771 (1976). Nor have advertisements proposing illegal transactions. See id. at 772.41 Pharmacy ”); see also Central Hudson Gas & Elec. Corp. v. Public Serv. Comm. of New York , 447 U.S. 557, 561

– 62 (1980) (explaining that commercial speech “assists

consumers and furthers the societal interest in the fullest possible dissemination of information”). In fact, the Court has recognized that a consumer’s interest in this information “may be as keen, if not keener by far, than his interest in the day’s most urgent political debate.” Virginia Pharmacy , 425 U.S. at 763.

Despite recognizing the value of commercial speech, the Court has “not discarded the ‘common

- sense’ distinction” between commercial speech and other areas of protected expression. Ohralik

, 436 U.S. at 455

– 56 (quoting Virginia P harmacy , 425 U.S. at 771 n.24). Instead, the Court has repeatedly emphasized that commercial speech enjoys only diminished protection because it “occurs in an area traditionally subject to government regulation.” Central Hudson , 447 U.S. at 562 (quoting Oh ralik , 436 U.S. at 455

– 56). Because commercial speech is “linked inextricably with the commercial arrangement it proposes, . . . the State’s interest in regulating the underlying transaction may give it a concomitant interest in the expression itself.”

Ede nfield v. Fane , 507 U.S.761, 767 (1993) (internal quotation marks and citations omitted). Accordingly, a prohibition of commercial speech is permissible when it “directly advances” a “substantial” government interest
and is “not more extensive than is nece ssary to serve that42 interest.” Central Hudson , 447 U.S. at 566. The Supreme
Court later dubbed this standard of review “intermediate scrutiny.” Florida Bar v. Went For It, Inc. , 515 U.S. 618,

623

– 24 (1995) (internal quotation marks and citation omitted).

We believe that commercial and professional speech share important qualities and, thus, that intermediate scrutiny is the appropriate standard of review for prohibitions aimed at either category. Like commercial speech, professional speech is valuable to listeners and, by extension, to society as a whole because
of the “informational function” it serves. Central

Hudson , 447 U.S. at 563. As previously discussed, professionals have access to a body of specialized knowledge to which laypersons have little or no exposure. Although this information may reach non

professionals through other means, such as journal articles or public speeches, it will often be communicated to them directly by a licensed professional during the course of a professional relationship. Thus, professional speech, like commercial speech, serves as an important channel for the communication of information that might otherwise never reach the public. See Post, supra , at 977;

see also Central Hudson

, 447 U.S. at 561

– 62 (describing43 “the socie tal interest in the fullest possible dissemination of information”). 17

Additionally, like commercial speech, professional speech also “occurs in an area traditionally subject to government regulation.” Central Hudson , 447 U.S. at 562 (quoting Ohralik , 43 6 U.S. at 455

– 56). As we have previously explained, States have traditionally enjoyed broad authority to regulate professions as a means of protecting the public from harmful or ineffective professional services. Accordingly, as with commercial speech, it is difficult to ignore the “common

- sense” differences between professional speech and other forms of protected communication. Ohralik , 436 U.S. at 455

– 56 (quoting Virginia Pharmacy , 425 U.S. at 771 n.24).

Given these striking similarities, we conclude tha t professional speech should receive the same level of First Amendment protection as that afforded commercial speech. Thus, we hold that a prohibition of professional

17 We also recognize that professional speech can often serve an expressive function insofar as a professional’s personal beliefs

— including deeply

- held political or religious

beliefs

— are infused in the practice of a profession. SOCE counselors, for example, provide c ounseling not merely for remuneration but as a means of putting important beliefs and values into practice. This expressive value is further reason to afford professional speech some level of protection under the

First Amendment.44 speech is permissible only if it “directly advances” the
State’s “substantial” interest i n protecting clients from ineffective or harmful professional services, and is “not more extensive than necessary to serve that interest.”

Central Hudson , 447 U.S. at 566.

In so holding, we emphasize that a regulation of professional speech is spared from more demanding scrutiny only when the regulation was, as here, enacted pursuant to the State’s interest in protecting its citizens from ineffective or harmful professional services. Because the State’s regulatory authority over licensed professionals stem s from its duty to protect the clients of these professionals, a state law may be subject to strict scrutiny if designed to advance an interest unrelated to client protection. Thus, a law designed to combat terrorism is not a professional regulation, and, accordingly, may be subject to strict scrutiny. See Humanitarian Law Project , 561 U.S. at 25

– 28. Similarly, a law that is not intended to protect a professional’s clients, but to insulate certain laws from constitutional challenge, is more than just a regu lation of professional speech and, accordingly, intermediate scrutiny is not the proper standard of review. See Legal Servs. Corp. v. Velazquez , 531 U.S. 533, 540

– 49 (2001). 18

18 Like Humanitarian Law Project

, Velazquez concerned federal legislation which could not have been passed pursuant to the State’s police power. Velazquez , 531 U.S. at 536.45 We recognize that our sister circuits have concluded that regulations of professi onal speech are subject to a more deferential standard of review or, possibly, no review at all. See Pickup , 740 F.3d at 1231; Wollschlaeger , 2014 WL 3695296, at *13

– 14; Moore

King , 708 F.3d at 567

– 70. Pickup , for example, cited Casey , 505 U.S. at 884, 967

– 68 (plurality opinion), as support for its decision to apply rational basis review to a

similar statute. Pickup , 740 F.3d at 1231. 19

19 Pickup is the only court to explicitly apply rational basis review to a regulation of professional speech . 740 F.3d

at 1231. Wollschlaeger and Moore

- King , by contrast, do not explicitly identify the level of scrutiny they apply, if they apply one at all. In Wollschlaeger , the majority held that “a statute that governs the practice of an occupation is not

unco nstitutional as an abridgment of the right to free speech, so long as any inhibition of that right is merely the incidental effect of observing an otherwise legitimate regulation.” 2014 WL 3695296, at *13 (internal quotation marks and citation omitted); se e also id. at *15 (noting that generally applicable licensing regimes “do[] not implicate constitutionally protected activity under the First Amendment”) (internal quotation marks and citations omitted). But see id. at *41 (Wilson, J., dissenting) (interpr eting the majority opinion to apply rational basis review). Similarly, in Moore

- King , the majority held that “[u]nder the professional speech doctrine, the government can license and regulate those who would provide services to their clients for compensati on without running afoul of the First Amendment.” 708 F.3d at 569. But46 To the extent Casey suggested rational basis review, we do not believe such a standard governs here. While the plurality op inion noted in passing that speech, when part of the practice of medicine, is “subject to

reasonable licensing and regulation by the State,” 505 U.S. at 884 (emphasis added), the regulation it addressed fell within a special category of laws that compel

di sclosure of truthful factual information, id. at 881. In the context of commercial speech, the Supreme Court has treated compelled disclosures of truthful factual information differently than prohibitions of speech, subjecting the former to rational basis review and the latter to intermediate scrutiny. See Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio , 471 U.S. 626, 650

– 51 (1985) (outlining the “material differences between disclosure requirements and outright prohibitions on speech” a nd subjecting a disclosure requirement to rational basis review). Thus, to the extent Casey applied rational basis review, this facet of the opinion is inapplicable to the present case because the law at issue is a prohibition of speech, not a compulsion

o f truthful factual information. See Wollschlaeger , 2014 WL 3695296, at *38 (Wilson, J., dissenting) (reasoning that “[e]ven if Casey applied something less than

see id . at 570 (refusing to “afford the government carte blanche in crafting or implementing [occupational] regulations” and refraining from “delineat[ing] the precise boundaries of per missible occupational regulation under the professional speech doctrine”).47 intermediate scrutiny,” Zauderer establishes that a more stringent standard of review should ap ply to restrictions on professional speech.).

Additionally, we have serious doubts that anything less than intermediate scrutiny would adequately protect the First Amendment interests inherent in professional speech. Without sufficient judicial oversight, legislatures could too easily suppress disfavored ideas under the guise of professional regulation. See Pickup , 740 F.3d at 1215 (O’Scannlain, J., dissenting from denial of rehearing en banc). This possibility is particularly disturbing when the suppresse d ideas concern specialized knowledge that is unlikely to reach the general public through channels other than the professional

- client relationship. Intermediate scrutiny is necessary to ensure that State legislatures are regulating professional speech

to prohibit the provision of harmful or ineffective professional services, not to inhibit politically

- disfavored

messages.

Lastly, we reject Plaintiffs’ argument that A3371 should be subject to strict scrutiny because it

discriminates on the basis of content and viewpoint. First, although we agree with Plaintiffs that A3371 discriminates on the basis of content, 20 it does so in a way

20 We have little doubt in this conclusion. A3371, on its face, prohibits licensed counselors from speaking words with a particular content; i.e. words that “seek[] to change a48 that does not trigger strict scrutiny. Ordinarily, content

based regulations are highly disfavored and subjected to

strict scruti ny. See Sorrell v. IMS Health, Inc. , 131 S. Ct. 2653, 2664 (2011). And this is generally true even when the law in question regulates unprotected or lesser protected speech. See R.A.V. v. City of St. Paul , 505 U.S. 377, 381

– 86 (1992). Nonetheless, within t hese unprotected or lesser protected categories of speech, the Supreme Court has held that a statute does not trigger strict scrutiny “[w]hen the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable.” Id. at 388. By way of illustration, the Court explained:

[A] State may choose to regulate price advertising in one industry but not in others, because the risk of fraud (one of the characteristics of commercial speech that justifies depri ving it of full First Amendment protection) is in its view greater there. But a State may not prohibit only that commercial advertising that depicts men in a demeaning fashion.

Id. at 388

– 89 (internal citations omitted).

pers on’s sexual orientation.” N.J. Stat Ann. § 45:1

- 55. Thus,

as in Humanitarian Law Project , “Plaintiffs want to speak to [minor clients], and whether they may do so under [A3371] depends on what they say.” 561 U.S. at 27

.49 A3371 fits comfortably within this category of permissible content discrimination. As with the content

based regulations identified by R.A.V. as permissible, “the basis for [A3371’s] content discrimination consists entirely of the very reason” professional speech is a category of lesser

- pr otected speech. Id. at 388. The New Jersey legislature has targeted SOCE counseling for prohibition because it was presented with evidence that this particular form of counseling is ineffective and potentially harmful to clients. Thus, the reason professio nal speech receives diminished protection under

the First Amendment

— i.e. , because of the State’s longstanding authority to protect its citizens from ineffective or harmful professional practices

— is precisely the reason New Jersey targeted SOCE counseling w ith A3371. Therefore, we conclude that A3371 does not trigger strict scrutiny by discriminating on the basis of content in an impermissible manner.

Nor do we agree that A3371 triggers strict scrutiny because it discriminates on the basis of viewpoint.

Plai ntiffs argue that A3371 prohibits them from expressing the viewpoint “that [same sex attractions] can
be reduced or eliminated to the benefit of the client.” Appellant’s Br. 26. That is a misreading of the statute. A3371 allows Plaintiffs to express this v iewpoint, in the form of their personal opinion, to anyone they please, including their minor clients. What A3371 prevents Plaintiffs from doing is expressing this viewpoint in a50 very specific way

— by actually rendering the professional services that they b elieve to be effective and beneficial. Arguably, any time a professional engages in a particular professional practice she is implicitly communicating the viewpoint that such practice is effective and beneficial. The prohibition of this method

of communica ting a particular viewpoint, however, is not the type of viewpoint discrimination with which the First Amendment is concerned. If it were, State legislatures could never ban a particular professional practice without triggering strict scrutiny. Thus, a sta tute banning licensed psychotherapists from administering treatments based on phrenology would be subject to strict scrutiny because it prevents these therapists from expressing their belief in phrenology by putting it into practice. Such a rule would

undu ly undermine the State’s authority to regulate the practice of licensed professions.

Accordingly, we believe intermediate scrutiny is the applicable standard of review in this case. We must uphold A3371 if it “directly advances” the government’s

interest in protecting clients from ineffective and/or harmful professional services, and is “not more extensive than necessary to serve that interest.” See Central

Hudson , 447 U.S. at 566. Those are the questions we

next address.

D.51 Our analysis begins with an eva luation of New Jersey’s interest in the passage of A3371. As we have previously explained, the State’s interest in protecting its citizens from harmful professional practices is unquestionably substantial. See Goldfarb

, 421 U.S. at 792; Watson , 218 U.S. at 176. Here, New Jersey’s stated interest is even stronger because A3371 seeks to protect

minor clients

— a population that is especially vulnerable to such practices. See Supplemental App. 85 (Declaration of Douglas C. Haldeman, Ph.D.) (explaining that

adole scent and teenage clients are “much more vulnerable to the potentially traumatic effects of SOCE” because their “pre

- frontal cort[ices] [are] still developing and changing rapidly”).

Our next task, then, is to determine whether A3371 directly advances thi s interest by prohibiting a professional practice that poses serious health risks to minors. To survive heightened scrutiny, the State must establish that the harms it believes SOCE counseling presents are “real, not merely conjectural, and that the regula tion will in fact alleviate these harms in a direct and material way.” Turner Broad. Sys., Inc. v. F.C.C.

, 512 U.S. 622, 664 (1994) (plurality opinion) (“ Turner I ”) (citations omitted). See also Pitt News v. Pappert , 379 F.3d 96, 107 (3d Cir. 2004) (explai ning that legislatures cannot meet this burden by relying on “mere speculation or conjecture”) (quoting Edenfield v. Fane , 507 U.S. 761,

770

– 71 (1992)). Even when applying intermediate52 scrutiny, however, we do not review a legislature’s empirical judgment de novo

— our task is merely to determine whether the legislature has “drawn reasonable
inferences based on substantial evidence.” Turner Broad. Sys., Inc.

, v. F.C.C. , 520 U.S. 180, 195 (1997) (“ Turner

II ”) (internal quotation marks and citation omitted).

Fu rther, “[t]he quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or down with the novelty and plausibility of the justification raised.” Nixon v. Shrink

Mo. Gov’t PAC , 528 U.S. 377, 391 (2000)

.
We conclude that New Jersey has satisfied this burden. The legislative record demonstrates that over the

last few decades a number of well

- known, reputable professional and scientific organizations have publicly condemned the practice of SOCE, expressin g serious concerns about its potential to inflict harm. Among others, the American Psychological Association, the American Psychiatric Association, and the Pan American Health Organization have warned of the “great” or “serious” health risks accompanying S OCE counseling, including depression, anxiety, self

- destructive behavior, and suicidality. N.J. Stat. Ann. § 45:1

- 54 (collecting additional position statements and articles from the American Academy of Pediatrics, the American Psychoanalytic Association, a nd the American Academy of Child and Adolescent Psychiatry warning of the health risks posed by SOCE counseling). Many such53 organizations have also concluded that there is no credible evidence that SOCE counseling is effective. See

id

.

We conclude that th is evidence is substantial. Legislatures are entitled to rely on the empirical judgments of independent professional organizations that possess specialized knowledge and experience concerning the professional practice under review, particularly when this c ommunity has spoken with such urgency and solidarity on the subject. Such evidence is a far cry from the “mere speculation or conjecture” our

cases have held to be insufficient. Pitt News , 379 F.3d at 107 (internal quotation marks and citations omitted).

P laintiffs do not dispute the views of the professional community at large concerning the efficacy and potential harmfulness of SOCE counseling. Instead, they fault the legislature for passing A3371 without first obtaining conclusive empirical evidence rega rding the effect of SOCE counseling on minors. To be sure, the APA Report suggests that the bulk of empirical evidence regarding the efficacy or harmfulness of SOCE counseling currently falls short of the demanding standards imposed by the scientific commu nity. See J.A. 327 (noting the “limited amount of methodologically sound research” on SOCE counseling); id. at 367 (noting that “[t]he few early research investigations that were conducted with scientific rigor raise concerns about the safety of SOCE” but refusing “to make a definitive54 statement about whether recent SOCE is safe or harmful and for whom” due to a lack of “scientifically rigorous studies” of these practices). 21

Yet a state legislature is not constitutionally required to wait for conclusive sci entific evidence before acting to protect its citizens from serious threats of harm. See United States v. Playboy Entm’t Grp., Inc. , 529 U.S. 803, 822 (2000) (“This is not to suggest that a 10,000

- page record must be compiled in every case or that the

Gove rnment must delay in acting to address a real problem; but the Government must present more than anecdote and suspicion.”). This is particularly true when a legislature’s empirical judgment is highly plausible, as we conclude New Jersey’s judgment is in th is case. See

Nixon , 528 U.S. at 391. It is not too far a leap in logic to conclude that a minor client might suffer psychological harm if repeatedly told by an authority figure that her

sexual orientation

— a fundamental aspect of her identity

— is an undesira ble condition. Further, if SOCE counseling is ineffective

— which, as we have explained, is supported by substantial evidence

— it would not be unreasonable for a legislative body to conclude that a
minor would blame herself if her counselor’s efforts

21 It is worth noting that although the APA Report was uncomfortable making a “definitive” statement about the effects of SOCE, it did ultimately observe that there was at least “some evidence to indicate that individuals experienced harm from SOCE.” J.A. 287, 367.55 failed. Given the substantial evidence with which New Jersey was presented, we cannot say that these fears are

unreasonable. We therefore conclude that A3371 “directly advances” New Jersey’s stated interest in protecting minor citizens from harmful professional

pr actices.

Lastly, we must determine whether A3371 is more extensive than necessary to protect this interest. To survive this prong of intermediate scrutiny, New Jersey “is not required to employ the least restrictive means conceivable, but it must demonstra te narrow tailoring of the challenged regulation to the asserted interest.” Greater New Orleans Broad. Ass’n, Inc. v. United States

, 527 U.S. 173, 188 (1999) (citing Board of Tr. of State Univ. of New York v. Fox , 492 U.S. 469, 480 (1989)). 22
Thus, New Jers ey must establish “a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is in proportion to the interest served.” Id. (quoting

Fox , 492 U.S. at 480); see also Heffner v. Murp hy , 745 F.3d 56, 92

– 93 (3d Cir. 2014) (upholding regulation of commercial speech while acknowledging that the fit between the statute and its interests was “imperfect”).

22 As explained in Fox , t he word “necessary,” in the context of intermediate scrutiny, does not “translate into [a]
‘least

- restrictive

- means’ test” but instead has a “more flexible meaning.” 492 U.S. at 476

– 77.56 Plaintiffs argue that A3371’s ban is overly burdensome, and that New Jersey’s objecti ves could be accomplished in a less restrictive manner via a requirement that minor clients give their informed consent before undergoing SOCE counseling. We are not convinced, however, that an informed consent requirement would adequately serve New Jersey ’s interests. Minors constitute an “especially vulnerable population,” see J.A. 405 (APA Report, Appendix A), and may feel pressured to receive SOCE counseling by their families and their communities despite their fear of being harmed, see J.A. 301 (APA Re port) (explaining that “hostile social and family attitudes” are among the reasons minors seek SOCE counseling). Thus, even if SOCE counseling were helpful in a small minority of

cases

— and the legislature, based on the body of evidence before it, was entit led to reach a contrary conclusion

— an informed consent requirement could not adequately ensure that only those minors that could benefit would agree to move forward. As Plaintiffs have offered no other suggestion as to how the New Jersey legislature

could achieve its interests in a less restrictive manner, we conclude that A3371 is sufficiently tailored to survive intermediate scrutiny.

Accordingly, we conclude that A3371 is a permissible prohibition of professional speech.

F.57 Lastly, Plaintiffs argue th at A3371 is unconstitutionally vague and overbroad. We disagree.

The Supreme Court has held that “standards of permissible statutory vagueness are strict in the area of free expression.” NAACP v. Button , 371 U.S. 415, 432 (1963) (citations omitted). “Beca use First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.”

Id. at 433 (citation omitted). Nonetheless, “perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity.” Ward v. Rock Against Racism , 491 U.S. 781, 794 (1989) (citations omitted). “[B]ecause we are condemned to the use of words, we can never expect mathematical certainty from our language.” Hill v. Colorado , 530 U.S. 730, 7 33 (2000) (internal quotation marks and citation omitted). Thus, “speculation about possible vagueness in hypothetical 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 intende d applications.” Id. (internal quotation marks and citation omitted).

Plaintiffs argue that A3371 is unconstitutional on its face because the term “sexual orientation change58 efforts” is impermissibly vague. 23 We disagree. Under

A3371 , this term is defined a s:

[T]he practice of seeking to change a person’s sexual orientation, including, but not limited to, efforts to change behaviors, gender identity, or gender expressions, or to

reduce or eliminate sexual or romantic attractions or feelings toward a person o f the same gender; except that sexual orientation change efforts shall not include counseling for a person seeking to transition from one gender to another, or counseling that:

(1) provides acceptance, support, and understanding of a person or

facilitates a person’s coping, social support, and identity exploration and development, including orientation

neutral interventions to prevent or

address unlawful conduct or unsafe sexual practices; and

(2) does not seek to change sexual

orientation.

23 In the District Court, Plaintiffs also argued that the phrase “sexu al orientation” is unconstitutionally vague. They do not pursue this argument on appeal.59 N.J. Stat. Ann . § 45:1

- 55. While this statutory definition may not provide “perfect clarity,” Hill

, 530 U.S. at 733 (quotation marks and citation omitted), its list of illustrative examples provides boundaries that are sufficiently clear to pass constitutional muster. F urther, counseling designed to change a client’s sexual orientation is recognized as a discrete practice within the profession. Such counseling is sometimes referred to as “reparative” or “conversion” therapy and has been the specific target of public stat ements by recognized professional organizations. See N.J. Stat. Ann. § 45:1

- 54 (quoting statements from the American Psychiatric Association, the National Association of Social Workers, the American Counseling Association Governing Council, and the Pan Ame rican Health Organization referring to this practice). Plaintiffs themselves claim familiarity with this form of counseling and acknowledge that many counselors “specialize” in such practices. See,

e.g. , J.A. 168 (Decl. of Dr. Tara King) (explaining that

D r. King provides “sexual orientation change efforts (‘SOCE’) counseling”); J.A. 177 (Decl. of Dr. Ronald Newman) (explaining that “part of [Dr. Newman’s] practice involves what is often called sexual orientation change efforts (‘SOCE’) counseling”); J.A. 1 82 (Decl. of David Pruden, on behalf of NARTH) (explaining that “NARTH provides various presentations across the country hosted by mental health professionals who specialize in what is referred to in A3371 as sexual orientation change efforts (‘SOCE’) coun seling”). To60 those in the field of professional counseling, the meaning of this term is sufficiently definite “in the vast majority of its intended applications.” Hill

, 530 U.S. at 733 (quotation marks and citation omitted). Thus, we reject Plaintiffs’ arg ument that A3371 is unconstitutionally

vague.

As to overbreadth, a statute that impinges upon First Amendment freedoms is impermissibly overbroad if “a substantial number of its applications are unconstitutional, judged in relation to [its] plainly legiti mate sweep.” United States v. Stevens , 559 U.S. 460, 473 (2010) (quoting Washington State Grange v. Washington State Republican Party , 552 U.S. 442, 449 n.6 (2008)). Plaintiffs’ only argument on this front is that A3371 prohibits SOCE counseling even when, in Plaintiffs’ view, such counseling would be especially

beneficial. See Appellant’s Br. 47 (arguing that A3371 prevents a minor from receiving SOCE counseling even

if the cause of their same

- sex attractions was sexual abuse). This argument, however, is n othing more than a disagreement with New Jersey’s empirical judgments regarding the effect of SOCE counseling on minors. As we have already concluded, New Jersey’s reasons for banning SOCE counseling were sufficiently supported by the legislative record. T hus, we hold that A3371 is not unconstitutionally overbroad.61 IV.

Plaintiffs’ second constitutional claim is that A3371 violates their First Amendment right to the free exercise of religion. For the reasons that follow, we

conclude that this claim also la cks merit.

Under the Religion Clauses of the First Amendment, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The right to freely exercise one’s religion, however, is not absolute. McTernan v. City of York , 577 F.3d 521, 532 (3d Cir. 2009). If a law is “neutral” and “generally applicable,” it will withstand a free exercise challenge so long as it is “rationally related to a legitimate government objective.” Brown v. City of Pittsburgh , 586 F. 3d 263, 284 (3d Cir. 2009) (citation omitted). This is so even if the law “has the incidental effect of burdening a particular religious practice” or

group. Id. at 284 (quoting Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah , 508 U.S. 520, 531 (1 993)).

The issue before us, then, is whether A3371 is “neutral” and “generally applicable.” “ A law is ‘neutral’ if it does not target religiously motivated conduct either on its face or as applied in practice.” Blackhawk v. Pennsylvania. , 381 F.3d 202, 2 09 (3d Cir. 2004) (citing

Lukumi , 508 U.S. at 533

– 40; Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly , 309 F.3d 144, 167 (3d Cir. 2002)).62 “ A law fails the general applicability requirement if it burdens a category of religiously motivated conduct but
exempt s or does not reach a substantial category of conduct that is not religiously motivated and that undermines the purposes of the law to at least the same degree as the covered conduct that is religiously
motivated.” Id. at 209 (citations omitted).

As a pr eliminary matter, A3371 makes no explicit reference to any religion or religious beliefs, and is

therefore neutral on its face. See Lukumi , 508 U.S. at

533

– 34. Nevertheless, Plaintiffs argue that A3371 covertly targets their religion by prohibiting counsel ing that is generally religious in nature while permitting other forms of counseling that are equally harmful to minors. Specifically, Plaintiffs contend that A3371 operates as an impermissible “religious gerrymander” 24 because it provides “individualized e xemptions” for counseling:

(1) for minors seeking to transition from one gender to another, (2) for minors struggling

with or confused about heterosexual

24 A “religious gerrymander” occurs when the boundaries of statutory coverage are “artfully drawn” to target or exclude religiously

- motivated activity. American Famil y Ass’n

, Inc. v.

F.C.C. , 365 F.3d 1156, 1170 (D.C. Cir. 2004); see also

Lukumi , 508 U.S. at 535 (describing a “religious gerrymander” as “an impermissible attempt to target petitioners and their religious practices”).63 attractions, behaviors, or identity, (3) that facilitates exploration and development of

same

- sex attr actions, behaviors, or identity, (4) for individuals over the age of 18, and (5) provided by unlicensed counselors.

Appellant’s Br. 51.

None of these five “exemptions,” however, demonstrate that A3371 covertly targets religiously

motivated conduct. Pla intiffs’ first and third “exemptions” are not compelling because nothing in the record suggests that these forms of counseling are equally harmful to minors. Plaintiffs’ second “exemption,” which implies that A3371 would permit

heterosexual

- to

- homosexual c hange efforts, misinterprets the statute; A3371 prohibits all “sexual orientation change efforts” regardless of the direction of the desired change. See N.J. Stat. Ann. § 45:1

- 55 (defining “sexual orientation change efforts” as “including, but not limited

to ,” efforts to eliminate same sex attractions) (emphasis added). Lastly, Plaintiffs’ fourth and fifth “exemptions” are simply irrelevant because they have nothing to do with religion. Plaintiffs fail to explain how A3371’s focus on the professional status of the counselor or the64 age of the client belies a concealed intention to suppress a particular religious belief. 25

Accordingly, we conclude that A3371 is neutral and generally applicable, and therefore triggers only rational basis review. In so doing, w e reject Plaintiffs’ argument that even if A3371 were neutral and generally applicable, it should be subject to strict scrutiny under a “hybrid rights” theory. Specifically, Plaintiffs contend
that because A3371 “burdens” both their free exercise

and free speech rights, they have presented a “hybrid rights” claim that triggers heightened scrutiny. We have previously refused to endorse such a theory, McTernan v.

25 Plaintiffs also argue that A3371’s neutrality is undermined by a statement made by one of the members of the Task Force that authored the 2009 APA Report. According to Plaintiffs, this researcher claimed that the APA Task Force was unwilling to “take into account what are fundamentally nega tive religious perceptions of homosexuality

— they don’t fit into our world view.” Appellant’s Br. 52. Plaintiffs fail to explain, however, how this statement reflects the New Jersey legislature’s motives in passing A3371. This statement was made by one of s everal members of the APA Task Force, which produced only one of the many pieces of evidence on which the legislature relied when passing A3371. It by no means establishes that New Jersey was secretly motivated by religious animus, as opposed to their stat ed objective of protecting minor citizens

from harm.65 City of York, Pa. , 564 F.3d 636, 647 n.5 (3d Cir. 2009), and we refuse to do so today. See also C ombs v. Homer

Center Sch. Dist. , 540 F.3d 231, 247 (3d Cir. 2008) (“Until the Supreme Court provides direction, we believe the hybrid

- rights theory to be dicta.”). Because we have already concluded that A3371 survives intermediate scrutiny, it follows ipso facto that this law is rationally related to a legitimate government interest. Therefore, we
will affirm the District Court’s dismissal of this claim.

V.

Plaintiffs also argue that the District Court erred by concluding that they lacked standing to brin g claims on

behalf of their minor clients. 26 This argument is also

without merit.

“It is a well

- established tenet of standing that ‘a litigant must assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights or i nterests of third parties.’” Pennsylvania Psychiatric Soc’y v. Green Spring Health Servs., Inc.

, 280 F.3d 278, 288 (3d Cir. 2002) (quoting Powers v.
Ohio , 499 U.S. 400, 410 (1991)). “Yet the prohibition is not invariable and our jurisprudence recognizes th ird

party standing under certain circumstances.” Id. (citations

26 Although Plaintiffs’ complaint alleged claims on behalf of their patients’ parents, Plaintiffs do not pursue these claims on appeal.66 omitted). To establish third

- party standing, a litigant must demonstrate that (1) she has suffered an “injury in fact” that provides her with a “sufficiently concrete interest in

the outcome o f the issue in dispute”; (2) she has a “close relation to the third party”; and (3) there exists “some hindrance to the third party’s ability to protect his or her
own interests.” Powers , 499 U.S. at 411 (internal quotation marks and citations omitted). In the present case, the parties agree that licensed counselors have a sufficiently “close relationship” to their clients, see Pennsylvania Psychiatric Soc’y , 280 F.3d at 289

– 90, but dispute whether Plaintiffs have suffered a sufficient “injury in fact” and whether Plaintiffs’ clients are sufficiently “hindered” in their ability to bring suit

themselves. We will address these two elements in turn.

Plaintiffs argue that the District Court erred by holding that they did not suffer an “injury in fact.” We

agre e. The District Court reasoned that “Plaintiffs’ ability to bring third

- party claims hinges on whether they suffered any constitutional wrongs by the passage of A3371.” J.A. 24. We have never held, however, that a plaintiff must possess a successful consti tutional claim in order to establish an “injury in fact” sufficient to confer

third

- party standing. In Craig v. Boren , 429 U.S. 190,

191

– 97 (1976), for example, the Supreme Court granted

third

- party standing to a vendor who did not even allege

a violation of her own constitutional rights

— she merely alleged that the law at issue, in violating the rights of her67 customers, resulted in a reduction in her sales. Here, Plaintiffs are similarly injured by A3371 in that they are forced to either sacrifice a portion of their client base or disobey the law and risk the loss of their licenses. Thus, we conclude that Plaintiffs have a “sufficiently concrete interest” in this dispute regardless of whether A3371 violates their constitutional rights.

We agree with Defend ants, however, that Plaintiffs
have failed to establish that their clients are “hindered” in their ability to bring suit themselves. The only evidence Plaintiffs provide on this issue is Dr. Newman’s assertion that “[n]either of [his] clients wants others to even know they are in therapy.” 27 J.A. 448 (Decl. of Ronald Newman, Ph.D.). While a fear of social stigma can in

some circumstances constitute a substantial obstacle to filing suit, see Pennsylvania Psychiatric Soc’y , 280 F.3d at 290, Plaintiffs’ evidenc e does not sufficiently establish the presence of such fear here. Further, we note that minor clients have been able to file suit pseudonymously

in both Pickup and Doe v. Christie , 2014 WL 3765310 (D.N.J. July 31, 2014). While we disagree with the

District Court that the presence of such lawsuits is

27 Further, Dr. Newman made this assertion as a justification for not asking his patients to testify in open court, not as a reason these patients would be unwilling to file suit under a pseudonym. J.A. 448 (Decl. of Ronald Newman, Ph.D.).68 dispositive, 28 the fact that minor clients have previously filed suit bolsters our conclusion that they are not sufficiently hindered in their ability to protect their own interests. Accordingly, we hold that Pla intiffs lack standing to pursue claims on behalf of their minor clients.

VI.

Plaintiffs also argue that the District Court erred by allowing Garden State to intervene. They advance two arguments on this point: first, that the District Court erroneously concluded that Garden State was not required to possess Article III standing; and second, that the District Court abused its discretion by permitting

Garden State to intervene under Federal Rule of Civil Procedure 24(b). For the reasons that follow, we re ject both arguments.

28 The District Court reasoned that “since these litigants are bringing their ow n action against Defendants, there can be no serious argument that these third parties are facing obstacles that would prevent them from pursuing their own claims.” J.A. 22. As we have explained, however, “a party

need not face insurmountable hurdles to wa rrant third

- party standing.” Pennsylvania Psychiatric Soc’y , 280 F.3d at 290 (citation omitted). Thus, the fact that a few patients have been able to overcome certain obstacles does not necessarily preclude a determination that these obstacles are a
“hindr ance” sufficient to justify third

- party standing.69 A.

“ Article III of the Constitution limits the power of federal courts to deciding ‘cases’ and ‘controversies.’ This requirement ensures the presence of the ‘concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.’” Diamond v.

Charles , 476 U.S. 54, 61

– 62 (1986) (citing Baker v.

Carr , 369 U.S. 186, 204 (1962)). In order to ensure that such a “case” or “controversy” is present, the S upreme Court has consistently required prospective plaintiffs to establish Article III standing in order to pursue a lawsuit

in federal court. See, e.g.

, id. at 62. Prospective plaintiffs must therefore allege a “personal injury fairly traceable

to the def endant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Already, LLC v. Nike, Inc. , 133 S. Ct. 721, 726 (2013) (quotation marks and citation omitted).

Whether prospective intervenors must establish Article III standing, however, is an open question in the

Third Circuit. See American Auto. Ins. Co. v. Murray

, 658 F.3d 311, 318 n.4 (3d Cir. 2011) (“[W]e need not today resolve the issue of whether a party seeking to intervene must have Article III standing.”). As the

Distric t Court acknowledged, our sister circuits are divided on this question. The majority have held that an intervenor is not required to possess Article III standing70 to participate. See San Juan Cnty. v. United States , 503 F.3d 1163, 1171

– 72 (10th Cir. 2007) ( en banc); Ruiz v. Estelle , 161 F.3d 814, 830

– 33 (5th Cir. 1998); Associated Builders & Contractors v. Perry , 16 F.3d 688, 690 (6th Cir. 1994); Yniguez v. Arizona , 939 F.2d 727, 731 (9th Cir. 1991); Chiles v. Thornburgh , 865 F.2d 1197, 1213 (11th Cir. 1989) ; and United States Postal Serv. v.

Brennan , 579 F.2d 188, 190 (2d Cir. 1978). The Eighth and D.C. Circuits have reached a contrary conclusion.

See Mausolf v. Babbitt , 85 F.3d 1295, 1300 (8th Cir. 1996); Southern Christian Leadership Conference v. Kelley

, 747 F.2d 777, 779 (D.C. Cir. 1984). 29

29 The District Court cited United States v. 36.96 Acres of

Land , 754 F.2d 855 (7th Cir. 1985), as falling on this side of the split as well. While 36.96 Acres held that a party seeking

intervention as of r ight must demonstrate an interest that is “greater than the interest sufficient to satisfy the standing requirement,” id. at 859, it is unclear whether the Seventh Circuit concluded that this greater interest was required by

Article III of the Constitution or merely by the then

- existing version of Rule 24(a). See Ruiz , 161 F.3d at 831 (explaining
that “of the cases cited in Diamond ”

— including 36.96

Acres

— “only Kelly maintains that Article III (and not just Rule 24(a)(2) & 24(b)(2)) requires intervenors to p ossess standing.”). To the extent 36.96 held that a greater interest was constitutionally required, it provided no reasoning for that conclusion and thus carries no persuasive weight.7 1 We find the majority’s view more persuasive. If the plaintiff that initiated the lawsuit in question has Article III standing, a “case” or “controversy” exists regardless of whether a subsequent intervenor has such

st anding. See Ruiz , 161 F.3d at 832 (“Once a valid

Article III case

- or

- controversy is present, the court’s jurisdiction vests. The presence of additional parties, although they alone could independently not satisfy Article III’s requirements, does not of its elf destroy jurisdiction already established.”); Chiles , 865 F.2d at 1212 (“Intervention under Rule 24 presumes that there is a justiciable case into which an individual wants to intervene.”).

Further, while the Supreme Court has never explicitly conclud ed that intervenors need not possess Article III standing, this conclusion is implicit in several decisions in which it has questioned whether a particular intervenor has Article III standing but nonetheless refrained from resolving the issue. See, e.g.

, M cConnell
v. Federal Election Comm’n , 540 U.S. 93, 233 (2003) (“It is clear, however, that the [named defendant] has standing, and therefore we need not address the standing

of the intervenor

- defendants . . . .”), overruled on other grounds by Citizens Unit ed v. Federal Election Comm’n

, 558 U.S. 310 (2010); Arizonans for Official English v.
Arizona , 520 U.S. 43, 66 (1997) (expressing “grave doubts” about whether intervenors possessed Article III standing but concluding that it “need not definitively72 resolve the issue”). As the Tenth Circuit reasoned in San Juan Cnty ., the Supreme Court could not have avoided these questions if intervenors were required to have standing under Article III “because the Court could not simply ignore whether the requirements of Ar ticle III had
been satisfied.” 503 F.3d at 1172. See also id. (“Standing implicates a court’s jurisdiction, and requires a court itself to raise and address standing before reaching the merits of the case before it.”) (quotation marks and

citations omitted ).

Accordingly, we conclude that the District Court did not err by determining that Garden State need not demonstrate Article III standing in order to intervene.

B.

Plaintiffs also argue that the District Court abused its discretion by permitting Gard en State to intervene under Federal Rule of Civil Procedure 24(b). This argument lacks merit as well.

Rule 24(b) provides that “[o]n timely motion, the court may permit anyone to intervene who: (A) is given a conditional right to intervene by a federal s tatute; or (B)

has a claim or defense that shares with the main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1). In exercising its discretion, a district court “must consider whether the intervention will unduly73 delay or prejudice the ad

judication of the original parties’ rights.” Fed. R. Civ. P. 24(b)(3). We have previously noted that a district court’s ruling on a motion for permissive intervention is a “highly discretionary
decision” into which we are “reluctant to intrude.” Brody By a nd Through Sugzdinis v. Spang , 957 F.2d 1108, 1115 (3d Cir. 1992).

We see no reason to disturb the District Court’s decision in this case. Garden State’s motion was timely, as it was filed a mere 14 days after the complaint. Garden State and New Jersey a lso share the common legal position that A3371 does not violate Plaintiffs’ First Amendment rights. Lastly, Plaintiffs’ argument that they are unduly prejudiced by having to respond to “superfluous arguments” is not convincing. Accordingly,

we conclude tha t the District Court did not abuse its discretion by permitting Garden State to intervene.

VII.

Although we reject the District Court’s conclusion that A3371 prohibits only “conduct” that is wholly unprotected by the First Amendment, we uphold the

statu te as a regulation of professional speech that passes intermediate scrutiny. We agree with the District Court that A3371 does not violate Plaintiffs’ right to free exercise of religion, as it is a neutral and generally applicable law that is rationally rel ated to a legitimate74 government interest. We further agree that Plaintiffs lack standing to bring claims on behalf of their minor clients,

and conclude that the District Court did not abuse its discretion by permitting Garden State to intervene. Accordingl y, we will affirm the judgment of the District

Court.