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 BOARD OF MARRIAGE 
2

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)

Mary 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

Shireen A. Barday, 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.

Gluck 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, Esq.

Agudath Israel of America

42 Broadway

14th 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 90th 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

30th Floor

New York, NY 10036

Curtis C. Cutting, Esq.

Horvitz & Levy

15760 Ventura Boulevard

18th Floor

Encino, CA 91436
6

Hayley J. Gorrenberg, Esq.

Lambda Legal Defense & Education Fund, Inc.

120 Wall Street

19th 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

10th Floor

San Francisco, CA 94104

Tanya E. Kalivas, Esq.

Arnold & Porter

399 Park Avenue

34th Floor

New York, NY 10022

Emily B. Goldberg, Esq.

McCarter & English

100 Mulberry Street

Four Gateway Center, 14th Floor

Newark, NJ 07102

Amicus Appellee
7

________________

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 religion. 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 

clients. 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 attractions 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. 

Tara 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 Research 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 characteristics. 

Many counselors, including Plaintiffs, approach 
9

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 the 

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 same 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 

Plaintiffs’ 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 person’s coping, social 

support, and identity exploration and 

development, including orientationneutral 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.

A3371 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, disorder, illness, 

deficiency, or shortcoming” and that “major professional 

associations of mental health practitioners and 

researchers in the United States have recognized this fact 
11

for nearly 40 years.” Id. The legislature also cited reports, 

articles, resolutions, 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, feelings 

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 Jersey 
12

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”)4in 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 parents. 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 Director 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, Plaintiffs 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 fact, (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 view 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 intervene. 

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 third-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 similar 
15

statute in Pickup v. Brown, 728 F.3d 1042 (9th Cir. 

2013),7the Court concluded 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 opinion, 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 expressive 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 to 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 Court’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 then 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 District 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 Plaintiffs’ 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 interest. 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 conduct. The parties agree 

that modern-day SOCE therapy, and that practiced by 

Plaintiffs in this case, is “talk therapy” that is 
18

administered wholly through verbal communication.9

Though verbal communication is the quintessential form 

of “speech” as that term is 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 confront 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 Partiya 

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 prohibited 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 

concluding 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. at 27. Notably, 

what the Supreme Court did not do was reclassify this 
20

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 no 

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. There, 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. at 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 

Parenthood 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 Laws, 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 conclusion, 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 “sexual 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 Unlike the present case, plaintiffs in Pickup included 

minor patients and their parents. 
22

is engaged in a public dialogue.” Id. At the midpoint 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 conduct, 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 Planned 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 professional 

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 Advancement 
23

concluded that “SB 1172 is rationally related to the 

legitimate government interest of protecting the wellbeing of minors” and, accordingly, 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 for 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 that 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 substituted 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 dissenting 

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 the 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 and 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 Project “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,” but 
25

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 

‘communicating 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 added 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 materialsupport 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 Judge 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 have 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 conclusion 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 reasoning 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 Psychoanalysis 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 

particular 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 

susceptible 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 statute 
27

regulated “speech” or “conduct.” See Pickup, 740 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 samesex attractions by avoiding effeminate behaviors and 

developing a closer relationship with his father. Surely 

this 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 others 

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 

characterizing 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 the 

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 merit, 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 categories 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) (quoting 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 unprotected 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 of 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 is 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 the 

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 power of government to license 

and regulate those who would pursue a profession or 

vocation and the rights of freedom of speech and of the 
31

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 

practice 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 not 

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 of 
32

Texas workers to join a specific labor union—“f[ell] in 

the category of a public speech, rather than that of 

practicing a vocation 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 

not 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 result). 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 the 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 professional’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 exercising 
33

judgment on behalf of any particular 

individual with whose circumstances 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 command 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 

asserted 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 to 
34

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.3d at 1227–29; MooreKing 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 

providing 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 for a paying client,” 

was “professional speech” which the state could regulate 
35

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 primarily 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 

when 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 Casey. 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” when 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. Wollschlaeger, 2014 WL 
36

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 distinguishing 

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 

informative. 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 specialized 

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 Consumer 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 that
37

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 authority 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 State’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 only 
38

when it is used 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 offering 

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 protection 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 

two 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 a 
39

With these principles in mind, it is clear to us that 

speech occurring as part of SOCE counseling is 

professional speech. SOCE 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 engaging 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 

extensive 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—

truthful, 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 

altogether, 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 

commercial 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 Consumer Council, 

Inc., 425 U.S. 748, 763–64 (1976) (“Virginia 

 

16 Advertisements that are false or misleading 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 Pharmacy, 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 Ohralik, 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.” 

Edenfield 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 necessary to serve that 
42

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 nonprofessionals 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 (describing 
43

“the societal 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, 436 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 that 

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 counseling 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 in 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 stems 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 regulation 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 professional 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; MooreKing, 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 

unconstitutional 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); see 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) (interpreting 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 compensation without 

running afoul of the First Amendment.” 708 F.3d at 569. But
46

To the extent Casey suggested rational basis 

review, we do not believe such a standard governs here. 

While the plurality opinion 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 

disclosure 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” and 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 

of 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 permissible occupational regulation under the 

professional speech doctrine”).
47

intermediate scrutiny,” Zauderer establishes that a more 

stringent standard of review should apply 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 suppressed 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 a 
48

that does not trigger strict scrutiny. Ordinarily, contentbased regulations are highly disfavored and subjected to 

strict scrutiny. 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 these 

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 depriving 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).

 

person’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 contentbased 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-protected 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 

professional 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 with 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. 

Plaintiffs 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 viewpoint, 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 a 
50

very specific way—by actually rendering the 

professional services that they believe 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 communicating 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 statute 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 

unduly 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 evaluation 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 

adolescent 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 this 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 

regulation 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) (explaining 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 intermediate 
52

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). 

Further, “[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, expressing 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 SOCE 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, and the American Academy 

of Child and Adolescent Psychiatry warning of the health 

risks posed by SOCE counseling). Many such 
53

organizations have also concluded that there is no 

credible evidence that SOCE counseling is effective. See 

id. 

We conclude that this 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 community 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).

Plaintiffs 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 regarding 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 community. 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 definitive 
54

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 scientific 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 

Government 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 this 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 undesirable 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 

practices.

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 demonstrate 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 Jersey 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. Murphy, 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, the 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 objectives 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 Report) (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 entitled 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 that 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). “Because 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, 733 

(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 intended applications.” Id.

(internal quotation marks and citation omitted).

Plaintiffs argue that A3371 is unconstitutional on 

its face because the term “sexual orientation change 
58

efforts” is impermissibly vague.23 We disagree. Under 

A3371, this term is defined as:

[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 of 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 orientationneutral 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 “sexual 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. Further, 

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 statements 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 American 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 

Dr. 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. 182 (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’) counseling”). To 
60

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’ argument 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 

legitimate 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 nothing 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. Thus, 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 lacks 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 (1993)). 

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, 209 (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 

exempts 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 preliminary 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 counseling 

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 exemptions” 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 Family 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 attractions, 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. Plaintiffs’ 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 change 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 the 
64

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, we 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 negative 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 several 

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 stated 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 Combs v. HomerCenter 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 bring 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 interests 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 thirdparty 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 of 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 

agree. 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 constitutional 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 her 
67

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 Defendants, 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’ evidence 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 Plaintiffs 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 reject 

both arguments.

 

28 The District Court reasoned that “since these litigants 

are bringing their own 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 warrant 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 

“hindrance” 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 Supreme 

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 defendant’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 

District Court acknowledged, our sister circuits are 

divided on this question. The majority have held that an 

intervenor is not required to possess Article III standing 
70

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 right 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 possess 

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.
71

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 

standing. 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 itself 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 concluded 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., McConnell 

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 United 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 definitively 
72

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 Article 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 Garden 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 statute; 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 unduly 
73

delay or prejudice the adjudication 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 and 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 also 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 that 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 

statute 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 related to a legitimate 
74

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. 

Accordingly, we will affirm the judgment of the District 

Court.