If it quacks like a duck: reviewing health care providers' speech restrictions under the first prong of Central Hudson.

The First Amendment protects the speech of health care providers. This protection can limit states' abilities to protect patients from harmful therapies involving speech, such as sexual orientation change efforts. Because providers' speech is more similar to commercial speech than traditional political discourse, it is possible to create a First Amendment review analysis that better balances states' police powers with providers' First Amendment rights. Under a "single-prong" approach, the first prong of Central Hudson can be used to identify quackery, which is analogous to false or misleading commercial speech and would therefore be outside the protection of the First Amendment. Because health care must be tailored to individual patients, restrictions on speech that survive the first prong of Central Hudson would be subject to strict scrutiny in order to leave the therapeutic decision to the provider and her patient, and maintain consistency with current jurisprudence.This Comment examines litigation from California's attempted ban on sexual orientation change therapy to illustrate the conflicts created by the current approach to First Amendment review of health care provider speech. This Comment then demonstrates the benefit of the proposed single-prong approach, including how it simultaneously protects patients from harm while protecting health care providers' speech."I felt dirty about [my homosexual orientation]. I felt like a cancerwith a boil that someone is trying to lance out. I felt and still feel likea failure. . . . The counseling helped for a while but after that itreinforced the self-loathing and internalized homophobia. . . . Itincreased my self-loathing greatly."1"These practices have no basis in science or medicine and they willnow be relegated to the dustbin of quackery . . . ."2INTRODUCTIONConversion therapy, a type of sexual orientation change therapy,3 refers to talk therapy directed at changing the sexual orientation of lesbian, gay, bisexual, transgender, or queer (LGBTQ) clients to a heterosexual orientation. A procedure advocated for largely by conservative religious branches,4 scientific evidence demonstrates it to be harmful as well as ineffective at changing an individual's sexual orientation.5 These concerns prompted California to enact Senate Bill 1172 ("SB 1172"),6 making it unprofessional conduct for mental health providers to try to change the sexual orientation of LGBTQ youth.7 This statute was immediately challenged in two separate suits on grounds that it restricted providers' freedom of speech.8 Both cases were appealed to the U.S. Court of Appeals for the Ninth Circuit after judges in the same district court issued conflicting opinions: a preliminary injunction against SB 1172 was issued in Welch v. Brown,9 but not in Pickup v. Brown,10 decided a day later.The different outcomes in the district court cases resulted primarily from whether SB 1172 was considered a content-based restriction on health care providers' speech requiring strict scrutiny, as in Welch,11 or as a restriction on professional conduct subject to rational basis review, as in Pickup.12 The Ninth Circuit, in a consolidated appeal, held that SB 1172 regulated professional conduct and not speech and was therefore only subject to rational basis review.13 In part because this distinction between conduct and speech is often dispositive, this Comment advocates for a new approach to First Amendment review of laws affecting health care providers' speech. It argues that the First Amendment does not bar states from protecting their citizens from quackery-health care practices that lack scientific support.14 By applying a similar approach to what the Supreme Court uses to justify a lesser level of First Amendment protection for commercial speech, this Comment demonstrates that courts can weed out quackery while protecting legitimate health care speech. By first determining whether the restricted speech is analogous to truthful and non-misleading commercial speech before applying strict scrutiny, courts will be able to use this "single-prong" approach to protect freedom of speech while also balancing the states' interest in preventing harm to citizens. …