Otto v. City of Boca Raton (353 F. Supp. 3d 1237, 2019)

ROBIN L. ROSENBERG, UNITED STATES DISTRICT JUDGE

Table of Contents

I. Introduction...1241

II. Summary of Analysis...1241

III. Background...1242

A. The Plaintiffs...1242

B. The Ordinances...1243

C. Procedural Posture of the Litigation...1245

IV. Plaintiffs' Standing...1245

V. Preliminary Injunction Standard of Review...1247

VI. Success on the Merits: Plaintiffs' Free Speech Claim...1248

A. The First Amendment Landscape...1248

B. Determining the Appropriate Standard of Review...1249

C. The Governments' Interest in the Ordinances...1258

D. The Relationship between the Ordinances and the Governments' Interest...1263

E. Viewpoint Discrimination...1268

F. Conclusions on Plaintiffs' Free Speech Claim...1270

VII. Plaintiffs' Prior Restraint Claim...1270 VIII. Plaintiffs' Vagueness Claim...1271

IX. Plaintiffs' Ultra Vires Claim...1271

X. Conclusions...1273

I. INTRODUCTION

"[T]his case presents a conflict between one of society's most cherished rights-freedom of expression-and one of the government's most profound obligations-the protection of minors." American Booksellers v. Webb , 919 F.2d 1493, 1495 (11th Cir. 1990) (citation omitted). Plaintiffs, licensed therapists, seek to provide talk therapy to minors with the goal of changing their sexual orientation and/or gender identity. Defendants, governmental entities, have passed ordinances to prohibit this practice by the therapists, because they believe that such "conversion therapy" or "sexual orientation change efforts" ("SOCE") are contraindicated and harmful to all persons, but especially minors. At its core, this case is about whether Defendants can prohibit the licensed therapists from administering SOCE therapy to minors where the available medical and subject matter literature concludes that the therapy is harmful to minors.

The case is before the Court on Plaintiffs Robert Otto and Julie Hamilton's Renewed Motion for Preliminary Injunction ("the Motion"), DE 8. In their Motion, Plaintiffs seek to enjoin Defendants from enforcing the two ordinances, passed in 2017, which ban the use of conversion therapy by licensed medical providers on minor patients.

Defendants City of Boca Raton (the "City") and Palm Beach County (the "County") (collectively referred to as "Defendants") filed responses at DE 83 and DE 85, and Plaintiffs filed a consolidated reply at DE 95. The Court granted leave to the Trevor Project, Equality Florida, and the Alliance for Therapeutic Choice to file amicus briefs at DE 73 and DE 116, which were filed at DE 90 (Trevor Project), DE 91 (Equality Florida), and DE 115 (Alliance for Therapeutic Choice). The Court also had the benefit of a full day of oral argument regarding the Motion on October 18, 2018. Following oral argument, the Court requested that the parties submit proposed findings of fact and conclusions of law, and they were filed at DE 132, DE 133, and DE 134. The Motion is fully ripe for review.

The Court has considered all of the briefings referenced above, the record, and is otherwise fully advised in the premises. For the reasons stated below, the Renewed Motion for Preliminary Injunction is DENIED .

II. SUMMARY OF ANALYSIS

In moving for a preliminary injunction, Plaintiffs must demonstrate that they have a substantial likelihood of success on the merits, that they will suffer irreparable harm in the absence of this preliminary relief, that the balance of equities tip in their favor, and that an injunction serves the public interest.

The Court concludes that the Plaintiffs have not met their burden of showing that the ordinances violate the Free Speech Clause of the First Amendment, and thus a preliminary injunction barring their enforcement shall not issue. In reaching this result, the Court examines the three possible standards of review for Plaintiffs' free speech claim. Succinctly, rational basis review requires Plaintiffs to show that Defendants acted irrationally or unreasonably in enacting the ordinances. Intermediate scrutiny requires Defendants to show that they had a substantial interest in passing the ordinances and that the ordinances are narrowly drawn to achieve that interest. Strict scrutiny requires Defendants to show that they had a compelling interest in passing the ordinances, that the ordinances are narrowly tailored to achieve that interest, and that no other less restrictive means could serve that interest.

The Court concludes that the law is unsettled as to which of these standards should apply to the facts of this case. The ordinances regulate conversion therapy that is effectuated entirely through speech, which suggests that the ordinances are subject to a standard greater than rational basis review. The ordinances also arguably are content-based, as they apply "to particular speech because of the topics discussed or the idea or message expressed."

While content-based laws ordinarily are subject to strict scrutiny, that conclusion in this case is not clear. The case does not involve a heartland content-based speech regulation. No public forum restrictions exist in the ordinances. The ordinances define the reach of their prohibitions by topic or subject matter, but they do so only to identify the type of therapy covered, not the content of communications outside of the therapy itself. It is the type of therapy that is regulated. The regulation touches speech only when it is a part of conversion therapy. The ordinances do not prohibit or limit proponents or opponents of conversion therapy to speak about gender or sexual orientation conversion publicly and privately, including to their minor clients in forms other than therapy. And, the therapeutic prohibition of conversion therapy is plenary; it does not choose sides.

Regardless of the level of review applied to the ordinances, the Court concludes that Defendants have identified a compelling interest in protecting the safety and welfare of minors. Protecting minors may be the paradigm example of a compelling interest. Defendants have pointed to and relied upon extensive credible evidence of the damage that conversion therapy inflicts. This body of information comes from well-known research organizations and subject matter experts.

At this early stage of the litigation, the Court need not resolve whether strict scrutiny is the applicable standard and whether the ordinances are the least restrictive means that Defendants could have used to achieve their interest in order to reach a decision regarding the Motion. While at trial Defendants will have the burden of demonstrating the constitutionality of their ordinances, at the preliminary injunction stage, the burden is on the Plaintiffs to establish that they have a substantial likelihood of success on the merits at trial. The Court analyzes the challenged ordinances through the lenses of all three methods of review, and concludes that the ordinances pass rational basis review, withstand intermediate scrutiny, and may survive strict scrutiny. The Plaintiffs, therefore, have not met their burden of showing that they have the requisite substantial likelihood of success on the merits. As such, the preliminary injunction shall not issue on Plaintiffs' free speech claim.

The Court also concludes that Plaintiffs have not demonstrated a substantial likelihood of success on the merits as to their prior restraint and vagueness claims, so the preliminary injunction shall not issue on these grounds.

Finally, on their claim that Defendants acted outside their authority based on Florida state law, Plaintiffs have not demonstrated that an irreparable injury will occur in the absence of a preliminary injunction. Accordingly, the preliminary injunction shall not issue on this ground.

III. BACKGROUND

A. The Plaintiffs

Plaintiff Robert W. Otto, Ph.D, LMFT, is a licensed marriage and family therapist. DE 1 ¶ 122. Dr. Otto maintains a counseling practice in the City of Boca Raton and in other parts of Palm Beach County, including regular appointments in unincorporated Palm Beach County. DE 121-7, Otto Dep. 19:21-20:5, 143:23-144:2; DE 1 ¶¶ 125, 127. Dr. Otto practices exclusively talk therapy, consisting of client-centered and client-directed conversations with his clients, concerning the clients' goals. DE 121-7, Otto Dep. 20:23-21:22 ("I want to make a distinction that the therapy I provide is 100 percent speech...."). Dr. Otto's talk therapy practice does not include any form of aversive treatment, which is treatment involving reprimand, punishment, or shame to turn a person away from certain thoughts or behaviors. DE 1 ¶ 72; DE 121-7, Otto Dep. 121:22-23.

Plaintiff Julie H. Hamilton, Ph.D., LMFT, is a licensed marriage and family therapist as well. DE 1 ¶ 140. Dr. Hamilton practices throughout Palm Beach County, including in the City of Boca Raton. DE 121-8, Hamilton Dep. 329:3-335:15; DE 96-1. In her current practice, Dr. Hamilton provides individual, marital, and family therapy for a wide variety of issues, including the issues of "unwanted same-sex attractions" and "gender identity confusion." DE 1 ¶ 142. Dr. Hamilton's practice also consists only of talk therapy, which is a conversation that takes place between herself and the client. Dr. Hamilton does not engage in aversive or coercive techniques. DE 1 ¶ 72. Dr. Hamilton does not coerce her clients into any form of counseling, engages in SOCE counseling only with those clients who desire and consent to it, and permits her clients to set the goals of any counseling she offers. DE 1 ¶¶ 77, 131, 144.

B. The Ordinances

Drs. Otto and Hamilton challenge two ordinances passed by Defendants in the fall of 2017 that ban mental health providers from engaging in conversion therapy with minor patients. The two ordinances are very similar, although not identical.

1. The City Ordinance

On October 10, 2017, the City enacted the Ordinance, which prohibits the practice of conversion therapy on minors by licensed providers (the "City Ordinance"). DE 1-4. The City Ordinance defines conversion therapy as:

Any counseling, practice or treatment performed with the goal of changing an individual's sexual orientation or gender identity, including, but not limited to, efforts to change behaviors, gender identity or gender expression, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same gender or sex.

Id. at 6:10-14.

The City Ordinance does not restrict anyone's conduct or speech outside of a formal therapy session. Id. at 4:21-22 ("[The City Ordinance] does not intend to prevent mental health providers from speaking to the public about SOCE.").

The Ordinance also excludes from its definition of conversion therapy, any counseling that provides support and assistance to a person undergoing gender transition or counseling that provides acceptance, support, and understanding of a person or facilitates a person's coping, social support, and development, including sexual orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices, as long as such counseling does not seek to change sexual orientation or gender identity.

Id. at 6:14-19.

The City Ordinance only prohibits formal treatment by licensed providers that has the goal of changing an individual's sexual orientation or gender identity. Thus, even within a therapy session, the City Ordinance does not prevent licensed therapists from "expressing their views to patients; recommending SOCE to patients … or referring minors to unlicensed counselors, such as religious leaders." Id. at 4:21-5:2.

The City's Ordinance defines "provider" as:

[A]ny person who is licensed by the State of Florida to provide professional counseling, or who performs counseling as part of his or her professional training under chapters 456, 458, 459, 490 or 491 of the Florida Statutes, as such chapters may be amended, including but not limited to, medical practitioners, osteopathic practitioners, psychologists, psychotherapists, social workers, marriage and family therapists, and licensed counselors. The term "provider" does not include members of the clergy or other religious leaders who are acting in their roles as clergy or pastoral counselors, or are providing religious counseling or instruction to congregants, provided they do not hold themselves out as providing conversion therapy pursuant to any of the aforementioned Florida Statutes licenses.

Id. at 6:21-7:3.

2. The County Ordinance

On December 19, 2017, the County passed Ordinance 2017-046 (the "County Ordinance"). DE 1-5; DE 121-3, 12/19/17 County Commissioners' Meeting Tr. 100. The County Ordinance bans providers from engaging in "conversion therapy" on minors. Conversion therapy is defined as:

[T]he practice of seeking to change an individual's sexual orientation or gender identity, including but not limited to efforts to change behaviors, gender identity, or gender expressions or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same gender or sex.

DE 1-5, 13.

The County Ordinance states:

Conversion therapy ... does not include counseling that provides support and assistance to a person undergoing gender transition, or counseling that: provides acceptance, support, and understanding of a person or facilitates a person's coping, social support, and identity exploration and development, including sexual-orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices; and does not seek to change an individual's sexual orientation or gender identity.

Id.

The County's Ordinance defines "provider" as "any person who is licensed by the State of Florida to perform counseling pursuant to Chapters 456, 458, 459, 490 or 491 of the Florida Statutes..." Id. at 13. The County Ordinance does not "prevent mental health providers from speaking to the public about SOCE; expressing their views to patients; recommending SOCE to patients; administering SOCE to any person who is 18 years of age or older; or referring minors to unlicensed counselors, such as religious leaders." Id. at 11. Furthermore, the County Ordinance does not prevent "unlicensed providers, such as religious leaders, from administering SOCE to children or adults" or "minors from seeking SOCE from mental health providers in other political subdivisions" outside of Palm Beach County. Id. The County Ordinance does not ban advertisement. DE 121-1, County Ordinance 2017-046; see also DE121-7, Otto Dep. 149:16-18.

C. Procedural Posture of the Litigation

Plaintiffs filed the instant case on June 13, 2018, at DE 1, to permanently enjoin enforcement of the ordinances, and moved for a preliminary injunction the following day, DE 3. After serving Defendants, Plaintiffs filed this Renewed Motion for Preliminary Injunction. DE 8. The Court set the case for trial at DE 11, and set a limited discovery plan for the purposes of considering the preliminary injunction, DE 25 (amended at DE 50). In addition to briefing the Motion addressed by the Order, the parties also have briefed Defendants' Motions to Dismiss, filed on August 1, 2018. See DE 34; DE 39; DE 62; DE 82; DE 84. The Motions to Dismiss are ripe, and the Court will address those in a separate order.

Plaintiffs allege that the ordinances violate their constitutional rights and state law in eight separate counts. In Count I, Plaintiffs allege that the ordinances violate their free speech rights as protected by the First Amendment. DE 1, 36. Count II alleges that the ordinances violate Plaintiffs' clients' First Amendment right to receive information. Id. at 39. Count III alleges violations of Plaintiffs' First Amendment free exercise rights. Id. at 40. Counts IV and V allege violations of the Florida Constitution, specifically, Plaintiffs' rights to liberty of speech and right to free exercise. Id. at 43, 46. Count VI alleges that the ordinances are ultra vires . Id. at 48. Count VII alleges that the ordinances violate Plaintiffs' rights under Florida's Patient's Bill of Rights and Responsibilities. Id. at 51. Finally, Count VIII alleges that the ordinances violate Florida's Religious Freedom Restoration Act ("FRFRA"), Fla. Stat. Ann. § 761.03.

Plaintiffs moved for a preliminary injunction on fewer grounds than alleged in their Complaint, which seeks a permanent injunction. See Hr'g. Tr. 107:9-18. The Motion contends that a preliminary injunction should issue based on Plaintiffs' freedom of speech and ultra vires arguments. See DE 8, ii. Specifically, Plaintiffs argue that the ordinances are viewpoint discriminatory, and therefore per se unconstitutional. In the alternative, they assert that the ordinances are content-based, and do not survive strict scrutiny. Plaintiffs also contend that the ordinances are unconstitutional prior restraints on their expression and unconstitutionally vague. Finally, Plaintiffs claim that the ordinances were passed outside of the Defendants' authority, and therefore are void.

IV. PLAINTIFFS' STANDING

In their Motions to Dismiss, DE 34 and DE 39, Defendants challenge the Plaintiffs' standing to pursue this case. Defendants also address standing in their responses to the Motion. See DE 83; DE 85. The City challenges Dr. Hamilton's standing, as she does not currently practice in the City. DE 83, 14. Both Defendants challenge Dr. Otto's standing, alleging that he does not seek to change his clients, and therefore does not have a practice of performing SOCE. DE 83, 15; DE 85, 1-2. Defendants also challenge the named Plaintiffs' ability to sue on behalf of their minor clients. DE 83, 16; DE 85, 2.

To establish standing, a plaintiff must establish three elements, which are the "irreducible constitutional minimum" to pursue a case in federal court. Lujan v. Defenders of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

"First, the plaintiff must have suffered an 'injury in fact'-an invasion of a legally protected interest which is (a) concrete and particularized, and (b) 'actual or imminent, not 'conjectural' or 'hypothetical.' ' Id. (citations omitted). "Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be 'fairly...trace[able] to the challenged action of the defendant, and not...th[e] result [of] the independent action of some third party not before the court.' " Id. (citations omitted). "Third, it must be 'likely,' as opposed to merely 'speculative,' that the injury will be 'redressed by a favorable decision.' " Id. at 561, 112 S.Ct. 2130.

The Court finds that Dr. Otto and Dr. Hamilton have standing to challenge both ordinances. Both are practitioners in Palm Beach County, with practices that would be impacted by the City's Ordinance: Dr. Otto maintains a counseling practice in the City of Boca Raton and in other parts of Palm Beach County, including regular appointments in unincorporated Palm Beach County. DE 121-7, Otto Dep. 19:21-20:5, 143:23-144:2; DE 1 ¶¶ 125, 127. Dr. Hamilton practices throughout Palm Beach County, including in the City of Boca Raton. DE 121-8, Hamilton Dep. 329:3-335:15; DE 96-1, Hamilton Dec. Dr. Hamilton has not consistently practiced in Boca Raton, but the Court is satisfied that she likely will be regulated by the City's Ordinance if enforced. DE 121-8, Hamilton Dep. 341:7-342:3; DE 126-29, Hamilton Decl. (describing Hamilton's efforts to obtain Boca Raton and Palm Beach County business tax receipts for annual periods ending September 30, 2018 and September 30, 2019). And, both named Plaintiffs have counseled minors on their unwanted same sex attractions. DE 1, ¶¶ 132- 36, 149-57 (describing Plaintiffs' performance of SOCE on minors prior to the ordinances' enactment); DE 121-7, Otto Dep. 59:19-25 ("Q: How many clients have you had where the issue to be addressed is the minor's same-sex sexual attractions? A: I've dealt with four."). Therefore, the Court finds that Drs. Otto and Hamilton will be regulated by the ordinances, and, if they establish their constitutional claims, will suffer "an injury in fact" that is not "hypothetical."

As to the Plaintiffs' minor clients: A person "generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties." Kowalski v. Tesmer , 543 U.S. 125, 129, 125 S.Ct. 564, 160 L.Ed.2d 519 (2004) (citations omitted). "This rule assumes that the party with the right has the appropriate incentive to challenge (or not challenge) governmental action and to do so with the necessary zeal and appropriate presentation." Id. The doctrine therefore expresses a " 'healthy concern that if the claim is brought by someone other than one at whom the constitutional protection is aimed,' the courts might be 'called upon to decide abstract questions of wide public significance even though other governmental institutions may be more competent to address the questions.' " Id. (citations omitted).

This rule is not absolute. Third-party standing may be appropriate when "the party asserting the right has a 'close' relationship with the person who possesses the right" and when "there is a 'hindrance' to the possessor's ability to protect his own interests." Id. This rule may be more forgiving in the First Amendment context. Id. at 130, 125 S.Ct. 564.

While Plaintiffs may have "close" relationships with their clients, they have not sufficiently demonstrated that their clients would be hindered in advancing their own litigation challenging the ordinances. Plaintiffs argue that their minor clients would not want to bring litigation for fear of stigma and exposing intimate details of their therapy. DE 95, 14. These generalized statements are not enough to confer third-party standing. "While a fear of social stigma can in some circumstances constitute a substantial obstacle to filing suit, Plaintiffs' evidence does not sufficiently establish the presence of such fear here." King v. Gov. of N.J. , 767 F.3d 216, 244 (3d Cir. 2014). Further, the Court notes, as the Third Circuit did in King , that "minor clients have been able to file suit pseudonymously" in other cases challenging bans on SOCE. Id. Accordingly, the Court's consideration of the Motion is limited to the relief Plaintiffs seek for themselves.

V. PRELIMINARY INJUNCTION STANDARD OF REVIEW

The party seeking a preliminary injunction must establish:

(1) it has a substantial likelihood of success on the merits; (2) irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest.

Wreal, LLC v. Amazon.com, Inc. , 840 F.3d 1244, 1247 (11th Cir. 2016) (citation omitted); see also Alabama v. United States Army Corps of Engineers , 424 F.3d 1117, 1128 (11th Cir. 2005). "A preliminary injunction is an 'extraordinary and drastic remedy,' and [Plaintiff] bears the 'burden of persuasion' to clearly establish all four of these prerequisites." Wreal, LLC , 840 F.3d at 1247 (emphasis added) (citing Siegel v. LePore , 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc) ). Failure to show any of the four required elements is fatal. Am. Civil Liberties Union of Fla., Inc. v. Miami-Dade Cty. Sch. Bd. , 557 F.3d 1177, 1198 (11th Cir. 2009).

A preliminary injunction is "never awarded as of right." Winter v. Natural Resources Defense Council, Inc. , 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) ; see also United States v. Jefferson Cty. , 720 F.2d 1511, 1519 (11th Cir. 1983). "[I]njunctive relief is an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter , 555 U.S. at 22, 129 S.Ct. 365 (emphasis added) (citing Mazurek v. Armstrong , 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (per curiam) ). Plaintiffs face a "tough road in establishing [the] four prerequisites to obtain a preliminary injunction in the first instance." Wreal, LLC , 840 F.3d at 1247.

Furthermore, granting a preliminary injunction is a "powerful exercise of judicial authority." Ne. Fla. Chapter of the Ass'n of Gen. Contractors of Am. v. Jacksonville , 896 F.2d 1283, 1284 (11th Cir. 1990). In evaluating the request for a preliminary injunction that would enjoin enforcement of a duly passed legislative enactment, courts must tread especially carefully:

When a federal court before trial enjoins the enforcement of a municipal ordinance adopted by a duly elected city council, the court overrules the decision of the elected representatives of the people and, thus, in a sense interferes with the processes of democratic government. Such a step can occasionally be justified by the Constitution (itself the highest product of democratic processes). Still, preliminary injunctions of legislative enactments-because they interfere with the democratic process and lack the safeguards against abuse or error that come with a full trial on the merits-must be granted reluctantly and only upon a clear showing that the injunction before trial is definitely demanded by the Constitution and by the other strict legal and equitable principles that restrain courts.

Id. at 1285 (emphasis added).

VI. SUCCESS ON THE MERITS: PLAINTIFFS' FREE SPEECH CLAIM

The Court begins its analysis of Plaintiffs' primary claim - that the ordinances violate their free speech rights under the First Amendment - with the first prong of the standard for a preliminary injunction: substantial likelihood of success on the merits.

Plaintiffs' first two claims allege that the ordinances unconstitutionally discriminate on the basis of viewpoint, or in the alternative, unconstitutionally discriminate on the basis of content. The parties vigorously contest whether the ordinances implicate the First Amendment's Free Speech Clause, and if so, what level of scrutiny is appropriate - rational basis review, some form of heightened but intermediate review, or strict scrutiny.

A. The First Amendment Landscape

The Free Speech Clause of the First Amendment commands that Congress, and the states, through the Fourteenth Amendment, "shall make no law...abridging the freedom of speech." U.S. Const. amend. I ; see, e.g. , Gitlow v. New York , 268 U.S. 652, 667, 45 S.Ct. 625, 69 L.Ed. 1138 (1925) (noting the First Amendment's application to the states). Nonetheless, it is also a "long established" and "fundamental principle" that "the freedom of speech...does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language." Gitlow , 268 U.S. at 667, 45 S.Ct. 625 (collecting cases). "From 1791 to the present,...our society, like other free but civilized societies, has permitted restrictions upon the content of speech in a few limited areas." R.A.V. v. City of St. Paul , 505 U.S. 377, 382-83, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). Accordingly, First Amendment case law acknowledges the fundamental importance of freedom of speech on the one hand, but also recognizes that the freedom of speech must occasionally be restricted or limited to accommodate other important governmental interests on the other. See, e.g. , Holder v. Humanitarian Law Project , 561 U.S. 1, 28, 130 S.Ct. 2705, 177 L.Ed.2d 355 (2010). In grappling with how to strike this critical balance, the Supreme Court has recognized varying levels of scrutiny for analyzing laws that in some way curtail individuals' free speech rights. Laws that limit speech based on the content of that speech are generally subject to strict scrutiny - the most stringent form of review in the panoply of standards of statutory review. See, e.g. , Sorrell v. IMS Health Inc. , 564 U.S. 552, 565-67, 131 S.Ct. 2653, 180 L.Ed.2d 544 (2011). Content-neutral restrictions on speech are usually subjected to intermediate scrutiny. See Holder , 561 U.S. at 26-27, 130 S.Ct. 2705. Regulations that do not affect protected speech, or only incidentally do so, are subject to rational basis review. Determining whether the First Amendment applies to the ordinances and the appropriate level of review are critical, and potentially dispositive questions in this case.

This case and the instant Motion present a matter of first impression in the Southern District of Florida and the Eleventh Circuit regarding whether prohibitions on the use of SOCE therapy by licensed medical providers in treating minor patients are constitutional.

Similar bans have survived constitutional challenges however, in other federal courts. The Third and Ninth Circuits have considered the conversion therapy bans passed in New Jersey and California, respectively. Both concluded that such bans, which are nearly identical to those at issue here, are constitutional. The Ninth Circuit held in Pickup v. Brown , that the California law was constitutional because it regulated professional conduct, and thereby did not implicate the First Amendment at all. 740 F.3d 1208 (9th Cir. 2014). The Third Circuit in King v. Governor of the State of New Jersey concluded that the law regulated speech, but only professional speech, and therefore was subject to intermediate scrutiny, which the law passed. 767 F.3d 216 (3rd Cir. 2014). While the Court looks to Pickup and King as examples for possible analysis, it is not bound by these decisions. The Court does not have the benefit of case law from the Eleventh Circuit on this particular matter.

Since these cases were decided, the Supreme Court has issued two opinions, Reed v. Town of Gilbert and National Institute of Family and Life Advocates v. Becerra ("NIFLA "), which raise questions as to the validity of the Third and Ninth Circuits' reasoning. --- U.S. ----, 135 S.Ct. 2218, 192 L.Ed.2d 236 (2015) ; --- U.S. ----, 138 S.Ct. 2361, 201 L.Ed.2d 835 (2018). The Eleventh Circuit also issued its en banc opinion in Wollschlaeger v. Governor of Florida , which was critical of the Ninth Circuit's opinion in Pickup , and is binding precedent on this Court. 848 F.3d 1293 (11th Cir. 2017).

These opinions and others show that the landscape of relevant First Amendment precedent is a morass when trying to address the specific facts in this case, that is, licensed professionals administering treatments, effectuated through speech, on minors. At least three possible approaches emerge from the case law, employing different standards of review.

B. Determining the Appropriate Standard of Review

1. Conduct v. Speech

A preliminary question, before applying the appropriate level of review, is whether the ordinances regulate speech or conduct. The Free Speech Clause of the First Amendment prohibits regulation of speech , so it is only implicated by laws that regulate or restrict speech or certain types of expressive conduct .

The difference between speech and conduct is not always easy to discern and the distinction is frequently criticized. Wollschlaeger , 848 F.3d at 1307 ("In cases at the margin, it may sometimes be difficult to figure out what constitutes speech protected by the First Amendment."); see also King, 767 F.3d at 228 ("[T]he enterprise of labeling certain verbal or written communications 'speech' and others 'conduct' is unprincipled and susceptible to manipulation."). Nonetheless, the speech/unprotected conduct dichotomy is a distinction repeatedly employed in First Amendment case law. "While drawing the line between speech and conduct can be difficult, [the Supreme Court's] precedents have long drawn it." NIFLA , 138 S.Ct. at 2373 (citing Sorrell v. IMS Health Inc. , 564 U.S. 552, 567, 131 S.Ct. 2653, 180 L.Ed.2d 544 (2011) ; Giboney v. Empire Storage & Ice Co. , 336 U.S. 490, 502, 69 S.Ct. 684, 93 L.Ed. 834 (1949) ; United States v. Stevens , 559 U.S. 460, 468, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) ).

Where speech and conduct overlap, courts have recognized that restrictions on non-expressive conduct that only incidentally burden speech, do not implicate the First Amendment's protections.

See Sorrell , 564 U.S. at 567, 131 S.Ct. 2653. "Congress, for example, can prohibit employers from discriminating in hiring on the basis of race. The fact that this will require an employer to take down a sign reading 'White Applicants Only' hardly means that the law should be analyzed as one regulating the employer's speech rather than conduct." Rumsfeld v. Forum for Academic and Institutional Rights, Inc. , 547 U.S. 47, 62, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006) (" FAIR "). "[I]t has never been deemed an abridgement 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." Id. at 62, 126 S.Ct. 1297 (emphasis added) (quoting Giboney , 336 U.S. at 502, 69 S.Ct. 684 ).

In the space between speech and conduct, the Supreme Court also has recognized that some conduct is inherently expressive and deserving of some degree of First Amendment protection. See United States v. O'Brien , 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) ; see also FAIR , 547 U.S. at 65, 126 S.Ct. 1297. In O'Brien , the Court considered the constitutionality of a law banning the destruction of draft cards. O'Brien , 391 U.S. at 371, 88 S.Ct. 1673. The Court rejected the proposition that any conduct could be labelled "speech" and receive First Amendment protection. Id. at 376, 88 S.Ct. 1673 ("We cannot accept the view that an apparently limitless variety of conduct be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea."). However, the Court assumed in O'Brien that the burning of a draft card was sufficiently expressive to implicate the First Amendment, and tested the law against a heightened standard of review. Id. The Court concluded that the law was constitutional:

[W]e think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no great than is essential to the furtherance of that interest.

Id. at 377, 88 S.Ct. 1673.

Since the speech/conduct issue is germane to all three levels of scrutiny, the analysis is further discussed and incorporated into each section below as appropriate.

In Pickup v. Brown , the Ninth Circuit reviewed two district court decisions on preliminary injunction motions in cases very similar to this case. 740 F.3d 1208, 1221 (9th Cir. 2014). The Pickup court found that California's ban on SOCE regulated conduct, and was therefore subject to rational basis review. If subject to rational basis review, Plaintiffs must demonstrate that the ordinances do not "bear[ ] any rational relationship to a legitimate [government] interest." Id. at 1231. As a result, the court held that the ban was a constitutionally valid regulation of "professional conduct." Id. at 1225-1231 ("The statute does not restrain Plaintiffs from imparting information or disseminating opinions; the regulated activities are therapeutic, not symbolic. And an act that 'symbolizes nothing,' even if employing language, is not 'an act of communication' that transforms conduct into First Amendment speech."). "[T]he key component of psychoanalysis was the treatment of emotional suffering and depression, not speech." Id. at 1226 (emphasis original) (citation omitted). "[A]ny effect [the law] may have on free speech interests is merely incidental, [so the law] is subject to only rational basis review." Id. at 1231. Thus, the ban "survives the constitutional challenges presented here." Id. at 1236.

Defendants urge the Court to adopt the Ninth Circuit's reasoning and conclude that the ordinances regulate conduct, or only incidentally burden speech. See DE 83, 2; DE 85, 5-6. Defendants' theory is appealing in its simplicity and its consistency with common conceptions of talk therapy as a form of mental health care.

This outcome, however, is stymied by the Eleventh Circuit's analysis in Wollschlaeger , 848 F.3d 1293, 1311 (11th Cir. 2017). There, Floridian doctors challenged provisions of Florida's Firearms Owners' Privacy Act (FOPA), which among other restrictions, prohibited doctors from inquiring into their patients' firearm ownership or from recording knowledge of patients' firearm ownership in patients' medical records. Id. at 1300-01. Upon rehearing of the case, the en banc court found that the "record-keeping and inquiry provisions expressly limit the ability of certain speakers-doctors and medical professionals-to write and speak about a certain topic-the ownership of firearms." Id. at 1301. Therefore, FOPA "restrict[ed] their ability to communicate and/or convey a message." Id. The Eleventh Circuit determined that the First Amendment was implicated, but did not determine whether strict scrutiny or intermediate scrutiny applied. Id. at 1308. Despite not answering the question regarding the applicable test, the court was clear that "we do not think it is appropriate to subject content-based restrictions on speech by those engaged in a certain profession to mere rational basis review." Id. at 1311. "[S]peech is speech, and it must be analyzed as such for purposes of the First Amendment." Id. at 1307 (quoting King , 767 F.3d at 229 ).

The ordinances in this case regulate therapies. But as applied to the Plaintiffs in this case, the ordinances impact their speech to patients because Plaintiffs Otto and Hamilton's therapeutic practices are entirely speech-based. "Speech is the only tool [they] use in their counseling with minors seeking to reduce or eliminate their unwanted same-sex attractions, behaviors, or identity. The only thing that happens in their counseling sessions is speech." DE 1, ¶ 74 (emphasis added). The Plaintiffs' treatment of their patients is not just carried out in part through speech: the treatment provided by Drs. Otto and Hamilton is entirely speech. "Saying that restrictions on writing and speaking are merely incidental to speech is like saying that limitations on walking and running are merely incidental to ambulation." Wollschlaeger , 848 F.3d at 1308. The Court concludes that the ordinances, as applied to Plaintiffs, likely cannot be construed as regulating conduct only or as mere incidental burdens on speech in light of Wollschlaeger . Therefore, the ordinances are not likely to be subject to rational basis review, and must be reviewed under intermediate or strict scrutiny.

2. Content Based v. Content Neutral Regulations: Application of Strict Scrutiny

Assuming that the ordinances regulate protected speech, the Court must next determine whether the ordinances are content-based or content-neutral. "[C]ontent-based laws - those that target speech based on its communicative content - are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve a compelling government interest." Reed v. Town of Gilbert , --- U.S. ----, 135 S.Ct. 2218, 2226, 192 L.Ed.2d 236 (2015) ; see also Wollschlaeger , 848 F.3d at 1308 ("Content-based restrictions on speech normally trigger strict scrutiny.") (collecting cases). In Reed , the plaintiffs challenged a municipal sign code, which regulated temporary directional signs differently from other kinds of signs. 135 S.Ct. 2218, 2227 (2015). The plaintiffs, members of a church group without a physical building, challenged the sign code because it interfered with their ability to post signs directing their parishioners to their weekly worship services. Id. at 2226. The Supreme Court subjected the sign code to strict scrutiny, because the sign code on its face regulated on the basis of content, and found that it failed to survive review. Id. at 2231. In contrast, intermediate scrutiny is applied to content-neutral regulations: a "content-neutral regulation will be sustained under the First Amendment if it advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests." Holder v. Humanitarian Law Project , 561 U.S. 1, 26-27, 130 S.Ct. 2705, 177 L.Ed.2d 355 (2010).

If the ordinances are content-based, the Court also must consider whether the ordinances are viewpoint discriminatory, and therefore, unconstitutional. DE 8, 3; Hr'g. Tr. 26-29. "In the ordinary case it is all but dispositive to conclude that a law is content-based and, in practice, viewpoint discriminatory." Sorrell v. IMS Health Inc. , 564 U.S. 552, 571, 131 S.Ct. 2653, 180 L.Ed.2d 544 (2011). Viewpoint discrimination is a subset of content discrimination. Rosenberger v. Rector , 515 U.S. 819, 828- 29, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995). A viewpoint-based law goes beyond mere content-based discrimination and regulates speech based upon agreement or disagreement with the particular position the speaker wishes to express." McKay v. Federspiel, No. 14-CV-10252, 2014 WL 7013574, at *10 (E.D. Mich. Dec. 11, 2014), aff'd , 823 F.3d 862 (6th Cir. 2016) (citations omitted). Viewpoint discrimination occurs when the government favors "one speaker over another." Rosenberger , 515 U.S. at 828, 115 S.Ct. 2510. Viewpoint discrimination also occurs when speech is prohibited "because of its message." Id. Thus, the government may not target "particular views taken by speakers on a subject." Id. at 829, 115 S.Ct. 2510. But, "[w]hen the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable, no significant danger of viewpoint discrimination exists ." R.A.V. v. City of St. Paul , 505 U.S. 377, 388, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) (emphasis added). The Court analyzes viewpoint discrimination as applied to the facts of this case separately in Section VI.E infra .

"Deciding whether a particular regulation is content-based or content-neutral is not always a simple task." Turner Broadcasting System, Inc. v. FCC , 512 U.S. 622, 642, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). "Content based laws [are] those that target speech based on its communicative content." Reed , 135 S.Ct. at 2226. A regulation is content based "if a law applies to particular speech because of the topic discussed or the idea or message expressed." Id. at 2227. "As a general rule, laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content based." Turner Broadcasting System , 512 U.S. at 643, 114 S.Ct. 2445. A law "would be content based if it required 'enforcement authorities' to 'examine the content of the message that is conveyed to determine whether' a violation [of the law] has occurred." McCullen v. Coakley , 573 U.S. 464, 134 S.Ct. 2518, 2531, 189 L.Ed.2d 502 (2014).

Reed would seem to compel the conclusion that if the ordinances are content-based, they are subject to strict scrutiny. The ordinances identify certain speech-speech aimed at changing minor patients' sexual orientation-for prohibition because the speech constitutes conversion therapy. The ordinances target what Plaintiffs say to their minor patients.

3. Content-Based Regulations Subject to less than Strict Scrutiny

Beyond the content-based/content-neutral dichotomy, there are several lines of cases that exempt content-based laws from automatically being considered under strict scrutiny. "[C]ontent-based restrictions on speech have been permitted, as a general matter, [but] only when confined to the few 'historic and traditional categories [of expression] long familiar to the bar.' " United States v. Alvarez , 567 U.S. 709, 717, 132 S.Ct. 2537, 183 L.Ed.2d 574 (2012). It does not appear that these traditional exemptions have been upset by Reed . Cf. Flanigan's Enterprises, Inc. of G.A. v. City of Sandy Springs , 703 F. App'x 929, 935 (11th Cir. 2017).

One set of categories of content-based laws that are not subject to strict scrutiny include "inciting imminent lawless action,...obscenity,...defamation,...speech integral to criminal conduct,...so-called 'fighting words,'...fraud,...child pornography,...true threats,...and speech presenting some grave and imminent threat [that] the government has the power to prevent." Alvarez , 567 U.S. 709, 717, 132 S.Ct. 2537 (citing case law for each category of speech). "From 1791 to the present,...our society, like other free but civilized societies, has permitted restriction on the content of speech in a few limited areas, which are 'of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.' " R.A.V. , 505 U.S. at 382, 112 S.Ct. 2538 (quoting Chaplinsky v. New Hampshire , 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) ). Reed has not eliminated these traditional categories, which are exempt from strict scrutiny. Cf. Flanigan's Enterprises , 703 F. App'x at 935. The ordinances at issue in this case do not fall within these limited areas in which restrictions on the content of speech has been historically recognized.

Another category of content-based speech, "commercial speech," also is subject to heightened review, and not strict scrutiny. See Sorrell, 564 U.S. at 571-72, 131 S.Ct. 2653. There is a "commonsense distinction" between "speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech." Central Hudson Gas & Elec. Corp. v. Public Serv. Comm. of N.Y. , 447 U.S. 557, 562, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980) (quoting Ohralik v. Ohio State Bar Assn. , 436 U.S. 447, 455-56, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978) ). "In commercial speech cases, then, a four-part analysis has developed" that is less exacting than a strict scrutiny analysis. See Central Hudson Gas & Elec. Corp. , 447 U.S. at 566, 100 S.Ct. 2343. "Under a commercial speech inquiry, it is the State's burden to...show at least that the statute directly advances a substantial government interest and that the measure is drawn to achieve that interest." Sorrell , 564 U.S. at 571-72, 131 S.Ct. 2653.

The ordinances in this case may not fit neatly into any of the categories outlined above. However, they demonstrate that a strict First Amendment rule will not always work for all cases.

4. The Speech of Licensed Providers

Against this backdrop of First Amendment case law, the Court must also consider how the First Amendment applies to doctors in treating their patients. Talk-based conversion therapy, as both a treatment to be provided and an utterance to be said, cannot easily be analyzed using case law decided in the context of public hearings, signage regulations, and school-based activities, yet so much of traditional First Amendment case law is decided in those contexts. As a result, the Court must pay close attention to cases that bear directly on the question of how provider speech can be regulated.

The speech of medical providers is routinely limited through prescription drug laws, medical malpractice lawsuits, accreditation requirements, and other means. As discussed below, case law demonstrates a simultaneous judicial commitment to protecting the conversation between doctors and their patients, and a recognition of the government's ability to regulate the practice of medicine and to protect patients from harmful practices. Quite simply, "[t]here is a difference, for First Amendment purposes, between regulating professionals' speech to the public at large versus their direct, personalized speech with clients." Locke v. Shore , 634 F.3d 1185, 1191 (11th Cir. 2011).

Planned Parenthood v. Casey considered the constitutionality of certain disclosures about pregnancy and abortion that Pennsylvania required its doctors to make to their patients prior to performing an abortion. 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992). The majority of the joint opinion addresses whether the disclosures violate the mother's constitutional rights. See id. However, the opinion also briefly addressed whether the doctor's right to free speech was implicated by the disclosure requirements. See id. at 884, 112 S.Ct. 2791. The joint opinion concluded that "the physician's First Amendment rights" were only "implicated...as part of the practice of medicine, subject to reasonable licensing and regulation by the State." Id. Although some of the disclosures required by the law in Casey were part of obtaining informed consent, some of the disclosures were not. See NIFLA , 138 S.Ct. 2361, Tr. 23:25-24:2 ("But there were definitely requirements in Casey that don't have much to do with informed consent.") (Kagan, J.).

In NIFLA , the Supreme Court considered a challenge to California's Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (the "FACT Act"), which, among other directives, required licensed clinics to "notify women that California provides free or low-cost services, including abortions, and give them a phone number to call." 138 S.Ct. 2361, 2368. The Court did not determine what level of scrutiny should be applied to the FACT Act, but found that the notification requirement would not survive even intermediate scrutiny. Id. at 2375. NIFLA

found that California's FACT Act violated the First Amendment in compelling certain disclosures about abortion to patients, but the FACT Act is distinguishable from the ordinances at issue here. There, the doctors were compelled to speak, despite the fact that the required notice "is not an informed-consent requirement or...tied to a procedure at all." Id. at 2373.

In Wollschlaeger , the Eleventh Circuit declined to say whether intermediate or strict scrutiny would be the appropriate standard of review. 848 F.3d 1293, 1308 (11th Cir. 2017). Importantly, the court there was concerned that Florida's FOPA impacted doctors' ability to "speak frankly and openly to patients," because FOPA prohibited the discussion of firearm ownership with patients. Id. at 1313 (internal quotations omitted). In Conant v. Walters , the Ninth Circuit upheld a permanent injunction against a government policy of investigating doctors who recommended marijuana for medical use to their patients. 309 F.3d 629 (9th Cir. 2002). There, the court found the policy restricting doctors' recommendations to "strike at core First Amendment interests of doctors and patients" because communication is an "integral component of the practice of medicine." Id. at 636.

Furthermore, the Third Circuit recognized professional speech as a category of speech subject to intermediate scrutiny. In King , the Third Circuit considered New Jersey's ban on SOCE performed on minors and reviewed the district court's order on summary judgment, which was entered against the plaintiff-doctors who challenged the statewide SOCE ban. See 767 F.3d 216 (3rd Cir. 2014) ; King v. Christie , 981 F.Supp.2d 296 (D.N.J. 2013) The King court disagreed with the district court's analysis (which had followed Pickup's lead in applying rational basis review), and rejected the proposition that the ban should only be subject to rational basis review. See King , 767 F.3d at 246. Instead, the court found that "intermediate scrutiny is the applicable standard of review in this case" and that a conversion therapy ban on minors is a "permissible prohibition of professional speech." See id.

Plaintiffs insist that NIFLA abrogated the "professional speech" standard that the Third Circuit employed, 138 S.Ct. 2361 (2018). There, the Court observed that its "precedents do not recognize such a tradition for a category called 'professional speech' " and thus appeared to reject the Third Circuit's analysis in King . 138 S.Ct. 2361, 2372 (2018) (collecting cases). Even though the Court rejected professional speech as a recognized exceptional category, it acknowledged that "under [Supreme Court] precedents, States may regulate professional conduct , even though that conduct incidentally involves speech." Id. at 2372 (emphasis added) (citing Planned Parenthood of Southeastern Pa. v. Casey , 505 U.S. 833, 884, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (O'Connor, J.) ).

Taken collectively, these cases instruct that this case may fall outside of Reed 's onerous edict that all content-based laws must be subject to strict scrutiny. While NIFLA disparaged the use of "professional speech" as a separate category of speech, it did not foreclose the possibility that reasons might exist for treating professional speech as a separate category. See 138 S.Ct. 2361, 2375 (2018). Although the "First Amendment stands against any 'freewheeling authority to declare new categories of speech outside the scope of the First Amendment,' the Court has acknowledged that perhaps there exist 'some categories of speech that have been historically unprotected...but have not yet been specifically identified or discussed...in our case law." United States v. Alvarez , 567 U.S. 709, 722, 132 S.Ct. 2537, 183 L.Ed.2d 574 (2012) (citations omitted). It is not clear that a separate category for professional speech is required to recognize this case's unique features, given the Supreme Court's recognition in Casey that regulations of doctors' speech that are incidental to a treatment (or in this case, effectuating a treatment) do not offend the First Amendment.

The ordinances here are much closer to the regulation at issue in Casey than the regulations in Wollschlaeger , Conant , and NIFLA . The speech not only is directly related to the treatment, it is the manner of delivering the treatment. Plaintiffs are essentially writing a prescription for a treatment that will be carried out verbally. In contrast to Wollschlaeger , Conant , and NIFLA , the ordinances do not prohibit a dialogue between patient and provider. See Wollschlaeger , 848 F.3d at 1309 (observing that the SOCE ban in Pickup "did not restrict what the practitioner could say or recommend to a patient or client"). The regulated treatment is both speech and conduct - directed at minors - administered by a licensed medical professional, as part of "the practice of medicine," as in Casey .

Accordingly, applying intermediate scrutiny to medical treatments that are effectuated through speech would strike the appropriate balance between recognizing that doctors maintain some freedom of speech within their offices, and acknowledging that treatments may be subject to significant regulation under the government's police powers. The First Amendment is of paramount importance to our democracy, but, as quoted above, "the freedom of speech...does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language." Gitlow v. New York , 268 U.S. 652, 667, 45 S.Ct. 625, 69 L.Ed. 1138 (1925) (collecting cases).

5. First Principles of the First Amendment

Furthermore, this case demonstrates why an unbending, categorical approach to the First Amendment proves unwieldy to the point of unworkable. In fact, the exemptions to the automatic "trigger" of strict scrutiny illustrate a recognition that an ironclad, categorical approach is untenable in applying the First Amendment to seemingly endless permutations and circumstances. "[C]ategories alone cannot satisfactorily resolve the legal problem before us. The First Amendment requires greater judicial sensitivity both to the Amendment's expressive objectives and to the public's legitimate need for regulation than a simple recitation of categories, such as 'content discrimination' and 'strict scrutiny' would permit." Reed v. Town of Gilbert , --- U.S. ----, 135 S.Ct. 2218, 2234, 192 L.Ed.2d 236 (2015) (Breyer, J., concurring); see also Reed , 135 S.Ct. at 2238 (Kagan, J., concurring); Williams-Yulee v. Fla. Bar , --- U.S. ----, 135 S.Ct. 1656, 1673, 191 L.Ed.2d 570 (2015) (Breyer, J., concurring) ("I view this Court's doctrine referring to tiers of scrutiny as guidelines informing our approach to the case at hand, not tests to be mechanically applied.") (citations omitted) (emphasis added); Wollschlaeger , 848 F.3d at 1334 ("Rather than relying on strict categorical definitions as automatic triggers for particular levels of constitutional scrutiny, we should instead embrace an approach focused on the values underlying the jurisprudential significance of those categories.") (Tjoflat, J., concurring). One way to avoid the pitfalls of a strictly categorical approach to the First Amendment is to glean the common principles from the relevant cases and apply them in a coherent manner to this set of facts.

Applying intermediate scrutiny to this case is entirely consistent with the historic understandings of the First Amendment and its purpose. The First Amendment's "purpose [is] 'to preserve an uninhibited marketplace of ideas in which the truth will ultimately prevail.' " McCullen v. Coakley , 573 U.S. 464, 134 S.Ct. 2518, 2529, 189 L.Ed.2d 502 (2014) (quoting FCC v. League of Women Voters of Cal. , 468 U.S. 364, 377, 104 S.Ct. 3106, 82 L.Ed.2d 278 (1984) ). "The First Amendment, said Judge Learned Hand, 'presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all.' " New York Times v. Sullivan , 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (quoting United States v. Associated Press , 52 F.Supp. 362, 372 (S.D.N.Y. 1943) ). Indeed, "[t]he best test of truth is the power of thought to get itself accepted in the competition of the market." Id. at 2375 (quoting Abrams v. United States , 250 U.S. 616, 630, 40 S.Ct. 17, 63 L.Ed. 1173 (1919) (Holmes, J., dissenting) ).

"At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence." Turner Broadcasting System, Inc. v. FCC , 512 U.S. 622, 641, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). Justice Thurgood Marshall observed that "[t]he First Amendment services not only the needs of the polity but also those of the human spirit - a spirit that demands self-expression." Procunier v. Martinez , 416 U.S. 396, 427, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974) (Marshall, J., concurring). It is a "guiding First Amendment principle" that the "government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." McCullen v. Coakley , 573 U.S. 464, 134 S.Ct. 2518, 2539, 189 L.Ed.2d 502 (2014) (quoting Police Dept. of Chicago v. Mosley , 408 U.S. 92, 95, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972) ).

This case presents facts in which speech is not always expressive, and thus warrants less scrutiny. Cf. O'Brien , 391 U.S. 367, 88 S.Ct. 1673 (1968). Plaintiffs' words serve a function; their words constitute an act of therapy with their minor clients, which makes Plaintiffs' speech different from the protected dialogues in Wollschlaeger and NIFLA , and from highly protected, political speech in the metaphoric or literal "public square."

The ordinances do not limit or change in any way advocacy for SOCE. Plaintiffs retain their right and prerogative to seek greater acceptance of SOCE, to lobby Defendants to repeal the ordinances, and to lobby the State of Florida to explicitly preempt the ordinances. The public marketplace of ideas is not limited in any way. What is limited, is the therapy (delivered through speech and/or conduct) by a licensed practitioner to his or her minor patient, within the confines of a therapeutic relationship. In the context of the relationship between a minor and his or her