Is it ‘speech’ or ‘conduct’?

ACalifornia law that prohibits therapists from trying to change the sexual orientation of children and adolescents survived another legal challenge this week. The U.S. 9th Circuit Court of Appeals announced that an earlier decision by a three-judge panel upholding the law wouldn’t be reconsidered by a larger group of 11 judges.

That was the correct decision. But a judge who believes the law should be reconsidered on free-speech grounds raised an important question in his dissenting opinion.

The panel had concluded that the law does not violate the 1st Amendment because it regulates “conduct” — i.e., treatment by therapists — rather than “speech.” Judge Diarmuid O’Scannlain, however, argued that the panel ignored Supreme Court precedent that requires courts to undertake a “demanding” review of laws related to expression. O’Scannlain questioned the criteria the panel used to make the distinction between speech and conduct, adding: “The panel, contrary to common sense and without legal authority, simply asserts that some spoken words — those prohibited by SB 1172 — are not speech.”

O’Scannlain’s general point is an important one: The line between speech and conduct is sometimes blurry, and in the past courts have done exactly what he accused the panel of doing. In 1968, the Supreme Court upheld the conviction of a Vietnam War protester for burning his draft card, even though it was obvious that the law forbidding the destruction of draft cards was aimed at suppressing symbolic speech.

But Judge Susan P. Graber, the author of the 9th Circuit panel opinion, convincingly demonstrated that psychotherapy ought to be viewed as conduct rather than speech, and therefore that the law didn’t require the “heightened scrutiny” of one that impinges on free expression. She noted that the law “regulates only treatment, while leaving mental health providers free to discuss and recommend, or recommend against,” efforts to change sexual orientation. A doctor has a right to believe that a banned drug would be helpful to his patients, but that doesn’t mean he can violate the law by engaging in the “speech” of writing a prescription for it.

This page opposed enactment of the law against sexual conversion therapy, not because we approve of such therapy (we don’t) but because legislators shouldn’t ban a procedure performed by even a minority of licensed professionals without conclusive evidence that it’s harmful. Such evidence does not exist. Still, the issue in this case wasn’t whether the law was a wise exercise of the Legislature’s power to regulate healthcare; it was whether the measure violated the 1st Amendment. The 9th Circuit has provided the correct answer: It does not.