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Posts Tagged ‘3rd Circuit Court of Appeals’

Federal Court Dismisses Challenge to Maryland Law Against Conversion Therapy for Minors

Posted on: September 24th, 2019 by Art Leonard No Comments

On September 20, U.S. District Judge Deborah K. Chasanow of the federal district court in Maryland granted that state’s motion to dismiss a lawsuit brought by Liberty Counsel on behalf of a conversion therapy practitioner who was challenging the state’s recently enacted law that provides that “a mental health or child care practitioner may not engage in conversion therapy with an individual who is a minor.” The ban is enforceable  through the professional licensing process enforced by the Department of Health and Mental Hygiene.  The named defendants are Governor Larry Hogan and Attorney General Brian Frosh.  The case is Doyle v. Hogan, 2019 WL 4573382, 2019 U.S. Dist. LEXIS 160709 (D. Md., Sept. 20, 2019).

The plaintiff, Christopher Doyle, argued that the law violates his right to freedom of speech and free exercise of religion, seeking a preliminary injunction against the operation of the law while the litigation proceeds.  Having decided to dismiss the case, however, Judge Chasanow also denied the motion for preliminary relief as moot.  Liberty Counsel immediately announced an appeal to the U.S. Court of Appeals for the 4th Circuit, which has yet to rule on a constitutional challenge against a conversion therapy ban.

Several U.S. Circuit courts have rejected similar challenges.  The New Jersey statute, signed into law by Governor Chris Christie, was upheld by the 3rd Circuit Court of Appeals, which ruled that the state has the power to regulate “professional speech” as long as there was a rational basis for the regulation.  King v. Governor of New Jersey, 767 F. 3d 216 (3rd Cir. 2014). The California statute, signed into law by Governor Jerry Brown, was upheld by the 9th Circuit, which characterized it is a regulation of professional conduct with only an incidental effect on speech, and thus not subject to heightened scrutiny by the court.  Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2015).  Liberty Counsel is also appealing a similar ruling by a federal court in Florida to the 11th Circuit.

The task of protecting statutory bans on conversion therapy against such constitutional challenges was complicated in June 2018 when U.S. Supreme Court Justice Clarence Thomas, writing for the Court in a 5-4 decision involving a California law imposing certain notice requirements on licensed and unlicensed pregnancy-related clinics, wrote disparagingly of the 3rd and 9th Circuit conversion therapy opinions.  National Institute of Family and Life Advocates v. Becerra, 138 S. Ct. 2361 (2018). The California statute required the clinics to post notices advising customers about pregnancy-related services, including family planning and abortion, that are available from the state, and also required non-licensed clinics to post notices stating that they were not licensed by the State of California.  The clinics protested that the statute imposed a content-based compelled speech obligation that violated their free speech rights and was subject to “strict scrutiny.” Such speech regulations rarely survive a strict scrutiny constitutional challenge.

The Supreme Court voted 5-4 to reverse a decision by the 9th Circuit, which had ruled that the notices constituted “professional speech” that was not subject to “strict scrutiny.”  In so doing, Justice Thomas rejected the idea that there is a separate category of “professional speech” that the government is free to regulate.  He asserted that “this Court has not recognized ‘professional speech’ as a separate category of speech.  Speech is not unprotected merely because it is uttered by ‘professionals.’”

“Some Court of Appeals have recognized ‘professional speech’ as a separate category of speech that is subject to different rules,” Thomas observed, citing among examples the 3rd Circuit and 9th Circuit conversion therapy cases.  “These courts define ‘professionals’ as individuals who provide personalized services to clients and who are subject to ‘a generally applicable licensing and regulatory regime.’ ‘Professional speech’ is then defined as any speech by these individuals that is based on ‘[their] expert knowledge and judgment,’ or that is ‘within the confines of [the] professional relationship,’” this time quoting from the 3rd Circuit and 9th Circuit opinions.  “So defined, these courts except professional speech from the rule that content-based regulations of speech are subject to strict scrutiny,” again citing the 3rd and 9th Circuit cases.

After reiterating that the Supreme Court has not recognized a category of “professional speech,” Thomas does concede that there are some circumstances where the court has applied “more deferential review” to “some laws that require professionals to disclose factual, noncontroversial information in their ‘commercial speech,” and that “States may regulate professional conduct, even though that conduct incidentally involves speech.”  But, the Court concluded, neither of those exceptions applied to the clinic notice statute.

As a result of Justice Thomas’s comments about the 3rd and 9th Circuit cases, when those opinions are examined on legal research databases such as Westlaw or Lexis, there is an editorial indication that they were “abrogated” by the Supreme Court.  Based on that characterization, Liberty Counsel sought to get the 3rd Circuit to “reopen” the New Jersey case, but it refused to do so, and the Supreme Court declined Liberty Counsel’s request to review that decision.

Liberty Counsel and other opponents of bans on conversion therapy have now run with this language from Justice Thomas’s opinion, trying to convince courts in new challenges to conversion therapy bans that when the practitioner claims that the therapy is provided solely through speech, it is subject to strict scrutiny and likely to be held unconstitutional.  The likelihood that a law will be held unconstitutional is a significant factor in whether a court will deny a motion to dismiss a legal challenge or to grant a preliminary injunction against its enforcement.

Liberty Counsel used this argument to attack conversion therapy ordinances passed by the city of Boca Raton and Palm Beach County, both in Florida, but U.S. District Judge Robin Rosenberg rejected the attempt in a ruling issued on February 13, holding that despite Justice Thomas’s comments, the ordinances were not subject to strict scrutiny and were unlikely to be found unconstitutional. She found that they were covered under the second category that Justice Thomas recognized as being subject to regulation: where the ordinance regulated conduct that had an incidental effect on speech.  Otto v. City of Boca Raton, 353 F. Supp. 3d 1237 (S.D. Fla. 2019).

Liberty Counsel argued against that interpretation in its more recent challenge to the Maryland law.  It argued in its brief, “The government cannot simply relabel the speech of health professionals as ‘conduct’ in order to restrain it with less scrutiny,” and that because Dr. Doyle “primarily uses speech to provide counseling to his minor clients, the act of counseling must be construed as speech for purposes of First Amendment review.”

The problem is drawing a line between speech and conduct, especially where the conduct consists “primarily” of speech.  Judge Chasanow noted that the 4th Circuit has explained, “When a professional asserts that the professional’s First Amendment rights ‘are at stake, the stringency of review slides ‘along a continuum’ from ‘public dialogue’ on one end to ‘regulation of professional conduct’ on the other,” continuing: “Because the state has a strong interest in supervising the ethics and competence of those professions to which it lends its imprimatur, this sliding-scale review applies to traditional occupations, such as medicine or accounting, which are subject to comprehensive state licensing, accreditation, or disciplinary schemes.  More generally, the doctrine may apply where ‘the speaker is providing personalized advice in a private setting to a paying client.’”

And, quoting particularly from the 3rd Circuit New Jersey decision, “Thus, Plaintiff’s free speech claim turns on ‘whether verbal communications become ‘conduct’ when they are used as a vehicle for mental health treatment.”

Judge Chasanow found that the Maryland statute “obviously regulates professionals,” and although it prohibits particular speech “in the process of conducting conversion therapy on minor clients,” it “does not prevent licensed therapists from expressing their views about conversion therapy to the public and to their [clients.]”  That is, they can talk about it, but they can’t do it!  “They remain free to discuss, endorse, criticize, or recommend conversion therapy to their minor clients.”  But, the statute is a regulation of treatment, not of the expression of opinions.  And that is where the conduct/speech line is drawn.

She found “unpersuasive” Liberty Counsel’s arguments that “conversion therapy cannot be characterized as conduct” by comparing it to aversive therapy, which goes beyond speech and clearly involves conduct, usually involving an attempt to condition the client’s sexual response by inducing pain or nausea at the thought of homosexuality.  She pointed out that “conduct is not confined merely to physical action.” The judge focused on the goal of the treatment, reasoning that if the client presents with a goal to change their sexual orientation, Dr. Doyle would “presumably adopt the goal of his client and provide therapeutic services that are inherently not expressive because the speech involved does not seek to communicate [Doyle’s] views.”

She found that under 4th Circuit precedents, the appropriate level of judicial review is “heightened scrutiny,” not “strict scrutiny,” and that the ordinance easily survives heightened scrutiny, because the government’s important interest in protection minors against harmful treatment comes into play, and the legislative record shows plenty of data on the harmful effects of conversion therapy practiced on minors.  She notes references to findings by the American Psychological Association Task Force, the American Psychiatric Association’s official statement on conversion therapy, a position paper from the American School Counselor Association, and articles from the American Academy of Child and Adolescent Psychiatry and the American Association of Sexuality Educations, Counselor, and Therapists.  Such a rich legislative record provides strong support to meet the test of showing that the state has an important interest that is substantially advanced by banning the practice of conversion therapy on minors.

Having reached this conclusion, the judge rejected Liberty Counsel’s argument that the ban was not the least restrictive way of achieving the legislative goal, or that it could be attacked as unduly vague.  It was clear to any conversion therapy practitioner what was being outlawed by the statute, she concluded.

Turning to the religious freedom argument, she found that the statute is “facially neutral” regarding religion.  It prohibits all licensed therapists from providing this therapy “without mention of or regard for their religion,” and Liberty Counsel’s Complaint “failed to provide facts indicating that the ‘object of the statute was to burden practices because of their religious motivation.’”  She concluded that Doyle’s “bare conclusion” that the law “displays hostility toward his religious convictions is not enough, acting alone, to state a claim” that the law violates his free exercise rights.  She also rejected the argument that this was not a generally applicable law because it was aimed only at licensed practitioners.  Like most of the laws that have been passed banning conversion therapy, the Maryland law does not apply to religious counselors who are not licensed health care practitioners.  Because the law is enacted as part of the regulation of the profession of health care, its application to those within the profession is logical and has nothing to do with religion.  As a result, the free exercise claim falls away under the Supreme Court’s long-standing precedent that there is no free exercise exemption from complying with religiously-neutral state laws.

Having dismissed the First Amendment claims, Judge Chasanow declined to address Liberty Counsel’s claims under the Maryland Constitution, since there is no independent basis under the court’s jurisdiction to decide questions of state law.

Joining the Office of the Maryland Attorney General in defending the statute were FreeState Justice, Maryland’s LGBT rights organization, with attorneys from the National Center for Lesbian Rights and Lambda Legal.  Also, the law firm of Gibson Dunn & Crutcher of Washington, D.C., submitted an amicus brief on behalf of The Trevor Project, which is concerned with bolstering the mental health of LGBT youth.

Senior District Judge Chasanow was appointed to the court by President Bill Clinton in 1993.


3rd Circuit Finds Federal Inspection Rules for Porn Producers Violate the 4th Amendment

Posted on: May 25th, 2015 by Art Leonard No Comments

A three-judge panel of the Philadelphia-based 3rd Circuit U.S. Court of Appeals ruled on May 14 that federal inspection rules for producers of sexually-related materials violate the 4th Amendment.  While rejecting a 1st Amendment challenge to the substance of rules requiring the producers to maintain written records of proof of age for all their performers, the court found that there was insufficient justification to allow government inspectors to demand access to those records without a search warrant.

The ruling in Free Speech Coalition, Inc. v. Attorney General, 2015 WL 2240346, upheld a decision by U.S. District Judge Michael M. Baylson that the requirements did not unconstitutionally abridge the free speech rights of the plaintiffs, but reversed on the 4th Amendment issue, and also suggested that in light of the 4th Amendment ruling, Judge Baylson may need to reconsider his 1st Amendment ruling regarding one of the challenged provisions requiring producers to make such records available for inspection at least 20 hours a week.  The court emphasized that the challenged regulations to not forbid the plaintiffs from producing sexually-oriented materials, but merely require that they compile and maintain evidence that all the depicted performers are 18 years old or over, making these records available to the government for inspection.

The lawsuit brought by a group of producers of sexually-oriented materials mainly distributed on the internet challenged two federal statutes and accompanying regulations that were intended by Congress to deal with the issue of child pornography.  Congress determined that merely banning the production and distribution of sexually-oriented depiction of children was insufficient to suppress it completely, so it enacted provisions requiring all producers of sexually-oriented materials to obtain and keep on file documentary proof of the age of all persons depicted in those materials, and to make these records available to federal inspectors without advance notice or any requirement to obtain a search warrant from a federal magistrate.  Law enforcement officials are normally prohibited from searching private businesses or residences for evidence of criminal activity without first obtaining a search warrant based on probable cause to believe that evidence of criminal conduct may be found in the place to be searched.

The court undertook an extensive review of Judge Baylson’s analysis under both constitutional amendments.  The opinion by Circuit Judge D. Brooks Smith goes into considerable detail about the evidence considered by the district court in reaching its conclusions.

The court decided that the documentation and record-keeping requirements would withstand the First Amendment challenge if the government could show that they were justified by the government’s legitimate interest in protecting children from being exploited through their use in the production and distribution of sexually-explicit materials.  The producers argued that most of the performers they use are clearly adults, and that the burden and expense of compiling and maintaining records of adult performers was not justified by the goal of protecting children.  Considerable testimony was offered both by the government and the producers on the question whether the wide-ranging requirements were really necessary.

The problem, of course, is that while some performers can clearly be classified as “mature adults” based on their physical appearance, and others can clearly be classified as minors on the same basis, there is a substantial middle ground where visual inspection of the final product may be inconclusive.  The district court accepted the producers’ argument that “it is their sincere belief that the use of sexually explicit material is a valued artistic endeavor and also serves valued educational motives,” and thus is constitutionally protected, but it also found that each of the producers “consistently used young-looking performers and almost all of their work had a commercial or profit motive.”  None of the producers was “an exclusive producer of sexually explicit depictions of ‘clearly mature’ adults.”  Indeed, the district court found that “youthful-looking performers are ubiquitous in the adult entertainment industry” and that materials purporting to show teenagers in a sexually-oriented way accounted for “approximately one-third of the material on pornography tube sites” on the internet.

As one government expert witness explained, “12, 13 and 14 year olds can appear to be much older than they are because they may experience early sexual and physical maturation” and this showed “the inability to determine chronological age from visual inspections.”  The expert testified that “even maturation experts will have a 2-5 year margin of error when trying to ascertain the age of a young adult, and that margin is greater for members of the public.”

Interestingly, although 29 inspections of producers’ age documentation had been made since 2006, the FBI, the agency charged with making these inspections, had effectively ceased doing them early in 2008 as litigation began in various courts around the country challenging the regulations, and government witnesses testified that there were no plans at present to resume making these surprise inspections.  On the basis of the inspections undertaken so far, however, FBI agents who testified in this case “believed it would be very difficult if not impossible to fabricate the records required by the Statutes in a 24-hour-period,” thus undermining the rationale for the statutory requirement that producers not be given advance notice of inspections and be required to keep their facilities open and available to inspections without notice for at least 20 hours each week.

The court found that although imposing a burden on the producers to document the ages of performers who were obviously mature adults did nothing to advance the government’s interest in protecting children, the court ultimately accepted the government’s argument that “any attempt to identify a class of clearly mature adults exempt from the Statutes’ reach would undermine the Statutes’ effectiveness.”  Although the government’s expert conceded that it was “generally true, but not always true” that adults who are 25 years of age or older will not be mistaken for minors under age 18, and that “the vast majority” of adults 30 years of age or older could not be mistaken for a minor, the court asserted that “the government need not employ the least restrictive or least intrusive means” when it came to advancing the significant interest in protecting minors.  “The government must be allowed to paint with a reasonably broad brush if it is to cover depictions of all performers who might conceivably have been minors at the time they were photographed or videotaped” wrote the court, quoting from an earlier decision rejecting a similar challenge to the statute.

The court found that “neither side successfully established at trial where the line between ‘clearly mature’ and ‘possibly underage’ can effectively be drawn,” wrote Judge Smith, who said that the government expert’s “statement that generally most minors could not be mistaken for a 25-year-old adult does not establish that the government’s interests are not furthered by requiring identification for performers over age 25.”  Indeed, the same expert pointed out that “the rare minor could appear up to 30 years old.”   “failing to require producers to check identification for such individual would therefore render the Statutes less effective in preventing child pornography,” wrote the court. “Thus, at the very least, comparing the use of performers above and below age 25 as Plaintiffs urge does not advance their argument that the States are not narrowly tailored.”  “Narrow tailoring” is a requirement of statutes that would burden constitutionally-protected speech, and because the district court accepted the plaintiffs’ argument that their sexually-oriented materials enjoy some 1st Amendment protection, the regulation must meet the test of being “narrowly tailored” to avoid burdening more speech than is needed to advance the government’s legitimate interests.

The court concluded that the burden actually imposed was not sufficient to require more precision in the documentation requirements.  It found that the cost of complying was not so severe as to make the producer’s activities unprofitable, especially since “each Plaintiff’s work depicts a substantial number of individuals for whom requiring identification does promote the government’s interests.”  Indeed, the court said, once the producers make the initial investment in setting up their age record system, they “do not face a substantial additional burden attributable to keeping records for clearly mature performers on top of the records they must maintain for young performers,” so “most of the burden Plaintiffs incur through compliance with the statutes is implicated by the government’s interest in protecting children.”

The court pointed out that because none of the plaintiffs in this case exclusively employed “clearly mature adults,” the court didn’t have to address whether an exemption from the rules would be required for somebody whose productions were so limited.  Furthermore, none of the plaintiffs were producing images solely intended for private use.  “Whether the statutes and regulations may be constitutionally applied to individuals falling in either of those categories are therefore questions we need not reach,” wrote Judge Smith.

The court also rejected the argument that the record-keeping requirement was over-broad, the flip side of the “narrow tailoring” test, again emphasizing the substantial proportion of youthful-looking individuals employed in making sexually-oriented materials covered by the statutes.  As one government expert testified, concerning the difficulty of establishing the exact proportions, “youthful adults appear in all categories of pornography, not just ‘teen porn,’ making the attempt to estimate the amount of sexually explicit depictions of youthful adults using categorical search terms particularly foolhardy.”  Also, it is almost impossible to quantify the proportion of such depictions that are created for private use, such as “sexting,” which is also theoretically covered by the federal statutes.

However, the court found that the plaintiffs had established “the existence of a universe of private sexually explicit images not intended for sale or trade along with, to a limited degree, a universe of sexually explicit images that depict only clearly mature adults.”  As to these, the court concluded, the district court may need to reconsider its 1st Amendment ruling in an “as-applied” challenge by individual plaintiffs.  However, wrote Judge Smith, “the invalid applications of the Statutes that Plaintiffs have demonstrated still pale in comparison with the Statutes’ legitimate applications, which counsels against holding the Statutes facially invalid.”

Turning to the government’s defense of the authorization for warrantless searches, the court rejected the argument that these statutes qualified for a recognized exception for heavily regulated industries.  There is a line of constitutional cases holding that the government may undertake administrative searches of heavily regulated industries without getting warrants or giving advance notice, even though the violation of safety rules may sometimes result in criminal penalties.  This exception was developed in the particular context of safety regulations of heavy industry, for one example.  Another example is the funeral business, where many states have adopted extensive regulations and authorized warrantless searches.  But the court rejected the government’s argument that the plaintiffs in this case were engaged in a heavily regulated industry.

While the statutes do require recordkeeping and labeling of the product, “no one is required to obtain a license or register with the government before producing a sexually explicit image,” wrote Judge Smith.  “An artist can pick up a camera and create an image subject to the Statutes without the knowledge of any third party, much less the government.  Nor has the government identified any regulations governing the manner in which individuals and businesses must produce sexually explicit images.  The creation of sexually explicit expression is better characterized by its lack of regulation than by a regime of rules governing such expression.”

Thus, a statutory authorization of warrantless searches requires some justification showing that requiring warrants would significantly undermine the legitimate government purpose of these recordkeeping requirements.  “Here,” wrote Judge Smith, “the government has all but admitted that warrantless searches are unnecessary.”  After again mentioning the testimony by FBI agents that it was unlikely that a producer could assemble the necessary records on short notice, the court stated, “We agree with law enforcement’s testimony that the destruction of evidence is not a real concern, given that to do so would only compound any criminal violation of the Statutes.  Further, law enforcement here conducted nearly one third of its inspections under the Statutes after providing notice and without any reports of records fabrication.  Thus, the record establishes that the type of records required to be maintained, given their scope as well as the need for indexing and cross-referencing, could not easily be recreated on short notice and violations concealed. “

Consequently, there is no need in this case to dispense with the constitutional safeguard of having the government persuade a neutral judicial officer of the reasonableness of a proposed search in order to get a warrant.  This would presumably involve providing some evidence that a producer is making or distributing films depicting youthful-looking actors whose ages need to be verified.  Such a requirement would, of course, probably deter government inspectors from seeking  search warrants to look at records when the product clearly depicts only “clearly mature” adult performers.

Since the government is not presently engaged in active inspection of these records, it seems unlikely that it would seek Supreme Court review of the 3rd Circuit’s 4th amendment ruling.  The next question in this case is whether Judge Baylson in the district court might cut back on his 1st Amendment holding in light of the appeals court’s reasoning.

The plaintiffs are represented by Lorraine R. Baumgardner and J. Michael Murray of Berkman, Gordon, Murray & DeVan (Cleveland) and Kevin E. Raphael, and J. Peter Shindel of PIetragallo, Gordon, Alfano, Bosick & Raspanti (Philadelphia).  Amicus briefs in support of the plaintiffs were filed by the ACLU of Pennsylvania and the Electronic Frontier Foundation.  Justice Department attorneys represented the government.