Otto v. City of Boca Raton, No. 19-10604

• Decision Date: 20 November 2020
• Docket Number: No. 19-10604
• Citation: 981 F.3d 854
• Parties: Robert W. OTTO, Julie H. Hamilton, Plaintiffs-Appellants, v. CITY OF BOCA RATON, FLORIDA, County of Palm Beach, Florida, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

981 F.3d 854

Robert W. OTTO, Julie H. Hamilton, Plaintiffs-Appellants,

v.CITY OF BOCA RATON, FLORIDA, County of Palm Beach, Florida, Defendants-Appellees.

No. 19-10604

United States Court of Appeals, Eleventh Circuit.

November 20, 2020

Horatio Gabriel Mihet, Roger K. Gannam, Mathew Duane Staver, Chief Counsel, Liberty Counsel, Orlando, FL, for Plaintiffs-Appellants.

Daniel Lawrence Abbott, Jamie A. Cole, Anne Reilly Flanigan, Edward George Guedes, Weiss Serota Helfman Cole & Bierman, PL, Fort Lauderdale, FL, Eric Samuel Kay, Kozyak Tropin & Throckmorton, PA, Coral Gables, FL, for Defendant-Appellee City of Boca Raton, Florida.

Helene Catherine Hvizd, Rachel Marie Fahey, Palm Beach County Attorney's Office, Kim Ngoc Phan, Beasley Kramer & Galardi, PA, West Palm Beach, FL, for Defendant-Appellee County of Palm Beach, FL.

Christopher F. Stoll, National Center For Lesbian Rights, San Francisco, CA, for Amici Curiae National Center for Lesbian Rights and Southern Poverty Law Center.

Stacey Kim Sutton, Carlton Fields, PA, West Palm Beach, FL, Sylvia H. Walbolt, Carlton Fields Jorden Burt, PA, Tampa, FL, for Equality Florida Institute, Inc.

Stuart F. Delery, Gibson Dunn & Crutcher, LLP, Washington, DC, for Amicus Curiae The Trevor Project.

Jessica Ring Amunson, Jenner & Block, LLP, Washington, DC, for Amici Curiae American Psychological Association, Florida Psychological Association, National Association of Social Workers, National Association of Social Workers Florida Chapter, and American Association for Marriage and Family Therapy.

Aaron C. Dunlap, Stacey Kim Sutton, Jennifer A. Yasko, Attorney, Carlton Fields, PA, West Palm Beach, FL, Christopher F. Stoll, National Center For Lesbian Rights, San Francisco, CA, for Amicus Curiae Equality Florida Institute, Inc.

Before MARTIN, GRANT, and LAGOA, Circuit Judges.

GRANT, Circuit Judge:

Boca Raton and Palm Beach County prohibit therapists from engaging in counseling or any therapy with a goal of changing a minor's sexual orientation, reducing a minor's sexual or romantic attractions (at least to others of the same gender or sex), or changing a minor's gender identity or expression—though support and assistance to a person undergoing gender transition is specifically permitted. These restrictions apply even to purely speech-based therapy. Two therapists argue that the ordinances infringe on their constitutional right to speak freely with clients. They appeal the district court's denial of their motion for a preliminary injunction. We understand and appreciate that the therapy is highly controversial. But the First Amendment has no carveout for controversial speech. We hold that the challenged ordinances violate the First Amendment because they are content-based regulations of speech that cannot survive strict scrutiny.

I.

A.

In late 2017, Palm Beach County, Florida and the City of Boca Raton joined a growing list of states and municipalities that prohibit controversial therapies called sexual orientation change efforts (SOCE).¹ The City and the County both passed ordinances based on legislative findings that SOCE poses a serious health risk to minors. These findings cited various studies and the position papers of numerous medical and public health organizations.

The City and County ordinances are substantially identical, differing primarily in how they penalize violations.² The City's ordinance applies to "any person who is licensed by the State of Florida to provide professional counseling," except for clergy. The ordinance bars covered providers from treating minors with

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.

The County enacted a similar ordinance banning covered providers from engaging in SOCE with minor clients. Its definition of provider is consistent with the City's. The County ordinance bans

the 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.

But both ordinances contain a significant carveout: they expressly allow "counseling that provides support and assistance to a person undergoing gender transition."

B.

Robert Otto and Julie Hamilton are licensed marriage and family therapists with practices in Palm Beach County, including within the City of Boca Raton. Among other services, they provide counseling to minors who have unwanted same-sex attraction or unwanted gender identity issues. Plaintiffs characterize their counseling as "talk therapy"—that is, therapy conducted solely through speech.

Before the ordinances went into effect, plaintiffs often saw clients who presented with depression and anxiety due to internal conflicts over their sexuality or gender identity. Both therapists disclaim any ability to "change" any person's sexual orientation; they believe, however, that through speech-based therapy, their clients who wish to do so can reduce same-sex behavior and attraction and eliminate what they term confusion over gender identity.

Plaintiffs say their therapy is voluntary and client-directed. Their clients typically have "sincerely held religious beliefs conflicting with homosexuality, and voluntarily seek SOCE counseling in order to live in congruence with their faith and to conform their identity, concept of self, attractions, and behaviors to their sincerely held religious beliefs."

Neither the City nor the County disputes that plaintiffs’ practices consisted entirely of speech. But the defendants maintain that SOCE, in any form, poses serious health risks to children and adolescents. Specifically, they cite a seriously increased risk of depression and suicide.

Plaintiffs filed suit to permanently enjoin enforcement of both ordinances. The next day, they moved for a preliminary injunction on two grounds: that the ordinances violate the First Amendment and that the ordinances are preempted by state law. After receiving briefing on the matter, and holding a full day of oral argument, the district court denied the motion. On the First Amendment claim, the court found that plaintiffs failed to demonstrate a substantial likelihood of success on the merits. As to the state preemption claim, the court found that, even if plaintiffs could demonstrate a likelihood of success on the merits, they could not demonstrate irreparable harm. Plaintiffs immediately filed this interlocutory appeal.

II.

We review the district court's order denying a preliminary injunction for abuse of discretion. See Siegel v. LePore , 234 F.3d 1163, 1175 (11th Cir. 2000) (en banc). A preliminary injunction is an "extraordinary and drastic remedy." Id. at 1176 (quoting McDonald's Corp. v. Robertson , 147 F.3d 1301, 1306 (11th Cir. 1998) ). The party seeking one must make four showings: "(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." Id.

III.

The First Amendment prohibits the political restriction of speech in simple but definite terms: "Congress shall make no law ... abridging the freedom of speech." U.S. Const. amend. I. Those same terms, and their guarantee of free speech, now apply to states and municipalities as well as to the federal government. See Cruz v. Ferre , 755 F.2d 1415, 1418 (11th Cir. 1985). At the heart of that guarantee is "the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence." Turner Broad. Sys., Inc. v. FCC , 512 U.S. 622, 641, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994).

The plaintiffs claim that the SOCE ordinances violate that principle by restricting speech-based therapy because the local governments disagree with the message, ideas, subject matter, and content of the words spoken during their clients’ therapy. The local governments counter that their only intention is to protect minors from the harm that is surely caused by that speech, and say that because it is professional speech or conduct they have the power to limit it.

This is a case about what speech the First Amendment allows the government to ban, and under what circumstances. So the first question we need to consider is whether the ordinances are content-based regulations. If they are, we analyze them under strict scrutiny; if not, they receive the lighter touch of intermediate scrutiny or perhaps even rational basis review. "In cases at the margin, it may sometimes be difficult to figure out what constitutes speech protected by the First Amendment. But this is not a hard case in that respect." Wollschlaeger v. Governor, Fla. , 848 F.3d 1293, 1307 (11th Cir. 2017) (en banc). The answer to the content-based-or-not question turns out to be as easy here as it was in Wollschlaeger : because the ordinances depend on what is said, they are content-based restrictions that must receive strict scrutiny.

The local governments’ characterization of their ordinances as professional regulations cannot lower that bar. The Supreme Court has consistently rejected attempts to set aside the dangers of content-based speech regulation in professional settings: "As with other kinds of speech, regulating the content of professionals’ speech ‘pose[s] the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information.’ " Nat'l Inst. of Fam. & Life Advocs. v. Becerra , –––...