Otto v. City of Boca Raton

• Decision Date: 20 July 2022
• Docket Number: 19-10604
• Parties: Robert W. OTTO, Julie H. Hamilton, Plaintiffs-Appellants, v. CITY OF BOCA RATON, FLORIDA, County of Palm Beach, FL, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

41 F.4th 1271 (Mem)

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

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

No. 19-10604

United States Court of Appeals, Eleventh Circuit.

Filed July 20, 2022

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, Eric Samuel Kay, Kozyak Tropin & Throckmorton, LLP, 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, Southern Poverty Law Center.

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

Shireen Barday, Gibson Dunn & Crutcher, LLP, New York, NY, for Amici Curiae The Trevor Project, The American Association of Suicidology.

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

Jessica Ring Amunson, Jenner & Block, LLP, Washington, DC, David S. Flugman, Selendy Gay Elsberg, PLLC, New York, NY, for Amicus Curiae Florida Psychological Association.

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

Brent Ray, Abigail Hoverman Terry, Rachael M. Trummel, King & Spalding, LLP, Chicago, IL, for Amicus Curiae Born Perfect.

Kerri McNulty, Hicks Porter Ebenfeld & Stein, PA, Miami, FL, Robert F. Rosenwald, City Attorney's Office of Miami Beach, Miami Beach, FL, for Municipal Amici (25 Cities and Counties).

David S. Flugman, Selendy Gay Elsberg, PLLC, New York, NY, for Amici Curiae Florida Psychological Association, Florida Chapter of the American Academy of Pediatrics, Inc., The American Foundation for Suicide Prevention.

Before William Pryor, Chief Judge, Wilson, Jordan, Rosenbaum, Jill Pryor, Newsom, Branch, Grant, Luck, Lagoa, and Brasher, Circuit Judges.

BY THE COURT:

A petition for rehearing having been filed and a member of this Court in active service having requested a poll on whether this case should be reheard by the Court sitting en banc, and a majority of the judges in active service on this Court having voted against granting rehearing en banc, it is ORDERED that this case will not be reheard en banc.

Grant, Circuit Judge, joined by Branch and Lagoa, Circuit Judges, concurring in the denial of rehearing en banc:

First Amendment jurisprudence is straightforward in at least one respect: it "requires that content-based speech restrictions satisfy strict scrutiny. And unless restrictions meet that demanding standard, whether the speech they target should be tolerated is simply not a question that we are allowed to consider, or a choice that we are allowed to make." Otto v. City of Boca Raton , 981 F.3d 854, 870 (11th Cir. 2020) (quotation and citations omitted). The city and county ordinances in this case, which prohibit talk therapy on a particular—and particularly controversial—subject, are no exception to this rule.

The challenged ordinances "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." Id. at 859. The perspective enforced by these local policies is extremely popular in many communities. And the speech barred by these ordinances is rejected by many as wrong, and even dangerous. But the First Amendment applies even to—especially to—speech that is widely unpopular.

The panel opinion thoroughly explains why a fair-minded and neutral application of longstanding First Amendment law dooms the ordinances. We write separately here to address our colleagues’ dissenting opinions and to reiterate the importance of the First Amendment protections at stake. Today's dissenters decry the result of the panel decision—namely, that speech they consider harmful is (or may be) constitutionally protected. But to reach their preferred outcomes, they ask us to ignore settled First Amendment law.

Consider our well-established standard of review for First Amendment cases. When reviewing constitutional facts underlying possible violations of the freedom of speech, we apply de novo, or plenary, review. ACLU of Florida, Inc. v. Miami-Dade Cnty. Sch. Bd. , 557 F.3d 1177, 1203 (11th Cir. 2009) ; see also Bose Corp. v. Consumers Union of U.S., Inc. , 466 U.S. 485, 501 n.17, 505–06 & 506 n.24, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984). Judge Jordan correctly applied this standard when writing for this Court in Wollschlaeger v. Governor of Florida , an en banc case in which we held that the government could not block doctors from speaking to their patients about guns. See 848 F.3d 1293, 1301 (11th Cir. 2017) (en banc). Remarkably, he now attacks that standard, emphasizing that we ordinarily review a district court's "factual findings for clear error" in an appeal from the grant or denial of a preliminary injunction. Indep. Party of Florida. v. Sec'y, Florida , 967 F.3d 1277, 1280 (11th Cir. 2020). Jordan Dissent at 1278–79.

That is true—but "First Amendment issues are not ordinary." ACLU of Florida , 557 F.3d at 1203. It has long been the rule that when we consider a preliminary injunction implicating the freedom of speech, "our review of the district court's findings of ‘constitutional facts,’ as distinguished from ordinary historical facts, is de novo ." Id. (quoting CAMP Legal Def. Fund, Inc. v. City of Atlanta , 451 F.3d 1257, 1268 (11th Cir.2006) ). Historical facts are the straightforward findings of the circumstances surrounding a case—here, for example, the dates on which the ordinances were passed. Constitutional facts, in contrast, are the "core facts" that determine whether a First Amendment violation has occurred. Id. at 1205.

Because "the reaches of the First Amendment are ultimately defined by the facts it is held to embrace," appellate courts must ourselves decide "whether a given course of conduct falls on the near or far side of the line of constitutional protection." Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, Inc. , 515 U.S. 557, 567, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995). Here, the question of whether the ordinances regulate speech or conduct—as Judge Jordan puts it, whether the therapy is "just talk"—goes well beyond historical fact. See Jordan Dissent at 1284. To defer on a factual issue so intertwined with the legal questions at stake would be to implicitly delegate legal judgment to the district court as well.

We cannot duck controversial issues by evading the standard of review for constitutional facts. The panel, as our precedents require, applied the proper standard: "plenary review." Wollschlaeger , 848 F.3d at 1301. And we are puzzled that Judge Jordan objects to applying the same standard he used in Wollschlaeger .

The next dissent also ignores the law of this Circuit and the Supreme Court. Citing dozens of interest group publications—none of which are in the record—Judge Rosenbaum criticizes the panel majority's "uninformed take on talk therapy." Rosenbaum Dissent at 1285; see id. at 1286–88, 1316–18 (citing publications). But we are not charged with performing our own internet investigation on the questions that come before us. In fact, doing so is out of bounds. See, e.g. , Turner v. Burnside , 541 F.3d 1077, 1086 (11th Cir. 2008) ("We do not consider facts outside the record.").

Our role is to independently review the record, not to develop it further.

Our role is also to apply the precedents that bind us, and Judge Rosenbaum's attempts to justify the ordinances only reveal that it is impossible to do so under existing law. To start, the dissent recognizes that ordinances like these are "necessarily content-based and would not survive the general presumption against content-based regulations and strict scrutiny." Rosenbaum Dissent at 1295. Exactly. As the panel opinion explains, the studies offered to the district court in support of the regulations contained "ambiguous proof" and "equivocal conclusions." Otto , 981 F.3d at 868–69 (quoting Brown v. Ent. Merchs. Ass'n , 564 U.S. 786, 800, 131 S.Ct. 2729, 180 L.Ed.2d 708 (2011) ). That is not enough to meet the "demanding standard" that strict scrutiny requires. Id. at 868, 131 S.Ct. 2729 (quoting Brown , 564 U.S. at 799, 131 S.Ct. 2729 ). Indeed, the dissent also concedes that—even considering the dramatic number of interest group publications and press releases that it identifies—these specific regulations cannot survive strict scrutiny. See Rosenbaum Dissent at 1295–96, 1286–88, 1316–18 (interest group publications).

Because ordinary First Amendment law will displace these speech bans, creative thinking is required to save them. In its attempt to persuade the reader otherwise, the dissent misreads First Amendment precedents. Take National Institute of Family & Life Advocates v. Becerra ( NIFLA ). Judge Rosenbaum cites that case as showing that the Supreme Court "permit[s] governments to impose content-based restrictions on speech with[ ] persuasive evidence ... of a long (if...