12/14/2012 09:16 pm ET Updated Feb 13, 2013

Sexual Orientation Change Therapy and the First Amendment

Earlier this year, California enacted a law that defines as "unprofessional conduct" any effort of a "mental health provider" to engage in "sexual orientation change efforts with a patient under 18 years of age."

According to a report of a committee of the California Senate, sexual orientation change efforts (known as SOCE) include such practices as "electric shock or nausea inducing drugs administered simultaneously with the presentation of homoerotic stimuli" and "psychoanalytic therapy." The legislature found that such practices, when used in an effort to change a minor's sexual orientation, are both harmful to the patient and ineffective. It therefore prohibited their use.

Before the law took effect on January 1, 2013, several mental health providers who practice SOCE filed suit in federal court to enjoin the implementation of the new law on the ground that it violates their rights under First Amendment. In Welch v. Brown, federal district judge William Shubb, in a thoughtful opinion, agreed with the plaintiffs and held the law unconstitutional.

Although Judge Shubb's opinion was thoughtful, it was also, in my view, wrong on the law.

I should say at the outset that I come to this question as one who pretty consistently takes a strong pro-free speech stance. I am a member of the National Advisory Council of the American Civil Liberties Union, a past Chair of the Board of the American Constitution Society, and a fervent advocate of the view that the First Amendment protects offensive and disturbing speech, including the right of individuals to sell videos of dog-fights, spew hate speech, watch "obscene" movies, and advocate the overthrow of government. Why, then, do I think Judge Shubb was wrong in Welch v. Brown?

Suppose California prohibits mental health providers to apply leeches to treat depression or to use electric-shock treatment to cure teenage acne. If in these situations a mental health provider were to argue that the First Amendment protects her right to use the therapy she thinks best, we would see immediately that in these examples the First Amendment is simply irrelevant. This is so for the obvious reason that no speech is involved in the application of leeches or the use of electro-shock. The First Amendment is about "the freedom of speech." It is not about the freedom of a mental health provider to use her treatment of choice. Such regulations may or may not be good public policy, but they do not implicate the First Amendment. The same is true when electric-shock or nausea-inducing drugs are used to "treat" homosexuality.

In Welch, however, Judge Shubb correctly noted that at least some forms of SOCE involve speech. That is, some forms of SOCE involve talk therapy, in which the therapist speaks with the patient. Thus, he reasoned, even if the California law is constitutional as applied to other forms of SOCE, such as electric-shock and the use of nausea-inducing drugs, it is unconstitutional as applied to talk therapy because talk therapy is, after all, "speech."

But this is too literal an understanding of the constitutional guarantee of "the freedom of speech." Sometimes conduct is speech (think of burning a flag) and sometimes speech is not "speech," as strange as that sounds. In this instance, for example, the speech involved in talk therapy is, for all practical purposes, analogous to electric-shock therapy. It is a method of therapy, and it is the method, not the speech as such, that is being regulated. This is a common phenomenon. The state can regulate bribery, threats, conspiracy, and many other forms of "speech" because, in context, what is being regulated is not the speech as such, but the underlying course of conduct, of which the speech is but a part.

This line is not always easy to draw, but it is easy in Welch. What the state is regulating in the context of SOCE is not the speech of the therapist as such but the use of a method of therapy. Whether that method involves words or pills or electric shock is of no moment. The speech is incidental to the regulation of the method of therapy, and It is no more a regulation of speech for First Amendment purposes for the government to regulate talk therapy than it is for it to regulate drug or electric shock therapy.

California would raise a serious First Amendment question if it prohibited mental health providers from writing about the benefits of SOCE, or recommending that patients consider using SOCE in a state where it is legal, or advocating for repeal of the law because it unwisely interferes with sound methods of therapy. But the California law does none of those things. The challenged law may or may not be good public policy, but it does not violate the First Amendment.