9th Circuit, With Dissents, Denies En Banc Review In Reparative Therapy Ban Challenge

As previously reported, last August in Pickup v. Brown, (9th Cir., Aug. 29, 2013), the U.S. 9th Circuit Court of Appeals upheld the constitutionality of California Senate Bill 1172 that bans state-licensed mental health providers from engaging in sexual orientation change efforts with patients under 18.  Yesterday in Pickup v. Brown, (9th Cir., Jan. 29, 2014),) the panel reaffirmed its holding in an amended opinion, and the full court (with 3 dissents) denied en banc review. The amended opinion-- apparently in response to dissenters' criticisms-- adds the discussion at pp. 39-41 distinguishing this case from the U.S. Supreme Court's 2010 decision in Holder v. Humanitarian Law Project.

In the dissent from yesterday' denial of review by the 9th Circuit, Judge O'Scannlain, joined by Judges Bea and Ikuta, said:

The State ... here, has prohibited licensed professionals from saying certain words to their clients. By labeling such speech as “conduct,” the panel’s opinion has entirely exempted such regulation from the First Amendment. In so doing, the panel contravenes recent Supreme Court precedent, ignores established free speech doctrine, misreads our cases, and thus insulates from First Amendment scrutiny California’s prohibition—in the guise of a professional regulation—of politically unpopular expression.

Volokh Conspiracy also discusses yesterday's action by the 9th Circuit.