Nos.

13-949, 13-1281
================================================================
In The
Supreme Court of the United States
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DAVID PICKUP, ET AL.,
Petitioners,
v.
EDMUND G. BROWN JR., ET AL.,
Respondents,
and
EQUALITY CALIFORNIA,
Respondent.
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DONALD WELCH, ET AL.,
Petitioners,
v.
EDMUND G. BROWN JR., ET AL.,
Respondents.
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On Petitions For Writs Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit
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RESPONDENTS BRIEF IN OPPOSITION
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KAMALA D. HARRIS
Attorney General of California
EDWARD C. DUMONT
Solicitor General
DOUGLAS J. WOODS
Senior Assistant Attorney General
TAMAR PACHTER
Supervising Deputy Attorney General
GREGORY D. BROWN
CRAIG J. KONNOTH
Deputy Solicitors General
AARON D. JONES
ALEXANDRA ROBERT GORDON*
Deputy Attorneys General
455 Golden Gate Ave., Suite 11000
San Francisco, CA 94102-7004
Telephone: (415) 703-5509
Alexandra.RobertGordon@doj.ca.gov
*Counsel of Record
================================================================
i

QUESTIONS PRESENTED
1


1. Whether a State may prohibit state-licensed
mental health professionals from providing a
treatment to minors that the Legislature has
reasonably determined falls below the acceptable
level of care, without offending the First Amend-
ment.
1

2. Whether a statute that regulates professional
practice in terms that are clear and well-
understood within the profession is unconsti-
tutionally vague or overbroad.
3. Whether parents have a fundamental right to
obtain for their children a type of treatment that
the State has reasonably determined to be harm-
ful.



1
Petitioners in Welch v. Brown, No. 13-1281, raise only the
first question. Petitioners in Pickup v. Brown, No. 13-949, raise
all three questions.
ii

TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ................................ i
TABLE OF CONTENTS ...................................... ii
TABLE OF AUTHORITIES ................................. iii
STATEMENT ....................................................... 1
ARGUMENT ........................................................ 11
CONCLUSION ..................................................... 34

iii

TABLE OF AUTHORITIES
Page
CASES
Accountants Soc. of Virginia v. Bowman, 860
F.2d 602 (4th Cir. 1988) .......................................... 28
Am. Life League, Inc. v. Reno, 47 F.3d 642 (4th
Cir. 1995) ................................................................. 31
Arcara v. Cloud Books, 478 U.S. 697 (1986) .............. 21
Argello v. City of Lincoln, 143 F.3d 1152 (8th
Cir. 1998) ................................................................. 29
Barsky v. Bd. of Regents of University of State
of New York, 347 U.S. 442 (1954) ........................... 12
Bd. of Trustees v. Fox, 492 U.S. 469 (1989) .......... 12, 13
Brandenburg v. Ohio, 395 U.S. 444 (1969) ................ 16
Brown v. Entmt Merchants Assn, 131 S. Ct.
2729 (2011) ........................................................ 14, 18
Canady v. Bossier Parish Sch. Bd., 240 F.3d
437 (5th Cir. 2001) .................................................. 31
Chatin v. Coombe, 186 F.3d 82 (2d Cir. 1999) ........... 31
City of Dallas v. Stanglin, 490 U.S. 19 (1989) ........... 15
Coggeshall v. Mass. Bd. of Registration of Psy-
chologists, 604 F.3d 658 (1st Cir. 2010) ............ 27, 28
Conant v. Walters, 309 F.3d 629 (9th Cir. 2002) ..... 28, 29
Conchatta Inc. v. Miller, 458 F.3d 258 (3d Cir.
2006) ........................................................................ 30
Connally v. General Construction Company,
269 U.S. 385 (1926) ................................................. 24
iv

TABLE OF AUTHORITIES Continued
Page
Cooksey v. Futrell, 721 F.3d 226 (4th Cir. 2013) ... 29, 30
Daly v. Sprague, 742 F.2d 896 (5th Cir. 1984) ........... 28
Day v. Holahan, 34 F.3d 1356 (8th Cir. 1994) ........... 30
Denver Area Educational Telecommunications
Consortium, Inc. v. F.C.C., 518 U.S. 727 (1996) ....... 16
Discount Tobacco City & Lottery, Inc. v. United
States, 674 F.3d 509 (6th Cir. 2012) ....................... 32
Doe v. Heck, 327 F.3d 492 (7th Cir. 2003) .................. 33
Egolf v. Witmer, 526 F.3d 104 (3d Cir. 2008) ............. 30
Fields v. Palmdale School District, 427 F.3d
1197 (9th Cir. 2005) ................................................. 33
Free Speech Coalition, Inc. v. AG of the United
States, 677 F.3d 519 (3d Cir. 2012) ......................... 32
Giboney v. Empire Storage & Ice Co., 336 U.S.
490 (1949) ...................................................... 9, 12, 16
Goldfarb v. Va. State Bank, 421 U.S. 773 (1975) ....... 12
Healy v. James, 408 U.S. 169 (1972) .......................... 15
Heller v. Doe, 509 U.S. 312 (1993) ............................. 14
Hill v. Colorado, 530 U.S. 703 (2000) ........................ 23
Holder v. Humanitarian Law Project, 130 S. Ct.
2705 (2011) ............................................ 10, 19, 20, 21
Kickapoo Tribe of Oklahoma v. Rader, 822 F.2d
1493 (10th Cir. 1987) .............................................. 32
King v. Christie, No. 13-4429 (3d Cir.) ....................... 32
v

TABLE OF AUTHORITIES Continued
Page
King v. Christie, ___ F. Supp. 2d ___, 2013 WL
5970343 (D.N.J. Nov. 8, 2013) ................................ 27
Lambert v. Yellowley, 272 U.S. 581 (1926) ................. 18
Legal Services Corporation v. Velazquez, 531
U.S. 533 (2001) ........................................................ 22
Locke v. Shore, 634 F.3d 1185 (11th Cir. 2011) .......... 28
Lowe v. Sec. & Exch. Commn, 472 U.S. 181
(1985) ............................................................. 9, 12, 13
McGlone v. Cheek, 534 F.Appx 293 (6th Cir.
2013) ........................................................................ 31
Mitchell v. Clayton, 995 F.2d 772 (7th Cir.
1993) ........................................................................ 32
Moore-King v. County of Chesterfield, 708 F.3d
560 (4th Cir. 2013) .................................................. 28
Nally v. Grace Cmty. Church, 763 P.2d 948
(Cal. 1988) ................................................................. 7
National Association for the Advancement of
Psychoanalysis v. California Board of Psy-
chology, 228 F.3d 1043 (9th Cir. 2000) ........ 17, 28, 29
Nefedro v. Montgomery County, 414 Md. 585
(Md. 2010) ............................................................... 29
Nev. Commn on Ethics v. Carrigan, 131 S. Ct.
2343 (2011) .............................................................. 19
Ohralik v. Ohio State Bar Assn, 436 U.S. 447
(1978) ....................................................................... 12
Parham v. J.R., 442 U.S. 584 (1979).......................... 26
vi

TABLE OF AUTHORITIES Continued
Page
Planned Parenthood of Southeastern Penn. v.
Casey, 505 U.S. 833 (1992) ................................. 9, 13
Rumsfeld v. Forum for Academic & Institutional
Rights, Inc., 547 U.S. 47 (2006) ...... 10, 15, 19, 21, 23
Sable Commn of Cal. v. FCC, 492 U.S. 115
(1989) ....................................................................... 23
Schware v. Bd. of Bar Examiners, 353 U.S. 232
(1957) ....................................................................... 13
Snyder v. Phelps, 131 S. Ct. 1207 (2011) ..................... 9
Solantic, LLC v. City of Neptune Beach, 410
F.3d 1250 (11th Cir. 2005) ....................................... 30
Sons of Confederate Veterans, Inc. v. Commn of
Virginia Dept of Motor Vehicles, 288 F.3d 610
(4th Cir. 2002) ......................................................... 30
Sorrell v. IMS Health Inc., 131 S. Ct. 2653
(2011) ................................................................. 21, 29
Texas v. Johnson, 491 U.S. 397 (1989) ....................... 18
Thomas v. Collins, 323 U.S. 516 (1945) ..................... 13
United States v. Alvarez, 132 S. Ct. 2537 (2012) ....... 18
United States v. Caronia, 703 F.3d 149 (2d Cir.
2012) ........................................................................ 29
United States v. OBrien, 391 U.S. 367 (1968) .... 18, 23, 30
United States v. Playboy Entmt Grp., Inc., 529
U.S. 803 (2000) ........................................................ 14
United States v. Stevens, 559 U.S. 460 (2010) ........... 25
vii

TABLE OF AUTHORITIES Continued
Page
Video Software Dealers Assn v. Schwarzenegger,
556 F.3d 950 (9th Cir. 2009) ................................... 14
Virginia Bd. of Pharmacy v. Virginia Citizens
Consumer Council, Inc., 425 U.S. 748 (1976) ........ 21
Virginia v. Hicks, 539 U.S. 113 (2003) ....................... 24
Watson v. Maryland, 218 U.S. 173 (1910) ................. 12
Whalen v. Roe, 429 U.S. 589 (1977) ........................... 13
Williamson v. Lee Optical, Inc., 348 U.S. 483
(1955) ....................................................................... 19
Wisniewski v. United States, 353 U.S. 901 (1957) ...... 28

STATUTES
California Business and Professions Code
651(b)(7) ................................................................ 17
865 .................................................................... 6, 24
2063......................................................................... 7
2908......................................................................... 7
4980.01(b) ............................................................... 7
4996.13 .................................................................... 7
4999.90(s).............................................................. 17
California Statutes 2012 Chapter 835
1(a)-(m) ................................................................ 14
1(b)-(m) ............................................................ 3, 22
1(n) .......................................................................... 4

viii

TABLE OF AUTHORITIES Continued
Page
CONSTITUTIONAL PROVISIONS
United States Const., amend. I .......................... passim
United States Const., amend. XIV ............................. 25

STATE BILLS
Massachusetts H.B. 154 ............................................. 27
Washington H.B. 2451 ................................................ 27
Pennsylvania H.B. 2691 ............................................. 27
Illinois H.B. 5568 ........................................................ 27
Ohio S.B. No. 188 ....................................................... 27
Florida S.B. 240 .......................................................... 27
Wisconsin S.B. 481 ..................................................... 27
Minnesota S.F. No. 1727 ............................................ 27
New York S4917A-2013 .............................................. 27
District of Columbia Conversion Therapy for
Minors Prohibition Amendment Act of 2013 .......... 27

OTHER AUTHORITIES
American Psychological Association, Appropri-
ate Therapeutic Responses to Sexual Orienta-
tion (2009) ................................................................. 2
APA Resolution on Appropriate Affirmative Re-
sponses to Sexual Orientation Distress and
Change Efforts (August 5, 2009) .............................. 5
ix

TABLE OF AUTHORITIES Continued
Page
Benedict Carey, Psychology Giant Sorry for
Backing Gay Cure, N.Y. TIMES, May 18,
2012 ........................................................................... 4
Douglas C. Haldeman, Sexual Orientation Con-
version Therapy for Gay Men and Lesbians:
A Scientific Study, in HOMOSEXUALITY: RE-
SEARCH IMPLICATIONS FOR PUBLIC POLICY 149
(John C. Gonsoriek & James D. Weinrick,
eds., 1991) .................................................................. 2
Erinn McClam & Miranda Leitsinger, Ex-Gay
Group Says Its Shutting Down: Leader Apolo-
gizes for Pain and Hurt, NBC NEWS, June
20, 2013 ..................................................................... 4
Kathleen Sullivan, The Intersection of Free
Speech and the Legal Profession: Constraints
on Lawyers First Amendment Rights, 67
Fordham L. Rev. 569 (1998) .................................... 16
Robert Post, Informed Consent to Abortion:
A First Amendment Analysis of Compelled
Physician Speech, 2007 U. Ill. L. Rev. 939
(2007) ................................................................. 16, 22
S. Comm. on Bus., Professions & Econ. Dev.,
Comm. Analysis of SB 1172 (Apr. 19, 2012) ............. 2
1
STATEMENT
To protect the health and safety of its children
and teenagers, California enacted Senate Bill (SB)
1172, which prohibits licensed mental health providers
from administering to minors an ineffective and po-
tentially harmful therapy known as sexual orientation
change efforts (SOCE). In a well-reasoned opinion,
the Ninth Circuit rejected constitutional challenges to
this law, holding that it is a permissible regulation of
professional conduct, that the First Amendment does
not require heightened scrutiny for regulation of
treatments performed through speaking, and that SB
1172 satisfies rational basis review. Neither Pickup
nor Welch petitioners have demonstrated any basis
for this Court to grant certiorari review.
As the Ninth Circuit recognized, SB 1172 regu-
lates a particular treatment, not expression. SB 1172
does not prevent petitioners from communicating
opinions, ideas, and values to their patients, their
patients parents, or the public generally. All SB 1172
does is prohibit mental health providers from using
their state license to provide a treatment to minors
that fails to meet professional standards of care. The
Ninth Circuits decision is correct, it does not conflict
with any decision of this Court or of any other cir-
cuits, and, thus, review by this Court is not warranted.
Further, any grant of review would be premature
as other state legislatures have passed or are consid-
ering regulations similar to SB 1172 and other cir-
cuits have not yet had the opportunity to address the
constitutionality of these regulations.
2
1. SOCE, also commonly referred to as repara-
tive or conversion therapy, encompasses a variety
of mental health treatments that share the common
goal of changing an individuals sexual orientation
from homosexual to heterosexual. App. 35a.
2
These
treatments stem from the belief that homosexuality is
a mental illness or disorder. SOCE generally falls into
two categories: aversive or nonaversive therapies.
Aversive therapies include inducing nausea, vomiting,
or paralysis; providing electric shocks; or having the
individual snap an elastic band around the wrist
upon arousal by same-sex erotic images or thoughts.
Nonaversive therapies include talk therapy, hyp-
nosis, and behavioral therapies, targeted towards
dating skills, assertiveness, and affection training. Id.
at 35a (citing American Psychological Association,
Appropriate Therapeutic Responses to Sexual Orienta-
tion 22 (2009) (APA Report)). Behavioral therapies
are designed to move patients toward gender roles
perceived as appropriate, and include participation in
sports activities, avoidance of the other sex unless for
romantic contact, avoiding contact with homosexuals,
increasing time spent with heterosexuals, engaging
in group therapy, marrying a person of the opposite
sex and fathering children, visits to prostitutes and
intensive bicycle riding. See S. Comm. on Bus., Pro-
fessions & Econ. Dev., Comm. Analysis of SB 1172,
at 8 (Apr. 19, 2012); Douglas C. Haldeman, Sexual


2
All appendix references are to the appendix to the petition
in Pickup v. Brown, No. 13-949.
3
Orientation Conversion Therapy for Gay Men and
Lesbians: A Scientific Study, in HOMOSEXUALITY: RE-
SEARCH IMPLICATIONS FOR PUBLIC POLICY 149 (John C.
Gonsoriek & James D. Weinrick, eds., 1991). Aversive
therapies persist, although practitioners of SOCE
more commonly use forms of talk therapy today.
Mainstream mental health professionals aban-
doned more than forty years ago the idea that
homosexuality is a disease or disorder that can or
should be cured. App. 36a, 257a. Every mainstream
organization of mental health professionals, including
the American Psychological Association, American
Psychiatric Association, American School Counselor
Association, American Academy of Pediatrics, Ameri-
can Medical Association, National Association of
Social Workers, American Counseling Association,
American Psychoanalytic Association, and the Pan
American Health Organization, advises against SOCE.
These organizations have concluded that SOCE
conflicts with the modern scientific understanding of
sexual orientation, that there is no reliable evidence
that it is effective, and that it poses serious risks of
harm and consequently, that it should not be used.
Id. 1(b)-(m), App. 258a-265a.
3



3
Notably, even some of the former leading practitioners and
advocates of SOCE agree that it does not work and is harmful.
For example, in April 2012, Dr. Robert Spitzer, author of a
widely cited 2001 study claiming that individuals are capable of
changing their orientation through therapy, admitted that his
study was methodologically flawed and withdrew his findings.
(Continued on following page)
4
2. Based on the professional consensus that
SOCE is ineffective, unsafe, and contraindicated, the
California Legislature enacted SB 1172 to protect[ ]
the physical and psychological well-being of minors,
including lesbian, gay, bisexual, and transgender
youth, and [to] protect[ ] its minors against exposure
to serious harms caused by sexual orientation change
efforts. Cal. Stats. 2012, ch. 835 1(n), App. 265a.
The Legislature relied upon the determination of the
American Psychological Association, made after an
extensive review of the scientific literature on SOCE,
that (1) there is no reliable evidence that SOCE can
change sexual orientation; and (2) SOCE can pose
critical health risks to lesbian, gay, and bisexual
people, including confusion, depression, guilt, helpless-
ness, hopelessness, shame, social withdrawal, suici-
dality, and substance abuse, among other injurious
consequences. Id. 1(b), App. 258a.
4
The American

See Benedict Carey, Psychology Giant Sorry for Backing Gay
Cure, N.Y. TIMES, May 18, 2012, at A1. In June 2013, Exodus
International, which had been among the most prominent
organizations promoting SOCE, announced that it was closing
its doors. Its president, Alan Chambers, acknowledged that
SOCE, at best, does not work and apologized for having pro-
moted sexual orientation change efforts and reparative theories
about sexual orientation. Erinn McClam & Miranda Leitsinger,
Ex-Gay Group Says Its Shutting Down: Leader Apologizes for
Pain and Hurt, NBC NEWS, June 20, 2013.

4
Pickup petitioners and amicus American College of
Pediatricians attempt to minimize the significance of the APA
Report by quoting selectively from it. They cite statements in
the Report that there is no meaningful evidence regarding the
efficacy of SOCE and no study to date of adequate scientific
(Continued on following page)
5
Academy of Pediatrics disavowed the practice of
SOCE as early as 1993, stating in a published article
that such efforts can provoke guilt and anxiety while
having little or no potential for achieving changes in
orientation. Id. 1(f), App. 261a. The American
Academy of Child and Adolescent Psychiatry conclud-
ed that SOCE may encourage family rejection and
undermine self-esteem, connectedness and caring,
important protective factors against suicidal ideation
and attempts. Id. 1(k), App. 263a-264a. The Legis-
lature also cited peer-reviewed research that SOCE is
particularly harmful to children who are already at
high risk of suicide and other serious health prob-
lems. Id. 1(m), App. 264a-265a (citing Caitlin Ryan
et al., Family Rejection as a Predictor of Negative
Health Outcomes in White and Latino Lesbian, Gay,

rigor regarding harm caused by SOCE. Pickup Pet. 6; Amicus
Brief 11-12. Petitioners and amicus, however, overlook that the
purpose of the APA Report was not to prove or disprove that
SOCE is effective or harmful, but to perform a systematic review
of and evaluate all the studies undertaken by proponents of
SOCE. APA Report at 2-3, http://www.apa.org/pi/lgbt/resources/
therapeutic-response.pdf (last visited May 22, 2014). While the
Report noted that SOCE practitioners provided inadequate proof
of its safety, it also detailed the considerable indications of
serious harm caused by SOCE and thus concluded that SOCE
should be avoided. APA Resolution on Appropriate Affirmative
Responses to Sexual Orientation Distress and Change Efforts
(August 5, 2009). As discussed above, more recent studies, peer
reviewed research, and the reports of every leading mental
health organization document the serious risks of harm caused
by SOCE. By contrast, petitioners provide no admissible evidence
in support of their assertions that SOCE is beneficial.
6
and Bisexual Young Adults, 123 Pediatrics 346
(2009)).
3. SB 1172 prohibits mental health providers
licensed by the State of California from engag[ing] in
sexual orientation change efforts with a patient
under 18 years of age. Cal. Business & Professions
Code 865.1, App. 267a. SB 1172 defines SOCE as
any practices by mental health providers that seek
to change an individuals sexual orientation. This in-
cludes efforts to change behaviors or gender expres-
sions, or to eliminate or reduce sexual or romantic
attractions or feelings toward individuals of the same
sex. Id. 865(b)(1), App. 266a-267a. Violations of the
statute can subject mental health providers to profes-
sional discipline by their respective licensing entities.
Id. at 865.2, App. 267a. Mental health professionals
remain free, however, to express to anyone any view
they may have about sexual orientation and attrac-
tion, including that homosexuality can be reduced or
eliminated. App. 38a-39a.
As defined, SOCE does not include psycho-
therapies that: (A) provide acceptance, support, and
understanding of clients or the facilitation of clients
coping, social support, and identity exploration and
development, including sexual orientation-neutral in-
terventions to prevent or address unlawful conduct or
unsafe sexual practices; and (B) do not seek to change
sexual orientation. Cal. Business & Professions Code
865(b)(2), App. 267a. Affirmative therapy means
providing competent care by assisting and affirming

7
the clients own experience without any treatment
goal regarding how clients should identify or express
their sexual orientation. See APA Report at 14.
SB 1172 does not apply to ordained members of
the clergy, or pastoral or other religious counselors
who do not hold themselves out as licensed mental
health professionals, because they are exempt from
the regulatory scheme that governs state-licensed
mental health professionals. See Cal. Business &
Professions Code 2063, 2908, 4980.01(b), 4996.13;
see also Nally v. Grace Cmty. Church, 763 P.2d 948,
959 (Cal. 1988).
4a. Shortly after the Governor signed SB 1172,
two lawsuits challenging its validity, Pickup v. Brown
and Welch v. Brown, were filed in the United States
District Court for the Eastern District of California.
Both sought declaratory relief and an injunction to
bar respondents from enforcing SB 1172. The cases
were assigned to different district court judges.
Both sets of plaintiffs moved for a preliminary
injunction. In Pickup, the district court denied the
motion finding that plaintiffs had no likelihood of
success on the merits of any of their claims. In Welch,
the district court granted the motion as to the three
named plaintiffs, finding that they were likely to
succeed on the merits of their First Amendment
8
speech claim. App. 156a-241a.
5
The Pickup petitioners
appealed the Pickup order, and the state respondents
appealed the Welch order. On December 6, 2012, the
Pickup petitioners filed an emergency motion for an
injunction pending appeal, which the court of appeals
granted. Id. at 134a.
4b. The court of appeals addressed both appeals
in the same unanimous opinion, affirming the denial
of a preliminary injunction in Pickup and reversing
the grant of preliminary relief in Welch. Id. at 33a-
80a. Exercising plenary review, the court held that
the First Amendment does not prevent the State from
regulating mental health treatments, even those per-
formed entirely through speaking, such as talk ther-
apy. Id. at 34a, 62a.
The court of appeals recognized that SB 1172
does not restrict the dissemination of information, dis-
cussions, recommendations, or expressions of opinion
on any topic, including SOCE and homosexuality.
Id. at 38a-39a. Rather, the only thing a licensed
professional cannot do is avoid professional discipline
for practicing SOCE on a minor. Id. at 60a-61a
(emphasis in original).
The court of appeals reviewed the relevant
precedents from this Court and concluded that the
protection that professional speech enjoys depends on


5
Because the court in Welch granted relief based on the
Welch plaintiffs First Amendment speech claims, it declined to
reach their other arguments.
9
context and exists along a continuum. Id. at 51a-64a.
6

At one end of the continuum, where a professional
is engaged in a public dialogue and communicating
to the public on matters of public concern, First
Amendment protection is at its greatest. Id. at 51a
(citing Lowe, 472 U.S. at 228 (White, J., concurring in
result)). At the midpoint, within the confines of a
professional relationship, First Amendment protection
of a professionals speech is somewhat diminished.
Id. at 53a. As the court explained, [w]hen profes-
sionals, by means of their state-issued licenses, form
relationships with clients, the purpose of those rela-
tionships is to advance the welfare of the clients,
rather than to contribute to public debate. Id. at 56a.
Thus, a doctor may be liable for negligent medical
advice, as would a lawyer for divulging confidences
of his client. Id. at 54a-55a. And at the other end,
First Amendment protections are the most limited in
the regulation of professional conduct, where the
states power is great, even though such regulation
may have an incidental effect on speech. Id. at 56a.
Were it otherwise, then any prohibition of a particu-
lar medical treatment would raise First Amendment


6
Although petitioners assert that the Ninth Circuits
discussion of the continuum of protection for speech and conduct
by professionals is novel and/or fabricated, in fact, the court of
appeals relied upon the well-established jurisprudence of this
Court, including Snyder v. Phelps, 131 S. Ct. 1207, 1215 (2011);
Planned Parenthood of Southeastern Penn. v. Casey, 505 U.S.
833, 884 (1992) (plurality opinion); Lowe v. Sec. & Exch. Commn,
472 U.S. 181, 232 (1985); and Giboney v. Empire Storage & Ice
Co., 336 U.S. 490, 502 (1949). See App. 51a-64a.
10
concerns because of its incidental effect on speech.
Id. at 57a. Such conduct is not inherently expres-
sive and communicat[es] no message, and
therefore receives no First Amendment protection. Id.
at 60a-61a (citing Holder v. Humanitarian Law
Project, 130 S. Ct. 2705 (2011); Rumsfeld v. Forum for
Academic & Institutional Rights, Inc., 547 U.S. 47,
62, 126 S. Ct. 1297, 164 L. Ed. 2d 156 (2006) (FAIR)).
The court concluded that SB 1172, as a regula-
tion of treatment, is subject to deferential review
just as are other regulations of the practice of medi-
cine. Id. at 62a. The court of appeals further held
that SB 1172 is not unconstitutionally vague or
overbroad, concluding that the laws meaning is clear
enough to a reasonable person and should be even
more apparent to mental health providers regulated
by the law, and that [a]ny incidental effect [on
speech] . . . is small in comparison with the plainly
legitimate sweep of the law. Id. at 71a-75a (internal
quotation marks omitted). Finally, the court rejected
petitioners parental rights claim, reasoning that
there is no fundamental or privacy right to choose a
specific mental health treatment the state has rea-
sonably deemed harmful to minors. Id. at 80a.
Because SB 1172 regulates conduct, specifically a
type of mental health treatment, and not expressive
speech or activity, and because it does not implicate
any fundamental right, the court of appeals applied
rational basis scrutiny. Id. at 64a-67a. The court held
that given the States interest in protecting the
physical and psychological well-being of minors and
the evidence that SOCE is ineffective and unsafe,
11
lacks any scientific basis, and has been uniformly re-
jected by mainstream professional organizations, SB
1172 is a rational exercise of the States police power. Id.
Petitioners in both cases sought rehearing or
rehearing en banc. The court denied rehearing, with
three judges dissenting from the denial of rehearing
en banc. Id. at 7a-33a. On February 3, 2014, the court
granted the Pickup petitioners motion to stay the
courts mandate pending this Courts resolution of
petitions for certiorari.
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ARGUMENT
The petitions for certiorari should be denied. The
decision below is well reasoned, correctly follows this
Courts decisions, and does not conflict with the de-
cisions of any other circuit. Additionally, review in
this case would be premature, as the identical issues
are currently pending in the Third Circuit, and no
other circuit has yet addressed them.
1a. The Ninth Circuits opinion faithfully applied
the precedent of this Court in holding that SOCE,
even where delivered through talk therapy, is sub-
ject to reasonable state regulation. As the court of
appeals determined, SB 1172 regulates only (1) ther-
apeutic treatment, not expressive speech, by (2) li-
censed mental health professionals acting within the
confines of the counselor-client relationship. App.
59a. This Court has long recognized that the State
has extensive power to protect the public from unsafe
or unlawful professional practices even when such
practices are carried out through the use of words.
12
See, e.g., Goldfarb v. Va. State Bank, 421 U.S. 773,
792 (1975) ([A]s part of [States] power to protect the
public health, safety, and other valid interests they
have broad power to establish standards for licensing
practitioners and regulating the practice of profes-
sions.); Barsky v. Bd. of Regents of University of State
of New York, 347 U.S. 442, 451 (1954) (The practice of
medicine is a privilege granted by the State under its
substantially plenary power to fix the terms of admis-
sion.); Watson v. Maryland, 218 U.S. 173, 176 (1910)
(It is too well settled to require discussion at this day
that the police power of the states extends to the
regulation of certain trades and callings, particularly
those which closely concern the public health.).
The States power to protect the public health
and safety and proscribe harmful practices is not
diminished where professional conduct takes place
through speaking. This Court has stated unequivocal-
ly that [i]t has never been deemed an abridgement of
freedom of speech or press to make a course of con-
duct illegal merely because the conduct was in part
initiated, evidenced, or carried out by means of lan-
guage, either spoken, written, or printed. Giboney,
336 U.S. at 502; see also Lowe, 472 U.S. at 228 (1985)
(White, J., concurring in result) (The power of gov-
ernment to regulate the professions is not lost when-
ever the practice of a profession entails speech.)
(citation omitted);
7
Ohralik v. Ohio State Bar Assn,


7
Welch petitioners argue that Justice Whites concurrence
in Lowe, which sets forth guidelines for determining the point at
which a regulation of conduct, practice, or treatment becomes an
unconstitutional restriction on speech, has been contradicted
by this Court in such decisions as Bd. of Trustees v. Fox, 492
(Continued on following page)
13
436 U.S. 447, 459 (1978); Whalen v. Roe, 429 U.S.
589, 597-98, 600-03 (1977); Thomas v. Collins, 323
U.S. 516, 544 (1945) (Jackson, J., concurring). Most
legal practice, for example, involves speech in the
broadest sense, but state bar regulations are permis-
sible so long as they have a rational connection with
the applicants fitness or capacity to practice [the
profession]. Schware v. Bd. of Bar Examiners, 353
U.S. 232, 239 (1957). Similarly, this Court has stated
that where speech is part of the practice of medi-
cine, it is subject to reasonable licensing and
regulation by the State. Casey, 505 U.S. at 884
(1992).
Relying on these precedents, the court of appeals
concluded that the First Amendment does not pre-
vent a state from regulating treatment even when
that treatment is performed through speech alone,
App. 38a, and thus that SB 1172 is subject to defer-
ential review just as are other regulations of the

U.S. 469 (1989). Welch Pet. 26. Fox suggested in dicta that legal
advice and medical consultation were forms of non-commercial
speech because they did not propose a commercial transaction.
Id. at 482. This is not inconsistent with Justice Whites statement
that where there is a personal nexus between professional and
client, and the professionals speech is incidental to the con-
duct of the profession, the State has greater latitude to regulate
and the First Amendment is not operative. Lowe, 472 U.S. at
232. Moreover, while the court of appeals referenced Justice
Whites concurrence in its discussion of the range of constitu-
tional protection for speech by professionals, it is not the basis
for the panels determination that SOCE treatment is non-
expressive professional conduct subject to deferential review.
See App. 51a-64a.
14
practice of medicine, id. at 62a. The panel also
determined that the State has an interest in protect-
ing the physical and psychological well-being of
minors. It concluded that SB 1172 is a rational exer-
cise of the States police power given the evidence and
professional consensus that SOCE is ineffective and
unsafe. Id. at 64a-67a.
8

1b. Much of Pickup petitioners argument that
SB 1172 is an impermissible restriction on speech
that is subject to heightened scrutiny rests on the
premise that it prevents mental health providers
from offer[ing] the viewpoint that [same sex attrac-
tions] can be reduced or eliminated and otherwise
restricts discussions about SOCE or sexual orienta-
tion. See, e.g., Pickup Pet. at 24. However, petitioners
overstate the scope of the statute. SB 1172 does
not reference speech or communication; instead, the
statute directs a professional not to engag[e] in the


8
Amici Freedom X, et al., argue that, even under a rational
basis test, the court below should have determined that there
was insufficient evidence of harm from sexual orientation
change efforts to justify SB 1172. Amici Brief 8. The cases cited
by amici for this proposition, however, involve the application of
strict scrutiny, not rational basis review. See Video Software
Dealers Assn v. Schwarzenegger, 556 F.3d 950, 960 (9th Cir.
2009), aff d sub nom. Brown v. Entmt Merchants Assn, 131
S. Ct. 2729 (2011); United States v. Playboy Entmt Grp., Inc., 529
U.S. 803, 813 (2000). The legislative record, in particular the
professional consensus that SOCE is ineffective and harmful to
children, see Cal. Stats. 2012, ch. 835, 1(a)-(m), is more than
sufficient to establish that the Legislature had a rational basis
for acting as it did. See Heller v. Doe, 509 U.S. 312, 319 (1993).
15
practice of seeking to change a persons sexual orien-
tation, whether through aversive or talk therapy. SB
1172 only regulates the provision of mental health
treatment, but leaves mental health providers free to
discuss or recommend treatment and to express their
views on any topic. App. 39a.
1c. Petitioners contend that all speech, regard-
less of type or context, is entitled to the full comple-
ment of First Amendment protection. However, not
all speech is treated the same for First Amendment
purposes, and some does not implicate the First
Amendment at all. See, e.g., Healy v. James, 408 U.S.
169, 180 (1972) (First Amendment rights must
always be applied in light of the special characteris-
tics of the . . . environment in the particular case.)
(quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist.,
393 U.S. 503, 506 (1969)). The panel acknowledged,
and no one disputes, that petitioners employ talk
therapy and that they speak to their clients. See
App. 58a-59a. But the fact that delivery of SOCE (or
any other treatment) may require talking does not
immunize it from regulation, or subject that regula-
tion to heightened scrutiny. See FAIR, 547 U.S. at 66
(If combining speech and conduct were enough to
create expressive conduct, a regulated party could
always transform conduct into speech simply by
talking about it.); City of Dallas v. Stanglin, 490 U.S.
19, 25 (1989) (rejecting the idea that every activity
with some kernel of expression is entitled to First
Amendment protection). As the court of appeals
stated, most, if not all medical treatment requires
speech, but that fact does not give rise to a First
Amendment claim when the state bans a particular
16
treatment. App. 56a-57a (citing Giboney, 336 U.S. at
502). If petitioners argument were accepted, states
could no longer reasonably regulate professional con-
duct. Cf. Denver Area Educational Telecommunica-
tions Consortium, Inc. v. F.C.C., 518 U.S. 727, 741
(1996); Brandenburg v. Ohio, 395 U.S. 444, 445 (1969)
(Douglas, J., concurring).
Petitioners contend that SB 1172 is unprece-
dented, Pickup Pet. 6, but this type of regulation is
routine. States can and regularly do require
professionals to adhere to professional standards and
may discipline providers for violations of those stan-
dards without running afoul of the First Amendment.
For example, states regulate lawyers in a number of
ways that restrict speech, including rules of evidence
and procedure, bans on revealing grand jury testi-
mony, prohibitions on counseling a client to commit
perjury, restrictions on in-person solicitation, and sanc-
tions for frivolous pleadings. See generally Kathleen
Sullivan, The Intersection of Free Speech and the Le-
gal Profession: Constraints on Lawyers First Amend-
ment Rights, 67 Fordham L. Rev. 569 (1998) (Lawyers
freedom of speech is constrained in many ways that no
one would challenge seriously under the First Amend-
ment). Courts also regularly enforce professional
standards of knowledge and competence in medical
malpractice cases, where individual practitioners are
judged by whether they adhere to pertinent profes-
sional standards. Without so much as a nod to the
First Amendment, doctors are routinely held liable
for malpractice for speaking or for failing to speak.
Doctors commit malpractice for failing to inform
patients in a timely way of an accurate diagnosis, for
failing to give patients proper instructions, for failing
17
to ask patients necessary questions, or for failing to
refer a patient to an appropriate speicalist. See
Robert Post, Informed Consent to Abortion: A First
Amendment Analysis of Compelled Physician Speech,
2007 U. Ill. L. Rev. 939, 950-51 (2007). The State of
California routinely regulates and proscribes the
conduct of mental health professionals, including
where that conduct is carried out through language.
See, e.g., Cal. Business & Professions Code 651(b)(7)
(unlawful for licensed mental health professional to
make a scientific claim that cannot be substantiated
by reliable, peer reviewed, published scientific stud-
ies); 4999.90(s) (unprofessional conduct for licensed
clinical counselor to hold oneself out as being able to
perform professional services beyond the scope of
ones competence).
1d. SOCE is not inherently expressive. Although
Welch petitioners assert that their activities are in-
separable from the communication of their beliefs,
Welch Pet. 19, the purpose of mental health treat-
ment, like all health care, is to alleviate the suffering
or improve the health of a patient, not to afford a
practitioner an opportunity to communicate his or her
own message. National Association for the Advance-
ment of Psychoanalysis v. California Board of Psy-
chology (NAAP), 228 F.3d 1043, 1054 (9th Cir. 2000)
(holding that the key component of psychoanalysis is
the treatment of emotional suffering and depression,
not speech), cert. denied, 532 U.S. 972 (2001). While
almost every form of treatment, including making a
diagnosis or prescribing a drug, might convey, per-
haps intentionally, some kind of message, this Court
has admonished that it cannot accept the view that
18
an apparently limitless variety of conduct can be
labeled speech whenever the person engaging in the
conduct intends thereby to express an idea. United
States v. OBrien, 391 U.S. 367, 376 (1968).
9

Unlike burning a flag, distributing handbills, and
other forms of conduct that amount to symbolic
speech, SOCE therapy does not evince the requisite
intent to convey a particularized message of the
healthcare providers choosing. Nor would it likely
be understood by the patient as attempting to com-
municate such an expressive message, and thus, it
does not possess sufficient communicative elements
to bring the First Amendment into play. Texas
v. Johnson, 491 U.S. 397, 404 (1989) (quoting Spence
v. State of Wash., 418 U.S. 405, 410-11 (1974)).
10



9
Moreover, a licensed professional, whatever his personal
views may be, may not engage in practices reasonably prohibited
by the State. See Lambert v. Yellowley, 272 U.S. 581, 596-97
(1926).

10
For this reason, petitioners arguments that the court of
appeals decision conflicts with cases involving government
suppression of expressive speech or conduct, such as Brown v.
Entmt Merchants Assn, 131 S. Ct. 2729 (2011) and United States
v. Alvarez, 132 S. Ct. 2537 (2012), is incorrect. Unlike violent
video games, which [l]ike the protected books, plays, and movies
that preceded them . . . communicate ideas and even social
messages, Brown, 131 S. Ct. at 2733, or false statements about
receipt of military honors and decorations made at any time, in
any place, to any person, Alvarez, 132 S. Ct. at 2547, SOCE is a
form of treatment and does not communicate a message. Thus,
while these cases hold that the government cannot create a new
category of speech outside the scope of the First Amendment,
Alvarez, 132 S. Ct. at 2547, SB 1172 does not carve out a new
category of speech. Rather, the conduct that it regulates falls
(Continued on following page)
19
An observer who sees a professional engaging in a
practice in accordance with the state prescribed stan-
dard of care has no way of knowing whether the
professional endorses, disapproves, or is indifferent
to, the practice. FAIR, 547 U.S. at 66; see also Nev.
Commn on Ethics v. Carrigan, 131 S. Ct. 2343, 2350
(2011) (legislators vote could represent a deeply held
view, or an attempt to represent views of constitu-
ents, contributors, or party leadership). As the Ninth
Circuit concluded, the regulated activities are thera-
peutic, not symbolic, and the fact that they involve
language does not transform them into First Amend-
ment speech. App. 59a (citing Carrigan, 131 S. Ct. at
2350).
1e. The court of appeals correctly determined
that Holder v. Humanitarian Law Project, 130 S. Ct.
2705, is inapposite. That case did not involve the regu-
lation of licensed professionals and/or an ineffective
and unsafe treatment,
11
but rather addressed a stat-
ute making it a federal crime to knowingly provid[e]
material support or resources to a foreign terrorist
organization. Id. at 2712. Although it upheld the
challenged statute as constitutional under the First


squarely within the longstanding category of non-expressive
professional conduct that is subject to reasonable regulation by
the State. See, e.g., Williamson v. Lee Optical, Inc., 348 U.S. 483,
491 (1955).

11
Welch petitioners statement that plaintiffs in Humanitar-
ian Law Project were legal professionals practicing law is not
supported by the facts or analysis of that case. See 130 S. Ct. at
2712-13.
20
Amendment, this Court rejected the governments
argument that what the law proscribed was pure
conduct. Id. at 2723-24. As applied, the statute would
prohibit monetary contributions, other tangible aid,
legal training, and political advocacy. Thus, this
Court held that while the statute may be described
as directed at conduct, more rigorous scrutiny ap-
plied because the conduct triggering coverage under
the statute consist[ed] of communicating a message.
Id. at 2724. Petitioners seize upon this language and
insist that because the conduct regulated by SB 1172
also involves speaking about particular topics, the
Ninth Circuit impermissibly revives the conduct
versus speech dichotomy rejected by this Court in
[Humanitarian Law Project]. Welch Pet. 17; Pickup
Pet. 21.
This reading of Humanitarian Law Project ig-
nores the essential point that the conduct triggering
coverage under the statute consist[ed] of communi-
cating a message regarding how to resolve disputes
peacefully. 130 S. Ct. at 2724 (emphasis added). By
contrast, SB 1172 regulates mental health treatment,
which does not communicate a message and is not
expressive within the meaning of the First Amend-
ment.
12
While the State cannot regulate protected
speech merely by relabeling it conduct, it can regu-
late what is actually professional conduct, such as the


12
For these reasons, petitioners suggestions that Humani-
tarian Law Project dictates the application of content or view-
point analysis and/or intermediate scrutiny to SB 1172 also fail.
21
provision of mental health services pursuant to a
State license, so long as it has a rational basis for
doing so. See Arcara v. Cloud Books, 478 U.S. 697,
706-07 (1986) (First Amendment is not implicated by
the enforcement of a public health regulation of
general application and heightened scrutiny does not
apply to statute directed to nonexpressive activity);
FAIR, 547 U.S. at 65-66. Humanitarian Law Project
does not suggest otherwise.
Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (2011),
also does not support petitioners. There, a state stat-
ute forbade pharmacists to sell prescriber-identifying
information for use in marketing tactics and
increase[d] sales. Id. at 2660. On its face, the regu-
lation targeted commercial communications and so-
licitations, and discriminated against speech with a
particular content as well as against certain speak-
ers. Id. at 2663-65. Here, unlike in Sorrell, SB 1172
places no restriction on any protected speech and/or
the dissemination of information nor does it single
out and prevent any particular category of mental
health professionals from communicating with [pa-
tients] in an effective and informative manner. Id. at
2663. Petitioners reliance on Virginia Bd. of Phar-
macy v. Virginia Citizens Consumer Council, Inc., 425
U.S. 748 (1976), another commercial speech case, is
similarly inapt. SB 1172 does not suppress truthful
information in an attempt to protect against its
feared misuse. Id. at 773. Rather, it restricts a treat-
ment to minors in order to protect them from docu-
mented physical and psychological harm. App. 265a.
22
Finally, the Pickup petitioners reliance on Legal
Services Corporation v. Velazquez, 531 U.S. 533 (2001),
is misplaced. That case invalidated a statute that pre-
vented private, federally funded lawyers from bring-
ing challenges to welfare laws. Unlike in Velazquez,
SB 1172 does not alter the role of professionals by
prohibiting speech necessary to their proper function-
ing nor does it compel them to promote a government-
sanctioned viewpoint. See 531 U.S. at 545. Rather, it
forces licensed therapists to comply with professional
standards of competence by eliminating an anti-
scientific and unsafe practice.
1f. The Ninth Circuit properly determined that
because SB 1172 prohibits providing a kind of treat-
ment, rather than protected speech or conduct, con-
tent and viewpoint analysis does not apply. App. 63a;
see generally Post, supra, 2007 U. Ill. L. Rev. at 949-
51 (noting the inapplicability of First Amendment
viewpoint discrimination to most speech by medical
professionals). But even if content and viewpoint dis-
crimination analysis applied, the record demonstrates
that SB 1172 was enacted, not because of hostility to
any particular viewpoint, but rather, to comply with
the unanimous recommendations of leading psychiat-
ric organizations and protect the health and safety of
children. See Cal. Stats. 2012, ch. 835, 1(b)-(m),
App. 258a-264a. Although petitioners and amici
contend that by excepting affirmative therapies
from the definition of SOCE, SB 1172 licenses one
side of the debate over change efforts, affirmative
therapy, refers only to providing competent care by
23
affirming the clients experience and not any par-
ticular value judgment or viewpoint. See APA Report
at 14.
1g. The Ninth Circuit correctly rejected Pickup
petitioners argument that it was required, pursuant
to OBrien, 391 U.S. 367, and its progeny, to apply
intermediate scrutiny to SB 1172. See Pickup Pet. 32-
35. OBrien applies only to regulation of expressive
conduct or speech. 391 U.S. at 376-77; see also FAIR,
547 U.S. at 65-66. Accordingly, this Court has never
applied OBrien to laws regulating treatment by
state-licensed professionals. Moreover, even if SB
1172 were subject to the intermediate scrutiny called
for under OBrien, the State would have a compelling
interest in protecting minors against what the Legis-
lature reasonably concluded were serious risks to
their mental and physical health. See Sable Commn
of Cal. v. FCC, 492 U.S. 115, 126 (1989). SB 1172 is
narrowly tailored to serve that interest: it prohibits
only a particular treatment that the Legislature has
determined to be harmful; it applies only to minor
patients; and it does not prohibit any protected ex-
pression. See App. 38a-39a.
2. SB 1172 is not unconstitutionally vague. A
law affords adequate notice, and thus is not unconsti-
tutionally vague, if it provides people of ordinary
intelligence a reasonable opportunity to understand
what conduct it prohibits. Hill v. Colorado, 530 U.S.
703, 732 (2000). As the court of appeals observed, [a]
reasonable person would understand the statute to

24
regulate only mental health treatment, including
talk therapy, that aims to alter a minor patients
sexual orientation. App. 72a; see Cal. Business &
Professions Code 865(b)(1). Pickup petitioners as-
sert that therapists are foreclosed from even men-
tioning SOCE because the line between talking
about the pros and cons of SOCE and the practice of
SOCE is unclear. Pickup Pet. 40. However, the thera-
pist-petitioners are licensed mental health providers
who specialize in the practice of SOCE, and thus the
line between describing or recommending a treatment
and performing it should be well known to them.
Where, as here, a statute employs words or phrases
having a technical or other special meaning, well
enough known to enable those within their reach to
correctly apply them, the statute is not impermissi-
bly vague. Connally v. General Construction Com-
pany, 269 U.S. 385, 391-92 (1926). As the panel
stated, it is hard to understand how therapists who
identify themselves as SOCE practitioners can credi-
bly argue that they do not understand what practices
qualify as SOCE. App. at 73a.
3. SB 1172 also is not overbroad. This Court has
recognized that invalidating a law under the over-
breadth doctrine is strong medicine and has insisted
that the overbreadth be substantial, not only in an
absolute sense, but also relative to the scope of the
laws plainly legitimate applications. Virginia v.
Hicks, 539 U.S. 113, 119-20 (2003) (citation and in-
ternal quotation marks omitted). The court of appeals
correctly concluded that petitioners cannot make this
25
showing. SB 1172 prohibits only a specific, identifia-
ble treatment that the Legislature found to be in-
effective and harmful when performed on children,
leaving untouched petitioners ability to advocate for
SOCE in public or to discuss or recommend such
treatment to their patients.
United States v. Stevens, 559 U.S. 460 (2010),
which Pickup petitioners claim conflicts with the court
of appeals ruling, is inapplicable. In Stevens, the
Court invalidated as overbroad a ban on crush videos
that portrayed harmful acts against animals. As the
Court noted, the language of the statute did not
actually require that the depicted conduct be cruel,
id. at 474 (emphasis added), and could easily be read
to allow prosecution for protected speech such as
publishing news reports about animal cruelty, id. at
477-78. SB 1172, on the other hand, is plainly written
to prohibit only state-licensed medical professionals
from engaging in practices that attempt to change a
minors sexual orientation.
4. Parents do not have a constitutional right
under the Due Process Clause to a treatment that the
legislature has concluded is unsafe and ineffective.
The lower court provided a careful description of the
asserted fundamental liberty interest in evaluating
the Pickup petitioners claim that SB 1172 violates
the rights of parents. App. 76a (quoting Washington v.
Glucksberg, 521 U.S. 721 (1997)). Here, SB 1172
regulates the practices of state-licensed professionals;
it does not regulate parents. Accordingly, the court of

26
appeals correctly defined the right at issue to be
whether parents fundamental rights include the
right to choose for their children a particular type of
provider for a particular medical or mental health
treatment that the state has deemed harmful. App.
76a.
Petitioners fail to cite any precedent suggesting
that such a right exists. Pickup petitioners rely on
Parham v. J.R., 442 U.S. 584, 603 (1979), for the
proposition that parents fundamental rights include
an unfettered right to mak[e] important medical
decisions for their children. Pet. 45. Parham, how-
ever, specifically recognized that a state is not with-
out constitutional control over parental discretion in
dealing with children when their physical or mental
health is jeopardized. Id. at 603. Consistent with this
holding, the court of appeals ruled that the parent-
petitioners have no fundamental right to choose for
their children a particular mental health treatment
that the state has deemed harmful. App. 80a. As the
panel noted, all the courts that have considered
whether patients have the right to choose specific
treatments for themselves have concluded that they
do not, id. at 77a-78a (emphasis in original; citations
omitted), and it would be odd if parents had a sub-
stantive due process right to choose specific treat-
ments for their children . . . but not for themselves,
because this Court has recognized that the state has
greater power over children than over adults. Id. at

27
79a (citing Prince v. Massachusetts, 321 U.S. 158, 170
(1944)).
5a. There is no disagreement in the lower courts
about the constitutionality of laws that prohibit
licensed mental health professionals from practicing
SOCE on minors. In 2013, New Jersey passed a law
that is almost identical to SB 1172, which was also
challenged on First Amendment grounds.
13
The dis-
trict court for the District of New Jersey rejected
those challenges and, like the Ninth Circuit, held,
among other things, that the law (a) regulated con-
duct, not speech; (b) did not have any incidental effect
on speech; and (c) survived rational basis review.
See King v. Christie, ___ F. Supp. 2d ___, 2013 WL
5970343 (D.N.J. Nov. 8, 2013), appeal pending, No.
13-4429 (3d Cir.).
In other contexts, courts that have addressed the
question uniformly have determined that professional
conduct, even if carried out through language, does
not trigger heightened scrutiny. For example, in
Coggeshall v. Mass. Bd. of Registration of Psycholo-
gists, the First Circuit rejected a First Amendment
challenge to professional discipline of psychologists,


13
Similar bills have been introduced in at least nine states
and the District of Columbia. See, e.g., Massachusetts H.B. 154;
Pennsylvania H.B. 2691; Ohio S.B. No. 188; New York S4917A-
2013; Washington H.B. 2451; District of Columbia Conversion
Therapy for Minors Prohibition Amendment Act of 2013; Illinois
H.B. 5568; Florida S.B. 240; Minnesota S.F. No. 1727; Wisconsin
S.B. 481.
28
explaining that [s]imply because speech occurs does
not exempt those who practice a profession from state
regulation[.] 604 F.3d 658, 667 (1st Cir. 2010); see
also Moore-King v. County of Chesterfield, 708 F.3d
560, 569 (4th Cir. 2013) ([T]he government can
license and regulate those who would provide services
to their clients for compensation without running
afoul of the First Amendment.); Accountants Soc. of
Virginia v. Bowman, 860 F.2d 602, 604 (4th Cir. 1988)
(Professional regulation is not invalid, nor is it sub-
ject to first amendment strict scrutiny, merely because
it restricts some kinds of speech.); Locke v. Shore,
634 F.3d 1185, 1191 (11th Cir. 2011) (Because the
license requirement governs occupational conduct,
and not a substantial amount of protected speech, it
does not implicate constitutionally protected activity
under the First Amendment.) (citation omitted); Daly
v. Sprague, 742 F.2d 896 (5th Cir. 1984) ([R]easona-
ble restraints on the practice of medicine and profes-
sional actions cannot be defeated by pointing to the
fact that communication is involved.).
5b. Petitioners cite no case in which courts have
subjected the regulation of professional conduct to
heightened First Amendment scrutiny, even where the
conduct is carried out through language.
14
The Welch


14
Pickup petitioners contend that this Court should grant
certiorari to resolve a purported intra-circuit split between the
Ninth Circuits decision here and its decisions in NAAP, 228 F.3d
1043 and Conant v. Walters, 309 F.3d 629 (9th Cir. 2002). Intra-
circuit conflict is not generally a basis for this Courts review.
Wisniewski v. United States, 353 U.S. 901, 902 (1957). In any
(Continued on following page)
29
petitioners rely on United States v. Caronia, 703 F.3d
149, 154-55 (2d Cir. 2012), which, like Sorrell, supra,
involved the suppression of commercial speech that
promot[ed] or market[ed] drugs for off-label
use. At stake was expression that promoted commer-
cial sales, rather than a treatment delivered through
words. Similarly, the ban on fortune telling invalidat-
ed in Argello v. City of Lincoln, 143 F.3d 1152, 1153
(8th Cir. 1998) was an attempt by government [to]
declare certain beliefs for example, that someone
can see into the future forbidden. In Nefedro v.
Montgomery County, 414 Md. 585 (Md. 2010), the
Maryland Court of Appeals invalidated an ordinance
that prohibited the acceptance of remuneration for
fortune telling because it impermissibly impose[d]
a significant burden on expressive activity. Id. at
595-96, 599. These cases addressed the regulation of
protected speech and activity, and thus are distin-
guishable from the regulation of licensed professional
conduct at issue here.
The First Amendment cases on which the Pickup
petitioners rely similarly do not demonstrate any
conflict. See Pickup Pet. 27-31. Cooksey v. Futrell, 721
F.3d 226 (4th Cir. 2013), is inapposite because it

event, there is no conflict. As the court of appeals explained, the
limited reach of SB1172 . . . distinguishes . . . Conant, in which
the governments policy prohibited speech wholly apart from the
actual provision of treatment. App. 57a-58a. And the court of
appeals decision in this case is consistent with NAAPs holding
that talk therapy is not entitled to special First Amendment
protection. Id. at 62a.
30
concerned only First Amendment standing and ripe-
ness requirements and expressly declined to address
the merits of the plaintiffs claims. See id. at 235, 239,
240-41. The remaining cases do not consider licensed
professional services, but address restrictions on ex-
pressive communication. See, e.g., Sons of Confederate
Veterans, Inc. v. Commn of Virginia Dept of Motor
Vehicles, 288 F.3d 610, 614 (4th Cir. 2002) (analyzing
whether a policy that restricted a Confederate flag
logo on a license plate passed First Amendment
scrutiny); Day v. Holahan, 34 F.3d 1356, 1360 (8th
Cir. 1994) (holding that regulation of independent
election expenditures infringes on . . . protected
speech because of the chilling effect the statute has
on the political speech of the person or group making
the independent expenditure); Solantic, LLC v. City
of Neptune Beach, 410 F.3d 1250, 1256-57 (11th Cir.
2005) (invalidating a regulation concerning the post-
ing of public signs that exempted certain categories of
signs based on their content).
Nor is there any conflict concerning the reach of
OBriens intermediate scrutiny test. That test applies
only to laws that burden expressive conduct, and
none of the cases cited by Pickup petitioners applied
OBrien to a law akin to SB 1172s regulation of a
licensed professional practice. See Egolf v. Witmer,
526 F.3d 104, 109 (3d Cir. 2008) (affirming grant of
qualified immunity to police officers who arrested
partially clad political protestors under anti-lewdness
statute); Conchatta Inc. v. Miller, 458 F.3d 258, 261,
266 (3d Cir. 2006) (considering challenge [to] a
31
Pennsylvania Liquor Code statute and regulation
that prohibit[ed] lewd entertainment at any licensed
establishment that the court found appl[ied] to a
variety of performances that are entitled to the full
protection of the First Amendment); Am. Life League,
Inc. v. Reno, 47 F.3d 642, 645 (4th Cir. 1995) (con-
sidering challenge by abortion protesters to Freedom
of Access to Clinic Entrances Act); Canady v. Bossier
Parish Sch. Bd., 240 F.3d 437, 440 (5th Cir. 2001)
(considering challenge by parents and students to
mandatory school uniform policy that prevented stu-
dents from wearing clothes with written messages sup-
porting political candidates or important social issues).
5c. The cases that the Pickup petitioners cite in
support of their vagueness claims are not in conflict
with the Ninth Circuits decision here. The regula-
tions invalidated as unconstitutionally vague in these
cases bear no similarity to SB 1172. In McGlone v.
Cheek, 534 F.Appx 293 (6th Cir. 2013), the Sixth
Circuit found a universitys policies requiring that
outside speakers obtain sponsorship in order to speak
on campus were unconstitutionally vague because the
sponsorship requirement consist[ed] of two policies
that [we]re contradictory on their face, leaving it un-
clear . . . who has the authority to grant sponsorship.
Id. at 299 (emphasis added). In Chatin v. Coombe,
186 F.3d 82, 87-89 (2d Cir. 1999), the Second Circuit
held that a prison rule that prohibited unauthorized
religious services was unconstitutionally vague as
applied to a prisoner cited for engaging in silent,
solitary prayer because it did not provide adequate
notice that it applied to such activity. Id. at 84, 87.
32
The overbreadth cases cited by Pickup petitioners
are also distinguishable. See Free Speech Coalition,
Inc. v. AG of the United States, 677 F.3d 519, 538 (3d
Cir. 2012) (child pornography statutes that imposed
recordkeeping, labeling, and inspection requirements
held overbroad because they unduly burdened con-
stitutionally protected expression involving sexually
oriented images of adults); Discount Tobacco City &
Lottery, Inc. v. United States, 674 F.3d 509 (6th Cir.
2012) (ban on use of color and imagery in tobacco
advertising held overbroad because it reached far
beyond legitimate purpose of preventing deceptive or
manipulative advertising).
5d. Pickup petitioners claim that the Ninth
Circuits decision created a split in the circuits with
respect to parental rights is erroneous. The circuits
uniformly have held that there is no fundamental
right or privacy interest, either on ones own behalf or
on behalf of ones children, to particular medical
treatments reasonably prohibited by the government.
See, e.g., Mitchell v. Clayton, 995 F.2d 772, 775 (7th
Cir. 1993) (most federal courts have held that a
patient does not have a constitutional right to obtain
a particular type of treatment or to obtain treatment
from a particular provider if the government has
reasonably prohibited that type of treatment or
provider) (collecting authority). The decisions cited
by Pickup petitioners are not to the contrary. The
Tenth Circuits decision in Kickapoo Tribe of Okla-
homa v. Rader, 822 F.2d 1493, 1498 (10th Cir. 1987),
stands for the unremarkable proposition that a
parent is entitled to due process notice of any hearing
33
to terminate parental rights. And Doe v. Heck, 327
F.3d 492 (7th Cir. 2003), held that parents due process
rights were violated when their son was interviewed
by child welfare workers on private school property
without a warrant or parental notification or consent.
Neither case suggests that parents have a right to
compel the state to provide their child with any
specific treatment much less with a treatment that
the state has reasonably determined to be unsafe.
15

6. Finally, review in this case would be pre-
mature. A case challenging the constitutionality of an
almost identical statute is currently pending in the
Third Circuit, see King v. Christie, No. 13-4429 (3d
Cir.), and no other circuit has yet addressed the
constitutionality of laws that prohibit licensed mental
health professionals from providing SOCE, in particu-
lar, or types of talk therapy in general, to minors.


15
Petitioners also contend that the Ninth Circuits decision
on parental rights conflicts with the decisions of other panels
within the Ninth Circuit. As stated above, intra-circuit conflict
does not provide a basis for granting certiorari, see supra note
13, and, regardless, there is no such conflict. For example, in
Fields v. Palmdale School District, 427 F.3d 1197 (9th Cir. 2005),
parents of school children argued that their parental rights had
been violated when a school administered to students a survey
that included questions about sex. The Ninth Circuit rejected
the parents claim, holding that, while parents have the right to
inform their children about sex when and as they choose, they
do not have the right to compel public schools to follow their
own idiosyncratic views as to what information the schools may
dispense. Id. at 1206. Fields supports rather than conflicts with
the decision here.
34
Moreover, while the Ninth Circuit has addressed
petitioners First Amendment speech claims, App.
34a, neither the district court nor the Ninth Circuit
has yet addressed petitioners remaining claims,
including that SB 1172 violates their freedom of
religion. See App. 43a-44a. Any review should, at a
minimum, await a final judgment addressing all of
petitioners related claims.
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CONCLUSION
The petition for a writ of certiorari should be
denied.
Respectfully submitted,
KAMALA D. HARRIS
Attorney General of California
EDWARD C. DUMONT
Solicitor General
DOUGLAS J. WOODS
Senior Assistant Attorney General
TAMAR PACHTER
Supervising Deputy Attorney General
GREGORY D. BROWN
CRAIG J. KONNOTH
Deputy Solicitors General
AARON D. JONES
ALEXANDRA ROBERT GORDON*
Deputy Attorneys General
*Counsel of Record
Dated: May 27, 2014