Does gay conversion therapy ban violate free speech?

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A new ban on gay conversion therapy in California, the first of its kind in the nation, has divided lower courts and legal scholars on whether the law violates free speech rights.

The law would prohibit doctors and therapists from trying to change a minor’s sexual orientation. The law is now before the U.S. 9th Circuit Court of Appeals, which could decide in the next several days whether to put the law on hold before it takes effect Jan. 1. A ruling could take months.

UC Berkeley constitutional law scholar Jesse Choper said the law faces ‘a steep uphill battle’ on free speech grounds.

‘It is very hard to silence speech generally,’ Choper said.

But UC Irvine Law School Dean Erwin Chemerinsky said the law was constitutional because it banned an ineffective and harmful therapy.

Communications between professionals and their clients generally have less 1st Amendment protection than other forms of speech. A lawyer or doctor who negligently gives bad advice may be found liable for malpractice, and licensing requirements for professionals may be restrictive.

‘The fact that it is speech doesn’t immunize it from liability or punishment,’ Chemerinsky said.

U.S. District Judge Kimberly J. Mueller, ruling for the state, said the law prohibits a form of conduct — therapy that uses pain or discomfort to combat sexual arousal and efforts to alter thought patterns, including hypnosis.

‘Plaintiffs in this case do not have a fundamental right to receive a therapy that California has deemed harmful and ineffective,’ Mueller wrote.

But in a similar lawsuit brought by two therapists and a man who underwent conversion therapy, U.S. District Judge William B. Shubb blocked the state from enforcing the law on the three plaintiffs. ‘Protecting an individual’s First Amendment rights outweighs the public’s interest in rushing to enforce an unprecedented law,’ Shubb wrote.

A task force report by the American Psychological Assn. in 2009 said conversion therapy could trigger depression, suicide and substance abuse.

It said that there was no study demonstrating that therapy affected sexual orientation of children and teenagers, and that the prospect of effecting an enduring change in a person’s sexual orientation was ‘unlikely.’

But the report also said research on the therapy was too sketchy to draw conclusions about safety and efficacy and noted that some people said they had benefited from the counseling.

Does the ban violate free speech or does it prohibit a potentially harmful type of therapy? Let us know your thoughts in the comments below or by tweeting @LANow.
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-- Maura Dolan and Samantha Schaefer