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Mary E. McAlister California Bar Number 148570 Liberty Counsel P.O. Box 11108 Lynchburg, VA 24506 (434) 592-7000 (telephone) (434) 592-7700 (facsimile) court@lc.org Email Attorney for Plaintiffs UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA SACRAMENTO DIVISION DAVID PICKUP, CHRISTOPHER H. ROSIK, PH.D., JOSEPH NICOLOSI, PH.D, ROBERT VAZZO, NATIONAL ASSOCIATION FOR RESEARCH AND THERAPY OF HOMOSEXUALITY (NARTH), AMERICAN ASSOCIATION OF CHRISTIAN COUNSELORS (AACC), JOHN DOE 1, by and through JACK AND JANE DOE 1, JACK DOE 1, individually, and JANE DOE 1, individually, JOHN DOE 2, by and through JACK AND JANE DOE 2, JACK DOE 2, individually, and JANE DOE 2, individually Case No.:______________________ Plaintiffs v. EDMUND G. BROWN, Jr., Governor of the State of California, in his official capacity, ANNA M. CABALLERO, Secretary of the California State and Consumer Services Agency, in her official capacity, KIM MADSEN, Executive Officer of the California Board of Behavioral Sciences, in her official capacity, MICHAEL ERICKSON, PH.D, President of the California Board of Psychology, in his official capacity; SHARON LEVINE, President of the Medical Board of California, in her official capacity. Defendants.

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PLAINTIFFS PROPOSED ORDER THIS MATTER is before the Court on a motion for preliminary injunction filed by Plaintiffs, David Pickup, Christopher Rosik, Joseph Nicolosi, Robert Vazzo, National Association of Research and Therapy for Homosexuality (NARTH), American Association of Christian Counselors (AACC), Jack Doe 1, Jane Doe 1, John Doe 1, Jack Doe 2, Jane Doe 2, and John Doe 2. The Court held oral argument on the motion on ____, 2012. The Court considered the record, including the motion, the complaint, the sworn declarations of the parties, and the memorandum of law in support of the motion. It also considered argument from both Plaintiff and Defense counsel. After due consideration, the Court is of the opinion that unless a preliminary injunction is issued, Plaintiffs will suffer serious and irreparable injury for which there is no adequate remedy at law. For the reasons stated in this opinion and order, Plaintiffs motion for preliminary injunction is GRANTED. I. FINDINGS OF FACT Following the California Legislatures passage of SB 1172, Defendant, Governor Brown, signed it into law on or about September 30, 2012 as California Business and Professions Code 865, 865.1, 865.2. This law goes into effect on January 1, 2013. Section 865.1 states, Under no circumstances shall a mental health provider engage in sexual orientation change efforts [SOCE] with a patient under 18 years of age. Section 865 defines mental health providers as: a physician and surgeon specializing in the practice of psychiatry, a psychologist, a psychological assistant, intern, or trainee, a licensed marriage and family therapist, a registered marriage and family therapist, intern, or trainee, a licensed educational psychologist, a credentialed school psychologist, a licensed clinical social worker, an associate clinical social worker, a licensed professional clinical

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counselor, a registered clinical counselor, intern, or trainee, or any other person designated as a mental health professional under California law or regulation. Section 865.2 states, Any sexual orientation change efforts attempted on a patient under 18 years of age by a mental health provider shall be considered unprofessional conduct and shall subject a mental health provider to discipline by the licensing entity for that mental health provider. The law prohibits all California mental health providers from providing any therapy aimed at changing non-heterosexual sexual orientations, including any attempts to eliminate or minimize unwanted same-sex attractions. The law thereby fundamentally alters the therapistclient relationship by creating contradictory ethical duties with and trumping client protections in the ethical codes of multiple mental health licensing agencies in California, including but not limited to the following: General Principle E of the American Psychological Associations Ethical Principles of Psychologists and Code of Conduct (APA Code) includes the following: Psychologists respect the dignity and worth of all people, and the rights of individuals to privacy, confidentiality, and self-determination. SB 1172 interferes with the selfdetermination of minors seeking SOCE therapy. Section 1(a) of the American Psychiatric Association Guidelines for Ethical Treatment (APA Guidelines) states, A psychiatrist shall not withhold information that the patient needs or reasonably could use to make informed treatment decisions, including options for treatment not provided by the psychiatrist. SB 1172 requires psychiatrists to withhold information regarding SOCE therapy that a patient reasonably could use to make informed treatment decisions. Section 1(c) of the APA Guidelines states, A psychiatrist shall strive to provide beneficial treatment that shall not be limited to minimum criteria of medical necessity. SB 1172 prohibits psychiatrists from providing beneficial SOCE treatment to those patients who willingly consent to and desire such treatment. Opinion 10.01(2) of the American Medical Association Code of Ethics (AMA Code) states, The patient has the right to make decisions regarding the health care that is recommended by his or her physician. Accordingly, patients may accept or refuse any recommended medical treatment. SB 1172 prohibits medical professionals from allowing their patients to make any decision regarding the availability and benefits of SOCE treatment. SB 1172 prohibits patients from being able to accept or reject SOCE

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treatment, even though the fundamental elements of the patient-physician relationship require that the patient have the full range of options. Opinion 10.016 of the AMA Code states, Medical decision-making for pediatric patients should be based on the childs best interest, which is determined by weighing many factors, including effectiveness of appropriate medical therapies, the patients psychological and emotional welfare, and the family situation. When there is legitimate inability to reach consensus about what is in the best interest of the child, the wishes of the parents should generally receive preference. SB 1172 removes SOCE therapies from consideration by the physician and the parents regarding the best interest of the child. Section A.2.d of the American Counselors Association Code of Ethics (ACA Code) states, When counseling minors or persons unable to give voluntary consent, counselors seek the assent of clients to services, and include them in decision-making as appropriate. Counselors recognize the need to balance the ethical rights of clients to make choices, their capacity to give consent or assent to receive services, and parental or familial legal rights and responsibilities to protect those clients and make decisions on their behalf. SB 1172 prohibits counselors from respecting the rights of the parents/guardians seeking SOCE for their children. Section B.5.b of the ACA Code states, Counselors are sensitive to the cultural diversity of families and respect the inherent rights and responsibilities of parents/guardians over the welfare of their children. SB 1172 prohibits counselors from respecting the rights of the parents/guardians seeking SOCE for their children. Principle 1.2 of the American Association of Marriage and Family Therapists Code of Ethics (AAMFT Code) provides that all licensed marriage and family therapists obtain informed consent from their clients, which generally requires that the client has been adequately informed of significant information concerning treatment processes and procedures. SB 1172 prohibits licensed marriage and family therapists from informing their minor clients about an entire course of treatmentSOCE counselingthat might benefit them and help them achieve their goals of eliminating or reducing their unwanted same-sex attractions. Principle 1.8 of the AAMFT Code provides that licensed marriage and family therapists respect the rights of clients to make decisions. SB 1172 prohibits California licensed marriage and family therapists from respecting the rights of clients to make the decisions because the State already made the decision for the clienti.e., no one under the age of eighteen can receive SOCE counseling. Section 1.02 of NASW Code provides that the clients shall have the right to selfdetermination and that a social worker should only seek to assist the client in achieving their goals. SB 1172 prohibits California social workers from respecting the rights of the client to self-determination by imposing the States determination on the course of their therapy and mandating that only those efforts that seek to affirm same-sex attractions are permissible in the social workers office. Section 1.03 of the NASW Code provides that social workers must provide sufficient information for the client to make an informed decision about their course of care and specifically states that such informed consent must include a discussion of reasonable

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alternatives. SB 1172 prohibits social workers from providing information to clients about the reasonable alternatives available to those clients who desire SOCE counseling. These fundamental alterations to the therapist-patient relationship caused by SB 1172 cannot be justified on the basis of protecting children from harm, because all the relevant licensing authorities already prohibit harming children. Moreover, the State has not proven that SOCE is harmful to minors or that it has caused harm to any of the minor Plaintiffs. There is however, ample evidence that SB 1172 will cause irreparable harm to the Plaintiffs. Plaintiff Christopher Rosik, Ph.D., has been licensed in California as a Clinical Psychologist since 1988. Dr. Rosik teaches a psychology practicum at Fresno Pacific University and has published several scholarly articles and book chapters on the subject of homosexuality. He is a member of the American Psychological Association, the International Society for the Study of Trauma and Dissociation, the Christian Association for Psychological Studies, and is currently the president of NARTH. He practices psychology at the Link Care Center, a religious, nonprofit foundation, in Fresno, California where he works primarily with adolescents, adults, and couples. Dr. Rosik has provided and currently provides SOCE to minor clients who are seeking assistance in reducing unwanted same-sex attractions. Dr. Rosik provides SOCE counseling only if the minor client desires the treatment and has given informed consent. SB 1172 will render a portion of his practice per se unethical, will prevent him from providing SOCE therapy to current clients, will place these clients at risk of emotional harm, and will compel him to choose between violating SB 1172 and General Principle E of the APA Code, thereby subjecting him to professional discipline. Plaintiff David H. Pickup is a California licensed marriage and family therapist who also is a member of NARTH, the California Association of Family Therapists, the American Association of Christian Counselors, and the International Institute of Reorientation Therapies

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where he currently serves as President. Mr. Pickup specializes in SOCE counseling and regularly counsels minor clients experiencing same-sex attractions. Mr. Pickup provides SOCE counseling only if the minor client desires the treatment and has given informed consent. Most of Mr. Pickups minor clients come from the Christian faith and request Christian counseling, which Mr. Pickup readily provides, as a part of their therapy to reduce their unwanted same-sex attractions. Mr. Pickup has been able to successfully counsel minor clients desiring to remediate their unwanted same-sex attractions and his SOCE treatment has helped many of these minor clients reduce their unwanted same-sex attractions, alleviate their mental anguish and anxiety, and increase security in their gender identity. SB 1172 will render a substantial portion of his practice per se unethical, will prevent him from providing SOCE therapy to current clients, will place these clients at risk of emotional harm, and will compel him to choose between violating SB 1172 and Principles 1.2 and 1.8 of the AAMFT Code, thereby subjecting him to professional discipline. Dr. Joseph Nicolosi is a licensed psychologist in the State of California who specializes in the treatment and counseling of males, including minors, who struggle with unwanted samesex attractions. Dr. Nicolosi provides SOCE counseling only if the client desires the treatment and has given informed consent. Dr. Nicolosi has provided SOCE to numerous clients who have subsequently succeeded in eliminating or reducing their unwanted same-sex attractions and developing sexual or romantic attractions towards women. Dr. Nicolosi has been providing SOCE therapy to Plaintiff John Doe 1 for a year and a half and has noticed a substantial reduction in John Doe 1s unwanted same-sex attractions. Dr. Nicolosi has been providing SOCE therapy to John Doe 2 for three and a half months, and John Doe 2 has reported an overall positive experience with Dr. Nicolosis therapy.

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In addition to in-person counseling, Dr. Nicolosi also maintains a website where he discusses via streaming video the nature of SOCE counseling, explains the various techniques that he uses during SOCE counseling, and advocates for the use of SOCE counseling for those patients seeking a reduction or elimination of their unwanted same-sex attractions. He also engages in one of the largest SOCE counseling referral practices in the world. SB 1172 will render a substantial portion of Dr. Nicolosis practice per se unethical, will prevent him from providing SOCE therapy to current clients such as John Does 1 and 2, will likely place these clients at risk of mental harm, and will compel him to choose between violating SB 1172 and General Principle E of the APA Code, thereby subjecting him to professional discipline. SB 1172 will also likely require him to remove the videos from his website and cease offering SOCE counseling referrals. Plaintiff Robert Vazzo is a California licensed marriage and family therapist and a member of NARTH, the California Association of Marriage and Family Therapists, and is the Treasurer for the International Institute of Reorientation Therapies. He specializes in the SOCE counseling and practices in the areas of unwanted same-sex attractions, pedophilia, hebephilia, ephebolphilia, and transvestic fetishism. Approximately ten percent of Mr. Vazzos clients are minors seeking SOCE therapy. Many of these clients request SOCE to conform their behavior to their sincerely-held religious beliefs that homosexuality is harmful and violates the tenets of their faith. Mr. Vazzo provides SOCE counseling only if the client desires the treatment and has given informed consent. All of Mr. Vazzos clients that have engaged in SOCE counseling for at least one year have experienced at least some degree of change in their sexual orientation, and many have provided positive feedback on the counseling. SB 1172 will render a portion of his practice per se unethical, will prevent him from providing SOCE therapy to current clients, will place

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these clients at risk of emotional harm, and will compel him to choose between violating SB 1172 and Principles 1.2 and 1.8 of the AAMFT Code, thereby subjecting him to professional discipline. Plaintiff NARTH is a professional, scientific organization that offers hope to those who struggle with unwanted homosexuality and same-sex attractions. NARTH disseminates educational information, conducts and collects scientific research, promotes effective therapeutic treatment, and provides international referrals to those who seek its assistance. NARTH is engaged in extensive research concerning individuals who have successfully reduced or eliminated their unwanted same-sex attractions and the psychological factors that are typically associated with a homosexual lifestyle. NARTH offers scholarly publications and educational information to the general public and makes presentations across the country hosted by mental health professionals who specialize in SOCE counseling. NARTH advocates for an open discussion of all viewpoints concerning SOCE counseling and its potential benefits or harms to patients. NARTH supports the rights of individuals with unwanted same-sex attractions to receive effective psychological care, including SOCE counseling, and the rights of professionals to offer that care. SB 1172 will prohibit NARTH members subject to a California mental health license from providing SOCE therapy, disseminating information and providing referrals regarding such therapy. Minor patients currently receiving SOCE therapy from California-licensed NARTH members would lose the ability to receive such therapy and thereby risk suffering emotional harm and regression in their course of treatment. SB 1172 will also compel NARTH members to choose between violating the law and the ethical codes under which they are licensed.

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The American Association of Christian Counselors (AACC) is an international nonprofit professional scientific organization with 50,000 members representing the full spectrum of mental health professionals. AACCs mission is to equip its members with distinctively Christian and clinically sound psycho-educational resources and services that address the whole person and which help individuals move toward personal wholeness, interpersonal competence, mental stability, and spiritual maturity. AACCs members adhere to the ethical value of self-determination and regard this value as a cornerstone principle in the treatment of mental health disorders. Accordingly, AACCs members adhere to the construct that when a clients faith values conflict with other cultural values, such as those expressed by the Legislature in SB 1172, that ultimately the clientand in the case of a minor, his/her parent or legal guardianhas the moral and ethical right to participate in and determine the appropriate course of care, including alignment with his/her relevant religious beliefs. SB 1172 will prohibit AACC members who offer SOCE therapy from providing such counsel to their clients or will compel them to violate their core ethical duty of client self-determination. Plaintiffs Jack and Jane Doe 1 have a fifteen year old son, Plaintiff John Doe 1, who has struggled with confusion over sexual orientation, which has manifested itself as undesired samesex attractions. Jack and Jane Doe 1 sincerely believe that homosexuality harms their son and violates the tenets of their Christian faith. In accordance with these beliefs, Jack and Jane Doe 1, with the consent of their son, hired Dr. Nicolosi to provide SOCE counseling to John Doe 1 to treat his unwanted same-sex attractions. During the past year and a half of SOCE therapy, John Doe 1 has experienced a decrease in his same-sex attractions and a simultaneous increase in his attractions for women. He also feels closer to his parents and more secure in his male gender

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identity. John Doe 1 fears that his unwanted same-sex attractions will increase along with his feelings of confusion and awkwardness if he is not permitted to continue his SOCE counseling. He and his parents desire for him to continue his SOCE counseling sessions with Dr. Nicolosi so that he may realize his full potential as a heterosexual male in harmony with his and his parents religious beliefs. Plaintiffs Jack and Jane Doe 2 have a fourteen year old son, Plaintiff John Doe 2, who has struggled with confusion over sexual orientation, which has manifested itself as undesired same-sex attractions. Jack and Jane Doe 2 sincerely believe that homosexuality harms their son and violates the tenets of their Muslim and Catholic faiths, respectively. In accordance with these beliefs, Jack and Jane Doe 2, with the consent of their son, hired Dr. Nicolosi to provide counseling for all three and specifically, SOCE counseling to John Doe 2 to treat his unwanted same-sex attractions.

II.

CONCLUSIONS OF LAW As a threshold matter, parties are entitled to injunctive relief if they can establish that

they are likely to succeed on the merits, they are likely to suffer irreparable harm in the absence

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of preliminary relief, the balance of equities tips in their favor, and that the injunction is in the public interest. Associated Press v. Otter, 682 F.3d 821, 823-24 (9th Cir. 2012) (quoting Winter v. Nat. Res. Def. Council, Inc. 555 U.S. 7, 20 (2008)). After having considered all the parties submissions and governing precedent, this Court is satisfied that Plaintiffs have met their burden of establishing the required factors for injunctive relief. For the reasons discussed infra, this Court GRANTS Plaintiffs Motion for a Preliminary Injunction. A. LIKELIHOOD OF SUCCESS ON THE MERITS SB 1172 presents a significant number of constitutional infirmities. Plaintiffs have established that SB 1172 violates the First Amendment because it discriminates against the Counselor Plaintiffs viewpoint, is hopelessly vague, infringes upon the Parent Plaintiffs fundamental right to direct the upbringing of their children, and infringes on Minor Plaintiffs First Amendment right to receive information. Each of these is discussed in turn. 1. Viewpoint Discrimination It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828 (1995). When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. Id. at 829. In fact, viewpoint-based regulations are always unconstitutional. See, e.g., Lambs Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 394 (1993) (the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others.) (quoting City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984)); see also DiLoreto v. Downey Unified Sch. Dist. Bd. of Educ., 196 F.3d 958, 965 (9th Cir. 1999)(holding that even in a nonpublic forum, the government may not limit expressive activity if the limitation is . . . based on the speakers viewpoint.).

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SB 1172 prohibits only one viewpoint, and is thus facially unconstitutional. SB 1172 allows counselors to discuss the subject of sexual orientation, but precludes a particular view on that subject, namely that sexual orientation can change to the benefit of the client. Indeed, SB 1172 specifically targets SOCE counseling that seeks to eliminate or reduce sexual or romantic attractions or feelings towards individuals of the same sex. Cal. Bus. & Prof. Code 865(b)(1) (emphasis added). The viewpoint discrimination becomes more apparent, however, when SB 1172 defines what is not included in the definition of SOCE. Specifically, SOCE does not include psychotherapies that: (A) provide acceptance, support, and understanding of clients or facilitation of clients coping, social support, and identity exploration and development, including sexual orientation-neutral intervention . . . and (B) do not seek to change sexual orientation. Id. 865(b)(2) (emphasis added). ). Consequently, counselors are free to counsel their clients toward same-sex attractions, to provide acceptance, support, and understanding of same-sex attractions, or to remain neutral on such attractions. What they may not do, however, is discuss possibilities of changing same-sex desireseven when the client and his parents desperately desire to eliminate them. The Supreme Court has not hesitated to facially invalidate laws like SB 1172 that regulate professions by censoring certain views. In Legal Services Corporation v. Velazquez, 531 U.S. 533 (2001), the Court addressed a federal limitation on the legal profession that operated in materially the same viewpoint-based manner as does SB 1172. In Velazquez, the federal regulation prevented legal aid attorneys from receiving federal funds if they challenged welfare laws. Velazquez, 531 U.S. at 537-38. Because the funding condition prohibit[ed] advice or argumentation that existing welfare laws are unconstitutional or unlawful, and thereby excluded

Case 2:12-cv-02497-KJM-EFB Document 4 Filed 10/04/12 Page 13 of 24 certain vital theories and ideas from the lawyers representation, the Court invalidated the regulation on its face. Id. at 547, 549. SB 1172 regulates mental health counselors in the same constitutionally-proscribed manner by excluding vital theories and ideasnamely, SOCE counselingfrom the counselors therapy options. The Ninth Circuit has enjoined similar efforts to censor particular medical and psychological viewpoints. In Conant v. Walters, 309 F.3d 629 (9th Cir. 2002), several physicians and their patients brought a First Amendment challenge to a federal policy that punished physicians for communicating with their patients about the benefits or options of marijuana as a potential treatment. Id. at 633. The Ninth Circuit recognized that the doctor-patient relationship is entitled to robust First Amendment protection and that [p]hysicians must be able to speak frankly and openly to patients. Id. at 636. Such professional speech may be entitled to the strongest protection our Constitution has to offer. Id. at 637 (quoting Florida Bar v. Went For It, Inc., 515 U.S. 618, 634 (1995)). The court permanently enjoined the policy, holding that the ban impermissibly regulated physician speech based on viewpoint because the policy does not merely prohibit the discussion of marijuana; it condemns expression of a particular viewpoint, i.e., that medical marijuana would likely help a specific patient. Id. at 637-39 (emphasis added). SB 1172 operates identically to the federal policy enjoined in Conant. Just as that policy prohibited physicians from telling patients about the benefits of marijuana, so SB 1172 prohibits counselors from telling their patients about the benefits of SOCE. Both policies favor one government-preferred message over the private message of the health provider. Both should suffer the same constitutional demise. Additionally, in National Association for the Advancement of Psychoanalysis v. California Board of Psychology, 228 F.3d 1043 (9th Cir. 2000), the Ninth Circuit further

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clarified that the government cannot engage in viewpoint discrimination in the context of mental health professional licensing laws. In that case, the court addressed a First Amendment challenge to a professional licensing scheme enacted by the California Board of Psychology. Natl Assn, 228 F.3d at 1046. The court upheld the scheme with a critical qualification; the scheme was not viewpoint discriminatory because it did not dictate what can be said between psychologists and patients during treatment nor did it prevent licensed therapists from utilizing psychoanalytic methods. Id. at 1055. By contrast, SB 1172 does dictate what can be said between counselors and patients during treatment and does prevent licensed therapists from utilizing psychoanalytic methods. Thus, SB 1172 does constitute impermissible viewpoint discrimination. 2. Strict Scrutiny Even if SB 1172 were merely contentand not viewpoint-basedthe Defendants could not meet their burden of proving that SB 1172 survives strict scrutiny. United States v. Playboy Entmt Grp., 529 U.S. 803, 813 (2000). To survive such scrutiny, Defendants would have to show that SB 1172 is narrowly tailored to achieve a compelling government interest and is the least restrictive means of achieving that interest. Id. The general rule is that the right of expression prevails, even where no less restrictive alternative exists. Id. Under certain circumstances, states may have a compelling interest in the well-being and protection of children. See Sable Commcns of Cal., Inc. v. F.C.C., 492 U.S 115, 126 (1989). Notwithstanding this abstract compelling interest, when the government seeks to restrict speech [i]t must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way. Video Software Dealers Assn v. Schwarzenegger, 556 F.3d 950, 962 (9th Cir. 2009) (quoting Turner Broadcasting Sys., Inc. v. F.C.C., 512 U.S. 622, 664 (1994)) (emphasis added). So the reviewing

Case 2:12-cv-02497-KJM-EFB Document 4 Filed 10/04/12 Page 15 of 24 court must assure that, in formulating its judgments, [the legislature] has drawn reasonable inferences based on substantial evidence. Video Software, 556 F.3d at 962. The Defendants claim that SB 1172 is justified by the States interest in preventing harm to minors. But their sources fail to prove SOCE causes harm because they consist of mere position statements from professional organizations, and a sampling of journal articles that lack any scientific support.1 Defendants also rely on a 2009 report issued by the American Psychological Association Task Force on Appropriate Therapeutic Responses to Sexual Orientation (Task Force), but this report focused on adultsnot minors. Moreover the authors found some evidence of both harm and benefits produced by SOCE. See Report of the American Psychological Association Task Force on Appropriate Therapeutic Responses to Sexual Orientation (2009) at 2-4, 42, 4950 (emphasis added), available at http://www.apa.org/pi/lgbt/resources/therapeutic-response.pdf (last visited October 1, 2012). Ultimately, the Report was inconclusive regarding harm: [R]esearch on SOCE (psychotherapy, mutual self-help groups, religious techniques) has not answered basic questions of whether it is safe or effective and for whom. . . . [R]esearch into harm and safety is essential. Id. at 90 (emphasis added). The only evidence of harm the Task Force discovered was some anecdotal testimony of some individuals [who] reported being harmed by SOCE. Id. at 120. Such evidence is insufficient for SB 1172s far-reaching prohibitions. Indeed, the government must present more than anecdote and supposition to support its burden of proof. Video

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Software, 556 F.3d at 962 (quoting Playboy, 529 U.S. at 822). Defendants have failed to provide such support and SB 1172 must fall because of that failure. Even if the Defendants could show a compelling interest in banning an entire mode of therapysuch as SOCEfrom the field of counseling, it could not do so simply to suppress a particular idea. R.A.V., 505 U.S. at 386 (The government may not regulate a [mode of speech] based on hostilityor favoritismtowards the underlying message expressed.). Such a discriminatory motive is revealed where there are other content-neutral substitutes to the regulation. See id.at 395. SB 1172 is not necessary to prevent harm because all the ethical codes of the relevant professions already prohibit harming patients. SB 1172 is not an attempt to prevent harm but is a politically motivated attempt to ascribe special treatment to a particular viewpoint regarding therapy, particularly SOCE. The fact that children are already protected from harmful and dangerous therapies exposes that the underlying goal of the legislation is not about protecting minors. Instead, that noble and compelling state interest is merely the mirage through which Defendants have attempted to discriminate against and silence the viewpoint of those therapists who believe that SOCE is helpful. Such legislative legerdemain is impermissible. 3. Vagueness A law is unconstitutionally vague and overbroad if it either forbids or requires the doing of an act in terms so vague that [persons] of common intelligence must necessarily guess at its meaning and differ as to its application. Connally v. Gen. Const. Co., 269 U.S. 385, 391 (1926). The States policies must be so clearly expressed that the ordinary person can intelligently choose, in advance, what course it is lawful for him to take. Id. at 393. Precision of regulation is the touchstone of the First Amendment. NAACP v. Button, 371 U.S. 415, 435 (1963). When

Case 2:12-cv-02497-KJM-EFB Document 4 Filed 10/04/12 Page 17 of 24 considering challenges to vague laws, the crucial consideration is that no [individual subject to the law] can know just where the line is drawn . . . . Keyishian v. Bd. of Regents of Univ. of State of N.Y., 385 U.S. 589, 599 (1967). SB 1172 leaves the therapist guessing where the line of prohibition lies because it does not define or provide any guidance regarding the fundamental operating term, sexual orientation. Identifying a clients sexual orientation is critical for knowing when the Bills proscriptions are triggered. For without such guidance, a therapist cannot know when or if he has begun to engage in prohibited sexual orientation change efforts. Assuming a therapist can accurately diagnose a clients sexual orientation as understood by SB 1172, the law still fails to provide sufficient instruction for counselors concerning what they can and cannot say to clients. The Supreme Court struck down a similarly vague statute that barred employment for any NY teacher who advocates, advises, or teaches the doctrine of forceful overthrow of government. Keyishian, 385 U.S. at 599. The Court found that the terms advocates, advises, and teaches were vague because they could be interpreted to cover advocacy in the abstract, the mere advising of the existence of the doctrine, or simply informing ones students about the precepts of Marxism. Id. at 599-600. Similarly, SB 1172s definition of SOCE also fails to provide adequate warning as to what practices constitute prohibited SOCE. It is unclear whether referrals or merely providing information concerning the existence and availability of SOCE counseling would be sufficient to constitute prohibited SOCE. Accordingly, Keyishian mandates SB 1172s invalidation. SB 1172 raises additional vagueness concerns. There is no instruction on what is prohibited with respect to bisexual or questioning patients, whose sexual orientations are particularly difficult to identify. Also, the lack of any specified geographic boundaries further

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obscures the reach of the bill. On its face, SB 1172 could presumably cover web videos, radio broadcasts or electronic transmissions into California that provide SOCE or referrals to counselors who provide SOCE. And SB 1172 could cover a California-licensed counselor who is licensed in other jurisdictions and who offers SOCE in states outside of California. SB 1172 provides no guidance in this area and potentially subjects these counselors to loss of their license without any clear guidelines. The Constitution simply does not permit such ambiguity. 4. Parental Rights Parents are vested with the care, custody, and control of their children. That guarantee is enforceable against the states through the Fourteenth Amendment. See, e.g., Troxel v. Granville, 530 U.S. 57, 65 (2000); Wisconsin v. Yoder, 406 U.S. 205, 213-14 (1972); Pierce v. Socy of Sisters, 268 U.S. 510, 534-35 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923). SB 1172 infringes upon this basic right by preventing parents from caring for the mental health of their children as they see fit. Parham v. J.R., 442 U.S. 584, 602 (1979) (The words care, custody, and control include the high duty to recognize symptoms of illness and to seek and follow medical advice. SB 1172s sponsor, Senator Ted Lieu concedes as much: The attack on parental rights is exactly the whole point of the bill because we dont want to let parents harm their children. See Kim Reyes, Controversy Follows Effort to Ban Gay Conversion Therapy, Orange Cnty. Reg., July 27, 2012, at 2. Because the Bill intrudes upon a fundamental right, strict scrutiny applies. See Reno v. Flores, 507 U.S. 292, 301-02 (1993); Fields v. Palmdale Sch. Dist., 427 F.3d 1197, 1208 (9th Cir. 2005) (Governmental actions that infringe upon a fundamental right receive strict scrutiny.) Defendants cannot satisfy this high burden. The Supreme Court has not hesitated to uphold the right to direct the upbringing of ones child over state laws that would deprive parents of that right. This has been true even in the context of public education, which is at the very apex of the function of the State. Yoder, 406

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U.S. at 213. In Meyer, the Court facially voided a Nebraska statute that outlawed teaching languages, other than the English language because the statute prevented parents from hiring a teacher to instruct their children in German. Id. at 396-97. Two years later, the Court held that an Oregon law requiring children to attend public school violated the parents constitutional rights to direct the upbringing and education of their children. See Pierce, 268 U.S. at 535. The Ninth Circuit recently explained, the unconstitutional actions proscribed in both Meyer and Pierce were the same: the states attempt to impose a comprehensive, government-sanctioned mode of education upon children against the wishes of their parents. [t]he Meyer and Pierce cases, we think, evince the principle that the state cannot prevent parents from choosing a specific educational program -- whether it be religious instruction at a private school or instruction in a foreign language. That is, the state does not have the power to standardize its children or foster a homogenous people by completely foreclosing the opportunity of individuals and groups to choose a different path of education. Fields, 427 F.3d at 1205 (quoting Brown v. Hot, Sexy & Safer Prods., Inc., 68 F.3d 525, 533 (1st Cir. 1995) (emphasis added)). SB 1172 operates in the same unconstitutional manner because it prevents parents from choosing a specific form of counselingSOCE therapyfor their children by muzzling every mental health professional in the state. Just as Nebraska and Oregon foreclose[ed] the opportunity of parents to choose professional foreign language training or private education for their children, so too has California foreclosed the opportunity of its parentsand in particular, Plaintiffs Jack and Jane Does 1, and 2to choose professional SOCE therapy for their children. If the former intrusions into parental rights are unconstitutional in the public school context, where the states interest is at its apex, then the latter intrusions are certainly impermissible in the context of private counseling sessions chosen by parents to benefit their children. As discussed supra, Defendants have failed to justify this intrusion with an actual compelling interest.

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5.

Right To Receive Information

The First Amendment protects the right to receive information as a corollary of the right to speak. See, e.g., Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 867 (1982); Stanley v. Georgia, 394 U.S. 557, 564 (1969). While the government may regulate the receipt of information for various legitimate reasons, it may not do so when its purpose is to suppress certain ideas or viewpoints. See Pico, 457 U.S. at 871-72 (plurality) (Our Constitution does not permit the official suppression of ideas.); id. at 880 (Blackmun, J., concurring) ([O]ur precedents command the conclusion that the State may not act to deny access to an idea simply because state officials disapprove of that idea. . . .) As discussed above, SB 1172 suppresses the viewpoint that changing non-heterosexual orientations may be beneficial to minors and expresses the Legislatures disapproval of SOCE therapy. The Ninth Circuit has held that suppression of ideas from willing recipients in the medical context is unconstitutional. In Conant, the Ninth Circuit affirmed a permanent injunction against a federal policy that threatened to punish physicians for communicating with their patients about the medical use of marijuana. See Conant, 309 F.3d at 639. The Ninth Circuit affirmed that the policy struck at core First Amendment interests of doctors and patients by creating barriers to full disclosure that would impair diagnosis and treatment. Id. at 636 (emphasis added). The federal policy at issue in Conant, like the ban on SOCE therapy at issue here, prevented patients from making an informed decision as to their own health and selfdetermination. And like the Conant policy, SB 1172 diminishes patients understanding of their own symptoms, limits their personal choices toward self-determination, and ultimately renders them less able to participate in public debate and influence public policy regarding SOCE counseling. SB 1172 violates the First Amendment.

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Therefore, Plaintiffs-Counselors, Plaintiffs-Parents, and Plaintiffs-Minors are likely to succeed on the merits of the First and Fourteenth Amendment claims. B. IRREPARABLE HARM It is well established that the deprivation of constitutional rights unquestionably constitutes irreparable injury. Melendres v. Arpaio, ___ F.3d ___, 2012 WL 4358727 *9 (9th Cir. 2012) (preliminarily enjoining statute that violated plaintiffs Fourth and Fourteenth Amendment rights) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)). This is especially true where the freedom of speech is at risk because the loss of such freedom even for minimal periods of time comprises irreparable harm. Elrod, 427 U.S. at 373; see also New York Times Co. v. United States, 403 U.S. 713 (1971); Associated Press, 682 F.3d at 826; Lydo Enters., Inc. v. City of Las Vegas, 745 F.2d 1211, 1214 (9th Cir. 1984). These principles are so well-founded that an alleged constitutional infringement will often alone constitute irreparable harm. Monterey Mech. Co. v. Wilson, 125 F.3d 702, 715 (9th Cir. 1997) (quoting Associated Gen. Contractors v. Coal. for Econ. Equity, 950 F.2d 1401, 1412 (9th Cir. 1991)). Plaintiffs First and Fourteenth Amendment claims satisfy this standard. SB 1172 prohibits Plaintiff-therapists from engaging in certain discussions with their clients, and this constitutes an indisputable First Amendment viewpoint-based violation. SOCE therapy has been banned, and any practice that is aimed at reducing or eliminating same-sex attractions is an ethical violation. SB 1172 silences counselors who wish to engage in a course of therapy with consenting clients and that aligns with the clients sincerely-held religious beliefs. Such a prohibition constitutes a deprivation of First Amendment protection resulting in immediate and irreparable harm. Additionally, if any client goes to the counselor with intentions of discussing same-sex sexual attractions, then the counselor is almost certain to violate some

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provision of the ethical code of his respective profession. It is impossible to comply with both SB 1172 and all of the other provisions of the ethics codes. Silencing therapists at the price of their professional licenses certainly constitutes irreparable harm. Additionally, SB 1172 causes Plaintiffs-Parents to suffer the loss of their constitutional right to direct the upbringing and education of their minor children. This deprivation constitutes irreparable harm. Melendres, 2012 WL 4358727 at *9 (the deprivation of constitutional rights unquestionably constitutes irreparable injury.). SB 1172 aims to homogenize all California children by permitting counselors to provide only neutral or gay-affirming therapy against the wishes of Plaintiffs-Parents who have sincerely-held religious beliefs that such counseling would violate the fundamental tenets of their faith and harm their children. Californias attempt to standardize John Does 1 and 2 will inflict irreparable injury upon Plaintiffs-Parents by abrogating their parental choices for the well-being of their children. Finally, SB 1172 prevents the minor Plaintiffs, John Does 1 and 2, from receiving information that could potentially help them experience wholeness and healing and a reduction in their unwanted same-sex attractions in accordance with their religious convictions. The minor Plaintiffs have voluntarily sought and received SOCE therapy and continue to receive such therapy. Terminating this therapy cuts them off from beneficial mental health information, and thereby causes irreparable harm. As such, this Court concludes that SB 1172 unquestionably constitutes irreparable harm for the Plaintiffs. C. BALANCE OF THE EQUITIES The Ninth Circuit has recognized that the fact that a case raises serious First Amendment questions compels a finding that there exists the potential for irreparable injury, or that at the very least the balance of hardships tips sharply in [movants] favor. Sammartano v.

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First Judicial District, in & for Cnty. of Carson City, 303 F.3d 959, 973 (9th Cir. 2002). SB 1172 raises serious constitutional questions concerning the First Amendment rights of professional therapists to provide counsel, and the constitutional rights of parents and children to voluntarily seek and receive such counsel. SB 1172 fundamentally alters the constitutionally protected interrelationships between counselors, clients, and parents by blotting out an entire mode of therapy. An injunction would preserve the status quo and protect Plaintiffs constitutional rights at no cost to the State. The only potential injury that Defendants can assert is that an injunction will permit therapy to continue that legislators opine, but cannot establish, might be harmful to minors. Moreover, given that the relevant ethical codes already prohibit harming minors, the injunction will not cause any harm to minors. Under these circumstances, the balance of the equities strongly favors granting the injunction. D. PUBLIC INTEREST The protection of constitutional rights is of the highest public interest. Elrod, 427 U.S. at 373. Here, the First Amendment rights of Plaintiffs are entirely eliminated from the field of SOCE therapy with respect to minors. SB 1172 prohibits any practices that reduce or eliminate same-sex attractions, which eliminates Plaintiffs right to discuss available treatment with minor patients desiring to obtain such treatment. Furthermore, it is always in the public interest to prevent the violation of a partys constitutional rights. G & V Lounge, Inc. v. Mich. Liquor Control Commn, 23 F.3d 1071, 1079 (6th Cir. 1994). As to non-parties, the injunction will preserve the liberties of counselors to provideand parents and minors to choosethe medical care that will best meet their needs. Without an injunction, No minor patient will ever be able to obtain SOCE therapy from a professional counselor regardless of the patients sincerely-held religious beliefs about same-sex attractions or his desire to eliminate unwanted same-sex

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attractions. Additionally, it will forever muzzle professional counselors from even mentioning the availability of SOCE therapy. Finally, allowing such an unconstitutional government infringement into the doctor-patient relationship opens a potential Pandoras Box of regulations that will forever change the relationship between patients and their doctors. Preventing such an unprecedented intrusion is unquestionably in the public interest. III. CONCLUSION For the foregoing reasons, this Court concludes that Plaintiffs are entitled to a preliminary injunction. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED this __ day of ___,

2012, that Defendants, Defendants officers, agents, employees and all other persons acting in active concert with them, are hereby restrained and enjoined from enforcing California Business and Professions Code 865, 865.1, 865.2 (SB 1172) against Plaintiffs so that: A. Defendants will not use SB 1172 in any manner to infringe Plaintiffs constitutional and statutory rights in the counseling of their clients or from offering a viewpoint on an otherwise permissible subject matter; B. Defendants will not use SB 1172 in any manner to prohibit Plaintiffs from engaging in SOCE treatments with those minor clients who seek such treatment; C. Defendants will use SB 1172 to prohibit parents and minors from seeking or receiving SOCE for unwanted same-sex sexual attractions; and D. Defendants will not use SB 1172 in any manner to punish Plaintiffs for engaging, referring to, seeking, or receiving SOCE counseling.