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UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY TRENTON DIVISION

TARA KING, ED.D., individually and on behalf of her patients, RONALD NEWMAN, PH.D., individually and on behalf of his patients, NATIONAL ASSOCIATION FOR RESEARCH AND THERAPY OF HOMOSEXUALITY (NARTH), AMERICAN ASSOCIATION OF CHRISTIAN COUNSELORS (AACC), Plaintiffs, v. CHRISTOPHER J. CHRISTIE, Governor of the State of New Jersey, in his official capacity, ERIC T. KANEFSKY, Director of the New Jersey Department of Law and Public Safety: Division of Consumer Affairs, in his official capacity, MILAGROS COLLAZO, Executive Director of the New Jersey Board of Marriage and Family Therapy Examiners, in her official capacity, J. MICHAEL WALKER, Executive Director of the New Jersey Board of Psychological Examiners, in his official capacity; PAUL JORDAN, President of the New Jersey State Board of Medical Examiners, in his official capacity, Defendants. Case No. 13-cv-5038

PLAINTIFFS MEMORANDUM IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

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TABLE OF CONTENTS TABLE OF CONTENTS...............................................................................................................i TABLE OF AUTHORITIES........................................................................................................ii INTRODUCTION.....1 STATEMENT OF FACTS2 ARGUMENT..2 I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS..3 A. A3371 Constitutes Viewpoint Discrimination against Private Speech and such Regulations Have Always Been Found Unconstitutional..4 A3371 is a Content-Based Prior Restraint on Speech and Cannot Survive Strict Scrutiny....9 1. Professional regulations of speech are subject to strict scrutiny when content-based10 A3371 is not justified by a compelling government interest11 A3371 is not narrowly tailored...16

B.

2. 3. C.

A3371 is Unconstitutionally Vague and Overbroad.18 1. 2. 3. The term sexual orientation is vague.....19 The phrase sexual orientation change efforts is vague.....20 A3371 is overbroad..22

D.

A3371 Unconstitutionally Infringes on the Rights of Plaintiffs Clients to Receive Information Regarding Available Treatment.23

II.

PLAINTIFFS ARE SUFFERING IMMEDIATE AND IRREPARABLE INJURY............................................................................................................................26 THE BALANCE OF THE EQUITIES TIPS IN PLAINTIFFS FAVOR.28 AN INJUNCTION IS IN THE PUBLIC INTEREST......28

III. IV.

CONCLUSION....29
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TABLE OF AUTHORITIES CASES Acierno v. New Castle Cnty., 40 F.3d 645 (3d Cir. 1994)...............................................................2 ACLU v. Ashcroft, 322 F.3d 240 (3d Cir. 2003)........................................................................3, 29 ACLU v. Reno, 217 F.3d 162 (3d Cir. 2000).................................................................................29 Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531 (1987)...........................................................28 Awad v. Ziriax, 670 F.3d 1111 (10th Cir. 2012)............................................................................18 Bates v. State Bar of Ariz., 433 U.S. 350 (1977)...........................................................................24 Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853 (1982)...............23 Broadrick v. Oklahoma, 413 U.S. 601 (1973)...............................................................................19 Brown v. Entmt Merchants Assn, 131 S. Ct. 2729 (2011).....................................................10, 12 Century Commcns Corp. v. FCC, 835 F.2d 292 (D.C. Cir. 1987)...............................................12 Child Evangelism Fellowship of N.J., Inc. v. Stafford Tp. Sch. Dist., 386 F.3d 514 (3d Cir. 2004)..................................................................................................................................5 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993).........................15 City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789 (1984)..............................................4 City of Ladue v. Gilleo, 512 U.S. 43 (1994)............................................................................14, 15 Conant v. Walters, 309 F.3d 629 (9th Cir. 2002)..................................................................7, 8, 24 Connally v. Gen. Const. Co., 269 U.S. 385 (1926).......................................................................18 Dj vu of Nashville, Inc. v. Metro. Govt of Nashville & Davidson Cnty., 274 F.3d 377 (6th Cir. 2001)...............................................................................................................................28 Elrod v. Burns, 427 U.S. 347 (1976).................................................................................26, 27, 28 Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995)....................................................................8 Grayned v. City of Rockford, 408 U.S. 104 (1972)..................................................................18, 19

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Keyishian v. Bd. of Regents of Univ. of State of N.Y., 385 U.S. 589 (1967)..................................20 Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir.2004)................................................3 Lambs Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384 (1993)...............................4 Legal Servs. Corp. v. Valazquez, 531 U.S. 533 (2001)................................................................7, 8 Lowe v. SEC, 472 U.S. 181 (1985)................................................................................................10 Martin v. City of Struthers, 319 U.S. 141 (1943)..........................................................................23 Meyer v. Nebraska, 262 U.S. 390 (1923)......................................................................................23 NAACP v. Button, 371 U.S. 415 (1963).............................................................................16, 18, 22 New York Times Co. v. United States, 403 U.S. 713 (1971)..........................................................27 One Three Five, Inc. v. City of Pittsburgh, CIV.A. 13-467, 2013 WL 3043864 (W.D. Pa. June 17, 2013).................................................................................................................2 Org. for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971).........................................................10 Penn. Psychiatric Socy v. Green Spring Health Servs., Inc., 280 F.3d 278 (3d Cir. 2002)...........................................................................................................................25, 26 Pickup v. Brown, No. 12-17681, 2012 WL 6869637 (9th Cir. Dec. 21, 2012)...............................7 Pittsburgh League of Young Voters Educ. Fund v. Port Auth. of Allegheny Cnty., 653 F.3d 290 (3d Cir. 2011).............................................................................................................4 Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434 (D.C. Cir. 1985)...................................................12 R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).............................................................................16 Reagan v. Time, Inc., 468 U.S. 641 (1984)....................................................................................10 Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995).........................................4 Sable Commcns of Cal., Inc. v. F.C.C., 492 U.S 115 (1989).................................................11, 16 Sampson v. Murray, 415 U.S. 61 (1974).........................................................................................3 Schneider v. New Jersey, 308 U.S. 147 (1939)........................................................................26, 28 Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105 (1991).........10
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Sorrell v. IMS Health, 131 S. Ct. 2653 (2011)................................................................4, 7, 24, 27 Stanley v. Georgia, 394 U.S. 557 (1969).......................................................................................23 Stilp v. Contino, 743 F. Supp. 2d 460 (M.D. Penn. 2010).............................................................29 Swartwelder v. McNeilly, 297 F.3d 228 (3d Cir. 2002).....................................................26, 27, 29 Thomas v. Collins, 323 U.S. 516 (1945)........................................................................................11 Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969)...............................................5 Trefelner ex rel. Trefelner v. Burrell Sch. Dist., 655 F. Supp. 2d 581 (W.D. Penn. 2009).............3 Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622 (1994).........................................................11, 12 Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180 (1997)..................................................................11 United States v. Caronia, 703 F.3d 149 (2d Cir. 2012).................................................................24 United States v. Playboy Entmt Grp., 529 U.S. 803 (2000)...................................................10, 12 Va. State Bd. of Pharm. v. Va. Citizens Consumer Council, Inc., 425 U.S. 748 (1976)..........23, 24 Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982)...................18 Welch v. Brown, 907 F. Supp. 2d 1102 (E.D. Cal. 2012)............................................................6, 7 West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943)......................................................15 STATUTES New Jersey Assembly Bill 3371.............................................................................................passim Fed. R. Civ. P. 65............................................................................................................................3 N.J. Ct. R. 4:74-7A(c)....................................................................................................................25 ETHICAL CODES American Association of Marriage and Family Therapys Ethics Code.......................................18 American Counseling Association Code of Ethics..................................................................16, 17 American Psychological Association Code of Ethics....................................................................16

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American Psychiatric Association Guidelines...............................................................................17

OTHER AUTHORITIES Nicholas A. Cummings, Ph.D., Sexual Reorientation Therapy Not Unethical, USAToday (July 30, 2013), available at http://www.usatoday.com/story/opinion/2013/07/30/sexual-reorientationtherapy-not-unethical-column/2601159/........................................................................................13 Press Release, Gov. Christie Signs Bill Banning Gay Conversion Therapy On Minors, Mon., Aug. 19, 2013 (available online at http://nj.gov/governor/news/news/552013/approved/ 20130819a.html (last accessed 8/19/13)........................................................................................14 Report of the American Psychological Association Task Force on Appropriate Therapeutic Responses to Sexual Orientation (2009)...............................................................................passim

Memorandum in Support of Plaintiffs Motion for TRO and Preliminary Injunction

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MEMORANDUM IN SUPPORT OF PLAINTIFFS MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION COME NOW Plaintiffs, by and through counsel and pursuant to Fed. R. Civ. P. 7 and D.N.J. Civ. R. 7.1, 7.2, and 65.1, and file this memorandum in support of their Motion for a Temporary Restraining Order and Preliminary Injunction. INTRODUCTION Defendant Governor Christie signed A3371 on Monday, August 19, 2013, which amended Title 45 of the Revised Statutes of New Jersey, and it went into effect immediately upon being signed by the Governor. A3371 is an unprecedented and unconstitutional intrusion into the sacrosanct relationship between psychotherapists and their patients. A3371 infringes on the long-standing right of mental health professionals to offer and their clients to receive counseling consistent with their sincerely held religious beliefs. It prohibits licensed mental health providers, under threat of loss of their professional licenses, from offering any counsel to a minor under any circumstances to reduce or eliminate unwanted same-sex sexual attraction, behavior, or identity (which A3371 calls sexual orientation change efforts or SOCE), regardless of whether Plaintiffs clients and their parents desperately seek such counseling and even if the mental health professional believes that the counseling will be beneficial to the client and allow the client to reach his or her objectives in the counseling relationship. Plaintiffs and their clients are currently suffering imminent and irreparable injury and will continue to suffer injury until A3371 is enjoined. Licensed mental health professionals are prohibited by A3371 from offering beneficial and desired counseling to help minor clients overcome unwanted same-sex attractions, behaviors or identity. Such restrictions violated Plaintiffs First Amendment rights to freedom of speech as well as the free exercise of religio n,

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because many of the licensed Plaintiff professionals and their clients are motivated to undertake and to receive such counseling due to their sincerely held religious beliefs. Additionally, Plaintiffs clients will no longer have the option of receivi ng SOCE counseling from a licensed professional regardless of how sincere their religious beliefs or how intent they are on reducing or eliminating their unwanted same-sex attractions, behaviors, or identity (hereinafter SSA). These clients will be deprived of their right to self-determination and will be unable to receive counseling from a licensed professional consistent with their religious and moral values. The State does not and cannot offer a compelling, or even a rational, reason for its sweeping, intrusive legislation, save a politically-driven agenda to normalize and even prioritize SSA regardless of its consequences. A3371 is also unconstitutionally vague and overbroad in that it fails to properly define the extent and scope of the prohibition, and it prevents far more speech than necessary to achieve any alleged government interest. A3371 is riddled with constitutional infirmities. In order to preserve the status quo ante during the pendency of this litigation, A3371 should be preliminarily enjoined. STATEMENT OF FACTS Plaintiffs hereby incorporate by reference the facts outlined in their Complaint, Declarations, and Motion for Temporary Restraining Order and Preliminary Injunction. ARGUMENT The primary purpose of preliminary injunctive relief is maintenance of the status quo until a decision on the merits of a case is rendered. One Three Five, Inc. v. City of Pittsburgh, CIV.A. 13-467, 2013 WL 3043864 (W.D. Pa. June 17, 2013) (quoting Acierno v. New Castle Cnty., 40 F.3d 645, 647 (3d Cir.1994)). Status quo refers to the last, peaceable, noncontested

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status of the parties. Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir.2004). Under the status quo here, before the enactment of A3371, Plaintiffs were free to counsel with willing clients regarding SOCE, and their minor clients were free to receive the information they desired. A3371 dramatically disrupted this status quo, and imposed a blanket ban on SOCE to minors by licensed professionals such as Plaintiffs. Immediate relief is therefore warranted in this case. Moreover, injunctive relief is merited where, as here, Plaintiffs are able to show a reasonable probability of success on the merits, irreparable injury in the absence of such relief, that the balance of the harms tips in their favor, and that the injunction is in the public interest. ACLU v. Ashcroft, 322 F.3d 240, 250 (3d Cir. 2003). The legal standard for obtaining a temporary restraining order is the same as that of a preliminary injunction. See Trefelner ex rel. Trefelner v. Burrell Sch. Dist., 655 F. Supp. 2d 581, 589 (W.D. Penn. 2009).1 Here, Plaintiffs satisfy this standard. I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS. Plaintiffs are likely to succeed on the merits. A3371 constitutes viewpoint discrimination against private speech, and such regulations have always been found unconstitutional. A3371 is also a content-based prohibition on speech and cannot survive strict scrutiny. Professional regulations of speech are subject to strict scrutiny when content-based. A3371 is not justified by a compelling government interest. A3371 is not narrowly tailored. Additionally, A3371 is unconstitutionally vague. The term sexual orientation is vague. The phrase sexual orientation change efforts is vague. A3371 is also unconstitutionally overbroad. A3371 unconstitutionally
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The only real difference between obtaining a temporary restraining order (TRO) and a preliminary injunction is that a TRO may be obtained ex parte. See Fed. R. Civ. P. 65. Because Plaintiffs have provided Defendants both notice and an opportunity to respond, the matter may properly be deemed a preliminary injunction. See, e.g., Sampson v. Murray, 415 U.S. 61, 86-87 (1974).
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infringes on the rights of Plaintiffs clients to receive information regarding available treatment. Accordingly, it should be enjoined. A. A3371 Constitutes Viewpoint Discrimination against Private Speech and such Regulations Have Always Been Found Unconstitutional.

A viewpoint-based restriction on private speech has never been upheld by the Supreme Court or any court. Indeed, a finding of viewpoint discrimination is dispositive. See Sorrell v. IMS Health, 131 S. Ct. 2653, 2667 (2011). 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 L.A. v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984)). The Third Circuit has likewise expressed disdain for a government regulation that imposes a restriction on speech based solely on its viewpoint. Viewpoint discrimination is an anathema to free expression and is impermissible in both public and nonpublic fora. Pittsburgh League of Young Voters Educ. Fund v. Port Auth. of Allegheny Cnty., 653 F.3d 290, 296 (3d Cir. 2011). Indeed, if the government allows speech on a certain subject, it must accept all viewpoints on the subject . . . even those that it disfavors or that are unpopular. Id. (citations omitted). Moreover, [t]o exclude a group simply because it is controversial or divisive is viewpoint discrimination and a mere desire to avoid the discomfort and unpleasantness that always accompanies an unpopular viewpoint is not enough to justify the suppression of speech.
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Child Evangelism Fellowship of N.J., Inc. v. Stafford Tp. Sch. Dist., 386 F.3d 514, 527-28 (3d Cir. 2004) (quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 509 (1969)). A3371 is a textbook example of viewpoint discrimination. The legislation explicitly states that a licensed mental health professional shall not counsel a client with unwanted SSA that change is possible. On its face, A3371 allows licensed counselors to discuss the subject of sexual orientation, but precludes a particular view on that subject, namely that SSA can be reduced or eliminated to the benefit of the client. A3371 specifically targets SOCE that seeks to eliminate or reduce sexual or romantic attractions or feelings towards a person of the same gender. (Compl. Ex. A) (emphasis added). The statute permits a counselor to counsel a client to transition from one gender to another. But, if the clients gender identity, mannerisms, or expression differ from the clients biological sex and the clients feelings are unwanted meaning he does not want to transition from a male identity to a female identity but instead the client wants to change his female gender identity, mannerisms, or expression to match his biological sex, then the counselor is forbidden to offer such counsel. Similarly, the statute permits a counselor to counsel a client to affirm homosexual attractions, but prohibits a counselor from counseling a minor client to change unwanted homosexual attractions, behavior, or identity. Under no circumstances may a counselor counsel a minor client to change unwanted homosexual attractions, behavior, or identity. Nor may the counselor counsel the minor client to change unwanted opposite sex mannerism, expressions, or identity, even when the client seeks such counsel. A3371 purportedly seeks to protect ... lesbian, gay, bisexual, and transgender youth. (Id.). By explicitly mentioning LGBT youth, A3371 clearly aims to ban only counsel that seeks to change sexual attractions, behavior, or identity towards members of the same-sex. That this is

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the actual meaning of A3371 cannot be seriously gainsaid, because it includes thirteen legislative findings and/or declarations, eleven of which expressly decry efforts to change non-heterosexual sexual orientations (i.e. homosexual or bisexual). (Id. at 2-5). Despite the States adamant assertions that attempting to change a minors SSA is harmful, not one legislative finding explicitly opposes counsel seeking to change heterosexual sexual orientations. (Id.). A3371s definitions confirm that only non-heterosexual SOCE counseling is precluded, as SOCE does not include counseling that: (1) provides acceptance, support, and understanding of clients or facilitation of persons coping, social support, and identity exploration and development, including sexual orientation-neutral intervention to prevent or address unlawful conduct or unsafe sexual practices, and (B) do not seek to change sexual orientation. (Id. at 5) (emphasis added). Consequently, licensed counselors may counsel their minor clients toward SSA to provide acceptance, support, and understanding, or to remain neutral. They may not, however, discuss the possibility of changing unwanted SSA even when the client desperately desires to eliminate such feelings and attractions, behavior or identity. (Id.). The viewpoint of those licensed counselors whose professional judgment leads them to believe that homosexual desires or behavior are destructive to some of their minor clients with unwanted SSA or that their clients might be better served by choosing SOCE is silenced and censored. Last year, an Eastern District of California court considered a law virtually identical to A3371 and enjoined its enforcement as a viewpoint-based regulation of speech. Welch v. Brown, 907 F. Supp. 2d 1102 (E.D. Cal. 2012). There, the court noted that a law banning only one particular viewpoint in otherwise permissible talk therapy is impermissible because [r]egardless of the breathing room [the law] may leave for speech about SOCE, when applied to SOCE

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performed through talk therapy, [the law] will give rise to disciplinary action solely on the basis of what the mental health provider says or the message he or she conveys. Id. (emphasis added). Indeed, when the entire course of counseling is guided by the counselors or clients views on homosexuality, it is difficult, if not impossible, to view the conduct of performing SOCE as anything but integrally intertwined with viewpoints, messages, and expression about homosexuality. Id. at 1116 (emphasis added). Moreover, [t]hat messages about homosexuality can be inextricably intertwined with SOCE renders it likely that, along with SOCE treatment, [the law] bans a mental health provider from expressing his or her viewpoints about homosexuality as part of SOCE treatment. Id. at 1117. In a separate case on the same law, a three-judge panel of the Ninth Circuit Court of Appeals issued an injunction pending appeal. See Pickup v. Brown, No. 12-17681, 2012 WL 6869637 (9th Cir. Dec. 21, 2012). The Supreme Court and several other courts have invalidated regulations of professional speech as unconstitutional viewpoint discrimination. See Sorrell, 131 S. Ct. 2653 (2011); Legal Servs. Corp. v. Valazquez, 531 U.S. 533 (2001); Conant v. Walters, 309 F.3d 629 (9th Cir. 2002). In these cases, the courts recognized the axiomatic truth that the government is not permitted to impose its viewpoint on speakers, even professional speakers subject to licensing requirements and regulation. In Velazquez, the Court addressed a federal limitation on the legal profession that operated in materially the same viewpoint-based manner as does A3371 and prevented legal aid attorneys from receiving federal funds if they challenged welfare laws. Velazquez, 531 U.S. at 537-38. The effect of this funding condition was to prohibit advice or argumentation that existing welfare laws are unconstitutional or unlawful, and thereby exclude certain vital

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theories and ideas from the lawyers representation. Id. at 547-48. The Court invalidated the regulation on its face. Id. at 549. In Conant, 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. Conant, 309 F.3d at 633. The Ninth Circuit began its analysis by recognizing that the doctor-patient relationship is entitled to robust First Amendment protection. An integral component of the practice of medicine is the communication between a doctor and a patient. Physicians must be able to speak frankly and openly to patients. That need has been recognized by courts through the application of the common law doctor-patient privilege. Id. at 636 (emphasis added). Far from being a First Amendment orphan, the court noted that such professional speech may be entitled to the strongest protection our Constitution has to offer. Conant, 309 F.3d at 637 (quoting Florida Bar v. Went For It, Inc., 515 U.S. 618, 634 (1995)). The court held that the ban impermissibly regulated physician speech based on viewpoint: The governments policy in this case seeks to punish physicians on the basis of the content of doctor-patient communications. Only doctor-patient conversations that include discussions of the medical use of marijuana trigger the policy. Moreover, 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. Such condemnation of particular views is especially troubling in the First Amendment context. Id. at 637-38 (emphasis added). The court rejected as inadequate the governments justification that the policy prevented clients from engaging in illegal behavior, and permanently enjoined enforcement of the policy. Id. at 638-39. A3371 operates almost identically to the federal policy enjoined in Conant. Just as the policy in Conant prohibited physicians from speaking about the benefits of marijuana to a suffering patient, so A3371 prohibits counselors from speaking about the benefits of SOCE with
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a client distressed about his SSA, as that could be perceived as an effort to change a persons sexual orientation. Both policies expressed governmental preference and favor for the message it approved over the private message of the healthcare provider with which it disagreed. Both should suffer the same constitutional demise. That A3371 is a viewpoint-based restriction on speech cannot seriously be questioned. One need only look to the authors of the primary evidence the State relied upon in enacting A3371, which was the APA Task Force Report, 2 to determine that the Act is aimed at suppressing the viewpoint of Plaintiffs and others who believe that SOCE counseling can be effective for those with unwanted SSA. Although many qualified conservative psychologists were nominated to serve on the task force, all of them were rejected. (Declaration of Christopher Rosik, Rosik Decl. 3). The reason they were excluded was because the leaders of that Task Force were ideologically opposed to their viewpoint. One of the leaders stated, [w]e cannot take into account what are fundamentally negative religious perceptions in homosexualitythey dont fit into our world view. (Id.) (emphasis added). Thus, from the outset of the task force, it was predetermined that conservative religious viewpoints would only be acceptable when they fit within their pre-existing worldview. (Id.). The State merely adopted the viewpoint of those ideologically opposed to SOCE counseling, and by doing so impermissibly discriminated against Plaintiffs viewpoint. B. A3371 is a Content-Based Prior Restraint on Speech and Cannot Survive Strict Scrutiny.

Even if A3371 were not viewpoint-based, which it is, but only a content-based restriction, it still could not withstand strict scrutiny. A3371 unquestionably restricts the content of speech
2

Report of the American Psychological Association Task Force on Appropriate Therapeutic Responses to Sexual Orientation (2009), available at http://www.apa.org/pi/lgbt/resources/therapeutic-response.pdf. (hereinafter Report ).
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regarding SSA, and it does so before any speech is uttered. As such, A3371 is presumptively invalid and can only be upheld if New Jersey can demonstrate that it passes strict scrutinythat is, unless it is justified by a compelling government interest and is narrowly drawn to serve that interest. Brown v. Entmt Merchants Assn, 131 S. Ct. 2729, 2738 (2011); Org. for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971) (Any prior restraint on expression comes to this Court with a heavy presumption against its constitutional validity.). Indeed, the notion that a content-based restriction on speech is presumptively unconstitutional is so engrained in our First Amendment jurisprudence that last term we found it so obvious as to not require explanation. Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 115-16 (1991). Regulations that permit the Government to discriminate on the basis of the content of the message cannot be tolerated under the First Amendment. Id. at 116 (quoting Reagan v. Time, Inc., 468 U.S. 641, 648-49 (1984)). Furthermore, [i]t is rare that a regulation restricting speech because of its content will ever be permissible. United States v. Playboy Entmt Grp., 529 U.S. 803, 818 (2000). The burden is on the State to prove it satisfies strict scrutiny, but the State cannot meet that burden here. Id. at 813. 1. Professional regulations of speech are subject to strict scrutiny when content-based.

[T]he principle that government may restrict entry into the profession and vocation through licensing schemes has never been extended to encompass the licensing of speech. Lowe v. SEC, 472 U.S. 181, 229-30 (1985) (White, J., concurring) (emphasis added). At some point, a measure is no longer a regulation of a profession but a regulation of speech . . . beyond that point, the statute must survive the level of scrutiny demanded by the First Amendment. Id. That point has been transgressed here; A3371 is not a mere regulation of the mental health profession, but a viewpoint-based and content-based prohibition on speech itself.
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The idea is not sound therefore that the First Amendments safeguards are wholly inapplicable to business or economic activity. Thomas v. Collins, 323 U.S. 516, 531 (1945). [T]he state may prohibit the pursuit of medicine as an occupation without its license but I do not think it could make it a crime publicly or privately to speak urging persons to follow or reject any school of medical thought. Id. at 544 (Jackson, J., concurring). Indeed, it cannot be the duty, because it is not the right, of the state to protect the public against false doctrine. The very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind through regulating the press, speech, and religion. Id. at 545 (Jackson, J., concurring). A3371 runs far afield of these principles and is therefore constitutionally infirm. 2. A3371 is not justified by a compelling government interest.

The Legislature claims that A3371 was enacted to meet a compelling interest in protecting the physical and psychological well-being of minors. (Compl. Ex. A, 1(m)). 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). Nevertheless, to simply claim the Act is intended to serve that broadly stated interest is not alone sufficient to justify A3371 and its regulation of pure speech, and the government 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. Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 664 (1994) (Turner I). This Court must answer the question [of] whether the legislative conclusion was reasonable and supported by substantial evidence in the record. Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 211 (1997) (citing Turner I, 512 U.S. at 665-66). When the Government defends a regulation on speech as a means to redress past harms or prevent anticipated harms, it must do

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more than simply posit the existence of the disease sought to be cured. Turner I, 512 U.S. at 664 (quoting Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434, 1455 (D.C. Cir. 1985)). The State must specifically identify an actual problem in need of solving. Brown, 131 S. Ct. at 2736. Additionally, when the government seeks to infringe on the fundamental speech rights of professionals, it must present more than anecdote and suspicion. Playboy Entmt, 529 U.S. at 822. [S]peculative fears alone have never been held sufficient to justify trenching on first amendment liberties. Century Commcns Corp. v. FCC, 835 F.2d 292, 300 (D.C. Cir. 1987) (holding that government claims that are not based on substantial evidence are more speculative than real). A3371 cannot satisfy this rigid standard, as the evidence that SOCE counseling is harmful to minors in all circumstances is insufficient as a matter of law. The American Psychological Associations Task Force on SOCE found some evidence of both alleged harm and benefits produced by SOCE. See APA Report at 2-3, 42, 49-50, 120. It noted that sexual minority adolescents are underrepresented in research on evidence-based approaches, and sexual orientation issues in children are virtually unexamined. Id. at 91. (emphasis added). The Report concluded that there is a dearth of scientifically sound research on the safety of SOCE. Early and recent research studies provide no clear indication of the prevalence of harmful outcomes . . . because no study to date of scientific rigor has been explicitly designed to do so. Id. at 42 (emphasis added). Anecdotes and suspicions simply will not suffice to justify A3371s content-based discrimination. Playboy Entmt, 529 U.S. at 822. The insufficiency of Defendants justifications is evidenced by the fact that many mental health professionals, including Dr. Nicholas

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Cummings, the former President of the American Psychological Association, acknowledge that many people successfully change their unwanted SSA.3 There are numerous studies that establish or at least suggest that people can and do successfully change their sexual orientation and eliminate or reduce their unwanted SSA. (Rosik Dec. 27-36); (Declaration of Joseph Nicolosi. 13-24). As summarized by Ott et al. (2013), reported sexual identity, attraction, and behavior have been shown to change substantially across adolescence and young adulthood. (Rosik Decl. 27) (emphasis added). Also, [o]ne major findings of Laumann, Gagnon, et al. study, which even surprised the authors, was that homosexuality as a fixed trait scarcely seemed to exist. (Id. 28) (emphasis added). The most troubling part of A3371 is that it prevents what some studies have shown to progress naturally unless interfered with by extraneous factors, in this case New Jerseys legislature. (Id. 27). Indeed, [i]t appears the most common natural course for a young person who develops a non-heterosexual sexual identity is for it to spontaneously disappear unless that process is discouraged or interfered with by extraneous factors. (Id.). A3371, far from actually furthering a compelling government interest to protect minor is in fact harmful to minors. (Nicolosi Decl. 25-35).

Nicholas A. Cummings, Ph.D., Sexual Reorientation Therapy Not Unethical, USA Today (July 30, 2013), available at http://www.usatoday.com/story/opinion/2013/07/30/sexual-reorientationtherapy-not-unethical-column/2601159/ (noting that he personally saw hundreds of patients that successfully changed their unwanted SSA and that thousands of patients who decided to stay a homosexual improved their lives as a result of his counseling). Dr. Nicholas went on to state: Contending that all same-sex attraction is immutable is a distortion of reality. Attempting to characterize all sexual reorientation therapy as unethical violates patient choice and gives an outside party a veto over patients goals for their own treatment. A political agenda shouldnt prevent gays and lesbians who desire to change from making their own decisions. ... [A]ccusing professionals from across the country who provide treatment for fully informed persons seeking to change their sexual orientation of perpetrating a fraud serves only to stigmatize the professional and shame the patient. Id.
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The governments alleged interest here is contradicted by the APA, which is one of the organizations cited as supporting the alleged consensus. The APA has conceded: There is no consensus among scientists about the exact reasons that an individual develops a heterosexual, bisexual, gay, or lesbian orientation. Although much research has examined the possible genetic, hormonal, developmental, social, and cultural influence on sexual orientation, no findings have emerged that permit scientists to conclude that sexual orientation is determined by any particular factor or factors. Many think that nature and nurture both play complex roles. (Id. 40) (emphasis added). [E]vidence of fluidity and change in sexual orientation strongly suggests that change in the dimensions of sexual orientation does take place for some people (and likely more so for youth) and this change is best conceptualized as occurring on a continuum and not as an all-or-nothing experience. (Id. 38) (emphasis added). Contrary to the States contentions and the Governors personal belief that homosexuals are born that way,4 sexual orientation is by no means comparable to a characteristic such as race or biological sex which are thoroughly immutable. (Id. 43). Same-sex attractions and

behaviors are not strictly or primarily determined by biology or genetics and are naturalistically subject to significant change, particularly in youth and early adulthood. (Id.). Indeed, the APA Report concedes that sexual orientation is not a fixed trait and explicitly stated that sexual orientation is fluid and often has an indefinite outcome. APA Report at vii. The continued availability of SOCE counseling by unlicensed counselors further reveals that A3371 is not supported by a compelling interest. A3371 prohibits licensed counselors from SOCE with minors, but the same counselor can counsel adults. Unlicensed counselors can offer SOCE to minors and adults. At a minimum, A3371 is underinclusive. City of Ladue v. Gilleo,
4

See Press Release, Gov. Christie Signs Bill Banning Gay Conversion Therapy On Minors, (Aug. 19, 2013) (available at http://nj.gov/governor/news/news/552013/approved/20130819a.html (last accessed 8/19/13).
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512 U.S. 43, 52 (1994). At worst, it proves the States interest is not compelling. If the government fails to enact feasible measures to restrict other conduct producing substantial harm or alleged harm of the same sort, the interest given in justification of the restriction is not compelling. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546-47 (1993). [A] law cannot be regarded as protecting an interest of the highest order . . . when it leaves appreciable damage to that supposedly vital interest unprohibited. Id. at 547. Here, the State has banned licensed counselors, who have far greater expertise by training, experience, and qualifications than unlicensed counselors, but have given unlicensed counselors, who have significantly less expertise, free rein to counsel minors however they deem fit. A3371 not only fails to satisfy strict scrutiny, it also fails even to meet minimal rational basis standards. It is, in a word, irrational at its core. A3371s purported assertions about consensus also ignore the American Association of Christian Counselors, an organization with 50,000 members. (Compl. 168). The only justification for calling AACC members out of the mainstream is disagreement with their views and animus against those who practice SOCE. Nevertheless, the First Amendment does not depend on a show of hands. Indeed, [t]he very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. Ones right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943) (emphasis added). The State does not have a compelling reason to restrict the content of speech a counselor speaks or a client seeks to hear. Its hostility against those who practice SOCE must not be condoned.

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3.

A3371 is not narrowly tailored.

Even if Defendants could articulate a compelling interest for A3371s total prohibition on change counseling, which they cannot, A3371 would still fail strict scrutiny because it is not narrowly tailored. It is not enough to show that the Governments ends are compelling; the means must be carefully tailored to achieve those ends. Sable Commcns, 492 U.S. at 126. Even if the State could ban an entire mode of therapysuch as SOCE counselingfrom the field of counseling, it could not do so simply to suppress a particular idea. R.A.V. v. City of St. Paul, 505 U.S. 377, 386 (1992) (The government may not regulate a [mode of speech] based on hostilityor favoritismtowards the underlying message expressed.). As shown above, such a discriminatory motive is revealed here, where there are other content-neutral substitutes to the regulation. See id. at 395 (The existence of adequate content-neutral alternatives thus undercut[s] significantly any defense of such a statute, casting considerable doubt on the governments protestations that the asserted justification is in fact an accurate description of the purpose and effect of the law.) (citations omitted). Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity. NAACP v. Button, 371 U.S. 415, 433 (1963). A narrowly tailored regulation of speech is one that achieves the governments interest without unnecessarily interfering with First Amendment freedoms. Sable Commcns, 492 U.S. at 126. A3371 is not necessary to prevent harm because all of the ethical codes of the professions engaging in this form of counseling already prohibit practices that actually harm patients. Specifically, Section 3.04 of the APA Code, Avoiding Harm, requires that [p]sychologists take reasonable steps to avoid harming their clients/patients . . . and to minimize harm where it is foreseeable and unavoidable. (Compl. 31). Section A.4.a of the ACA Code states:

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Counselors act to avoid harming their clients . . . . (Id. 47). Section 1(c) of the American Psychiatric Association Guidelines states that [a] psychiatrist shall strive to provide beneficial treatment . . . . (Id. 36).Violations of these ethical codes are treated as unprofessional conduct and subject licensed professionals to discipline by their respective licensing boards. Principle 1 of the American Association of Marriage and Family Therapys Ethics Code states that [m]arriage and family therapists advance the welfare of families and individuals. (Id. 50). Certainly, the mandate that marriage and family therapists advance the welfare of their clients would be violated by a counselor who engages in a course of counseling that is harmful to the client. A3371, however, is not an attempt to prevent harm, but is in truth a politically motivated attempt to harm one group of professionals who hold a particular viewpoint regarding counseling, particularly SOCE counseling. The fact that children are already protected from harmful and dangerous therapies at least from licensed counselors (these ethical rules do not apply to unlicensed counselors, whom A3371 leave unregulated) reveals that Defendants underlying goal is not about protecting minors. Instead, the asserted state interest is merely the guise under which Defendants are attempting to discriminate against, and silence, the viewpoint of those mental health professionals who believe that SOCE is helpful. Informed consent, which is the touchstone of professional counselors, and a clients right to self-determination, undercuts any alleged interest of the State because informed consent would be a less restrictive means to achieve the States alleged goal in preventing harm to clients. When legislation virtually identical to A3371 was being debated in California, several mental health organization recognized there that this type of legislation is attempting to undertake an unprecedented restriction on psychotherapy. (See Compl. Ex. B, Letter to California Legislature

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from California mental health organizations, at 1; see also Brief of Am. Assn for Marriage & Family Therapy et al., Ninth Circuit Court of Appeals, available at

http://cdn.ca9.uscourts.gov/datastore/general/2013/02/08/1217681%20Amicus%20brief%20b%2 0American%20Association%20for%20Marriage.pdf). These mental health organizations

proposed informed consent language that would have been much more narrowly tailored than the unprecedented intrusion into the relationship between counselor and client. (Id.). A complete ban on SOCE counseling or a viewpoint regarding SSA is not the least restrictive means to achieve any governmental interest. Total prohibitions on constitutionally protected speech are hardly an exercise of narrow tailoring. Awad v. Ziriax, 670 F.3d 1111, 1131 (10th Cir. 2012). Such extreme measures are invalid and should be enjoined by this Court. C. A3371 is Unconstitutionally Vague and Overbroad.

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 ordinar y 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). It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). While all regulations must be reasonably clear, laws which threaten to inhibit the exercise of constitutionally protected expression must satisfy a more stringent vagueness test. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982). Thus, a law must give adequate warning of what activities it proscribes and must set out explicit standards for those who apply

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it. See Broadrick v. Oklahoma, 413 U.S. 601, 607 (1973) (citing Grayned, 408 U.S. at 108). A3371 fulfills neither requirement, and thus forces both those enforcing the Act and mental health professionals to guess at its meaning and differ as to its application both when diagnosing and when engaging in a form of counseling with a minor client. 1. The term sexual orientation is vague.

At a minimum, A3371 leaves the licensed mental health professionals and counselors guessing 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 A3371s prohibitions are triggered. For without such guidance, a counselor cannot know when or if the counselor has begun to engage in prohibited sexual orientation change efforts. The vagueness created by this failure to define sexual orientation is exacerbated when combined with the complexities of human sexuality. The APA Report, upon which the Legislature so heavily relied, noted that counselors must consider sexual orientation along with sexual orientation identity and sexual attractions in multiple and changing combinations when counseling patients. See APA Report at vii, 14, 30. Same-sex sexual attractions and behavior occur in the context of a variety of sexual orientations and sexual orientation identities, and for some, sexual orientation identity (i.e., individual or group membership and affiliation, selflabeling) is fluid or has an indefinite outcome. Id. at vii (emphasis added). The APA further noted that [t]he recent research on sexual orientation identity diversity illustrates that sexual behavior, sexual attraction, are labeled and expressed in many different ways, some of which are fluid. Id. at 14 (emphasis added). Individuals with sexual attractions may understand, define, and label their experiences differently than those with similar desires because of the unique historical constructs regarding ethnicity, gender, and sexuality. Id.

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at 30. The available evidence . . . suggests that although sexual orientation is unlikely to change, some individuals modified their sexual orientation identity . . . and other aspects of sexuality (i.e. values and behavior). They did so in a variety of ways and in a variety of unpredictable outcomes. Id. at 3 (emphasis added). Given the intricate and subjective interchange between these concepts, it is not surprising that counselors researching SOCE counseling often misinterpreted sexual orientation entirely. Id. at 31; (Nicolosi Decl. 33-34). 2. The phrase sexual orientation change efforts is vague.

Assuming that a counselor could accurately diagnose a clients sexual orientation as used in A3371, the law still fails to provide sufficient instruction for counselors concerning what they can and cannot say during counseling with clients with non-heterosexual sexual attractions. In Keyishian v. Bd. of Regents of Univ. of State of N.Y., the statute at issue barred employment for any teacher who advocates, advises, or teaches the doctrine of forceful overthrow of government. The Court explained that the proscription on advocacy could be interpreted to prohibit the employment of persons who merely advocate the doctrine in the abstract. Keyishian, 385 U.S. 589, 599-600 (1967). The Court considered whether the ban on advising prohibited the mere advising of the existence of the doctrine, advising another to support the doctrine, or inform[ing ones] class about the precepts of Marxism or the Declaration of Independence. Id. Finding no sufficient answers, the Court declared the statute unconstitutionally vague. Id. at 604. A3371 raises similarly unanswerable questions. Does a counselor violate A3371 when the counselor simply raises the existence of SOCE with a minor client distressed with SSA? Does recommending a book that discusses change of SSA, or provides stories of people who did change their SSA, violate the law? Does referring minor clients to an unlicensed counselor while

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maintaining oversight of the client violate A3371? Do professional counselors unwilling to counsel in a manner affirming homosexual practices have to effectively close their mouths at the mere mention that a minor patient might have experienced some form of unwanted SSA? A3371 leaves licensed counselors uncertain whether a particular practice or even a particular discussion with a minor client will cost them their license. A3371 thus puts counselors in the same unconstitutional dilemma as that faced by the teachers in Keyishian and should be enjoined. A3371 also fails to address what advice licensed counselors may provide to minors who identify themselves as bisexual. What is a professional counselors obligation if a minor client enters the office on Monday discussing the unwanted homosexual feelings and relations he had over the weekend, but returns on Thursday discussing heterosexual attractions and relations from the previous night? Is the counselor required to affirm the homosexual attractions the client relayed during the Monday session, but sit silently in the Thursday session when the client is discussing heterosexual attractions? Engaging in discussions that might encourage this hypothetical clients feelings during the Thursday session would involve some practice that might reduce the clients SSA or romantic feelings towards a member of the same gender, and so implicate A3371. Additionally, what is a professional counselors obligation when a questioning minor client enters the office? Is he only permitted to affirm the clients homosexual feelings, but not the heterosexual feelings? If the client is truly confused as to his sexual identity, A3371 appears to compel him towards unequivocal acceptance of SSA, at least if the professional counselor does not want to risk losing his license. If professional counselors are prohibited from engaging in all efforts that attempt to chance SSA, then minor clients will only be able to receive counseling affirming those unwanted SSA. Yet, even the APA Report acknowledges that sexual

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orientation identity appears to shift and evolve in some individuals lives. APA Report at vii, 14. There is simply no way to determine the proper course of action when a questioning person enters the office. A3371 is unconstitutionally vague, and should be enjoined. 3. A3371 is overbroad.

A3371 is overbroad because it completely bans under any circumstances counsel to any minor that seeks to change or reduce SSA, even when the minor and the parents seek and consent to such counsel. Instead of using a scalpel, the State took a chain saw to the First Amendment. Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity. NAACP v. Button, 371 U.S. 415, 433 (1963). Laws as broad as A3371 are constitutionally suspect, because the courts cannot assume that, in its subsequent enforcement, ambiguities will be resolved in favor of adequate protection of First Amendment rights. Id. at 438. A3371 prohibits licensed counselors under any circumstances from engaging in any efforts to reduce or eliminate SSA in minors. The breadth of this prohibition is astounding, and renders A3371 unconstitutionally overbroad. A3371 cannot be upheld as a legitimate regulation of mental health. Indeed, it is no answer to the constitutional claims asserted by petitioner to say . . . that the purpose of these regulations was merely to insure high professional standards and not to curtail free expression. For a State may not, under the guise of prohibiting professional misconduct, ignore constitutional rights. Id. at 438-39 (emphasis added). A3371 bans Plaintiffs from providing counsel to their clients who knowingly, with informed consent, seek counsel to change SSA, which includes romantic attractions, behavior (even if it is risky), identity, speech, and mannerisms. This ban is an unprecedented restriction of psychotherapy. (Compl. Ex. B at 1). The State took a cannon to kill a gnat. A3371 goes far beyond a narrow, or even reasonable, restriction on speech. Regulation of speech requires more care and precision than A3371 provides.
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D.

A3371 Unconstitutionally Infringes on the Rights of Plaintiffs Clients to Receive Information Regarding Available Treatment.

The First Amendment protects the right to receive information as a corollary of the right to speak. The Fourteenth Amendment guarantees this right, too, against the states. See, e.g., Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 867 (1982); Va. State Bd. of Pharm. v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 770 (1976); Stanley v. Georgia, 394 U.S. 557, 564 (1969); Martin v. City of Struthers, 319 U.S. 141, 143 (1943); Meyer v. Nebraska, 262 U.S. 390 (1923). A3371 deprives Plaintiffs minor clients of this right during counseling sessions because it prohibits counselors from offering SOCE counseling to minors that might help them reduce or eliminate their unwanted SSA. 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, A3371 suppresses the viewpoint that SOCE counseling may be beneficial to minors who seek to reduce or eliminate their unwanted SSA and expresses the States disapproval of such counseling. Because the First Amendment forbids the suppression of ideas from willing recipients in the medical context, Plaintiffs are substantially likely to prevail on the merits. In Virginia State Board of Pharmacy, the Court noted that the First Amendment commands the assumption that information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them. Id. at 770. The rule articulated in Virginia State Board of Pharmacythat the First Amendment commands more
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information, not lessis most pronounced for the medical profession. See Sorrell, 131 S. Ct. at 2664 (A consumers concern for the free flow of commercial speech often may be far keener than his concern for urgent political dialogue . . . That reality has great relevance in the fields of medicine and public health, where information can save lives. (quoting Bates v. State Bar of Ariz., 433 U.S. 350, 364 (1977)); United States v. Caronia, 703 F.3d 149, 167 (2d Cir. 2012) (Moreover, in the fields of medicine and health, where information can save lives, it only furthers the public interest to ensure that decisions about [medical care] are intelligent and wellinformed.) (quoting Sorrell, 131 S. Ct. at 2664). A3371 bears a striking resemblance to the speech restrictions at issue in Virginia State Board of Pharmacy and Conant. Va. State Bd. of Pharm., 425 U.S. at 771; Conant, 309 F.3d at 633. Like the advertising ban on prescription drug prices, A3371 assumes that SOCE counseling and related information are per se harmful and attempts to keep the public ignorant of available counseling options by completely closing the channel of counselor-client communication. Additionally, like the federal policy on medical marijuana at issue in Conant, A3371 diminishes a clients understanding of his or her own unwanted SSA, limits the availability of personal choices consistent with the fundamental right of all persons to self-determination. Moreover, A3371 will harm minors and force those distressed over their unwanted SSA to seek out unlicensed and untrained counselors who could inflict irreversible emotional damage by providing counseling not subject to the requirements of mental health licensing boards in New Jersey. Like the laws in Virginia State Board of Pharmacy and Conant, A3371 suppresses information that clients have a right to hear. By so doing, A3371 also suppresses the particular idea that SSA felt by a given individual may be harmful, may lead to unhappiness, or may not be the only way. Because A3371 suppresses those ideas, it is simply unconstitutional.

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The irrationality of the States unconstitutional suppression of the First Amendment rights of minors is made further evident by other provisions regulating the mental health decisions of minors in New Jersey. [A]ny minor 14 years of age or over may request admission to a psychiatric facility, special psychiatric hospital, or childrens crisis intervention service provided the court on a finding that the minors request is informed and voluntary enters an order approving the admission. N.J. Ct. R. 4:74-7A(c). Additionally, the minor may discharge himself or herself from the facility in the same manner as an adult who has voluntarily admitted himself or herself. Id. So, New Jersey finds it perfectly acceptable for minors over 14 years of age to check themselves into and out of psychiatric hospitals where they can be given powerful psychotropic medications and a wide variety of extreme treatments even without parental consent, but New Jersey finds that same minor incapable of being trusted to decide to sit down and talk with a mental health counselor to reduce or eliminate his or her unwanted SSA, even with parental consent. Such a decision is determined to be per se harmful to that minor, regardless of the lack of concrete and substantial evidence to the contrary, and the State forever prohibits any minor from receiving such counsel from a licensed mental health professional under any circumstances. (He may, of course, receive SOCE counseling from an unlicensed professional, regardless how far out or bizarre the techniques may be.) Logic more unreasonable and irrational is difficult to fathom. It is well settled that Plaintiffs have standing to bring these First Amendment claims on behalf of the clients. See Penn. Psychiatric Socy v. Green Spring Health Servs., Inc., 280 F.3d 278, 289 (3d Cir. 2002). Indeed, [p]sychiatrists clearly have the kind of relationship with their patients which lends itself to advancing claims on their behalf. This intimate relationship and the resulting mental health treatment ensures psychiatrist can effectively assert their patients rights.

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Id. The relationship forged between psychiatrist and their patients is equally compelling to the inherent closeness of the doctor-patient relationship. Id. Therefore, psychiatrists would have third-party standing to assert the claims of their patients. Id. at 291. II. PLAINTIFFS ARE SUFFERING IMMEDIATE AND IRREPARABLE INJURY. The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. Elrod v. Burns, 427 U.S. 347, 373 (1976); see also Swartwelder v. McNeilly, 297 F.3d 228, 241-42 (3d Cir. 2002) (same). A citizen who exercises the right to free speech exercises a right that lies at the foundation of free government. Schneider v. New Jersey, 308 U.S. 147, 165 (1939). Viewpoint-based infringements on that fundamental liberty, such as A3371 here, therefore unquestionably constitute irreparable harm to Plaintiffs and their minor clients. A3371 is prohibiting Plaintiffs from engaging in certain discussions with their clients, and this prohibition constitutes a First Amendment viewpoint-based violation, especially when A3371 permits discussion of the topic of sexual orientation and permits the viewpoint that all same-sex attractions, behaviors, or identity are to be encouraged and embraced. SOCE counseling espousing the opposite viewpoint has been banned, however, and all efforts that are aimed at reducing or eliminating unwanted SSA are deemed ethical violations. A3371 silences licensed counselors who wish to engage in a course of counseling with consenting minor clients that aligns with the clients sincerely held religious beliefs. Such a prohibition constitutes a deprivation of First Amendment rights and imposes immediate and irreparable harm on Plaintiffs and their clients. Plaintiffs are being denied the ability to speak to their minor patients and clients about available counseling which might assist the client in obtaining the desired outcomei.e.,

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reducing or eliminating unwanted SSA. If they violate the A3371s prohibitions, then Plaintiffs are subject to loss of their professional licenses. If they follow A3371s requirements, then Plaintiffs will be subject to sanctions for violating other provisions of their ethical codes mandating that the clients have the right to self-determination and that the counselor should not impose an ideology on the clients. The imposition of punishment for discussing a course of counseling desired by the clients is certainly a deprivation of constitutional rights, and constitutes a priori irreparable harm. Plaintiffs minor clients are likewise suffering irreparable injury. Plaintiffs minor clients have lost their First Amendment right to receive medical information, which unquestionably constitutes irreparable harm. Elrod, 427 U.S. at 373; see also New York Times Co. v. United States, 403 U.S. 713 (1971). As discussed above, this constitutional right takes on special importance in the patient-client context because patients cut off from professional advice are left to make critical medical decisions on their own. Facts, after all, are the beginning point for much of the speech that is most essential to advance human knowledge and to conduct human affairs. Sorrell v. IMS Health, Inc., 131 S. Ct. 2653, 2667 (2011). Censoring facts and available options for assisting a client with his unwanted feelings of distress about a particular issue, whether it be unwanted SSA or some other cause of distress, is particularly troubling in the medical context where information can save lives. Id. at 2664. A3371 prohibits Plaintiffs minor clients from receiving the counseling they deem most effective in assisting them to align their sexual attractions, behaviors, and identity with their sincerely held religious beliefs. As such, it is currently causing them immediate and irreparable injury.

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III.

THE BALANCE OF EQUITIES TIPS IN PLAINTIFFS FAVOR. In analyzing the third Winter element, the court must balance the competing claims of

injury and must consider the effect on each party of the granting or withholding of the requested relief. Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 542 (1987). Plaintiffs and their clients are currently suffering immediate and irreparable injury and loss of constitutional rights and will continue to suffer such injury so long as A3371 prohibits their providing or receiving SOCE counseling. An injunction in this case will protect the very rights that the Supreme Court has characterized as lying at the foundation of free government of free men. Schneider v. New Jersey, 308 U.S. 147, 151 (1939). The loss of such fundamental freedoms outweighs any interest Defendants might have in halting SOCE counseling, especially given the fact that the basis for the ban is merely anecdotal evidence unsubstantiated by any scientific facts. By contrast, the State has suffered no injury. See Dj vu of Nashville, Inc. v. Metro. Govt of Nashville & Davidson Cnty., 274 F.3d 377, 400 (6th Cir. 2001) (if a plaintiff shows a substantial likelihood that the challenged law is unconstitutional, no substantial harm to others can be said to inhere in its enjoinment). The Third Circuit has recognized that while injunctions can impinge on a governments interest, the balance favors Plaintiffs in these matters because the government remains free to attempt to enact new regulations that are better tailored to serve [their] interests. Swartwelder v. McNeilly, 297 F.3d 228, 242 (3d Cir. 2002). The same is true here, and the injunction should issue. IV. AN INJUNCTION IS IN THE PUBLIC INTEREST. The public interest will be served by granting the injunction. The protection of constitutional rights is of the highest public interest. Elrod v. Burns, 427 U.S. 347, 373 (1976). Indeed, the public interest is best served by eliminating unconstitutional restrictions.

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Swartwelder v. McNeilly, 297 F.3d 228, 242 (3d Cir. 2002). Additionally, there is simply no interest in the protection or enforcement of unconstitutional laws. See ACLU v. Ashcroft, 322 F.3d 244, 250 n.11 (3d Cir. 2003). [I]t is incontrovertible that curtailing constitutionally protected speech will not advance the public interest. Stilp v. Contino, 743 F. Supp. 2d 460, 470 (M.D. Penn. 2010) (quoting ACLU v. Reno, 217 F.3d 162, 180 (3d Cir. 2000)). Here, because A3371 is a constitutionally impermissible imposition of viewpoint discrimination and unconstitutionally chills the rights of Plaintiffs to provide and their client to receive counseling consistent with their sincerely held religious beliefs, there is no public interest in maintaining or enforcing its prohibitions. As such, A3371 should be enjoined. CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that this Court issue a temporary restraining order and/or a preliminary injunction against enforcement of A3371. Dated: August 23, 2013 Respectfully submitted, /s/ Demetrios Stratis Demetrios Stratis New Jersey Bar No. 022391991 Mathew D. Staver* Stephen M. Crampton* Daniel J. Schmid* Liberty Counsel Attorneys for Plaintiffs P.O. Box 11108 Lynchburg, VA 24502 Tel. 434-592-7000 Fax: 434-592-7700 court@LC.org * Application to appear Pro Hac Vice pending

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CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was filed electronically with the court on August 23, 2013. Service will be effectuated by the Courts electronic notification system upon all counsel of record.

/s/ Demetrios Stratis Demetrios Stratis New Jersey Bar No. 022391991

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