Vazzo, et al. v. Tampa, No. 8:17-cv-02AAS (M.D. Fla.) January 30, 2019.
A clerk magistrate for the United States District Court for the Middle District of Florida has entered an order enjoining the enforcement of a Tampa ordinance prohibiting therapists from discussing with adolescent clients Sexual Orientation Change Efforts (SOCE). The court left intact the portions of the ordinance precluding non-talk SOCE interventions.
Plaintiffs are therapists and a Christian ministry that serves as a referral source for SOCE counseling, which is intended to reorient minors away from same sex attractions. Plaintiffs argued that the ordinance unconstitutionally constraints speech content and viewpoint, that it operates as a prior restraint of speech, and that it is vague and overbroad.
A Compelling Interest Not Narrowly Addressed. The magistrate observed that the regulation of professional speech is speech regulation, and not the regulation of conduct, as one court determined. The government has a compelling interest in ensuring and promoting the mental health and safety of minors. Tampa failed, however, to provide any evidence that less restrictive means to support that interest had been considered, making it impossible to meet the strict scrutiny standard applicable to content based speech restrictions. Impermissible viewpoint restriction was found where the ordinance regulates only speech concerning a particular form of therapy with a particular goal.
A Vague and Overbroad Prior Restraint. Moreover, as the ordinance prohibits speech before it is uttered, it operates as an unconstitutional prior restraint. The breadth of discussion expressly or implicitly embraced within the ordinance leaves the average therapist in doubt about what is prohibited and at the same time invites discriminatory enforcement, making the ordinance overbroad and vague.
Irreparable Harm to Plaintiffs But No Concomitant Harm to Tampa. Having found plaintiffs had established a likelihood of success on the merits of the First Amendment claims, the magistrate also found that other standards for issuance of a preliminary injunction were met. The delays inherent in being unable to speak until the conclusion of litigation presented irreparable harm. The city, by contrast, has an interest in not enforcing unconstitutional laws and no harm could be shown to flow from enjoining the portions of the ordinance precluding discussion of SOCE.
Further Developments Should Be Watched. Claims surrounding the limits of speech regulations and the intervention of the state in the provision of health care are unlikely to abate. It may be wise to ask whether, if informed consent is the foundation upon which competent care may be had, speech restrictions are appropriate under all but the most narrow circumstances. The consultation room remains, for all its secular trappings, something of a sacred space in which that which needs saying ought to be said without fear by either patient or provider. While it is always desirable to define and to support professional standards of care, doing so by speech regulation may not be the modality of choice.