C|M|LAW Professor Kevin O’Neill was quoted at length in an article,1st Amendment at issue in ban on gay-conversion therapy for minors, by David L. Hudson Jr., in
the January 2014 issue of the ABA Journal, on page 18. The article deals with a recent Ninth Circuit decision upholding a California statute that bans a type of psychiatric therapy designed to dissuade gay and lesbian minors from homosexual conduct. Professor O’Neill was asked to comment on the court’s First Amendment analysis.
According to O’Neill, “[p]laying the old ‘conduct-not-speech’ card is something that judges do when faced with particularly thorny speech issues . . .” He adds, “I don’t find it persuasive here, but it gave the 9th Circuit a convenient basis for applying rational-basis review.”
O’Neill says “[t]he statute singles out a particularly ludicrous treatment—a ‘medical’ treatment that is grounded upon ignorance and hostility toward gays and lesbians—and simply bans it. but the ugliness of the treatment doesn’t provide a constitutional basis for banning it.”
O’Neill notes that the Supreme Court invalidated “efforts to ban some of the ugliest speech ever” in the prohibition of images of animal cruelty in U.S. v. Stevens (2010) and violent video games in Brown v. Entertainment Merchants Association (2011).
“If you’re going to uphold this statute, you have to focus on the government’s legitimate power to protect children from medical quackery,” O’Neill says. “But that doesn’t fit too easily into any of the unprotected categories of speech, such as obscenity, child porn, true threats or advocacy of imminent lawless action. The absence of clear guidance in First Amendment law may be a strong reason for granting cert in this case.”
Here is a link to the article:
Professor O’Neill’s comments appear toward the end of the article, in a section entitled, “Beyond Ugliness.”