Introduction

The case of Brian Tingley v. Robert W. Ferguson, Attorney General of Washington, et al. addresses a highly contentious issue at the intersection of free speech and state regulation of professional conduct. Decided on December 11, 2023, by the Supreme Court of the United States, this case revolves around Washington State's enactment of Senate Bill 5722 (SB 5722) and its implications on licensed counselors who provide "conversion therapy" to minors. The central legal question examines whether SB 5722's restrictions constitute unconstitutional content-based discrimination under the First Amendment.

Summary of the Judgment

In this case, Brian Tingley, a licensed marriage and family counselor, challenged Washington State's SB 5722, which prohibits licensed healthcare providers from performing conversion therapy on individuals under 18. Conversion therapy, as defined by the state, involves attempts to change an individual’s sexual orientation or gender identity. SB 5722 allows only those forms of counseling that support and affirm a minor's existing gender identity without seeking to alter it. Tingley argued that this law infringes upon his First Amendment rights by restricting his speech based on its content and viewpoint.

The Ninth Circuit Court of Appeals upheld SB 5722, determining that the statute regulated professional conduct rather than speech and thus did not implicate First Amendment protections. This decision created a circuit split, as similarly situated cases in the Eleventh and Third Circuits had ruled that such laws do, in fact, regulate speech and therefore require strict scrutiny under the First Amendment.

The Supreme Court, however, denied the petition for a writ of certiorari. Justice Kavanaugh concurred in the denial, while Justices Thomas and Alito dissented, arguing that the Court should have reviewed the case due to its national importance and the constitutional questions it presents.

Analysis

Precedents Cited

The judgment references several key precedents that influence the understanding of speech regulation within professional contexts:

• National Institute of Family and Life Advocates v. Becerra (2018): This case clarified that even professional speech is protected under the First Amendment, and content-based restrictions require strict scrutiny.
• Otto v. Boca Raton (2020): The Eleventh Circuit held that similar ordinances in Florida regulating conversion therapy constitute unconstitutional speech restrictions.
• United States v. Alvarez (2012): Emphasized that factual statements are protected speech unless regulated under specific exceptions.
• Reed v. Town of Gilbert (2015): Established that content-based restrictions on speech are presumptively unconstitutional and subject to strict scrutiny.
• West Virginia BOARD OF EDUCATION v. BARNETTE (1943): Affirmed that the government cannot compel individuals to express particular beliefs, underscoring the importance of protecting expressive freedom.

Legal Reasoning

The dissenting opinions by Justices Thomas and Alito argue that SB 5722 clearly regulates speech, specifically the speech involved in counseling practices aimed at changing a minor's gender identity. They emphasize that such speech falls under the First Amendment's protection against content-based and viewpoint-based discrimination. According to them, the Ninth Circuit erred by classifying the therapy as mere professional conduct, thereby avoiding the First Amendment analysis. Instead, the law imposes direct sanctions on specific messages conveyed by counselors, which is a form of speech regulation.

They further argue that the Ninth Circuit failed to apply strict scrutiny—a rigorous standard requiring the state to demonstrate that the law serves a compelling interest and is narrowly tailored to achieve that interest—because SB 5722's restrictions are inherently tied to the content and viewpoint of the speech. The dissenters assert that without historical precedence supporting such specific speech regulation in professional settings, the statute should not stand under constitutional scrutiny.

Impact

The denial of certiorari leaves the Ninth Circuit's decision in place, perpetuating the circuit split concerning the regulation of conversion therapy. However, the strong dissent indicates potential for future Supreme Court intervention, especially if similar cases arise from other circuits. The key impact lies in the ongoing debate over the balance between state interests in protecting minors from perceived harms and the protection of free speech, even within professional realms. This case sets the stage for future litigation that may further clarify the boundaries of speech regulation in therapeutic contexts.

Complex Concepts Simplified

Conclusion

The case of Brian Tingley v. Robert W. Ferguson underscores the ongoing tension between state regulation intended to protect minors and the constitutional protections of free speech. While the Supreme Court declined to review the case, the strong dissent highlights significant legal and societal implications that may prompt future judicial scrutiny. This judgment serves as a pivotal reference point for understanding how the First Amendment applies to professional speech, particularly in sensitive and contested areas such as gender identity counseling. As societal views continue to evolve, so too will the legal frameworks that govern them, making this case a foundational moment in the broader discourse on free speech and state regulation.