From Judge Diarmuid O'Scannlain's opinion respecting rehearing en banc released today (and joined by Judges Sandra Ikuta, Ryan Nelson, and Lawrence VanDyke) in Tingley v. Ferguson:
Is therapeutic speech speech? Does a tradition of licensing a given profession override all First Amendment limits on licensing requirements? The three-judge panel answered 'no' to the first question, and a majority of the panel answered 'yes' to the second. In my view, both holdings are erroneous and significant constitutional misinterpretations, and I respectfully dissent from our court's regrettable failure to rehear this case en banc.
First, the panel said that therapeutic speech is non-speech conduct and so protected only by rational basis review. True, it reached this result by faithfully applying our decision in Pickup v. Brown, which held that a California ban on "sexual orientation change efforts" was a regulation of professional conduct only incidentally burdening speech. But the Supreme Court has rejected Pickup by name. Nat'l Inst. of Family & Life Advocates v. Becerra ("NIFLA") (2018). And other circuits have rejected Pickup's holding, concluding instead that therapeutic speech is—speech, entitled to some First Amendment protection. See King v. Governor of New Jersey (3d Cir. 2014); Otto v. City of Boca Raton (11th Cir. 2020). The panel's defense of Pickup's continuing viability is unconvincing. We should have granted rehearing en banc to reconsider Pickup and so to resolve this circuit split.
Second, a majority of the panel purported to discover a "long (if heretofore unrecognized) tradition of regulation" which warrants applying only rational basis review to laws burdening therapeutic speech. In reality, the majority drew out a gossamer thread of historical evidence into a sweeping new category of First Amendment exceptions. If new traditions are so easily discovered, speech-burdening laws can evade any level of scrutiny simply by identifying some legitimate purpose which they might serve. We should have granted rehearing en banc also to clarify that regulation of the medical profession is not a First-Amendment-free zone.
Judge Patrick Bumatay also thought the court should have reheard the case en banc:
