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Christopher Doyle, LPC, LCPC v. Hogan

United States District Court, D. Maryland

September 23, 2019

CHRISTOPHER DOYLE, LPC, LCPC, Individually and on behalf of his clients
v.
LAWRENCE JOSEPH HOGAN, JR., et al.

          MEMORANDUM OPINION

          DEBORAH K. CHASANOW, United States District Judge.

         Plaintiff Christopher Doyle (“Plaintiff”) initiated the instant action against Defendants Lawrence J. Hogan, Jr. in his official capacity as Governor of the State of Maryland and Brian E. Frosh in his official capacity as the Attorney General of the State of Maryland (collectively, “Defendants”) on January 18, 2019.

         At issue in this case is § 1-212.1 of the Health Occupations Article of the Maryland Code which states: “A mental health or child care practitioner may not engage in conversion therapy with an individual who is a minor.” The complaint alleges that § 1-212.1 violates Plaintiff’s: (1) right to freedom of speech under the First Amendment (ECF No. 1 ¶¶ 144-163); (2) clients’ First Amendment rights to receive information (id. ¶¶ 164-172); (3) right to free exercise of religion under the First Amendment (id. ¶¶ 173-189); (4) “right to liberty of speech under Articles 10 and 40 of the Declaration of Rights of the Constitution of Maryland” (id. ¶¶ 190-210); and (5) “right to free exercise and enjoyment of religion under Article 36 of the Declaration of Rights of the Constitution of Maryland” (id. ¶¶ 211-227). Plaintiff seeks (1) “a preliminary injunction enjoining Defendants and Defendants’ officers, agents, servants, employees, and attorneys, and all other persons who are in active concert or participation with them . . . from enforcing [§ 1-212.1][;]” (2) “a permanent injunction enjoining [enforcement of § 1-212.1;]” (3) “a declaratory judgment declaring unconstitutional [§ 1-212.1] and Defendants’ actions in applying [§ 1-212.1] under the United States Constitution and Constitution of Maryland[;]” (4) “nominal damages for the violation of [his] constitutional rights;” (5) “actual damages in an amount to be determined at trial;” (6) a declaration that “the rights and other legal relations with the subject matter here [are] in controversy so that such declaration shall have the force and effect of final judgment;” (7) the court’s continued jurisdiction after finding in Plaintiff’s favor “for the purpose of enforcing th[e] [c]ourt’s order;” and (8) “reasonable costs and expenses of this action, including attorney’s fees, in accordance with 42 U.S.C. § 1988[.]” (ECF No. 1, at 42-45).

         Plaintiff filed a motion for preliminary injunction on January 18, 2019. (ECF No. 2). Defendants filed a motion to dismiss for failure to state a claim on March 8, 2019. (ECF No. 26). A memorandum opinion and order were issued on August 1, 2019, granting Freestate Justice, Inc. and The Trevor Project leave to file an amicus brief, denying Plaintiff’s motion to compel, and granting Plaintiff’s motion to file surreply. (ECF Nos. 65 & 66). The opinion also resolved four of the preliminary issues raised in Defendants’ motion to dismiss, finding that: (1) the free speech arguments Defendants originally provided in their opposition to Plaintiff’s motion for preliminary injunction would be evaluated as part of their motion to dismiss; (2) Plaintiff possesses standing; (3) Plaintiff does not possess standing to bring claims on behalf of his minor clients; and (4) Defendants are not entitled to Eleventh Amendment immunity. The issues have been briefed and the parties argued their positions regarding the motion for preliminary injunction and the motion to dismiss during a motions hearing on August 5, 2019. For the following reasons, Plaintiff’s motion for preliminary injunction will be denied as moot and Defendants’ motion to dismiss will be granted.

         I. Motion to Dismiss

         A. Standard of Review

         Defendants’ argument that the complaint fails to state a plausible claim for relief is governed by Fed.R.Civ.P. 12(b)(6). The purpose of a motion to dismiss under Rule 12(b)(6) is to test the sufficiency of the complaint. Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). A complaint need only satisfy the standard of Rule 8(a)(2), which requires a “short and plain statement of the claim showing that the pleader is entitled to relief[.]” “Rule 8(a)(2) still requires a ‘showing, ’ rather than a blanket assertion, of entitlement to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n.3 (2007). That showing must consist of more than “a formulaic recitation of the elements of a cause of action” or “naked assertion[s] devoid of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations and internal quotation marks omitted). At this stage, all well-pleaded allegations in a complaint must be considered as true, Albright v. Oliver, 510 U.S. 266, 268 (1994), and all factual allegations must be construed in the light most favorable to the plaintiff, Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir. 1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)). In evaluating the complaint, unsupported legal allegations need not be accepted. Revene v. Charles Cty. Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989). Legal conclusions couched as factual allegations are insufficient, Iqbal, 556 U.S. at 678, as are conclusory factual allegations devoid of any reference to actual events, United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979); see Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009).

         B. Free Speech

         Defendants argue that Plaintiff fails to state a claim for violation of his free speech rights under the First Amendment. (ECF No. 26-1, at 13). According to Defendants, § 1-212.1 regulates “the practice of licensed mental health and child care practitioners by prohibiting a particular type of treatment that the legislature determined to be harmful to minors.” (ECF No. 25, at 14). Thus, Defendants conclude that the law is subject only to rational basis review because it “regulates conduct - not speech[.]” (Id.). Because “[t]here can be no doubt that the State of Maryland has a legitimate interest in protecting minors from harmful conduct[, ]” Defendants assert that § 1-212.1 easily withstands rational basis review. (Id., at 16).

         Defendants add that, if § 1-212.1’s prohibitions are found to have more than an incidental burden on Plaintiff’s speech, the statute may alternatively be subject to intermediate scrutiny. (ECF No. 25, at 16). Defendants rely on Otto v. City of Boca Raton, 353 F.Supp.3d 1237 (S.D.Fla. 2019) to assert that Plaintiff’s free speech claim fails because the law survives intermediate scrutiny:

[T]he legislature’s interest in protecting minors is important[] and the ban . . . furthers that interest. [] [T]he ban does not burden more speech than necessary; it prohibits only the therapy that the legislature found to be harmful. It only affects certain licensed health care providers and the treatment that they provide to minors. It does not limit in any way [Plaintiff]’s or any other individual’s right to advocate for conversion therapy or a repeal of the statute. It does not limit [Plaintiff]’s ability to engage in conversion therapy with adults or his right to express and discuss his views about conversion therapy to his clients. Thus, it is likely that [§ 1-212.1] would survive an intermediate scrutiny review.

(ECF No. 25, at 17). Defendants add that § 1-212.1 is not a content- or viewpoint-based restriction because “[i]t does not limit what [Plaintiff] or other licensed practitioners may say to minor clients; it limits the object that the therapy provided by licensed practitioners may have.” (Id., at 20).

         Plaintiff maintains that he “has stated a First Amendment claim under federal pleading standards.” (ECF No. 47, at 12). At the outset, Plaintiff asserts that he “sufficiently alleged that [§ 1-212.1] is a viewpoint- and content-based restriction . . . [and] chills expression.” (Id., at 11). Plaintiff dismisses Defendants’ conclusion that § 1-212.1 regulates conduct by conflating the categories of professional speech and professional conduct:

The government cannot simply relabel the speech of health professionals as “conduct” in order to restrain it with less scrutiny. See, e.g., Nat’l Inst. for Family & Life Advocates v. Becerra [(NIFLA)], 138 S.Ct. 2361, 2371-72 (2018) . . . (“[T]his Court has not recognized ‘professional speech’ as a separate category of speech. Speech is not unprotected merely because it is uttered by professionals.”); Reed v. Town of Gilbert, 135 S.Ct. 2218, 2229 (2015) (same); Holder v. Humanitarian Law Project, 561 U.S. 1, 27[-28] (2010) (holding government may not apply alternative label to protected speech to evade First Amendment review, when only “conduct” at issue is speech); Legal Servs. Corp. v. Velazquez, 531 U.S. 533 (2001) (same); NAACP v. Button, 371 U.S. 415, 438 (1963) (“[A] state may not, under the guise of prohibiting professional misconduct, ignore constitutional rights.”).

(Id., at 12). Plaintiff argues that, because he primarily uses speech to provide counseling to his minor clients, the act of counseling must be construed as speech for purposes of First Amendment review. (Id., at 13). As such, § 1-212.1 is subject to and unable to “withstand the requisite [strict] constitutional scrutiny.” (Id., at 11).

         Determining the proper level of review first requires distinguishing whether § 1-212.1 regulates speech, conduct, or something in between. Although the line between speech and conduct is often murky, it is without question that “restrictions on protected expression” are treated distinctly from “restrictions on . . . nonexpressive conduct.” Sorrell v. IMS Health Inc., 564 U.S. 552, 567 (2011). “[T]he First Amendment does not prevent restrictions directed at . . . conduct from imposing incidental burdens on speech.” Id. Indeed, “it has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.” Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 (1949). Thus, government regulations of professional practices that entail and incidentally burden speech receive deferential review. Greater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor of Balt., 879 F.3d 101, 109 (4th Cir.), cert. denied, 138 S.Ct. 2710 (2018) (“The power of government to regulate the professions is not lost whenever the practice of a profession entails speech.”) (quoting Lowe v. S.E.C., 472 U.S. 181, 228 (1985)) (internal quotation marks omitted). However, “that does not mean that individuals simply abandon their First Amendment rights when they commence practicing a profession.” Stuart v. Camnitz, 774 F.3d 238, 247 (4th Cir. 2014). When a professional asserts that the professional’s First Amendment rights “are at stake, the stringency of review thus slides ‘along a continuum’ from ‘public dialogue’ on one end to ‘regulation of professional conduct’ on the other.” Id. at 248 (quoting Pickup v. Brown, 740 F.3d 1208, 1227, 1229 (9th Cir. 2014), abrogated by Becerra, 138 S.Ct. 2361). As the Fourth Circuit has explained:

Because the state has a strong interest in supervising the ethics and competence of those professions to which it lends its imprimatur, this sliding-scale review applies to traditional occupations, such as medicine or accounting, which are subject to comprehensive state licensing, accreditation, or disciplinary schemes. See[, ] e.g., Stuart, 774 F.3d 238 (doctors); Accountant’s Soc’y of Va. v. Bowman, 860 F.2d 602 (4th Cir. 1988) (accountants). More generally, the doctrine may apply where “the speaker is providing personalized ...

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