That’s the question that senior Ninth Circuit judge Diarmuid O’Scannlain poses at the beginning of his opinion today (pp. 5-24) objecting to his court’s denial of rehearing en banc in Tingley v. Ferguson.

In Tingley, the panel ruled that therapeutic speech is non-speech conduct that is protected only by rational-basis review, and, on that basis, held that a Washington statute that prohibits “conversion therapy” for minors does not violate the First Amendment. Judge O’Scannlain (joined by three of his colleagues) complains that the panel ruling relied on a circuit precedent, Pickup v. Brown (pp. 22-53 here), that the Supreme Court had “criticized … by name” in NIFLA v. Becerra (2018) and that is “no longer viable.” In “reject[ing] Pickup’s analysis of the speech-conduct distinction,” O’Scannlain argues, the Court made “clear that simply labeling therapeutic speech as ‘treatment’ cannot turn it into non-speech conduct.” But the panel, by “reaching the opposite conclusion, … perpetuated a circuit split that many had thought resolved.”

In a separate dissent from denial of rehearing (pp. 25-28), Judge Patrick Bumatay argues that because the Washington law “outlaws pure talk therapy based on sincerely held religious principles,” it should be subject to “a more exacting standard” of review than “mere rational-basis scrutiny.”