Conversion Therapy and Free Speech: A Doctrinal and Theoretical First Amendment Analysis

This Article analyzes, from both a doctrinal and theoretical perspective, the First Amendment speech interests at stake before the U.S. Court of Appeals for the Ninth Circuit in Welch v. Brown and Pickup v. Brown. Those cases pivot on a controversial California law banning mental health providers from performing sexual orientation change efforts (also known as conversion therapy) on minors. Two district court judges reached radically different conclusions about the First Amendment questions. The Article explores how a trio of recent Supreme Court decisions involving seemingly disparate factual scenarios—Brown v. Entertainment Merchants Association, United States v. Alvarez and Gonzales v. Carhart—and three venerable theories of free speech—the marketplace of ideas, democratic selfgovernance and individual self-realization—might ultimately affect the outcome of the cases and others in the future involving conversion therapy.