IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
D.C. Docket No. 9:18-cv-80771-RLR
ROBERT W. OTTO, JULIE H. HAMILTON,
CITY OF BOCA RATON, FLORIDA,
COUNTY OF PALM BEACH, FLORIDA,
Appeal from the United States District Court
for the Southern District of Florida
(November 20, 2020)
Before MARTIN, GRANT, and LAGOA, Circuit Judges
Defendants say that the ordinances “safeguard the physical and psychological well-being of minors.” Together with their amici, they present a series of reports and studies setting out harms. But when examined closely, these documents offer assertions rather than evidence, at least regarding the effects ofpurely speech-based SOCE. Indeed, a report from the American Psychological Association, relied on by the defendants, concedes that “nonaversive and recent approaches to SOCE have not been rigorously evaluated.”7 In fact, it found a “complete lack” of “rigorous recent prospective research” on SOCE. As for speech-based SOCE, the report notes that recent research indicates that those who have participated have mixed views: “there are individuals who perceive they have been harmed and others who perceive they have benefited from nonaversive SOCE.” What’s more, because of this “complete lack” of rigorous recent research, the report concludes that it has “no clear indication of the prevalence of harmful outcomes among people who have undergone” SOCE.8 We fail to see how, even completely crediting the report, such equivocal conclusions can satisfy strict scrutiny and overcome the strong presumption against content-based limitations on speech.
7 The dissent’s claim that a “mountain of rigorous evidence” supports the ordinances is in serious tension with this acknowledgment of the lack of rigorous research on nonaversive SOCE. Dissenting Op. at 42.
8 We focus our attention on the APA’s 2009 task force report because it “performed a systematic review of the peer-reviewed literature” to assess SOCE. Many of the other reports cited by the dissent—including those from the World Health Organization and the U.S. Department of Health and Human Services—primarily rely on the APA’s task force report to draw their own conclusions about SOCE. So we choose instead to discuss the APA’s report directly. Additionally, we discuss the APA’s 2009 report, rather than its 1998 resolution, because the 2009 task force was specifically asked to “[r]eview and update” the 1998 resolution. Finally, we note that very little of the APA report considers evidence solely related to purely speech-based therapy.