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United States District Court Eastern District of New York Case 1:19-cv-00463-RJD-ST Document 25 Filed 04/11/19 Page 1 of 15 PageID #: 1418 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK DR. DAVID SCHWARTZ, Case No.: 1:19-CV-463-RJD-ST Plaintiff, v. PLAINTIFF DAVID SCHWARTZ’S REPLY IN SUPPORT OF MOTION THE CITY OF NEW YORK and FOR PRELIMINARY INJUNCTION LORELEI SALAS, in her official capacity as Commissioner of the Department of Consumer Affairs, Defendants. Case 1:19-cv-00463-RJD-ST Document 25 Filed 04/11/19 Page 2 of 15 PageID #: 1419 Table of Contents Table of Authorities ........................................................................................................................ ii INTRODUCTION ...........................................................................................................................1 I. Dr. Schwartz’s counseling speech is fully protected. ..........................................................2 A. Conversations between a psychotherapist and patient are speech. ..........................2 B. Counselor-patient conversations are immune to content censorship. ......................3 C. Strict scrutiny applies to the Counseling Censorship Law. .....................................5 D. The Counseling Censorship Law fails strict scrutiny. .............................................6 E. Dr. Schwartz has standing to defend the rights of his patients. ...............................8 II. The Counseling Censorship Law is unconstitutionally vague. ............................................9 III. The Counseling Censorship Law violates free exercise rights. ...........................................9 IV. A preliminary injunction is proper and necessary. ............................................................10 i Case 1:19-cv-00463-RJD-ST Document 25 Filed 04/11/19 Page 3 of 15 PageID #: 1420 Table of Authorities Cases Boos v. Barry, 485 U.S. 312 (1988) .............................................................................................................7 Boy Scouts of America v. Dale, 530 U.S. 640 (2000) .............................................................................................................2 Brown v. Entertainment Merchants Association, 564 U.S. 786 (2011) .....................................................................................................4, 7, 8 Chabad of Southern Ohio & Congregation Lubavitch v. City of Cincinnati, 363 F.3d 427 (6th Cir. 2004) .............................................................................................10 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) .......................................................................................................5, 10 Edenfield v. Fane, 507 U.S. 761 (1993) .............................................................................................................8 Harris v. Quinn, 573 U.S. 616 (2014) .............................................................................................................3 Illinois, ex rel. Madigan v. Telemarketing Associates, Inc., 538 U.S. 600 (2003) .............................................................................................................4 Irish Lesbian & Gay Organization v. Giuliani, 918 F. Supp. 732 (S.D.N.Y. 1996) ...................................................................................10 Kass v. City of New York, 864 F.3d 200 (2d Cir. 2017).................................................................................................7 King v. New Jersey, 767 F.3d 216 (3d Cir. 2014).................................................................................................2 NAACP v. Button, 371 U.S. 415 (1963) .........................................................................................................3, 7 National Council of Arab Americans v. City of New York, 331 F. Supp. 2d 258 (S.D.N.Y. 2004)................................................................................10 NIFLA v. Becerra, 138 S. Ct. 2361 (2018) .................................................................................................2, 3, 4 United States v. Alvarez, 567 U.S. 709 (2012) .............................................................................................................7 ii Case 1:19-cv-00463-RJD-ST Document 25 Filed 04/11/19 Page 4 of 15 PageID #: 1421 Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976) .............................................................................................................7 Virginia v. Black, 538 U.S. 343 (2003) .............................................................................................................7 Wollschlaeger v. Florida, 848 F.3d 1293 (11th Cir. 2017) ...........................................................................................2 iii Case 1:19-cv-00463-RJD-ST Document 25 Filed 04/11/19 Page 5 of 15 PageID #: 1422 INTRODUCTION Dr. Schwartz’s patients come to him voluntarily, bringing a wide range of human problems. If they return, it is because they find his thoughts helpful. There is no coercion, no isolation, no promise of results. For those who come struggling with unwanted same-sex attractions, as for those who bring other concerns, Dr. Schwartz offers a listening ear, questions to help patients understand themselves, and ways of thinking—that is, ideas—to help those patients towards their own goals for their lives, and towards adherence to the teachings of their Orthodox Jewish faith. Pl.’s Mem. in Supp. of Mot. for Prelim. Inj. (Pl. Br.) 2-6. In an unprecedented intrusion into private conversations (the “first bill of its kind” (Decl. of Alan Schoenfeld in Supp. of Def. Opp’n to Pl.’s Mot. for Prelim. Inj. (Schoenfeld Decl.), Ex. B at 64)), the City of New York has declared those conversations illegal, and is actively recruiting anonymous informers to ferret out forbidden speech. It is impossible to square such things with the plain words and rich precedent of the First Amendment, and the City’s attempt involves mind-bending contortions in which it declares that idea-laden speech about the most sensitive matters of personal identity, philosophy, faith, and personal goals is “not speech.” But Dr. Schwartz’s discussions with his patients—whether compensated or uncompensated—are core speech, fully protected by the First Amendment. Extended arguments by the City (and amicus The Trevor Project) that efforts to help an individual achieve congruence between his body and his sexual identity and attractions may sometimes be harmful are simply irrelevant to the analysis. If the Government has the power to punish the dissemination of ideas because it deems them hazardous, then the First Amendment is extinguished. 1 Case 1:19-cv-00463-RJD-ST Document 25 Filed 04/11/19 Page 6 of 15 PageID #: 1423 I. Dr. Schwartz’s counseling speech is fully protected. A. Conversations between a psychotherapist and patient are speech. The City attempts to evade free speech strictures by citing Pickup and scattered progeny to assert that conversations between a psychotherapist and his patient are “conduct,” “not speech.” Def. Mem. in Opp’n to Pl.’s Mot. for Prelim. Inj. (Def. Br.) 10. This is objectively untrue; a video recording of Dr. Schwartz’s work would detect nothing but speech; there is no “conduct” for this speech to be “incidental” to. The censorship law “directly and immediately” regulates Dr. Schwartz’s speech. Boy Scouts of Am. v. Dale, 530 U.S. 640, 659 (2000). The contrary holding of Pickup was always an unconvincing legal fiction; now it is clearly bad law. The Ninth Circuit’s attempt to declare the speech of a professional counselor to be “not speech” has been expressly rejected by both the Eleventh and Third Circuits,1 and accepted by no other circuit. In NIFLA, the Supreme Court—citing Pickup only to reject its analysis, NIFLA v. Becerra, 138 S. Ct. 2361, 2371 (2018)—cited Wollschlaeger with approval to conclude that the professional speech of medical professionals is fully protected speech, id. at 2374-75. See Pl. Br. 9-12. The City ignores this line-up of post-Pickup authority. It does not cite Wollschlaeger, or mention this aspect of the holding in King. It ignores the several cases in which circuit courts have stricken laws that presumed to censor speech between doctor and patient. Pl. Br. 10. It attempts to brush aside the binding analysis of NIFLA as “inapplicable” on the irrelevant basis that NIFLA “is a compelled speech case” (Def. Br. 13), and it tries to repackage Pickup’s discredited “conduct, not speech” argument by characterizing the pure and idea-laden speech of 1 See Wollschlaeger v. Florida, 848 F.3d 1293, 1309 (11th Cir. 2017) (“characterizing speech as conduct is a dubious constitutional enterprise”); King v. New Jersey, 767 F.3d 216, 224 (3d Cir. 2014) (“[W]e disagree [with characterizing SOCE counseling as conduct], and hold that the verbal communication that occurs during SOCE counseling is speech.”). 2 Case 1:19-cv-00463-RJD-ST Document 25 Filed 04/11/19 Page 7 of 15 PageID #: 1424 Dr. Schwartz as “a procedure” and therefore “conduct rather than speech.” Def. Br. 13-14. This reading—and the City’s assertion that NIFLA calls for “at most” intermediate scrutiny of censorship of the professional speech of psychotherapists (see Def. Br. 10) or any other speech that “serves a function” (Def. Br. 12)2—is untenable. “[A] State cannot foreclose the exercise of constitutional rights by mere labels.” NAACP v. Button, 371 U.S. 415, 429 (1963). We will
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