Weaponizing Proof of Harm in First Amendment Cases: When Scientific Evidence and Deference to the Views of Professional Associations Collide in the Battle Against Conversion Therapy

This Article uses the U.S. Court of Appeals for the Eleventh Circuit’s divided decision in Otto v. City of Boca Raton in late 2020 as a springboard for examining battles in First Amendment jurisprudence over proof of causation of harm and the level of deference owed to the judgments of learned societies. A two-judge majority held in Otto that a pair of local ordinances banning speechbased conversion therapy on minors violated the First Amendment, with those measures failing the rigorous strict scrutiny standard of review. Crucial to the majority’s ruling was its conclusion that insufficient evidence exists that conversion therapy—also known as sexual orientation change efforts (SOCE)—harms minors. Conversely, the Otto dissent found “strong evidence” of injury and, in so doing, afforded significant deference to the views of several learned organizations such as the American Academy of Pediatrics. The dissent, in turn, would have upheld the measures under strict scrutiny. This Article explores how this cleft in Otto regarding proof of causation of harm and the deference due to learned organizations, particularly when conducting scientific experiments is impossible because of ethical concerns, reflects the U.S. Supreme Court’s game case of Brown v. Entertainment Merchants Association. This Article contends that Brown’s stringent mandate of proving a direct causal link between regulated speech and the harm attributed to it allows conservative-leaning judges, including the ones in the Otto majority who were appointed by former President Donald J. Trump, to weaponize the First Amendment in the clash over conversion therapy. The legacy of Justice Antonin Scalia’s majority opinion in Brown thus stretches beyond regulating entertainment-oriented media products, such as video games, to fundamentally impact larger cultural and legal battles over sexual orientation and the dignity of LGBTQ minors