There is bill pending in the California legislature which would declare the Christian sexual ethic (sexual expression is permissible only within the context of a marriage between one-man and one-woman and that all other sexual expression is prohibited to Christians)
Courts, including in California, have recognized the practice of sexual orientation change efforts as a commercial service, and service. Therefore, claims that sexual orientation change efforts are effective in changing an individual’s sexual orientation, may constitute unlawful, unfair, or fraudulent business practices under state consumer protection laws. This bill intends to make clear that sexual orientation change efforts are an unlawful practice under California’s Consumer Legal Remedies Act.
(i) (1) “Sexual orientation change efforts” means any practices that seek to change an individual’s sexual orientation. This includes efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.
Under the text of the law, it appears that selling a Bible in the State of California could constitute a violation of the CLRA. You can find the text and status of that bill here:
What follows below is a preliminary analysis of the Constitutionality of the proposed bill (this is just a draft of an analysis; and, I need to say — because of other lawyers! — this is not intended as legal advice; if anyone has a question concerning the legality of anything, please contact a lawyer who can give you particularized advise — all things in the law are fact-dependent, and there is rarely “a right answer):
But, someone may wish to see some of the analysis which underlies these sorts of circumstances. The “commenter” below will be a Christian group who will be posting a comment to the legislative analysis. I suspect the final comment will undergo editing, addition and subtraction before it is in final (nothing in the law every goes on the first draft; we’ll re-write an email ten times):
The Proposed Law Regulates Core Speech, Not “Commercial Speech”
The legislative analysis wrongfully assumes the expression at issue as “commercial speech”. Speech is not “commercial speech” simply because there is the exchange of money. If that were so, every the government could regulate the content of every book simply because the book is offered for sale:
The fact that such items are sold rather than distributed free of charge or simply displayed does not affect their status as protected speech. See, e.g., Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 756 n.5, 108 S. Ct. 2138, 100 L. Ed. 2d 771 (1988) (“Of course, the degree of First Amendment protection is not diminished merely because the newspaper or speech is sold rather than given away.”); ISKCON of Potomac, Inc. v. Kennedy, 61 F.3d 949, 953-54, 314 U.S. App. D.C. 63 (D.C. Cir. 1995) (“[E]xpressive materials do not lose their First Amendment protection merely because they are offered for sale. . . . Indeed, the [Supreme] Court long ago reminded us ‘that the pamphlets of Thomas Paine were not distributed free of charge.'”) (quoting Murdock v. Pennsylvania, 319 U.S. 105, 111, 63 S. Ct. 870, 87 L. Ed. 1292 (1943)). Accordingly, part of Mr. Enten’s activity — the display and sale of buttons that express his own personal political beliefs is constitutionally protected speech.
Enten v. District of Columbia (D.D.C. 2009) 675 F. Supp. 2d 42, 50. And:
Similarly, expressive materials do not lose their First Amendment protection merely because they are offered for sale. See, e.g., Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 761, 48 L. Ed. 2d 346, 96 S. Ct. 1817 (1976) (“Speech … is protected even though it is carried in a form that is “sold’ for profit ….”) (citing cases). Indeed, the Court long ago reminded us “that the pamphlets of Thomas Paine were not distributed free of charge.” Murdock v. Pennsylvania, 319 U.S. 105, 111, 87 L. Ed. 1292, 63 S. Ct. 870 (1943).
ISKCON of Potomac, Inc. v. Kennedy (D.C. Cir. 1995) 61 F.3d 949, 953-54, 314 U.S. App. D.C. 63
Commercial speech is “expression related solely to the economic interests of the speaker and its audience. Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 762 (1976); Bates v. State Bar of Arizona, 433 U.S. 350, 363-364 (1977); Friedman v. Rogers, 440 U.S. 1, 11 (1979).” Central Hudson Gas & Elec. Corp. v. Public Service Commission (1980) 447 U.S. 557, 562-63.
As the federal courts have recognized, under California law, the nub of commercial speech is that the speech being regulated is solely a proposed commercial transaction and nothing more.
For example, in William O’Neil & Co., Inc. v. Validea.com Inc, et al (C.D. Cal. 1992) 202 F. Supp. 2d 1113, plaintiff sued defendant under California law for selling a book which discussed plaintiff’s concepts for financial investment. Plaintiff argued the book and the advertising for the book were commercial speech and thus its claims were governed by the commercial speech standard. The court rejected that argument as follows:
As a preliminary matter, Plaintiffs have argued that Defendants’ speech — both the book itself and the advertising material promoting it — is entitled to less protection under the First Amendment because it is “commercial speech.” Plaintiffs are incorrect, at least for purposes of a commercial misappropriation claim: this is not commercial speech. ” ‘Commercial speech’ has special meaning in the First Amendment context. Although the boundary between commercial and noncommercial speech has yet to be clearly delineated, the ‘core notion of commercial speech’ is that it ‘does no more than propose a commercial transaction.'” Hoffman, 255 F.3d at 1184 (quoting Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 66, 77 L. Ed. 2d 469, 103 S. Ct. 2875 (1983)).
The Market Gurus is a book that analyzes the investment strategies of well-known financial analysts and stock pickers. It does not “propose a commercial transaction” and is therefore not commercial speech. Because it is not commercial speech, the book is entitled to the full panoply of First Amendment protections. Hoffman, 255 F.3d at 1185-86 (speech at issue not “commercial speech,” and therefore entitled to full First Amendment protection); cf. Downing v. Abercrombie & Fitch, 265 F.3d 994, 1002 & n.2 (9th Cir. 2001) (Abercrombie’s catalog, which used the plaintiff’s photograph without permission to promote its clothing, was “commercial in nature and, therefore, not entitled to the full First Amendment protection”).
Moreover, even though the advertising promoting The Market Gurus proposes that the target of the advertising buy the book, and in that sense proposes a commercial transaction, Cher makes clear that, to the extent this advertising is “merely an adjunct of the protected publication and promotes only the protected publication,” it is entitled to First Amendment protection to the same extent as the underlying publication. Cher, 692 F.2d at 639; accord Montana v. San Jose Mercury, 34 Cal.App.4th 790, 796 (1995) (newspaper had a right to advertise itself by republishing a front page sports story that featured celebrity Joe Montana because underlying story was protected by First Amendment); New Kids on the Block v. News America Publishing, Inc., et al., 745 F. Supp. 1540, 1546 (C.D. Cal. 1990) (“California courts have specifically allowed incidental commercial exploitation of a public figure’s name and likeness in the context of a publication’s advertising activities.”) (citing Guglielmi v. Spelling-Goldberg Productions, 25 Cal.3d 860, 873, 160 Cal. Rptr. 352, 603 P.2d 454 (1969)). Therefore, because the book cover, flyleaf, and other material advertising The Market Gurus is “an adjunct” of The Market Gurus, it is protected to the same extent as the book itself.
Id. at p. 1119. If an advertisement for a book about money being sold for money does not constitute “commercial speech”, then speech which concerns matters of the greatest personal moment (and even though the legislature and the instant commenter disagree about what should be said about the matter of human sexuality, we both agree of that the speech of grave public and personal importance).
Thus, a law which sought to regulate advertising speech by drug manufacturers based upon the fact that it advertised a particular position as to drugs was found to be a content-based restriction on speech and thus found to be unconstitutional:
On its face, Vermont’s law enacts content- and speaker-based restrictions on the sale, disclosure, and use of prescriber-identifying information. The provision first forbids sale subject to exceptions based in large part on the content of a purchaser’s speech. For example, those who wish to engage in certain “educational communications,” § 4631(e)(4), may purchase the information. The measure then bars any disclosure when recipient speakers will use the information for marketing. Finally, the provision’s second sentence prohibits pharmaceutical manufacturers from using the information for marketing. The statute thus disfavors marketing, that is, speech with a particular content. More than that, the statute disfavors specific speakers, namely pharmaceutical manufacturers. As a result of these content- and speaker-based rules, detailers cannot obtain prescriber-identifying information, even though the information may be purchased or acquired by other speakers with diverse purposes and viewpoints. Detailers are likewise barred from using the information for marketing, even though the information may be used by a wide range of other speakers. For example, it appears that Vermont could supply academic organizations with prescriber-identifying information to use in countering the messages of brand-name pharmaceutical manufacturers and in promoting the prescription of generic drugs. But § 4631(d) leaves detailers no means of purchasing, acquiring, or using prescriber-identifying information. The law on its face burdens disfavored speech by disfavored speakers.
Any doubt that § 4631(d) imposes an aimed, content-based burden on detailers is dispelled by the record and by formal legislative findings. As the District Court noted, “[p]harmaceutical manufacturers are essentially the only paying customers of the data vendor industry”; and the almost invariable rule is that detailing by pharmaceutical manufacturers is in support of brand-name drugs. 631 F. Supp. 2d, at 451. Vermont’s law thus has the effect of preventing detailers–and only detailers–from communicating with physicians in an effective and informative manner. Cf. Edenfield v. Fane, 507 U.S. 761, 766, 113 S. Ct. 1792, 123 L. Ed. 2d 543 (1993) (explaining the “considerable value” of in-person solicitation). Formal legislative findings accompanying § 4631(d) confirm that the law’s express purpose and practical effect are to diminish the effectiveness of marketing by manufacturers of brand-name drugs. Just as the “inevitable effect of a statute on its face may render it unconstitutional,” a statute’s stated purposes may also be considered. United States v. O’Brien, 391 U.S. 367, 384, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968). Here, the Vermont Legislature explained that detailers, in particular those who promote brand-name drugs, convey messages that “are often in conflict with the goals of the state.” 2007 Vt. Laws No. 80, § 1(3). The legislature designed § 4631(d) to target those speakers and their messages for disfavored treatment. “In its practical operation,” Vermont’s law “goes even beyond mere content discrimination, to actual viewpoint discrimination.” R. A. V. v. St. Paul, 505 U.S. 377, 391, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992). Given the legislature’s expressed statement of purpose, it is apparent that § 4631(d) imposes burdens that are based on the content of speech and that are aimed at a particular viewpoint.
Act 80 is designed to impose a specific, content-based burden on protected expression. It follows that heightened judicial scrutiny is warranted. See Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 418, 113 S. Ct. 1505, 123 L. Ed. 2d 99 (1993) (applying heightened scrutiny to “a categorical prohibition on the use of newsracks to disseminate commercial messages”); id., at 429, 113 S. Ct. 1505, 123 L. Ed. 2d 99 (“[T]he very basis for the regulation is the difference in content between ordinary newspapers and commercial speech” in the form of “commercial handbills . . . . Thus, by any commonsense understanding of the term, the ban in this case is ‘content based’ ” (some internal quotation marks omitted)); see also Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 658, 114 S. Ct. 2445, 129 L. Ed. 2d 497 (1994) (explaining that strict scrutiny applies to regulations reflecting “aversion” to what “disfavored speakers” have to say). The Court has recognized that HN3Go to this Headnote in the case. the “distinction between laws burdening and laws banning speech is but a matter of degree” and that the “Government’s content-based burdens must satisfy the same rigorous scrutiny as its content-based bans.” United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 812, 120 S. Ct. 1878, 146 L. Ed. 2d 865 (2000). Lawmakers may no more silence unwanted speech by burdening its utterance than by censoring its content. See Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U.S. 105, 115, 112 S. Ct. 501, 116 L. Ed. 2d 476 (1991) (content-based financial burden); Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U.S. 575, 103 S. Ct. 1365, 75 L. Ed. 2d 295 (1983) (speaker-based financial burden).
The First Amendment requires heightened scrutiny whenever the government creates “a regulation of speech because of disagreement with the message it conveys.” Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S. Ct. 2746, 105 L. Ed. 2d 661 (1989); see also Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48, 106 S. Ct. 925, 89 L. Ed. 2d 29 (1986) (explaining that “ ‘content-neutral’ speech regulations” are “those that are justified without reference to the content of the regulated speech” (internal quotation marks omitted)). A government bent on frustrating an impending demonstration might pass a law demanding two years’ notice before the issuance of parade permits. Even if the hypothetical measure on its face appeared neutral as to content and speaker, its purpose to suppress speech and its unjustified burdens on expression would render it unconstitutional. Ibid. Commercial speech is no exception. See Discovery Network, supra, at 429-430, 113 S. Ct. 1505, 123 L. Ed. 2d 99 (commercial speech restriction lacking a “neutral justification” was not content neutral). A “consumer’s concern for the free flow of commercial speech often may be far keener than his concern for urgent political dialogue.” Bates v. State Bar of Ariz., 433 U.S. 350, 364, 97 S. Ct. 2691, 53 L. Ed. 2d 810 (1977). That reality has great relevance in the fields of medicine and public health, where information can save lives.
Sorrell v. IMS Health, Inc. (2011) 564 U.S. 552, 563-566.
In short, AB2943 seeks to regulate speech based upon its content. The proposed law would in effect make it actionable to sell a book which proposes a traditional Christian understanding of human sexuality.
The analogy to court’s decision in Pickup v. Brown (9th Cir. 2014) 740 F.3d 1208 fails. As the Pickup court noted,
SB 1172 does just one thing: it requires licensed mental health providers in California who wish to engage in “practices . . . that seek to change a [minor’s] sexual orientation” either to wait until the minor turns 18 or be subject to professional discipline. Thus, SB 1172 regulates the provision of mental treatment, but leaves mental health providers free to discuss or recommend treatment and to express their views on any topic.
Id., at 1223.
The proposed law goes well beyond the provision of licensed therapy (which by virtue of the license comes directly under State supervision). In fact, the proposed law governs what SB1172 did not: it governs the speech of all persons; it does not regulate the issuance of a state license. It prohibits the discussion of human sexuality if there is any exchange of money. AB 2843 prohibits between adults; it is not limited to psychotherapy provided to minors.
Therefore, the analysis of this proposed law must not be done under the rubric of commercial speech, but rather as a species of government censorship of views which a majority of California legislatures disapprove. However, the purpose of the First Amendment is to protect the minority rights of those who advocate positions which are not approved by the majority or the government.
The Proposed Law is a Content Based Restriction on Speech
As noted above, this is not a regulation of commercial speech but an unquestionable content-based restriction on speech. As such, the law may stand only if it can pass strict scrutiny review.
As an initial matter, the legislature is well-aware of the scope of significance of First Amendment protection for speech. Thus, when the Supreme Court found a congressional ban films which depicted animal cruelty, the Court began its analysis:
The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.” “[A]s a general matter, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 573, 122 S. Ct. 1700, 152 L. Ed. 2d 771 (2002) (internal quotation marks omitted). Section 48 explicitly regulates expression based on content: The statute restricts “visual [and] auditory depiction[s],” such as photographs, videos, or sound recordings, depending on whether they depict conduct in which a living animal is intentionally harmed. As such, § 48 is “ ‘presumptively invalid,’ and the Government bears the burden to rebut that presumption.” United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 817, 120 S. Ct. 1878, 146 L. Ed. 2d 865 (2000) (quoting R. A. V. v. St. Paul, 505 U.S. 377, 382, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992); citation omitted).
“From 1791 to the present,” however, the First Amendment has “permitted restrictions upon the content of speech in a few limited areas,” and has never “include[d] a freedom to disregard these traditional limitations.” Id., at 382-383, 112 S. Ct. 2538, 120 L. Ed. 2d 305These “historic and traditional categories long familiar to the bar,” Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 127, 112 S. Ct. 501, 116 L. Ed. 2d 476 (1991) (Kennedy, J., concurring in judgment)–including obscenity, Roth v. United States, 354 U.S. 476, 483, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957), defamation, Beauharnais v. Illinois, 343 U.S. 250, 254-255, 72 S. Ct. 725, 96 L. Ed. 919 (1952), fraud, Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771, 96 S. Ct. 1817, 48 L. Ed. 2d 346 (1976), incitement, Brandenburg v. Ohio, 395 U.S. 444, 447-449, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969) (per curiam), and speech integral to criminal conduct, Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498, 69 S. Ct. 684, 93 L. Ed. 834 (1949) –are “well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem,” Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572, 62 S. Ct. 766, 86 L. Ed. 1031 (1942).
United States v. Stevens (2010) 559 U.S. 460, 468. The speech regulated by AB2943 falls into none of those categories. The proposed law is without question a content-based restriction on speech and thus is presumptively invalide, “Content-based regulations are presumptively invalid,” R. A. V. v. St. Paul, 505 U.S. 377, 382, 120 L. Ed. 2d 305, 112 S. Ct. 2538 (1992), and the Government bears the burden to rebut that presumption.” United States v. Playboy Entertainment Group (2000) 529 U.S. 803, 817.
To overcome the presumption of unconstitutionality, the statute — even if it furthers an important governmental interest — must pass strict scrutiny review:
Sexual expression which is indecent but not obscene is protected by the First Amendment; and the federal parties do not submit that the sale of such materials to adults could be criminalized solely because they are indecent. The Government may, however, regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest. We have recognized there is a compelling interest in protecting the physical and psychological well-being of minors. This interest extends to shielding minors from the influence of literature that is not obscene by adult standards. Ginsberg v. New York, 390 U.S. 629, 639-640 (1968); New York v. Ferber, 458 U.S. 747, 756-757 (1982). The Government may serve this legitimate interest, but to withstand constitutional scrutiny, “it must do so by narrowly drawn regulations designed to serve those interests without unnecessarily interfering with First Amendment freedoms. Hynes v. Mayor of Oradell, 425 U.S., at 620; First National Bank of Boston v. Bellotti, 435 U.S. 765, 786 (1978).” Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 637 (1980). It is not enough to show that the Government’s ends are compelling; the means must be carefully tailored to achieve those ends.
Sable Communications v. FEC (1989) 492 U.S. 115, 126. And while there are without question persons who do not want to hear the speech proffered by commenter, the distaste of some hearers is no basis upon which the government may forbid the speech, “‘Where the designed benefit of a content-based speech restriction is to shield the sensibilities of listeners, the general rule is that the right of expression prevails, even where no less restrictive alternative exists. We are expected to protect our own sensibilities “simply by averting [our] eyes.'” Cohen v. California, 403 U.S. 15, 21, 29 L. Ed. 2d 284, 91 S. Ct. 1780 (1971); accord, Erznoznik v. Jacksonville, 422 U.S. 205, 210-211, 45 L. Ed. 2d 125, 95 S. Ct. 2268 (1975).” United States v. Playboy Entertainment Group (2000) 529 U.S. 803, 813.
The Proposed Law Infringes Upon Exercise of Commenter’s Religious Expression
The proposed law directly infringes upon the religious expression of commenter. The legislative analysis admits that the proposed restriction on speech will in fact infringe upon religious practice and speech, albeit in a disingenuous manner, Here, the bill does not apply to non-commercial activities, and therefore would seem to exempt religious and moral counselors who are unpaid.”
First, the act as proposed would restrict the sale of books which offer speech which does not endorse the legislature’s preferred position. This bill, as proposed, would make it actionable to sell a Christian Bible within the State of California. For example, 1 Corinthians 6:9-11 both prohibits Christians from engaging in certain sexual acts and states that a fact of Christianity is the transformation from the practice of those acts:
9 Or do you not know that the unrighteous will not inherit the kingdom of God? Do not be deceived: neither the sexually immoral, nor idolaters, nor adulterers, nor men who practice homosexuality, 10 nor thieves, nor the greedy, nor drunkards, nor revilers, nor swindlers will inherit the kingdom of God. 11 And such were some of you. But you were washed, you were sanctified, you were justified in the name of the Lord Jesus Christ and by the Spirit of our God.
1 Corinthians 6:9–11 (ESV). We concede that the proposed speech is obnoxious to the proponents of this law. But it is precisely the fact that the speech and religious practice is obnoxious is why the First Amendment protection is critical: “The First Amendment is a limitation on government, not a grant of power.” ISKON, 505 U.S. at 695 (Kennedy, J., concurring in judgment).
Moreover, Christian teaching on human sexuality would arguably be actionable. Christian pastors are most often paid for their work; indeed, many if not most, engage in the practice of acting as a pastor as their full-time vocation. In that office, they both make public statements and give private counsel on any number of matters, including Christian sexual ethic.
They are in fact paid for the provision of this “service”, even if they are not paid separately and above from the work of providing counsel to an individual in a discrete transaction.