Pickup

joined by BEA and IKUTA, Circuit Judges, dissenting from the denial of rehearing en banc:

May the legislature avoid First Amendment judicial scrutiny by defining disfavored talk as “conduct”? That is what these cases are really about.

The State of California, in the statute at issue here, has prohibited licensed professionals from saying certain words to their clients. By labeling such speech as “conduct,” the panel’s opinion has entirely exempted such regulation from the First Amendment. In so doing, the panel contravenes recent Supreme Court precedent, ignores established free speech doctrine, misreads our cases, and thus insulates from First Amendment scrutiny California’s prohibition — in the guise of a professional regulation- — of politically unpopular expression.

I respectfully dissent from our court’s regrettable failure to rehear these cases en banc.

I

California enacted Senate Bill 1172 (“SB 1172”), which subjects state-licensed “mental health providers” 1 to professional discipline for engaging in “sexual orientation change efforts” with clients who are minors. Cal. Bus. & Prof.Code §§ 865.1, 865.2. The statute defines such change efforts to include “any practices…

Dissent to Order by Judge O’SCANNLAIN; Opinion by Judge GRABER.

ORDER

The opinion filed on August 29, 2013, and published at 728 F.3d 1042 , is replaced by the amended opinion filed concurrently with this order. With these amendments, the panel has voted to deny the petitions for panel rehearing and petitions for rehearing en banc.

The full court has been advised of the petitions for rehearing en banc. A judge of the court called for a vote on whether to rehear the matter en banc. On such vote, a majority of the nonrecused active judges failed to vote in favor of en banc rehearing.

The petitions for panel rehearing and petitions for rehearing en banc are DENIED. No further petitions for panel re *1215 hearing or petitions for rehearing en banc shall be entertained.