Chiles v. Salazar

The First Amendment prohibits a state from applying a conversion therapy ban to a licensed counselor who uses only talk therapy, because such a law regulates speech based on viewpoint and therefore demands the most rigorous constitutional scrutiny. Justice Neil Gorsuch authored the 8-1 majority opinion. The First Amendment's core guarantee is that every person has the right to speak their mind free from government-imposed orthodoxy. Laws that restrict speech based on its subject matter — called "content-based" restrictions — are presumptively unconstitutional and require "strict scrutiny," meaning the government must prove the law is the most targeted possible means of serving a compelling public interest. Viewpoint discrimination — when a law permits speech on one side of a debate while silencing the other — is an even more serious violation. Colorado's law commits exactly that sin as applied to Chiles's practice. It expressly allows a therapist to offer clients acceptance and support for gender identity exploration or gender transition, but flatly forbids any therapeutic conversation aimed at reducing or changing a client's same-sex attractions, behaviors, or gender identity. Because the law picks winners and losers based on the message being delivered, it discriminates based on viewpoint and triggers the highest level of constitutional scrutiny, not the lenient "rational basis" review the lower courts applied. Colorado advanced several arguments for why its law should survive without strict scrutiny, and none succeeded. First, the state argued that talk therapy is "conduct," not "speech," so the First Amendment's full force should not apply. That argument fails because relabeling speech as a "treatment" or "therapeutic modality" cannot strip it of constitutional protection; the only thing Chiles does with her clients is talk, and the law targets only what she says. Second, Colorado argued the law only "incidentally" burdens speech because its primary purpose is to ban a harmful medical treatment. That argument misreads the Court's precedents: the speech-incident-to-conduct doctrine protects laws that restrict speech tied to separately unlawful acts, or laws that restrict expressive conduct for reasons unrelated to content. This law does neither — the behaviors the law restricts are not independently illegal, and the law explicitly targets speech based on its content and viewpoint. Third, Colorado invoked historical traditions of medical licensing, informed-consent laws, and malpractice liability as evidence of a long-recognized category of regulable professional speech. Those traditions fail at both the general and specific level: licensing laws have historically governed who may practice a profession, not what viewpoints practitioners must hold; informed-consent laws compel disclosure of objective facts tied to a specific medical procedure, not suppression of a perspective; and malpractice requires proof of actual harm, which "provides breathing room for protected speech" in a way this law does not. Justice Elena Kagan concurred, joined by Justice Sonia Sotomayor, agreeing that Colorado's law is plainly unconstitutional viewpoint discrimination, but writing separately to flag that the harder, unresolved question — whether a content-based but viewpoint-neutral law restricting therapeutic speech would survive First Amendment challenge — should be left for another day. Justice Ketanji Brown Jackson dissented, arguing that the majority misreads NIFLA v. Becerra (2018) and ignores a centuries-long tradition of states regulating medical professionals' treatment-related conduct; in her view, Colorado's law incidentally restricts Chiles's speech only as a byproduct of regulating a harmful medical treatment, which does not trigger heightened scrutiny, and the majority's holding dangerously undermines states' ability to enforce any standard of care administered through speech.