| In Chiles v. Salazar, the Supreme Court reversed a lower court ruling upholding Colorado’s ban on so-called conversion therapy for minors as applied to a licensed mental health counselor. The ruling does not exactly invalidate the ban. It remains constitutional with respect to physical practices such as administering electric shocks in an effort to condition minors to experience aversion to same-sex attraction. | | However, because petitioner Kaley Chiles provides only talk therapy, the Justices regarded the law as applied to the likes of her as a regulation of speech, triggering strict scrutiny. Even then, the Court did not say the Colorado law violates the First Amendment. It held only that the U.S. Court of Appeals for the Tenth Circuit used a too-deferential standard in reviewing the law. On remand, Colorado might be able to show that it satisfies strict scrutiny, i.e., that the law is narrowly tailored to advance a compelling interest in protecting minors from being told by a healthcare professional that their sexual orientation and gender identity are products of their own volition and thus mutable through sufficient force of will. | | That said, the overall tone of the opinion strongly indicates that a lower court decision to uphold the conversion therapy ban would result in yet another reversal by the Supreme Court. The mystery, then, is why the Chiles decision was by a lopsided 8-1 margin, with two of the Court’s three Democratic appointees joining all of its Republican appointees. After all, less than a year ago, in United States v. Skrmetti, the Court divided fully on ideological lines. Then, all of the Republican appointees voted to permit Tennessee to ban gender-affirming medical treatment for minors, while all of the Democratic appointees dissented. What happened in the interim to Justices Sonia Sotomayor and Elena Kagan, the two Democratic appointees who joined the Chiles majority? Did they soften in their support for LGBTQ+ rights? | | Almost certainly not. Instead, they appear to have been worried about an issue that figured prominently in the oral argument and that Justice Kagan (joined by Justice Sotomayor) flagged in a concurrence in Chiles: If a blue-state ban on conversion therapy for minors does not trigger strict scrutiny when applied to talk therapy, then neither would a red-state ban on talk therapy that supports LGBTQ+ minors in accepting their identity. Skrmetti allowed Tennessee and other states with similar laws to forbid prescription of puberty blockers and hormones to minors. A win for Colorado in Chiles could have given the Court’s blessing for those states to expand their prohibitions on gender-affirming care for minors to include talk therapy. | | Accordingly, in Chiles, Justices Kagan and Sotomayor joined the majority opinion of Justice Neil Gorsuch, which leaned heavily on the proposition that there is no exception to the First Amendment for professional speech, even though they had dissented from the Court’s 2018 ruling in National Institute of Family and Life Advocates (NIFLA) v. Becerra, which relied on that proposition to invalidate a California law requiring licensed facilities, including those opposed to abortion, to notify clients of the availability of abortion services. Yet the dissent they joined in NIFLA rightly worried about the possibility that the majority’s approach would become an engine of judicial invalidation of regulation. Justice Stephen Breyer registered the concern for the NIFLA dissenters this way: “Because much, perhaps most, human behavior takes place through speech and because much, perhaps most, law regulates that speech in terms of its content, the majority’s approach at the least threatens considerable litigation over the constitutional validity of much, perhaps most, government regulation.” | | It is understandable that Justices Sotomayor and Kagan would join the majority in Chiles to avert the potentially greater evil of permitting red states to ban supportive talk therapy for LGBTQ+ minors, but what happened to their concern about turning the First Amendment into a deregulatory blunderbuss? | | Content Versus Viewpoint | | In her Chiles concurrence, Justice Kagan suggested a limiting principle. Colorado’s conversion therapy ban, she said, is not merely content-based but viewpoint-based, which, under the Court’s prior decisions, is more egregious. Thus, she suggested that regulations of professional speech that are merely content-based but not viewpoint-based could be upheld under a different set of precedents that “recognize complexity and nuance.” | | Justice Kagan is correct that the Court’s cases sometimes distinguish between content-based and viewpoint-based distinctions. For example, in a so-called public forum (such as a public park), the government may not draw any content-based distinctions, but in a nonpublic forum (such as restricted government property) or limited forum, it need only avoid viewpoint discrimination. For example, if the government opens up a state-owned opera house to various performers, it can grant permits to opera performances while rejecting ballet, because the distinction between opera and ballet is content-based but viewpoint-neutral. However, in assigning permits, it may not prefer operas that are uncritical of the government to those that critique our rulers (like Olga Neuwirth’s Monster’s Paradise, which features an obviously Trumpian president or, somewhat more conventionally, a production of Giacomo Puccini’s Tosca that implies the current government is authoritarian). The latter would be impermissible viewpoint discrimination. | | However, the content/viewpoint distinction may be less useful than Justice Kagan implies. For one thing, it is often difficult to draw. Suppose the government opens its opera house to concerts. Can it draw distinctions based on genre, preferring, say, country music to all other genres? At the threshold, there will be difficulty defining genre boundaries. Hip-hop artists Lil Nas X’s 2019 Old Town Road and Shaboozey’s 2024 A Bar Song are arguably the two most popular country songs ever; Beyoncé’s 2024 country album Cowboy Carter went platinum; and while Taylor Swift’s early hits had clear country inflections, she then turned towards pop and more recently still towards indie/folk and alternative. A decision to include or exclude any of these or other crossover artists could implicate not just the music but, more problematically, lyrics or even race. | | Put differently, content lines can blur into viewpoint lines. To stick with our music example, while one can in principle express any viewpoint in any genre, a facially viewpoint-neutral but content-based line may be viewpoint-based in operation or intention. Notwithstanding the crossover phenomenon just discussed and despite important exceptions like The Chicks, Dolly Parton, and Kacey Musgraves, country music in 2026 typically codes politically conservative. Whenever the medium is the message or even just a substantial part of the message, content-based distinctions may operate as viewpoint-based ones. | | Suppose we put aside those difficulties. There is a further problem with Justice Kagan’s suggestion that merely content-based but viewpoint-neutral regulations of professional speech may be permissible under the First Amendment: it is not clear what a content-based but viewpoint-neutral regulation of professional speech would be. Unhelpfully, Justice Kagan’s concurrence gives no examples, although she does claim that some examples discussed by Justice Ketanji Brown Jackson in her solo dissent might qualify. | | But which ones? Justice Kagan does not say, and even if some of Justice Jackson’s examples might be regulable as merely content-based under the approach Justice Kagan would apply, other very troubling examples would be plainly viewpoint-based. For example, as Justice Jackson notes, a state law forbidding therapists from counseling their patients to commit suicide while allowing (or requiring) therapists to discourage such behavior by their patients would plainly be viewpoint-based. True, such a law would probably survive strict scrutiny, but as Justice Breyer observed in the NIFLA dissent that Justices Sotomayor and Kagan joined, even subjecting a law to strict scrutiny imposes substantial costs. | | Practical Implications | | To be clear, I do not contend that the result in Chiles is necessarily wrong. As I explained on my blog both before and after the oral argument in the case, I share the worry that a victory for Colorado would have led to permission for red states to ban supportive talk therapy for LGBTQ+ minors. The problem is coming up with a limiting principle. | | It is tempting to say that very little is at stake as a practical matter. After all, the Colorado law and those like it in other states apply only to licensed therapists. Even if the law were given full effect, other counselors—such as clergy and unlicensed actors such as life coaches—would remain free to counsel LGBTQ+ minors to try to change their sexual orientation or to accept their sex assigned at birth. The core worry that motivated Colorado’s law is that socially conservative parents would pressure their minor children into any kind of conversion therapy; yet the law leaves open substantial opportunities for them to do so. | | I am not persuaded that the practical stakes are so low. State approval via licensure carries substantial weight. With or without pressure from parents, LGBTQ+ minors seeking treatment should be able to assume that anyone certified by the state as a healthcare professional follows best practices, and conversion therapy is not a best practice. | | However, even if one thinks that Chiles has little practical significance for LGBTQ+ minors, it has broader implications for the regulation of professionals. | | Both NIFLA and Chiles allow that the government may regulate professional speech where the regulation is incidental to the regulation of conduct. For example, a doctor can be required to disclose the risks of open-heart surgery before performing it and can be sanctioned if, after the surgery, the doctor tells the patient it is safe to immediately resume training for a marathon or to smoke two packs of cigarettes per day. Does that exception provide the necessary limiting principle? | | The speech-incidental-to-conduct exception to NIFLA and Chiles is important, but it is not sufficient to address the worries expressed by Justices Breyer and Jackson in their respective dissents in the two cases. That is especially true for lawyers, because unlike healthcare, which often involves physical acts such as surgery or the administration of medicine, legal services are entirely speech-based. Lawyers provide clients with nothing but words—whether in a contract, a will, a pleading, a brief, or oral or written advice. There is no non-expressive conduct to which attorney speech can be deemed incidental. | | The provision of legal services differs from healthcare in another respect. There are no non-professional analogues to the clergy members and life coaches when it comes to legal services, because the law of every state prohibits the unlicensed practice of law. Thus, NIFLA and Chiles hold the potential to unravel nearly all regulation of the legal profession. | | Finally, I should emphasize that I neither hope nor expect that the Supreme Court will actually invalidate all or even most regulations of lawyers. If and when challenges arise, I expect the Court to invent one or more distinctions, perhaps even persuasive ones. Until that happens, however, NIFLA and Chiles will cause considerable confusion because, whatever the Court might say in the future, its rulings to date have not provided a persuasive limiting principle. Quite to the contrary, both cases relied on precedents involving free speech of lawyers (in matters like advertising) as the basis for the proposition that there is no professional speech exception to the First Amendment. As I have tried to explain in this column, that proposition is more of a slogan than a useful guide to resolving the hard cases that have come before the Court or the ones that are likely to follow. |
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