Chiles v. Salazar Highlights a Significant First Amendment Issue and Blue-State Contradictions

On Monday the Supreme Court granted certiorari in Chiles v. Salazar, a case involving a licensed counselor and practicing Christian who challenges Colorado’s ban on so-called “conversion therapy.” The relevant state law bars counseling conversations with minors that help them deal with unwanted same-sex attraction or that encourage children to accept the sex they were born with. It simultaneously permits conversations that offer “[a]cceptance, support, and understanding for . . . identity exploration and development.” The law obviously imposes viewpoint restrictions, as the question presented recognizes: “Whether a law that censors certain conversations between counselors and their clients based on the viewpoints expressed regulates conduct or violates the Free Speech Clause.”

Viewed as a question of speech, there can be little doubt that the content- and viewpoint-based restriction would be presumptively unconstitutional and subject to strict scrutiny. Colorado officials defending the law frame the issue as the regulation of “professional conduct to protect patients from substandard treatment, even when that regulation incidentally burdens speech.” Counselor Kaley Chiles’ argument points out the danger of “conclud[ing] that words are conduct,” which “would allow the government to ban virtually any speech,” and took issue with the notion that the burden to speech in this case was only “incidental.”

In his dissent from the denial of certiorari in Tingley v. Ferguson (2023), Justice Clarence Thomas weighed in on this argument: “True, counseling is a form of therapy, but it is conducted solely through speech.” The question raised by a “conversion therapy” ban “strikes at the heart of the First Amendment.”

The defense of Colorado’s law puts a lot of weight on the established tradition of regulating the practice of medicine. But to allow content-based speech restrictions, the Court has required “persuasive evidence . . . of a long (if heretofore unrecognized) tradition.” The Court employed that language in National Institute of Family and Life Advocates v. Becerra (2018), an opinion written by Justice Thomas, to strike down a law that compelled crisis pregnancy centers to disseminate notices drafted by the government. Thomas asserted that “this Court has not recognized ‘professional speech’ as a separate category of speech. Speech is not unprotected merely because it is uttered by ‘professionals.’” Given the lack of a historical tradition of targeting treatments conducted solely through speech, it would be an aberration from First Amendment case law to carve out “conversion therapy” bans for special deference.

Colorado is one of over 20 states and 100 locales that have such a law on the books. And Colorado is the jurisdiction that previously gave the Court occasion to vindicate First Amendment principles over its heavy-handed treatment of litigants who sought to adhere to their faith. Recall the cake maker’s free exercise claim in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018) and the website designer’s free speech claim in 303 Creative LLC v. Elenis (2023). Both claims were successful.

Contrast the arguments in Chiles v. Salazar with those being made in the effort to get the Court to strike down Tennessee’s ban on gender-transition interventions for minors in United States v. Skrmetti. That case actually does involve a state law regulating the practice of medicine rather than speech. Policy preferences aside, it is the blue states that have been getting the operative constitutional principles backwards. The recent addition of Chiles to this term’s docket leaves us with the spectacle of Court watchers on the left cheering on the challenge to the Tennessee law while simultaneously decrying potential judicial intervention to undo blue-state censorship.