Yesterday’s 8–1 decision in Chiles v. Salazar is a landmark victory for free speech and the rights of counselors and their clients alike. The Supreme Court rightly recognized that Colorado’s ban on so-called “conversion therapy,” by permitting therapists to affirm one ideology on issues of sexuality and gender while silencing the other, engaged in viewpoint discrimination, “‘an egregious form’ of content regulation” that demands the most exacting First Amendment scrutiny. Justice Gorsuch’s majority opinion powerfully reaffirms that the government cannot impose an orthodoxy of views by relabeling speech as “professional conduct”—a transparent “word game” the Constitution does not permit.
Kaley Chiles is a Colorado mental-health counselor who helps her clients through conversation. She sits down with them, learns their goals, and then works to help them address those goals—nothing more. She does not “engage in any coercive or aversive practices.” Some clients come to her content with their sexual orientation or gender identity and seek help in their familial and other social relationships; others hope to reduce unwanted attractions or find harmony with their biological sex. She serves all of them using only “talk therapy.” Colorado’s law permitted her to affirm an individual’s sexual orientation or “offer words of ‘[a]ssistance’” to someone “undergoing gender transition,” Justice Gorsuch pointed out. “But if a gay or transgender client seeks her counsel in the hope of changing his sexual orientation or gender identity, Ms. Chiles cannot provide it.” The law “trains directly on the content of her speech and permits her to express some viewpoints but not others.” That is the definition of viewpoint discrimination.
Colorado and the Court’s lone dissenter, Justice Jackson—whose opinion ran over 50% longer than the majority opinion—tried to escape this conclusion by arguing that the state law regulated “conduct” or a “therapeutic modality,” not speech. The majority was having none of it. The First Amendment, Justice Gorsuch wrote, “is no word game,” and constitutional rights cannot be stripped away through “mere labels.” The fact that Chiles happens to hold a professional license changes nothing. Precedents such as National Institute of Family and Life Advocates v. Becerra (2018), which struck down a law that compelled crisis pregnancy centers to make statements to their clients, have “expressly rejected” the idea that professional speech enjoys “diminished constitutional protection.” As Gorsuch powerfully observed, “History is littered with examples of official efforts to manipulate and control professional speech” in order “to increase state power,” “suppress minorities,” and censor “unpopular ideas.” The First Amendment stands as a bulwark against exactly that kind of “enforced conformity,” reflecting the nation’s “faith in the free marketplace of ideas as the best means for discovering truth.”
The majority also delivered a pointed warning against allowing governments to lock in the prevailing professional consensus of one time as constitutional law: “A prevailing standard of care may reflect what most practitioners believe today, but it cannot mark the outer boundary of what they may say tomorrow.”
Tellingly, Justice Kagan issued a concurring opinion in which she called Colorado’s law “textbook” viewpoint discrimination. She also accused Justice Jackson of “reimagining—and in that way collapsing—the well-settled distinction between viewpoint-based and other content-based speech restrictions.”
Kaley Chiles sought only to help her clients reach their own stated goals through conversation. The Court’s standard vindicates her right to do so. This decision protects every American’s right to speak freely, regardless of whether they hold a professional license.