When professional speech loses its regulatory guardrails and patient protections weaken

The Supreme Court's decision on March 31 in Chiles v. Salazar has disturbing implications for the government's ability to protect patients and clients. Although it was an 8-1 decision, the Court's approach is troubling in that it put at risk the countless ways in which the government regulates speech by professionals.

Chiles v. Salazar involved a challenge to a Colorado law prohibiting conversion therapy for gay, lesbian and transgender minors. The law forbids "any practice or treatment ... that attempts ... to change an individual's sexual orientation or gender identity." Colorado is one of 26 states to adopt such a law because of strong evidence that such therapy is ineffective and harmful.

The United States Court of Appeals for the 10th Circuit upheld the Colorado law, but the Supreme Court reversed. Justice Neil Gorsuch wrote the opinion for the Court and said that strict scrutiny --requiring that the law be proven necessary to achieve a compelling purpose --should be used to evaluate the statute. Although the Court remanded the case to the lower courts, the justices left no doubt that they saw the law as violating freedom of speech under the First Amendment.

The Court's opinion said that in prohibiting talk therapy to try to change a child's sexual orientation or gender identity, the Colorado law restricted speech based on its viewpoint. The Court rejected Colorado's argument that there should be more judicial deference to speech by professionals and declared: "our precedents have expressly rejected the State and dissent's notion that professional speech represents some separate category of speech subject to diminished constitutional protection."

Justice Elena Kagan wrote a concurring opinion, joined by Justice Sonia Sotomayor. Only Justice Ketanji Brown Jackson dissented.

The flaw in the Court's decision is its failure to recognize the myriad ways in which the government regulates professional speech to protect patients and clients. Take a simple example: After the Supreme Court's decision in Chiles v. Salazar could a state adopt a law prohibiting therapists from advising patients to commit suicide? This certainly would be a viewpoint restriction on speech. Is it constitutional for states to require that therapists warn third parties if they believe that a patient is likely to harm someone? What about the countless laws that create mandatory reporting requirements when professionals--teachers, doctors, social workers, university administrators--learn certain information? What about all of the requirements where professionals, including doctors and lawyers, must provide information to patients and clients so they can give informed consent?

All of these are content-based restrictions on speech. Chiles v. Salazar means that every one of them must meet strict scrutiny.

This was Justice Ketanji Brown Jackson's central point in dissent. She explained that "[s]peech uttered for purposes of providing medical treatment may be restricted incidentally when the State reasonably regulates the speaker's provision of medical treatments to patients." She concluded her opinion: "To do anything else opens a dangerous can of worms. It threatens to impair States' ability to regulate the provision of medical care in any respect. It extends the Constitution into uncharted territory in an utterly irrational fashion. And it ultimately risks grave harm to Americans' health and wellbeing."

Particularly troubling was the Court's paying little attention to Colorado's interest in protecting minors from a form of medical care that evidence shows to be ineffective and harmful. Justice Jackson points out that the American Psychological Association (APA), for example, has found "no empirical evidence that providing any type of therapy in childhood can alter adult same-sex sexual orientation." Additionally, she writes, "Not only is conversion therapy ineffective, former participants of conversion therapy report that it causes lasting psychological harm." She writes, "The scientific literature confirms what anecdotal experiences suggest: Conversion therapy has harmed patients, particularly minors."

One of the surprises about the decision is that it was 8-1, with Justice Elena Kagan writing a concurring opinion, joined by Justice Sonia Sotomayor. Even more surprising, Justice Kagan urged what would be a radical change in First Amendment law. She began her opinion by stating: "I write only to note that if Colorado had instead enacted a content-based but viewpoint-neutral law, it would raise a different and more difficult question."

Under current law, a content-based restriction on speech must meet strict scrutiny and a law can be found to be content-based in either of two ways: a subject matter restriction or a viewpoint restriction. In many cases, the Court has held that subject matter restrictions--laws that regulate speech based on their topic--are content-based restrictions that must meet strict scrutiny.

For example, in Reed v. Town of Gilbert, the Court struck down a municipal ordinance that regulated the presence of outdoor signs, but that had 23 categories of exceptions. Under the ordinance, political signs could be quite large and remain up throughout the election season, while signs giving directions to events had to be small and could be posted for only a short time. The Court unanimously declared this unconstitutional. The Court said that "[o]n its face, the Sign Code is a content-based regulation of speech. We thus have no need to consider the government's justifications or purposes for enacting the Code to determine whether it is subject to strict scrutiny."

The law in Reed was a subject matter restriction on speech--favoring political expression over other topics--but nonetheless received strict scrutiny. Justice Kagan's approach would provide that only viewpoint restrictions, not subject matter restrictions, must meet strict scrutiny. That would substantially lessen the Constitution's protection for speech.

Moreover, Justice Kagan's objection to the Colorado law as being viewpoint based still misses the crucial issue:   does Colorado have a sufficient interest in protecting gay, lesbian, and transgender youth from being subjected to treatment that is ineffective and harmful? It is notable that only Justice Jackson, in her dissent, discusses the medical evidence supporting the Colorado law.

Chiles v. Salazar was the Court again entering the culture wars. There is a stark contrast between the Court's approach in this case as compared to its decision last June in United States v. Skrmetti (2025). In that decision, the Court upheld a Tennessee law prohibiting gender-affirming care for transgender youth and proclaimed the need to defer to the state legislature in making decisions with regard to medical treatment. But in Chiles v. Salazar, there is not a word about deference to the judgment of the Colorado legislature that conversion therapy is ineffective and dangerous. Skrmetti was not a First Amendment case and the Court did not use heightened scrutiny, but there still is a striking difference in the underlying question of whether there should be judicial deference to the judgment of a legislature when regulating professional care.