In Chiles V. Salazar The Supreme Court Issues A Bad Good First Amendment Decision

The Supreme Court’s decision last year in U.S. v. Skirmetti, upholding a law depriving young trans people the healthcare they need, is insupportable, rendering people unequal in a way the Constitution cannot possibly suborn. But its new decision in Chiles v. Salazar regarding the First Amendment standard to use regarding Colorado’s law regarding conversion therapy is different. Despite its similar subject matter relating to sexual orientation and gender identity sounding similar to Skirmetti, it’s actually another 303 Creative, another case that endorsed bigoted views unacceptably hostile to LGBTQ+ people. But for much the same reason that 303 Creative was an important articulation of the First Amendment’s expansive protection—despite the apparent prejudice the plaintiff (and the Court) advanced—so is this decision.

That’s what’s good about this decision, that it recognizes that the First Amendment operates in the professional licensing space and requires heightened scrutiny before states can be permitted to constrain licensing when those constraints are predicated on viewpoints expressed by the licensee, including as part of the provision of services. Heightened scrutiny is what makes the First Amendment’s protections meaningful, and the Court has not always been consistent or coherent in requiring it, particularly with respect to licensure. But when heightened scrutiny isn’t required, it becomes much harder to fight censorial actions taken by the government, including those driven by animus, and including those driven by anti-LGBTQ+ animus—which would also include those actions targeted at therapists supporting LGBTQ+ patients, such as those recently announced by Ken Paxton in Texas. This Supreme Court decision now makes it much, much harder for him to get away with silencing those therapists whose therapy affirmed their patients’ identity by putting their license at risk if they do.

The main problem with this decision however is that the Court picked a law prohibiting conversion therapy as the moment to finally articulate that heightened scrutiny applies with respect to licensing, including medical licensing. Conversion therapy, as Justice Jackson described in her dissenting opinion, is a scientifically-discredited approach “designed to ‘convert’ a person’s sexual orientation or gender identity, so that the person will become heterosexual or cisgender.” [Dissent p.3]. Historically it has been provided via “aversive modalities,” that many have likened to torture, such as “inducing nausea, vomiting, or paralysis in patients or subjecting them to severe electric shocks to telling patients to snap an elastic band on their wrists in response to nonconforming thoughts.” [Dissent p.3]

Importantly, however, to the extent that any law prohibits these practices, those laws remain in force—this decision does not affect such laws. (“The question before us is a narrow one. Ms. Chiles does not question that Colorado’s law banning conversion therapy has some constitutionally sound applications. She does not take issue with the State’s effort to prohibit what she herself calls ‘long-abandoned, aversive’ physical interventions.” [Majority p.7]). But it does reach conversion therapy delivered via talk therapy, where therapists “seek to encourage patients to change their behavior in an attempt to ‘change’ their identity” still are. [Dissent p.3]. As Jackson explained, this approach also causes real harm. [Dissent p.4-5]. And it’s a kind of harm that states like Colorado, who passed the law challenged here, have an interest in stopping. [Dissent p.5-7].

Making it hard for states to do so raises a number of concerns, such as that the decision will give a veneer of legitimacy to conversion therapy and stoke the hostile anti-LGBTQ+ attitudes driving it, as well as create the risk that conversion therapy, at least insofar as it includes talk therapy, might be something that minors could be legally subjected to in Colorado and elsewhere. There is also the fear that even if the Court has now articulated a good rule about heightened scrutiny it will only remember to apply it in cases like these where it will lead to results consistent with the Court majority’s biases—in other words, while the Court may be happy to subject Colorado’s anti-conversion therapy rule to strict scrutiny, there is the fear that it will conveniently forget to apply it to, say, Texas’s law trying to punish those who refuse to engage in it.

It also raises a collateral concern even on the speech-protection front, that subjecting licensure requirements to strict scrutiny could have the practical effect of diluting the standard. As Jackson also noted, we have long allowed states to regulate medical professionals, [Dissent p.8], as well as other licensed professionals like lawyers, and much of the regulation is directed to how licensed practitioners speak in some way as they provide their services. Perhaps all these efforts could actually pass strict scrutiny. In fact, it’s even still possible that Colorado’s law might yet survive it; although Justice Gorsuch’s majority opinion casts some doubt, the case is not over.

Rather than deciding it for themselves, the Court remanded the case back to the lower courts to this time apply the more exacting strict scrutiny standard rather than the less-demanding rational basis review they originally applied. Presumably there will be more opportunity for briefing and argument to show how the particular harm of conversion therapy creates the compelling state interest Colorado needed to act, and that its prohibition of licensed therapists from providing it via talk therapy is a remedy that is sufficiently narrowly tailored.

But the problem with applying strict scrutiny to so much regulation targeting licensing is that it might start to become too easy to satisfy when there are strong policy reasons to favor the government action, and as a result strict scrutiny will no longer be useful as a standard if it essentially allows everything, instead of being a meaningful filter. There are after all always compelling reasons for the government to care about the quality of the services licensees deliver via their professional expression, but just because the government has a valid reason to regulate does not mean that everything it does to regulate is constitutional.

Strict scrutiny also requires that the state action be narrowly tailored, in addition to being motivated by a compelling reason, and it’s too easy for courts to skip that part of the analysis, as we saw with the TikTok ban when it was somehow blessed by the DC Circuit. And the fear is that the more strict scrutiny is applied to what is fairly ordinary state regulation—of licensed practitioners—the more likely it will have the practical effect of creating precedent that dilutes the standard so that it is no longer so strict when we need it to be, especially for state action that is more exceptional. (On the TikTok ban the Supreme Court had greenlighted it using a lesser standard, which was itself extremely problematic as the ban should have been found unconstitutional, but at least the tool that should have applied to it remained sharp for future use, rather than dulled by this bad decision.)

On the other hand, a decision upholding the lower courts’ use of rational basis review would have done no one any favors. As Justice Kagan wrote in her concurrence, joined by Justice Sotomayor, it is easy to imagine a law that mirrors what the Colorado one does, prohibiting talk therapy that accepts LGBTQ+ identity instead of challenges it, and now advocates are left with a much more powerful tool to challenge it.

Of course, it does not matter what the State’s preferred side is. Consider a hypothetical law that is the mirror image of Colorado’s. Instead of barring talk therapy designed to change a minor’s sexual orientation or gender identity, this law bars therapy affirming those things. As Ms. Chiles readily acknowledges, the First Amendment would apply in the identical way. [Concurrence p.3]

As Texas shows, such a situation is not hypothetical. But now with this decision people challenging such censorial government efforts can turn to long-established First Amendment doctrine in their fight. And the doctrine remains stable, rather than something now swiss-cheesed with bespoke exceptions tied to certain policy preferences. No matter how valid those preferences, if they can be given special constitutional treatment then so can the bad ones. This decision helps buttress the guardrails preventing speech from being protected or not based on whether the government likes it, which is the whole reason we have the First Amendment, to make sure government preferences cannot dictate what views people can express.

Which is especially important when the courts cannot be trusted to overcome their biases to have good sense about which policy preferences are good and bad. The Supreme Court of course only has itself to blame that the public is so primed to believe that its decisions are driven by its biases and not neutral, sustainable doctrine. But nevertheless this decision still stands as an important declaration of law that is consistent with existing First Amendment jurisprudence and one that will ultimately leave everyone, including those challenging government actions attacking LGBTQ+ interests, far better off than if the Court had let the lower courts’ decisions invalidating the law stand after using a less speech-protective rule. In fact it will be an important one for anyone fighting censorship in any context, including those we generally talk about here, to use, because with this decision, the rule that has long been the rule remains the rule: when a government action non-incidentally touches on speech, is content-based, and is not viewpoint neutral, strict scrutiny applies.

Per this decision, a law targeting what therapists can say inherently involves speech, and not in an incidental way. And it targets it in a way that is not viewpoint-neutral; it has a specific preference, that conversion therapy is bad. As a result, as a law that targets the content of speech in a way that is not viewpoint-neutral, strict scrutiny, a more exacting standard than the rational basis review the lower courts had used, is required.

Turning to the merits, both the district court and the Tenth Circuit denied Ms. Chiles’s request for a preliminary injunction. The courts recognized that Ms. Chiles provides only “talk therapy.” And they acknowledged that Colorado’s law regulates the “verbal language” she may use. But, the courts held, the main thrust of the State’s law is to delineate which “treatments” and “therapeutic modalit[ies]” are permissible. Accordingly, the courts reasoned that Colorado’s law is best understood as regulating “professional conduct.” At most, they continued, Colorado’s law regulates speech only “incidentally” to professional conduct. As a result, the courts concluded, Colorado’s law triggers no more than “rational basis review” under the First Amendment, requiring the State to show merely that its law is rationally related to a legitimate governmental interest. Because the State satisfied that standard, the courts held that Ms. Chiles was not entitled to the relief she sought. [Majority p.6]

[…]

Consistent with the First Amendment’s jealous protections for the individual’s right to think and speak freely, this Court has long held that laws regulating speech based on its subject matter or “communicative content” are “presumptively unconstitutional.” Reed v. Town of Gilbert, 576 U. S. 155, 163 (2015). As a general rule, such “content-based” restrictions trigger “strict scrutiny,” a demanding standard that requires the government to prove its restriction on speech is “narrowly tailored to serve compelling state interests.” Ibid. Under that test, it is ” ‘rare that a regulation . . . will ever be permissible.’ ” Brown v. Entertainment Merchants Assn., 564 U. S. 786, 799 (2011) (quoting United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 818 (2000)).

We have recognized, as well, the even greater dangers associated with regulations that discriminate based on the speaker’s point of view. When the government seeks not just to restrict speech based on its subject matter, but also seeks to dictate what particular “opinion or perspective” individuals may express on that subject, “the violation of the First Amendment is all the more blatant.” Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 829 (1995). “Viewpoint discrimination,” as we have put it, represents “an egregious form” of content regulation, and governments in this country must nearly always “abstain” from it. Ibid.; see also Iancu v. Brunetti, 588 U. S. 388, 393 (2019) (describing “the bedrock First Amendment principle that the government cannot discriminate” based on view-point (internal quotation marks omitted)); Good News Club v. Milford Central School, 533 U. S. 98, 112–113 (2001); Barnette, 319 U. S., at 642. [Majority p.8-9]

[…]

As applied here, Colorado’s law does not just regulate the content of Ms. Chiles’s speech. It goes a step further, prescribing what views she may and may not express. For a gay client, Ms. Chiles may express “[a]cceptance, support, and understanding for the facilitation of . . . identity exploration.” For a client “undergoing gender transition,” Ms. Chiles may likewise offer words of “[a]ssistance.” 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 forbids her from saying anything that “attempts . . . to change” a client’s “sexual orientation or gender identity,” including anything that might represent an “effor[t] to change [her client’s] behaviors or gender expressions or . . . romantic attraction[s].” [Majority p.13]

But even if the law as it stands can’t survive strict scrutiny, in her concurrence, joined by Justice Sotomayor, Justice Kagan suggested ways the law might be amended so that it could be upheld.

It would, however, be less [likely to be unconstitutional] if the law under review was content based but viewpoint neutral. Such content-based laws, as the Court explains, trigger strict scrutiny “[a]s a general rule.” But our precedents respecting those laws recognize complexity and nuance. We apply our most demanding standard when there is any “realistic possibility that official suppression of ideas is afoot”—when, that is, a (merely) content-based law may reasonably be thought to pose the dangers that viewpoint-based laws always do. Davenport v. Washington Ed. Assn., 551 U. S. 177, 189 (2007). But when that is not the case—when a law, though based on content, raises no real concern that the government is censoring disfavored ideas—then we have not infrequently “relax[ed] our guard.” Reed, 576 U. S., at 183 (opinion of KAGAN, J.); see Davenport, 551 U. S., at 188 (noting the “numerous situations in which [the] risk” of a content-based law “driv[ing] certain ideas or viewpoints from the marketplace” is “attenuated” or “inconsequential, so that strict scrutiny is unwarranted”). Just two Terms ago, for example, the Court declined to apply strict scrutiny to a content-based but viewpoint-neutral trademark restriction. See Vidal v. Elster, 602 U. S. 286, 295 (2024); id., at 312 (BARRETT, J., concurring in part); id., at 329–330 (SOTOMAYOR, J., concurring in judgment). In the trademark context, as in some others, experience and reason alike showed “no significant danger of idea or viewpoint” bias. R. A. V., 505 U. S., at 388.

The same may well be true of content-based but viewpoint-neutral laws regulating speech in doctors’ and counselors’ offices.* Medical care typically involves speech, so the regulation of medical care (which is, of course, pervasive) may involve speech restrictions. And those restrictions will generally refer to the speech’s content. Cf. Reed, 576 U. S., at 177 (Breyer, J., concurring in judgment) (noting that “[r]egulatory programs” addressing speech “inevitably involve content discrimination”). But laws of that kind may not pose the risk of censorship—of “official suppression of ideas”—that appropriately triggers our most rigorous review. R. A. V., 505 U. S., at 390. And that means the “difference between viewpoint-based and viewpoint-neutral content discrimination” in the health-care context could prove “decisive.” Vidal, 602 U. S., at 330 (opinion of SOTOMAYOR, J.). Fuller consideration of that question, though, can wait for another day. We need not here decide how to assess viewpoint-neutral laws regulating health providers’ expression because, as the Court holds, Colorado’s is not one. [Concurrence p.3-4]

Ultimately, despite all of the concerns, the decision is still a good one that will leave everyone better off. And not just for cases that reach the Supreme Court but in every state and federal court hearing every challenge of laws trying to penalize certain views, including those accepting of LGBTQ+ identities. Whereas a decision to the contrary, one that would have allowed a rational basis standard to be the test for the law’s constitutionality, could be used to defend laws that, instead of fighting LGBTQ+ prejudice as this one tried to do, instead advanced it. As Texas illustrates, already there are examples of certain government actors attempting to impose their biased viewpoints via licensing requirements for therapists. This decision, even if it may stand as an individual reflection of LGBTQ+ animus by this Supreme Court, still makes further state action motivated by it that much harder for any government actor to impose.