This morning the Supreme Court decided the case of Chiles v. Salazar. Chiles is a therapist in Colorado who challenged that state’s anti-conversion therapy law on the ground that it infringed her freedom of speech under the First Amendment. The Supreme Court accepted certiorari to resolve a conflict among the circuits relating to such conversion therapy bans, which have been adopted in many states, and ruled 8-1 that Colorado’s law violates the First Amendment.
The majority opinion was by Justice Gorsuch, and Justices Kagan and Sotomayor concurred, leaving Justice Jackson as the only dissenter. Justice Gorsuch’s opinion is well worth reading. It relies heavily on the fact that the plaintiff, Kaley Chiles, “employs only talk therapy.” She literally doesn’t do anything but talk to her clients. And Colorado’s law clearly involves viewpoint discrimination, as a talk therapist can say certain things to her clients on particular topics, but not others. So the ruling in the case is quite narrow. It reflects an appropriate vigilance on behalf of the First Amendment in a case that was not, in my view, free from doubt.
Justice Jackson’s lone dissent will no doubt help to cement her reputation as a left-wing outlier on the Court. That reputation is probably well deserved, but in this case I don’t think her dissent was unreasonable. She acknowledged that Colorado’s prohibition on Chiles’s talk therapy was, indeed, a viewpoint-based restriction on speech, but one that was incidental to proper regulation of medical professionals. She wrote:
Within the confines of the professional-patient relationship, treatment-related “truths” are a given—they are set by licensing and malpractice standards, and it is not uncommon that such regulation incidentally restricts provider speech. Moreover, regulation of the practice of medicine is pervasively and unavoidably viewpoint based.
The opinions in the case make good reading for those who are interested in such matters.
