I really enjoyed reading this article. I agreed with Jackson's dissent that Colorado was regulating a form of treatment that the medical profession has concluded is harmful which is part of the power that belongs to states. The important distinction she draws is between a state that restricts speech because of the idea it expresses and a state that restricts speech only incidentally as it is focused on the harmfulness of the medical treatment. I think it is important for court to see this distinction as the article points out that much of modern health is provided through speech. This is important to uphold rules requiring health providers to act the patients' best interests, avoid cruel care and to meet basic standards of competence.
The part of the majority I can’t get past is the APA argument. Gorsuch says medical consensus isn’t static, points out the APA once classified homosexuality as a disorder, and drops a Buck v. Bell cite to show where deference to experts can lead. He isn’t wrong about that. But the only reason we know the 1952 classification was wrong is that the profession corrected it. Consensus being self-correcting seems like the argument for letting it set the standard, not against it. A kid put through this at fifteen doesn’t get that correction. The error runs both directions and only one side of it is fixable.
That’s why I come out with Jackson. A standard of care is the thing we already built to handle professionals being wrong about serious stuff. Jackson is right that setting one means picking a side, and I don’t think that’s a defect, it’s what the licensing apparatus is for. If picking a side counts as viewpoint discrimination, it’s hard to see which standards of care are safe, which is the worry footnote 8 raises about the viewpoint-neutral category.
How do you account for the fact that the patient in these cases seeks the care Chiles wants to provide? And that it is not illegal for the patient to seek to change his/her sexual orientation?
In Chiles, the majority says there’s no special “professional speech” category with less protection, so licensed counselors/providers get the same treatment as anyone else when practicing. “Ordinary First Amendment rules” come with the assumption that there’s a marketplace of ideas, where everyone hears competing views and sorts it out with discourse. That works pretty well for a protest or a writing piece online, but it works a lot less effectively in a private room with a conversation between a licensed professional and a kid.
We send doctors and psychologists to school for years to learn how the body & brain work. If a doctor walked in, ignored all of that, and treated a patient based on personal beliefs about a problem that isn’t actually there, nobody would call that a free-speech issue. They’d call it malpractice, and they’d be right. Jackson essentially makes this point in her dissent by pointing out that within a doctor-patient relationship, the “truths” are set by licensing & standards of care, not by whoever feels strongly about something. Chiles’s side would say that assumes the very thing being fought over, since she is licensed and trained and sees herself as disagreeing with where the profession landed, not ignoring it. Fair, but that just shows the real fight is over who decides what counts as the problem.
And then it is important to recognize that there is a kid involved. There’s no real back and forth when the person across from you has some sort of authority over you, and you’re a kid who is much more vulnerable than an adult. The majority says Chiles, by her own account, only does talk therapy and helps clients pursue their own goals, and that’s what the opinion works from, but still the state’s whole argument is that for minors, this kind of therapy does real harm, and “exchange of ideas” feels like the wrong description for it. Again, a point that is made in the Jackson dissent was that in medicine, hearing every opinion doesn’t help a patient, and instead, information about treatments within the standard of care will.
However, the First Amendment exists to protect speech and applies to views that differ from my beliefs. If my argument only works because I like which side Colorado picked, then I’m asking the Court to choose a side, and the entire point of the “viewpoint” rule is that it can’t do that. So, the better version of my argument isn’t “conversion therapy is bad”, but that a state should be able to regulate treatments by standard of care, regardless of the direction that standard points. The majority says that’s how a state could silence a view it dislikes, but I have to stand pretty firmly with Jackson because I believe that a standard of care in the practice of medicine is essential to ethical practice. In my view, a standard in a professional consensus is different from a personal viewpoint.
This whole thing is muddy and the court left so much unaddressed. Speech in what setting, and with what power dynamic? Can a state regulate therapy by standard of care without picking a side? Isn’t it a matter of public health? I believe it’s harmful for free-speech protections to spill over into medical provider/patient relationships.
This issue is very complicated to me. On one hand, medical practices should be regulated to protect patient's best interests, but on the other, this does seem like viewpoint regulation. I do think it would be a different conversation if Chiles was doing more than just talk therapy. While I think this is rarely the case, what if a patient wants to discuss these topics? I don't think states should be able to regulate what a patient chooses to discuss with their therapist. However, more often than not, I think its not the patients choice to attend conversion therapy, so if the consensus is that conversion therapy is harmful, then I think there is a strong case that it should be regulated, regardless of personal beliefs. Ultimately, I'm not sure where I stand on this one.
The court's reasoning that speech, specifically viewpoint discrimination, is at issue is fascinating but also a massive extension of protections over the two sided nature of regulations surrounding two private speakers as well as those between a therapist and patient. In this instance, the protection afforded to the therapist is torubling, but overall I do understand where the court, hopefully, was trying to go; that a conversation between the therapist and patient cannot be regulated by the state.
I remember hearing about this decision earlier this year and was surprised it was not 9-0. The court's jurisprudence on viewpoint discrimination is explicit. This law goes way to far beyond simply regulating the medical profession. The conversation itself is the therapy. As I was reading I thought to myself, this bans the patient who is experiencing confusing thoughts and wants to work through them, and I was glad Justice Gorsuch brought that up. Only one side of the discussion is permitted.
Also, some of Justice Jackson's analogies likely missed the mark. The smoking analogy itself was likely impermissible viewpoint discrimination. Also, the anarexia and suicide analogy are more on applicable but don't answer whether the law here regulated conduct and only incidentally affected speech, or instead prohibited speech because of the message it conveyed. The answer to that question, in my opinion, is clearly the latter.
There is a clear difference here from regulating the "practice of medicine" as Justice Jackson makes in the speech incident to conduct argument in her dissent. I would first argue that a licensed therapist is not practicing medicine at all in the literal meaning of the words. But more persuasively, in the context of seeing a therapist, the speech itself is the treatment. And the law is clear, the government cannot pick a winner, no matter how good intentioned the reasoning is.
You've identified an important distinction (between regulating medical treatment that incidentally involves speech and regulating treatment that consists entirely of speech), but I would push you a bit further on the anorexia and suicide examples. If a therapist is treating a patient entirely through conversation, why would the speech in those situations be merely incidental to conduct, while the speech in conversion therapy is not? In both cases, the speech itself constitutes the treatment.
I certainly understand the concerns surrounding conversion therapy, but it is not even close to the norm in this country. Major medical and mental health organizations overwhelmingly oppose it as ineffective and potentially harmful. To me, its clear that the marketplace of ideas has pushed conversion therapy to the margins through medical consensus, public criticism, professional norms, and reputational costs. I can also see the potential for other areas of psychotherapy to be affected by this ruling, but I don't think this case is saying that doctors can just say anything without consequences. If a therpist told an anorexic patient to eat less, can't states still regulate professional conduct that incidentally involves speech? Malpractice is still available. I do agree that medical standards should be strict and I can see why this case might leave a sour taste in some mouths, but ultimately I do subscribe to the idea that spoken counseling isn't conduct in the same way other types of treatment are. If licensing, without some seperate "non-expressive" act, were enough to transform speech into conduct, I worry about the state's power being used to license professionals and then dictate what viewpoints they may express within their role as professionals. I also found Kagan's idea, that a mirror image statute in another state would raise the same problem, to be convincing to me. The ruling limits government control over therapist speech in either direction, it doesn't force anyone to accept a particular side and it prevents states from picking winners among viewpoints.
In the end, I think concerns about the outcome are understandable, but generally agree with the principles of the majority's argument.
I was not surprised by the outcome in Chiles. We have been watching religious freedom disputes fought on free speech terrain for a while now. After reading Virginia Pharmacy, the pattern looks even more familiar: there, too, the State framed its rule as regulating professional conduct, and the Court treated it as speech. I wonder whether Justice Rehnquist, who dissented alone in that case, would have dissented here as well.
What interests me is why evidence still mattered in Holder v. Humanitarian Law Project but barely mattered here. HLP also refused to let the government relabel speech as conduct, yet it upheld the law by deferring to Congress’s findings about terrorism. Colorado had a strong medical record too, but once the law was found to favor one viewpoint, that record stopped carrying much weight.
While it is important for the Court to guard against viewpoint discrimination, sometimes we have to acknowledge that some viewpoints are harmful to others. This case is prickly for me because the therapist’s speech rights can come at the expense of a minor patient who may not be the one deciding whether to sit in that room. And if the government’s interest in protecting the draft was weighty enough to sustain the law in O’Brien, I fail to see how Colorado’s interest in protecting children’s mental health is any less weighty. The difference seems to be the viewpoint label, not the strength of the State’s interest.
That is why Justice Kagan’s concurrence is the piece to watch. I think we can become so aggressive in our demand for neutrality that we do real damage, much like France’s aggressive secularism laws, where neutrality pursued as an end in itself has ended up burdening religious minorities. There has to be a balance. If a viewpoint-neutral rule, such as one banning therapy that promises any particular orientation outcome in either direction, could survive, states may still have room to protect patients. If not, the concern about addiction, eating-disorder, and suicide-prevention care seems well founded.
The comparison to France is interesting, but I think there's an important distinction in how neutrality operates in the two contexts. In France, neutrality gives the government a reason to restrict expression, while in the U.S., viewpoint neutrality is meant to keep the government from interfering with expression. That doesn't negate your larger concern about the consequences of an overly rigid commitment to neutrality, but it does complicate the analogy.
I think the Court’s decision in Chiles v. Salazar is concerning because it seems to prioritize free speech to the point that it could interfere with states’ ability to protect people from harmful medical practices. I understand that therapists have First Amendment rights just like everyone else, but I don’t think that means everything a therapist says to a patient should be treated as a speech issue rather than a form of treatment. The fact that courts viewed therapy as regulating speech surprised me. Therapy is supposed to help patients, and states should be able to regulate practices that evidence suggests can cause harm. What bothers me most is the broader impact this decision could have. If states can no longer regulate certain types of counseling because doing so is considered viewpoint discrimination, where do we draw the line? I also worry that this reasoning could make it much harder to enforce professional standards in other areas of mental health care. At the same time, I think the Court raises a fair question about whether the government should be allowed to favor one viewpoint over another. However, I don’t think that concern should automatically outweigh evidence that a particular treatment is harmful. I get that there are a lot of experimental types of therapy and it could be a mistake to allow them to be regulated so quickly. I don't know. To me, the Court is making it harder to distinguish between protecting someone’s right to express an opinion and protecting a professional’s ability to use that opinion as a form of treatment. Those are not the same thing at all in my eyes, and I think the distinction matters.
In class we discuss the idea of paternalism, when the government suppresses speech in order to protect people from the idea or consequences of the speech. On one hand, does the government regulating what is allowed within a talk-therapy environment replace the individuals right to pursue whatever therapy they deem helpful? Is that paternalistic? On the other, in the case of minors and when there is serious medical evidence of the harm that even talk-therapy alone can do for gender and sexuality, should the government step in to protect the child from that harm? In this case, the Supreme Court is not a medical professional, and the legislature is in a better place to understand the medical and scientific needs of its people.
I think this is one of the more interesting First Amendment cases. I read this case as the Court applying the same traditional First Amendment analysis to this kind of speech (medical treatment), and viewing it no different from political, entertainment, or any other kind of speech. Viewpoint discrimination is obviously something that the Court takes very seriously, and clearly should receive a high level of scrutiny. But one thing that struck me from Jackson's dissent was her view that this was medicine, unlike politics, does have objectively right answers, and therefore regulations need to be able to protect patients against bad medicine. My view from the majority was that this speech regulation is no different from other First Amendment theories, where bad speech can be drowned out by good speech (essentially, by having all doctors speak on the matter, patients will be able to come to the best conclusion for them). By drawing the distinction between speech treatment and other forms of treatment, like medication, the majority, either intentionally or inadvertently, explain that talk therapy is a lesser form of treatment than medication. Therefore, non-regulation of talk therapy is less dangerous to the patient.
However, based on Jackson's point, I also think there is always a danger of having the government (especially the Court) objectively say that one thing is true, even in a field of medicine. One concern is that the government could be wrong (look how much medical opinions have changed even in the last 20 years), and lots of bad health advice has come from the government and their promotion of what is true. That leads to the argument that this is better left to the free market, or the marketplace of ideas, for the best opinions to rise to the top. However, there is also the argument that the government frequently makes decisions about what is true in medical and other contexts (like when deciding what to teach in schools, another thing that is often at the center of First Amendment lawsuits).
Ultimately, with issues like this, I don't think the Court is wrong to side against viewpoint discrimination, given that it can be incredibly dangerous for the Court to decide truth in any context. However, I believe the best path forward is going to be something similar to what Kagan laid out in her concurrence, with a focus on content-neutral regulations. It will take more skilled legislations and more litigation to develop statutes that best serve the interests of all parties. Hopefully, this will create policy that will best serve all doctors and patients going forward.
Every time I engage with this case it makes me irrationally angry for a multitude of reasons. I think that what is entirely lost in the majority and concurrence is that we are talking about kids. In the class where we talked about how the first amendment applies to child porn laws the court can see the harm and carte blanche exempt it from first amendment protection. What happens when the only kids being negatively affected are gay or trans? The court suddenly thinks that this is viewpoint discriminatory and "an ideologically charged issue." Yes it is ideologically charged to be gay in our society but these kids have nothing to do with that. They have no control over the therapist their parents bring them to or even the therapist their insurance carrier will accept. We should not be talking about the "marketplace of ideas" when the idea in question is whether licensed therapists should be allowed to harm minors.
The court attempts to veil its arguments in a la-la-land that Ms. Chiles is a perfect therapist and would never impose her own opinions onto any client of hers. Yet throughout the opinion it interchanges this understanding of Ms. Chiles with the understanding that "Colorado seeks to suppress views Ms. Chiles wishes to express." That is blatantly contradictory. Yet, I do not think the courts attempts to wash this decision as something that would simply allow for minors who are seeking conversion therapy of their own accord, holds even an ounce of water. It is worth noting that no minor is seeking out, paying for, getting to, and attending talk therapy on their own, and if they are great, but this is very much not the case in most situations. We are mostly talking about parents being the ones to make these appointments for their childen. Parents who probably want to impose their own ideas about what sexual orientation or gender their child should have or be. They do so by finding "therapists" like Ms. Chiles to "fix" their gay child.
I will also say that upon this read of the opinions I could not help but feel like this logic, if applied to a lawyers speech to their client, would almost certainly protect a lot of forms of legal malpractice. Given that most legal advice is given orally (and "the spoken word is perhaps the quintessential form of protected speech"), under the majority's theory the state has no power to say in their licensure of attorneys what advice I can and can't give to my clients or at least it would be subject to strict scrutiny like this Colorado regulation.
This majority opinion is horrible and the concurrence saddens me greatly.
This is probably the first case we have read this semester where, after multiple reads, I have come out of it thinking "I don't really know how I feel about this one." I have concerns about youth who are unhappy in their own skin coming to a therapist for guidance and the state saying that the therapist is not allowed to provide that minor with the guidance they seek just because they think the minor should not think the way they do about their orientation or sexuality. Access to the healthcare you seek is so important, and so is having the autonomy to pursue the sexual or gender orientation you feel is most fulfilling to your life. In that regard I think the opinion of the court is compelling in its desire to not let the state decide which orientation is worth pursuing.
However, Justice Jackson's dissent raises good points. The state can regulate speech of its medical professionals frequently including, as she mentions, not allowing doctors to tell anorexic patients to eat less or depressed patients to self-harm. The state's power to regulate for public health is a well-established one, but when it clashes with free speech rights the result is always going to be as muddy as this case is.
I don’t think the court should have expanded the First Amendment into doctor-patient relationships in this way, mainly because of the implications that expansion has for professional conduct. The private conversations between a doctor and their patient are not (or should not be) centered on the doctor sharing some ideology or opinion, rather they should be about coming to the best solution for a patient based on the professional’s medical expertise. If the First Amendment stretches into patient-doctor conversations, healthcare professionals could encourage harmful solutions based solely on their own personally held opinions. I agree with Jackson’s dissent that the state should not lose regulatory power over the medical profession just because there may be some speech involved. Being able to trust that our healthcare providers have our best interests at heart helps protect the welfare of our communities. But this decision allows healthcare providers to treat patients in harmful and ineffective ways based solely on their own political/religious/etc. ideologies under the guise of free speech.
fantastic analysis. i have no substantive comment :) brilliant
thank you!
I really enjoyed reading this article. I agreed with Jackson's dissent that Colorado was regulating a form of treatment that the medical profession has concluded is harmful which is part of the power that belongs to states. The important distinction she draws is between a state that restricts speech because of the idea it expresses and a state that restricts speech only incidentally as it is focused on the harmfulness of the medical treatment. I think it is important for court to see this distinction as the article points out that much of modern health is provided through speech. This is important to uphold rules requiring health providers to act the patients' best interests, avoid cruel care and to meet basic standards of competence.
The part of the majority I can’t get past is the APA argument. Gorsuch says medical consensus isn’t static, points out the APA once classified homosexuality as a disorder, and drops a Buck v. Bell cite to show where deference to experts can lead. He isn’t wrong about that. But the only reason we know the 1952 classification was wrong is that the profession corrected it. Consensus being self-correcting seems like the argument for letting it set the standard, not against it. A kid put through this at fifteen doesn’t get that correction. The error runs both directions and only one side of it is fixable.
That’s why I come out with Jackson. A standard of care is the thing we already built to handle professionals being wrong about serious stuff. Jackson is right that setting one means picking a side, and I don’t think that’s a defect, it’s what the licensing apparatus is for. If picking a side counts as viewpoint discrimination, it’s hard to see which standards of care are safe, which is the worry footnote 8 raises about the viewpoint-neutral category.
How do you account for the fact that the patient in these cases seeks the care Chiles wants to provide? And that it is not illegal for the patient to seek to change his/her sexual orientation?
In Chiles, the majority says there’s no special “professional speech” category with less protection, so licensed counselors/providers get the same treatment as anyone else when practicing. “Ordinary First Amendment rules” come with the assumption that there’s a marketplace of ideas, where everyone hears competing views and sorts it out with discourse. That works pretty well for a protest or a writing piece online, but it works a lot less effectively in a private room with a conversation between a licensed professional and a kid.
We send doctors and psychologists to school for years to learn how the body & brain work. If a doctor walked in, ignored all of that, and treated a patient based on personal beliefs about a problem that isn’t actually there, nobody would call that a free-speech issue. They’d call it malpractice, and they’d be right. Jackson essentially makes this point in her dissent by pointing out that within a doctor-patient relationship, the “truths” are set by licensing & standards of care, not by whoever feels strongly about something. Chiles’s side would say that assumes the very thing being fought over, since she is licensed and trained and sees herself as disagreeing with where the profession landed, not ignoring it. Fair, but that just shows the real fight is over who decides what counts as the problem.
And then it is important to recognize that there is a kid involved. There’s no real back and forth when the person across from you has some sort of authority over you, and you’re a kid who is much more vulnerable than an adult. The majority says Chiles, by her own account, only does talk therapy and helps clients pursue their own goals, and that’s what the opinion works from, but still the state’s whole argument is that for minors, this kind of therapy does real harm, and “exchange of ideas” feels like the wrong description for it. Again, a point that is made in the Jackson dissent was that in medicine, hearing every opinion doesn’t help a patient, and instead, information about treatments within the standard of care will.
However, the First Amendment exists to protect speech and applies to views that differ from my beliefs. If my argument only works because I like which side Colorado picked, then I’m asking the Court to choose a side, and the entire point of the “viewpoint” rule is that it can’t do that. So, the better version of my argument isn’t “conversion therapy is bad”, but that a state should be able to regulate treatments by standard of care, regardless of the direction that standard points. The majority says that’s how a state could silence a view it dislikes, but I have to stand pretty firmly with Jackson because I believe that a standard of care in the practice of medicine is essential to ethical practice. In my view, a standard in a professional consensus is different from a personal viewpoint.
This whole thing is muddy and the court left so much unaddressed. Speech in what setting, and with what power dynamic? Can a state regulate therapy by standard of care without picking a side? Isn’t it a matter of public health? I believe it’s harmful for free-speech protections to spill over into medical provider/patient relationships.
This issue is very complicated to me. On one hand, medical practices should be regulated to protect patient's best interests, but on the other, this does seem like viewpoint regulation. I do think it would be a different conversation if Chiles was doing more than just talk therapy. While I think this is rarely the case, what if a patient wants to discuss these topics? I don't think states should be able to regulate what a patient chooses to discuss with their therapist. However, more often than not, I think its not the patients choice to attend conversion therapy, so if the consensus is that conversion therapy is harmful, then I think there is a strong case that it should be regulated, regardless of personal beliefs. Ultimately, I'm not sure where I stand on this one.
The court's reasoning that speech, specifically viewpoint discrimination, is at issue is fascinating but also a massive extension of protections over the two sided nature of regulations surrounding two private speakers as well as those between a therapist and patient. In this instance, the protection afforded to the therapist is torubling, but overall I do understand where the court, hopefully, was trying to go; that a conversation between the therapist and patient cannot be regulated by the state.
I remember hearing about this decision earlier this year and was surprised it was not 9-0. The court's jurisprudence on viewpoint discrimination is explicit. This law goes way to far beyond simply regulating the medical profession. The conversation itself is the therapy. As I was reading I thought to myself, this bans the patient who is experiencing confusing thoughts and wants to work through them, and I was glad Justice Gorsuch brought that up. Only one side of the discussion is permitted.
Also, some of Justice Jackson's analogies likely missed the mark. The smoking analogy itself was likely impermissible viewpoint discrimination. Also, the anarexia and suicide analogy are more on applicable but don't answer whether the law here regulated conduct and only incidentally affected speech, or instead prohibited speech because of the message it conveyed. The answer to that question, in my opinion, is clearly the latter.
There is a clear difference here from regulating the "practice of medicine" as Justice Jackson makes in the speech incident to conduct argument in her dissent. I would first argue that a licensed therapist is not practicing medicine at all in the literal meaning of the words. But more persuasively, in the context of seeing a therapist, the speech itself is the treatment. And the law is clear, the government cannot pick a winner, no matter how good intentioned the reasoning is.
You've identified an important distinction (between regulating medical treatment that incidentally involves speech and regulating treatment that consists entirely of speech), but I would push you a bit further on the anorexia and suicide examples. If a therapist is treating a patient entirely through conversation, why would the speech in those situations be merely incidental to conduct, while the speech in conversion therapy is not? In both cases, the speech itself constitutes the treatment.
I certainly understand the concerns surrounding conversion therapy, but it is not even close to the norm in this country. Major medical and mental health organizations overwhelmingly oppose it as ineffective and potentially harmful. To me, its clear that the marketplace of ideas has pushed conversion therapy to the margins through medical consensus, public criticism, professional norms, and reputational costs. I can also see the potential for other areas of psychotherapy to be affected by this ruling, but I don't think this case is saying that doctors can just say anything without consequences. If a therpist told an anorexic patient to eat less, can't states still regulate professional conduct that incidentally involves speech? Malpractice is still available. I do agree that medical standards should be strict and I can see why this case might leave a sour taste in some mouths, but ultimately I do subscribe to the idea that spoken counseling isn't conduct in the same way other types of treatment are. If licensing, without some seperate "non-expressive" act, were enough to transform speech into conduct, I worry about the state's power being used to license professionals and then dictate what viewpoints they may express within their role as professionals. I also found Kagan's idea, that a mirror image statute in another state would raise the same problem, to be convincing to me. The ruling limits government control over therapist speech in either direction, it doesn't force anyone to accept a particular side and it prevents states from picking winners among viewpoints.
In the end, I think concerns about the outcome are understandable, but generally agree with the principles of the majority's argument.
I was not surprised by the outcome in Chiles. We have been watching religious freedom disputes fought on free speech terrain for a while now. After reading Virginia Pharmacy, the pattern looks even more familiar: there, too, the State framed its rule as regulating professional conduct, and the Court treated it as speech. I wonder whether Justice Rehnquist, who dissented alone in that case, would have dissented here as well.
What interests me is why evidence still mattered in Holder v. Humanitarian Law Project but barely mattered here. HLP also refused to let the government relabel speech as conduct, yet it upheld the law by deferring to Congress’s findings about terrorism. Colorado had a strong medical record too, but once the law was found to favor one viewpoint, that record stopped carrying much weight.
While it is important for the Court to guard against viewpoint discrimination, sometimes we have to acknowledge that some viewpoints are harmful to others. This case is prickly for me because the therapist’s speech rights can come at the expense of a minor patient who may not be the one deciding whether to sit in that room. And if the government’s interest in protecting the draft was weighty enough to sustain the law in O’Brien, I fail to see how Colorado’s interest in protecting children’s mental health is any less weighty. The difference seems to be the viewpoint label, not the strength of the State’s interest.
That is why Justice Kagan’s concurrence is the piece to watch. I think we can become so aggressive in our demand for neutrality that we do real damage, much like France’s aggressive secularism laws, where neutrality pursued as an end in itself has ended up burdening religious minorities. There has to be a balance. If a viewpoint-neutral rule, such as one banning therapy that promises any particular orientation outcome in either direction, could survive, states may still have room to protect patients. If not, the concern about addiction, eating-disorder, and suicide-prevention care seems well founded.
The comparison to France is interesting, but I think there's an important distinction in how neutrality operates in the two contexts. In France, neutrality gives the government a reason to restrict expression, while in the U.S., viewpoint neutrality is meant to keep the government from interfering with expression. That doesn't negate your larger concern about the consequences of an overly rigid commitment to neutrality, but it does complicate the analogy.
I think the Court’s decision in Chiles v. Salazar is concerning because it seems to prioritize free speech to the point that it could interfere with states’ ability to protect people from harmful medical practices. I understand that therapists have First Amendment rights just like everyone else, but I don’t think that means everything a therapist says to a patient should be treated as a speech issue rather than a form of treatment. The fact that courts viewed therapy as regulating speech surprised me. Therapy is supposed to help patients, and states should be able to regulate practices that evidence suggests can cause harm. What bothers me most is the broader impact this decision could have. If states can no longer regulate certain types of counseling because doing so is considered viewpoint discrimination, where do we draw the line? I also worry that this reasoning could make it much harder to enforce professional standards in other areas of mental health care. At the same time, I think the Court raises a fair question about whether the government should be allowed to favor one viewpoint over another. However, I don’t think that concern should automatically outweigh evidence that a particular treatment is harmful. I get that there are a lot of experimental types of therapy and it could be a mistake to allow them to be regulated so quickly. I don't know. To me, the Court is making it harder to distinguish between protecting someone’s right to express an opinion and protecting a professional’s ability to use that opinion as a form of treatment. Those are not the same thing at all in my eyes, and I think the distinction matters.
In class we discuss the idea of paternalism, when the government suppresses speech in order to protect people from the idea or consequences of the speech. On one hand, does the government regulating what is allowed within a talk-therapy environment replace the individuals right to pursue whatever therapy they deem helpful? Is that paternalistic? On the other, in the case of minors and when there is serious medical evidence of the harm that even talk-therapy alone can do for gender and sexuality, should the government step in to protect the child from that harm? In this case, the Supreme Court is not a medical professional, and the legislature is in a better place to understand the medical and scientific needs of its people.
I think this is one of the more interesting First Amendment cases. I read this case as the Court applying the same traditional First Amendment analysis to this kind of speech (medical treatment), and viewing it no different from political, entertainment, or any other kind of speech. Viewpoint discrimination is obviously something that the Court takes very seriously, and clearly should receive a high level of scrutiny. But one thing that struck me from Jackson's dissent was her view that this was medicine, unlike politics, does have objectively right answers, and therefore regulations need to be able to protect patients against bad medicine. My view from the majority was that this speech regulation is no different from other First Amendment theories, where bad speech can be drowned out by good speech (essentially, by having all doctors speak on the matter, patients will be able to come to the best conclusion for them). By drawing the distinction between speech treatment and other forms of treatment, like medication, the majority, either intentionally or inadvertently, explain that talk therapy is a lesser form of treatment than medication. Therefore, non-regulation of talk therapy is less dangerous to the patient.
However, based on Jackson's point, I also think there is always a danger of having the government (especially the Court) objectively say that one thing is true, even in a field of medicine. One concern is that the government could be wrong (look how much medical opinions have changed even in the last 20 years), and lots of bad health advice has come from the government and their promotion of what is true. That leads to the argument that this is better left to the free market, or the marketplace of ideas, for the best opinions to rise to the top. However, there is also the argument that the government frequently makes decisions about what is true in medical and other contexts (like when deciding what to teach in schools, another thing that is often at the center of First Amendment lawsuits).
Ultimately, with issues like this, I don't think the Court is wrong to side against viewpoint discrimination, given that it can be incredibly dangerous for the Court to decide truth in any context. However, I believe the best path forward is going to be something similar to what Kagan laid out in her concurrence, with a focus on content-neutral regulations. It will take more skilled legislations and more litigation to develop statutes that best serve the interests of all parties. Hopefully, this will create policy that will best serve all doctors and patients going forward.
Every time I engage with this case it makes me irrationally angry for a multitude of reasons. I think that what is entirely lost in the majority and concurrence is that we are talking about kids. In the class where we talked about how the first amendment applies to child porn laws the court can see the harm and carte blanche exempt it from first amendment protection. What happens when the only kids being negatively affected are gay or trans? The court suddenly thinks that this is viewpoint discriminatory and "an ideologically charged issue." Yes it is ideologically charged to be gay in our society but these kids have nothing to do with that. They have no control over the therapist their parents bring them to or even the therapist their insurance carrier will accept. We should not be talking about the "marketplace of ideas" when the idea in question is whether licensed therapists should be allowed to harm minors.
The court attempts to veil its arguments in a la-la-land that Ms. Chiles is a perfect therapist and would never impose her own opinions onto any client of hers. Yet throughout the opinion it interchanges this understanding of Ms. Chiles with the understanding that "Colorado seeks to suppress views Ms. Chiles wishes to express." That is blatantly contradictory. Yet, I do not think the courts attempts to wash this decision as something that would simply allow for minors who are seeking conversion therapy of their own accord, holds even an ounce of water. It is worth noting that no minor is seeking out, paying for, getting to, and attending talk therapy on their own, and if they are great, but this is very much not the case in most situations. We are mostly talking about parents being the ones to make these appointments for their childen. Parents who probably want to impose their own ideas about what sexual orientation or gender their child should have or be. They do so by finding "therapists" like Ms. Chiles to "fix" their gay child.
I will also say that upon this read of the opinions I could not help but feel like this logic, if applied to a lawyers speech to their client, would almost certainly protect a lot of forms of legal malpractice. Given that most legal advice is given orally (and "the spoken word is perhaps the quintessential form of protected speech"), under the majority's theory the state has no power to say in their licensure of attorneys what advice I can and can't give to my clients or at least it would be subject to strict scrutiny like this Colorado regulation.
This majority opinion is horrible and the concurrence saddens me greatly.
This is probably the first case we have read this semester where, after multiple reads, I have come out of it thinking "I don't really know how I feel about this one." I have concerns about youth who are unhappy in their own skin coming to a therapist for guidance and the state saying that the therapist is not allowed to provide that minor with the guidance they seek just because they think the minor should not think the way they do about their orientation or sexuality. Access to the healthcare you seek is so important, and so is having the autonomy to pursue the sexual or gender orientation you feel is most fulfilling to your life. In that regard I think the opinion of the court is compelling in its desire to not let the state decide which orientation is worth pursuing.
However, Justice Jackson's dissent raises good points. The state can regulate speech of its medical professionals frequently including, as she mentions, not allowing doctors to tell anorexic patients to eat less or depressed patients to self-harm. The state's power to regulate for public health is a well-established one, but when it clashes with free speech rights the result is always going to be as muddy as this case is.
I don’t think the court should have expanded the First Amendment into doctor-patient relationships in this way, mainly because of the implications that expansion has for professional conduct. The private conversations between a doctor and their patient are not (or should not be) centered on the doctor sharing some ideology or opinion, rather they should be about coming to the best solution for a patient based on the professional’s medical expertise. If the First Amendment stretches into patient-doctor conversations, healthcare professionals could encourage harmful solutions based solely on their own personally held opinions. I agree with Jackson’s dissent that the state should not lose regulatory power over the medical profession just because there may be some speech involved. Being able to trust that our healthcare providers have our best interests at heart helps protect the welfare of our communities. But this decision allows healthcare providers to treat patients in harmful and ineffective ways based solely on their own political/religious/etc. ideologies under the guise of free speech.