Who Was The Fourth Vote For Cert In Chiles v. Salazar?

In December 2023, only three Justices would have granted in Tingley v. Ferguson, which presented the same issue.

In December 2023, the Court denied cert in Tingley v. Ferguson. This case presented the question of whether a prohibition on conversion therapy violates the Free Speech and Free Exercise Clauses. Justices Thomas, Alito, and Kavanaugh would have granted cert. There was a square conflict between the Ninth and Eleventh Circuits, as Justice Alito pointed out in his dissent. At the time, I speculated that Justice Gorsuch--a usual First Amendment stalwart--was unwilling to vote to grant cert in his LGBT-related case.

Fast-forward to March 2025. The Court granted cert in Chiles v. Salazar, on appeal from the Tenth Circuit, which presents the same issue as Tingley.

Who was the fourth vote in Chiles? Did Justice Gorsuch change his mind on the issue? Was Justice Barrett satisfied that sufficient percolation had occurred after another split with the Tenth Circuit? Perhaps Barrett or Gorsuch wanted to take this case only after Skrmetti was settled? Perhaps the climate of the day on transgender issues, in the wake of Skrmetti, make this issue more palatable? Who knows?

Chiles will be argued on October 7, the second day of the term.

Comments

[ikaritenshi]

it seems like an easy case to me. If the therapist is not prescribing any medication and no medical procedures are involved, and all they are doing is talking, I don't know how this isn't strict scrutiny.

[MollyGodiva]

Liscense counsels are a medical provider and thus must adhere to professional standards. Pushing your religion on patients is not allowed.

[Josh R]

If the state outlawed conversion therapy only because it believed it was based in religious practice, you would almost certainly trigger strict scrutiny under the Free Exercise Clause.

[MollyGodiva]

Conversation therapy is child abuse.

[Kleppe]

Now do sex change surgeries on minors

[Doug Heffernan]

Aren't they also a form of conversion therapy, just the other way around, and perhaps using more metal tools?

[Frank Drackman]

Ouch!

[MollyGodiva]

Very rarely happens. And it is with the consent of the minor. In conversion therapy the child is forced to do it.

[Randal]

Now do sex change surgeries on minors

Oh, the stupidity of the MAGA cultist.

There's exactly one difference between conversation therapy and "sex change" surgeries, and it's precisely the same difference as the one between ivermectin and paxlovid: the latter works and the former doesn't.

You're too stupid to realize that if conversion therapy actually worked, the left would love it! You can be whatever gender / sexual orientation you want, just by going to therapy! There's nothing that would make the left happier.

Your numb skull hasn't figured out that if conversion therapy worked, it wouldn't only make gay people straight. If your son wanted to be gay, done! Probably by the school's guidance counselor.

If your daughter was born with six fingers, you'd cut one off. It's standard medical practice, and it works. It's not that you dislike surgeries on minors. You only dislike this one. And it's not that you like conversion therapy, you only like conversion therapy in your preferred direction. It's so blatantly ideology-driven it's funny.

MAGA: Be Everything You Claim to Hate

The left: If it works, great, if not, ditch it.
The right: If it aligns with my cult's mythology, great, if not, ditch it.

[Joe_dallas]

Ignorant beliefs - Sex change operations to cure a mental illness do not work -
They only make the mental illness permanent and creates lifelong medical and physical problems

[Michael P]

Would you be so kind as to learn how to spell, and then learn how the law works, before you inflict your opinions on the rest of us?

[Frank Drackman]

Whatever word did Whoever mispell? And who gives a (redacted)?? Seriously you’re (Grammar Nazis) next on the list after the (redacted)

Frank

[not guilty]

I suspect that the spelling errors complained of may include "liscense counsels" and/or "conversation therapy."

[Josh R]

Although under current doctrine I think that is right, it strikes me that the state ought to be allowed to regulate speech that is a licensed medical procedure when the state believes the procedure (even though it is speech) is quackery (Hat Tip to wvattorney13).

[Stupid Government Tricks]

Or perhaps go in the direction of less State and more freedom.

[Josh R]

Wouldn't that be for the voters and their elected representatives to decide?

[Stupid Government Tricks]

Pardon me, buster. You are entitled to say "the state ought to ...", but I say "perhaps go in the direction of ..." and suddenly I'm the dictator?

[Doug Heffernan]

Freedom for minors can be tricky. Freedom of parents to impose their will on their minor offspring provides lots of freedom for the parents, but less freedom for the minor offspring.

[Randal]

What? Josh (R), you're smarter than this. What in the world do you think triggers strict scrutiny here (especially post-Skrmetti)?

Josh (B) seems to think Skrmetti stands for some sort of anti-LGBT momentum. I think it stands for judicial restraint in this area. Judicial restraint is the "climate of the day" on the Court much more so than the transgender culture wars will ever be.

[Josh R]

What in the world do you think triggers strict scrutiny here (especially post-Skrmetti)?

Speech (noting, that I think strict scrutiny ought not apply).

[MollyGodiva]

SCOTUS has ruled that states can regulate the speech of abortion providers. Let’s see how SCOTUS Calvinball their way to the opposite ruling.

[Josh R]

The compelled speech in Planned Parenthood was incidental to a regulation of conduct (abortion). In contrast in this case, if the therapist is using only speech, the regulation is of that speech directly.

[JoeFromtheBronx]

The clear Calvinball is (as the dissent explained in the relevant case), the Supreme Court treated reproductive health care differently depending on the nature of providers.

The "crisis pregnancy centers" regularly had many indicators of medicine, not mere speech, but they were treated differently.

Also, Rust v. Sullivan allowed the denial of governmental funding even when the clinic did not perform an abortion.

[Frank Drackman]

A Chick who knows “Calvin-ball”??
OK makes me wonder if you’re really a Chick, but Mrs Drackman is a Mets fan and knows her Split Finger from a Cutter, so
I’ll do the “Very ashamed loser hop, skip, jump, dance and shout “Cobbes Rules!!” 10 times

[wvattorney13]

This goes against the side I would typically come down on, but why can't a state regulate the practice of medicine in a way that says conversion therapy is quackery and not supported by the State's public policy?

I understand that the State cannot ban me from posting on the internet certain aspects of conversion therapy or telling someone directly that they can change their sexual orientation, but if I was a licensed therapist, why can't a state say, "Conversion therapy is not recognize medicine. You cannot teach that theory consistent with your license."

I would disagree with that, but I'm not empowered to regulate medicine.

I mean, we wouldn't allow doctors to tell patients to bleed their wounds or use leeches. Under the challenger's theory here, wouldn't that be a violation of a doctor's free speech?

[Josh R]

I agree the state should be able to ban what it thinks is quackery.

However there is a distinction between telling patients to use leeches and this case. The former is a regulation of speech (the instructions) incidental to a regulation of conduct (using leeches). For the latter, the speech itself is the medicine.

[wvattorney13]

I'm not familiar with conversion therapy, but after the meeting with the therapist, isn't the patient supposed to put those words into practice by engaging in some conduct to rid himself of homosexuality? Or does he just listen and it all magically changes?

As a lawyer, there is a variety of speech that I cannot engage in and keep my law license.

[Josh R]

The petitioner in this case uses only speech.

[bernard11]

Don't lawyers use primarily speech and writing?

What happens if a lawyer gives consistently inaccurate and harmful advice to clients?

[Rossami]

That is a very compelling analogy.

Normally, I oppose licensing across the board, believing that customers are better at sorting out bad doctors and bad lawyers than licensing boards ever can be. But they do waste a lot of resources along the way to demonstrating how incompetent they are. And if the state can regulate the bad practice of law which is entirely speech, why can't they also regulate the bad practice of speech-based medicine?

[Randal]

The petitioner in this case uses only speech.

The therapist in the leech hypothetical also uses only speech. In both cases, the speech is incidental to conduct (the things that the patient is supposed to do as part of the "therapy").

In other words, your big "incidental to conduct" insight applies to the conduct of the therapist, not the conduct of the patient. There's no such thing as speech incidental to someone else's conduct. That's called "being convincing," sort of the core of the First Amendment if you think about it.

If a doctor has a First Amendment right to perform conversion therapy, they also have a First Amendment right to recommend leech therapy.

[Josh R]

In other words, your big "incidental to conduct" insight applies to the conduct of the therapist.

What conduct of the therapist?

[Randal]

Performing an abortion.

[Josh R]

Yes, in Planned Parenthood. But, I was asking about this case.

[Randal]

You were comparing Planned Parenthood to this case. I'm distinguishing Planned Parenthood from this case. In Planned Parenthood, Planned Parenthood's speech was incidental to Planned Parenthood's conduct. There's no such conduct in this case, whether it's about conversion therapy or leech therapy. As you observed.

[Josh R]

I assumed the leech therapy recommendation was the preamble to performing leech therapy. But yes, if the doctor does nothing more than recommend leech therapy (not even referring the patient to a provider), then a regulation against such advice targets speech rather than conduct which incidentally burdens speech.

The leech hypo regulation still may not be subject to strict scrutiny if the recommendation is viewed as fraud. A prohibition on conversion therapy might also not be subject to strict scrutiny if it is viewed as fraud. Additionally, it could be viewed as a medical practice (in and of itself) subject to reasonable licensing regulations even though it is speech.

Hopefully, the Court will make clear how these distinctions and similarities apply.

[Michael Ejercito]

Do those speech restrictions satisfy strict scrutiny?

[not guilty]

Neither the District Court nor the Court of Appeals conducted a strict scrutiny analysis. If SCOTUS determines that strict scrutiny applies, the disposition should be a remand to the District Court with instructions to conduct that analysis in the first instance, with the burden of persuasion on the government.

It appears to me that the challenged Act is both a content-based and viewpoint-based prohibition of speech, requiring strict scrutiny review. That does not mean that the plaintiff is necessarily entitled to a preliminary injunction. According to the Tenth Circuit opinion, the plaintiff did not request an evidentiary hearing and submitted no evidence below. The plaintiff made no complaint on appeal that the District Court's findings of fact are clearly erroneous.

Does anyone dispute that the State's interest in protecting the health and well being of minors undergoing talk therapy is compelling? Suppose a state statute prohibited a psychotherapist from recommending that a minor consume a lethal dose of strychnine to cure depression. (The effectiveness would be 100%, but the side effects can kill the patient.) That regulation would be a content-based prohibition of speech, but it could easily survive strict scrutiny review.

[Josh R]

The compelled speech upheld in Planned Parenthood was not subject to strict scrutiny even though it was both content and viewpoint based because the regulation only incidentally burdened speech. It remains to be seen whether the prohibition in this case gets the same treatment.

[Randal]

Why do you think this is viewpoint-based? It also bans trying to turn people gay.

[not guilty]

The Act precludes therapy trying to negate same sex attraction but not therapy trying to affirm same sex attraction.

[Kazinski]

But states can't tell doctors they can't talk to their patients about guns.

What's the difference?

Therapist should be able to talk to their patients about almost anything, although they should not be able to encourage suicide, drug use, or other illegal conduct like sex with minors.

[ReaderY]

What if the state doesn’t prohibit the speech, but merely prohibits you from calling yourself a state-licensed therapists.

After all, education consists only of speech. Does the First Amendment prohibit states from regulating organizations which call themselves universities and which grant things called devress? If you don’t call yourself by certain words like college or university and you don’t call the piece of paper you hand out a degree, you can hand out any piece of paper you want.

What makes this any different? Why should state-licensed therapists be treated differently from state-approved universities?

[Josh R]

Can the state deny university accreditation based on the viewpoints expressed by the university?

[ReaderY]

Absolutely. A university that taught the earth is flat and the stars are painted on a dome over the disk wouldn’t be approved to give advanced degrees in fields like astronomy. Similarly, a university that taught that disease is caused by imbalances in humors wouldn’t be able to give a degree in medicine.

[Josh R]

The claim that the earth is flat almost certainly doesn't get First Amendment protection because it is "purely factual and uncontroversial information about the terms under which . . . services will be available" (quoting NIFLA). The Court may view the speech components of conversion therapy in the same manner. Or not.

[ReaderY]

Separately from whether the claim is controversial or not, it doesn’t strike me as having anything to do with the terms under which services will be available.

[Josh R]

Accreditation is a close enough analog to a license to conduct a service.

[Randal]

The claim that the earth is flat almost certainly doesn't get First Amendment protection because it is "purely factual and uncontroversial information about the terms under which . . . services will be available"

What a very strange thing to say! "Thou shalt not teach that the earth is flat" might be purely factual and uncontroversial information about the terms under which services will be available. But "the earth is flat" isn't! The terms under which services will be available depend not at all on the flatness of the earth.

[Josh R]

The terms of the service (in this case accreditation) are contingent on not teaching that the earth is flat.

[Randal]

Yeah. That's what I said, and you're begging the question.

[Randal]

Let me spell it out. A contract clause is a term of service, and those aren't subject to free speech concerns in and of themselves.

But a contract clause that implicates speech doesn't make the speech it implicates into part of the contract. That speech remains speech with all its protections intact.

[Josh R]

So, can the state deny university accreditation based on the viewpoints expressed by the university? Does the answer depend on whether the viewpoint is "purely factual and uncontroversial information."

[Randal]

So, can the state deny university accreditation based on the viewpoints expressed by the university?

Yes.

Does the answer depend on whether the viewpoint is "purely factual and uncontroversial information."

No.

[Josh R]

That doesn't make sense to me. Is there precedent to support your conclusion?

[Randal]

There are a million examples. A university that taught that women should be considered property would not be accredited. A university that taught that a return to slavery is necessary for America's economic future would not be accredited. A university that taught that ivermectin was a good option for COVID treatments wouldn't be accredited.

There are viewpoints that are unacceptable for accredited universities to endorse.

[Josh R]

Those sound like hypotheticals. Is there is on-point case?

[ReaderY]

I suspect a majority will say that liberal states get to prohibit gay conversion therapy (by licensed therapists) for the same constitutional issues that conservative states get to prohibit trans conversion therapy, and merits of the underlying policy issues are none of the judiciary’s business in either case.

[Josh R]

Skrmetti was about hormones and puberty blockers, not speech.

[Michael Ejercito]

Under Skrmetti, states would still be free to ban forms of conversion therapy that involved ingestion or injection of hormones (or hydroxychloroquine, or Provasic), or advising patients to do the same.

[ReaderY]

It’s a very normal and understandable approach for people opposed to the direction a decision seems to be going in to interpret it as narrowly as possible, to cover only the specific facts but nothing else. It’s equally understandable for people who favor the direction to interpret a precedent as broadly as possible.

It remains to be seen how broadly or narrowly the court will view Skrmetti when it decides subsequent cases.

[wvattorney13]

I agree. I think you might have a Kavanaugh, Roberts, and Barrett ready to sign on to something like that.

[ReaderY]

It might be the effective result without gaining a majority. Thomas and Alito might roll up the constitution, smoke it, and discern in the resulting haze of penumbras and emanations that trans conversion therapy is bad but gay conversion therapy is good, while Kagan, Sotromeyor, and Jackson might roll up that same constitution, smoke it with the same number of puffs, and discern the opposite.

[Randal]

I don't see Kagan engaging in ideological puff puff give. She's too smart to fall into that trap and has used stare decisis as cover in similar past situations. She'll sign on to whatever Kavanaugh, Roberts, Gorsuch and Barrett come up with.

[Michael Ejercito]

The trans conversion therapy at issue before the Supreme Court involved the injection of cross-sex hormones. The question of whether states could prohibit counselors from counseling minors that they were born as the wrong gender was not before the Court at the time.

[Jazzizhep]

Surgery and prescriptions =/= speech

You don’t think the judiciary has any businesses taking up free speech cases?

[Joe_dallas]

There is a huge difference between conversion therapy and gender affirming care.

Conversion therapy doesnt work ( except perhaps in extremely rare occasions) but at the same time, conversion doesnt cause physical harm, and what ever mental harm is caused, it is short lived.

"Gender affirming care" inflicts serious and often permanent irreversible physical harm.

That is a huge distinctive difference. Nobody should be trying to equate the two.

[Jazzizhep]

Oops

[ReaderY]

That’s your opinion. But obviously there are people who disagree.

[Randal]

Such as medical professionals.

[JoeFromtheBronx]

The "sufficient percolation" reason and dealing with trans medical care first are both reasonable guesses. The Roberts Court repeatedly seems to want to do only one thing at a time.

The lower court held that the therapist here took part in "treatment" provided by licensed medical professionals. She can discuss conversion therapy in various respects.

It is the conversion therapy of minors specifically that is being restricted. This can be regulated more closely than mere speech. One example provided is the rules set forth for dieticians regarding nutritional counseling.

The state has more authority to regulate medical professionals, including if speech is involved. There is a long history of state regulation of medicine.

(As they do with lawyers and various other professions.)

The opinion quotes Planned Parenthood v. Casey to apply a rule for "any medical procedure." There is no separate rule for verbal mental health care. Therapists are regulated.

The opinion does not accept a "talk only" rule. Even if that were applied, conversion therapy includes a variety of techniques. It would be a limited result to protect "mere" talk therapy. Also, if necessary, the government argues that strict scrutiny can be met.

Finally, as suggested by another comment, it is rather artificial to consider this as "mere" talk therapy. It is speech mixed with action. Conversion therapy is directly related to who you are and how you will act. It is effectively speech brigaded with action.

[ikaritenshi]

perhaps strict scrutiny burden can be carried by the state, but clearly that is the standard that should be applied in this case.

[JoeFromtheBronx]

The Supreme Court differentiated regulated speech that was “part of the practice of medicine, subject to reasonable licensing and regulation by the State.” [NIFLA v. Becerra]

A lower standard than strict scrutiny is applied there.

The law here bans "any practice or treatment" involving conversion therapy. It is a regulation of the practice of medicine.

It is not a regulation of speech as speech. Speech is but one method used for "practice of medicine" involved.

I don't know how "clear" it is that strict scrutiny is required.

[Josh R]

Also from NIFLA: "States may regulate professional conduct, even though that conduct incidentally involves speech."

So, it's not clear whether "part of the practice of medicine" only permits regulations (not subject to strict scrutiny) of speech that is connected to non-speech medical practice, or permits regulations (which if true, would also not be subject to strict scrutiny) of speech that is medical practice in and of itself.

[JoeFromtheBronx]

I acknowledge the full reach of a few stray comments in the opinions here is not clear, but "professional conduct" is something of a term of art going by how it is being used in the opinions.

[Estragon]

“the climate of the day on transgender issues“

How would you describe the “climate of the day” in your own words, Josh?

[MollyGodiva]

Conversation therapy of minors is child abuse No one has a religious right to hurt children..

[Joe_dallas]

It may or may not be abuse, yet the mental damage is short lived with no physical damage.

On the other hand, gender affirming care causes serious and often permanent physical damage.

Huge distinction worth noting.

-

[MollyGodiva]

So child abuse is OK if you don't leave a bruise.

[Joe_dallas]

No I am not in favor of conversion therapy . Fortunately , the damage is only short lived.

You on the other hand are on record supporting the permanent physical damage caused by gender affirming care.

[Mr. Bumble]

Chemically altering or cutting off body parts leaves more than a bruise.

[Joe_dallas]

Its concept that advocates either dont grasp or they dont really care about the welfare of the people they claim to care for. Faux concern

[MollyGodiva]

It is about consent vs non consent.

[Frank Drackman]

Minors can’t legally consent (Hey Now!)

[MollyGodiva]

This is not about legality. This is about the major difference between a person wanting treatment because they think it will help them greatly and being force into treatment because their parents are bigoted shits.

[Joe_dallas]

Whether conversion therapy is bigotry or not bigotry, it is not even remotely on the same planet as the evil that exists from telling the mentally ill they can cure their mental illness by mutilating themselves.

[agarrett]

I hope you'll forgive the questions and accept that they're offered honestly. My knowledge of conversion therapy is very much surface level.

Is all conversion therapy religious in nature? If it is not, do your objections still remain?

Throughout the comments, I've regularly seen conversion therapy referred to as quakery. Why is that? Do we have a success/failure rate for the practice? And is there any avenue to improve on it if it is allowed? The shorter version - is the objection that the therapy can never work, or that it should not be allowed to work?

Thanks for any references or information.

[MollyGodiva]

Conversion therapy is child abuse with or without religion. However non-religious is far less common.

[Joe_dallas]

MollyGodiva 29 minutes ago
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Mute User
Conversion therapy is child abuse with or without religion.

As stated from a person who supports "gender affirming care" - real abuse / pure evil

[Randal]

You obviously don't know any trans people, luckily for them.

[Joe_dallas]

whether I know any individuals suffering from the gender confusion mental illness is not relevant.

Your comment is a pathetic excuse to justify the evil of permanently mutilating a person under the false pretense of curing their mental illness.

[JasonT20]

whether I know any individuals suffering from the gender confusion mental illness is not relevant.

It is relevant. Not knowing or having any personal relationships with people that fall into some group is what allows you to view them as "other" and not extend them any empathy. It is what allows you to dismiss anything they claim to feel as "wrong" or as "mental illness" despite not knowing them.

If you did know someone that is trans, then you might see them as a person and not as some political pawn.

I have known trans people. In fact, they were students of mine (HS). I did not see anything from them being in my class for a whole school year that made me concerned about their mental health that wasn't also true of many straight, cisgender teenagers (what you probably think of as "normal").

That is why I respect their feelings and their rights to make choices about themselves. I can't personally understand what it feels like to be a sex that isn't consistent with my view of myself. I can't personally understand what it feels like to be attracted to members of my sex. But I don't dismiss feelings of being trans or gay as "mental illness" because I have seen people that feel that way living otherwise normal, happy lives.

What is irrelevant is whether you can understand what they feel. If nothing else, maybe you should wait until you can explain why you feel that your gender does match your biological sex before you dismiss the feelings of those that don't. And that explanation needs to be something other than an appeal to nature fallacy.

[Joe_dallas]

jasont20
mollygod
Randal

all three incapable of understanding the evil of mutilating a person, causing permanent physical and mental health damage in the false hope of curing a mental illness.

[Jazzizhep]

As opposed to chemicals that can cause lifelong damage to a persons reproductive organs.

[Frank Drackman]

Especially “Monogamous Marriage”

[JasonT20]

This isn't an LGBTQ+ issue to me. Both sides that support conversion therapy and those that oppose it make a mistake by framing it that way. To my non-lawyer mind, the central question is this:

How do free speech and free exercise rights interact with the government interest to ensure that medical and mental health therapies won't cause harm to patients?

Businesses don't have a 1st Amendment right to commit fraud upon their customers when far less is at stake than in any kind of therapy. The harm caused by snake oil therapies can be serious, lasting, and even fatal. Regulation of the medical and psychological professions is a compelling government interest that meets the first part of strict scrutiny, I would think.

A law banning conversion therapy specifically, may not satisfy strict scrutiny because it is aimed at a particular idea and service. Showing that the groups offering it are being targeted for their beliefs and because the state doesn't like their speech is certainly plausible.

If, on the other hand, the conservative legal position is that they have a right to offer conversion therapy even if a government restriction on it comes about because of content-neutral scientific requirements for evidence of safety and effectiveness, then I don't think they'd have a valid 1st Amendment claim. But, that's just like, you know, my opinion, man.

[ReaderY]

As I see it, if the state does what many states do for therapy of various kinds, the issue is not quite as simple or open and shut as you are saying.

In many states, if you make certain claims about it - you call it therapy, you claim it will cure a condition, you call yourself a psychologist or certain other special titles - then you have to get a license from the state and abide by its regulations. But if call yourself something different- a “life coach” or something - and you say you are offering education, guidance, or something similar rather than therapy or a cure - then you can do exactly the same thing and it’s completely legal.

I think this type of regime passes First Amendment scrutiny. I think the state can condition a license on meeting requirements. But if you act without aand don’t claim you have the state’s seal of approval, you can do what you want.

I think there is a basis for religious exemptions in this type of regime. For example, I think it’s as legitimate for a licensed therapist to decline to offer services to gay couples on religious grounds as it is for a surgeon to decline to do abortions. The therapist is simply specializing in heterosexualology issues in much the same way as a pediatrician specializes in children, a gerontologist specializes in older people, and a gynecologist specializes in women. Since it’s quite common for doctors and therapists to limit their practices to certain specialties without problems on any numher of secular grounds, I don’t see why people can’t do so on religious grounds, and the “most favored nation” theory would strike me as requiring it.

But I don’t think a religious psychologist is entitled, on religious grounds, to offer gay conversion therapy as psychotherapy in a state that prohibits it. Defining your personal specialty in a way that lets you avoid doing something religiously prohibited is different from actively doing a practice that the state prohibits, rightly or wrongly, on medical grounds.

[Frank Drackman]

Adam=Eve, not Adam=Steve
Although I can handle some Girl-on-Girl, who didn’t like that Britney/Christina Kiss??(OK besides you Homos)

Frank

[not guilty]

No, Frank, Adam does not equal Eve. Indeed, many of us celebrate the differences between the two.

[Joe_dallas]

not guilty 10 hours ago
Flag Comment
Mute User
No, Frank, Adam does not equal Eve. Indeed, many of us celebrate the differences between the two.

NG - Really celebrating the difference - then give us a reason the justify mutilating the mentally ill

[F.D. Wolf]

I find the notion that a therapist speaking to his patient is not engaging in protected speech, but rather unprotected conduct, to border on the absurd. One could extend such reasoning to any "professional". How about teachers and professors? Perhaps pass a law forbidding them from teaching their students anything negative about the United States. No, you're not engaging in speech; you're teaching, which is conduct, as perhaps even evidenced by your state-issued license to teach. Perhaps extend it to filmmakers as likewise not speaking, but merely professionals engaging in various forms of conduct, such as acting and directing.

The so-called "professional speech doctrine" was buried by the Supreme Court in National Institute of Family and Life Advocates v. Becerra, 585 U.S. 755 (2018), in which the Court struck down state-required disclosures for pro-life centers. I have very little doubt that a majority of the Court will reiterate the point in this case. Speech, be it from a "professional" or otherwise, is protected by the First Amendment, and any government restriction of it must overcome strict scrutiny. Can the state do so here? Maybe, but it is, of course, a high hurdle to overcome.

[Randal]

There are all kinds of things that teachers are forbidden from teaching. What are you even talking about?

[JasonT20]

This comment is kind of all over the place. The key difference between speech and professional conduct, to me, is the combination of goal and effect. Doctors, therapists, teachers, all speak in order to perform a professional service for their patients, clients, or students. They aren't engaging in expressive conduct for their own benefit, satisfaction, or to participate in the "marketplace of ideas."

At the other end, the "audience" of the speech is someone looking for the speaker's professional expertise. They aren't looking for an opinion, belief, to be persuaded toward some spiritual or political or cultural point of view. They have a problem or need that a professional with expertise can help with.

If someone is presenting themselves to clients or patients as a professional with expertise, then they aren't engaging in the kind of speech that is beyond the reach of government regulation. They are providing a professional service, and government should be able to regulate it to the extent that government has a compelling interest in doing so.

Edit: Oh, and lawyers are definitely included in this. Anyone suggesting that lawyers' personal beliefs can override their ethical obligations because they are speaking those beliefs to their clients?

[wvattorney13]

That's the way I view it. When I'm posting here, I can say whatever anyone else is allowed to say.

When I'm in the office advising clients or in court, I have to follow the speech related regulations that the state mandates.

[F.D. Wolf]

If someone is presenting themselves to clients or patients as a professional with expertise, then they aren't engaging in the kind of speech that is beyond the reach of government regulation. They are providing a professional service, and government should be able to regulate it to the extent that government has a compelling interest in doing so.

So, you're agreeing with me then? No speech is "beyond the reach of government regulation" if the government can demonstrate a "compelling interest", which is what I said the government would have to show here. A "compelling state interest" is an element of strict scrutiny. But that's not what the circuit court did here. It applied intermediate scrutiny, which only requires an "important" government interest (as opposed to a "compelling" one). In doing so, the court erred, and, assuming the Supreme Court has not had a change of heart since 2018 (before Kavanaugh and Barrett joined), that is exactly what it will say (again) in this case. Speech does not lose its protection just because the person speaking is a "professional".

[wvattorney13]

That's my whole problem with the doctrine. How can a court determine if a state has a "compelling" or "important" interest in banning conversion therapy without substituting its judgment for that of the legislature in the efficacy or importance of conversion therapy itself?

[F.D. Wolf]

I don't know why the First Amendment should have a special set of rules just for medical professionals. What constitutes a "compelling interest" in medical regulation should not be based on the opinion of the legislature or of the court, but of the medical community. If the overwhelming majority of the medical community says, "This is dangerous to patients," a compelling interest is shown; if there is a substantial split of opinion in the community, it is not shown. Both sides present their evidence, and the court decides, which is what courts do.

[Josh R]

You keep assuming strict scrutiny applies. But we know it did not when doctors were compelled to give information about an abortion because the compelled speech was incidental to the practice of medicine. So, there was a special rule for medical professionals in that case.

[wvattorney13]

That's what a legislature does, not what the "medical community" does. We are not ruled by medical experts but we the people rule through our elected representatives.

Who are these experts? Do we vote for them? What qualifies them? Do they vote among themselves? What counts as "overwhelming"? 2/3? 3/4? 90%?

And despite you saying that courts don't decide, under your theory, courts do decide (after giving whatever deference they decide to the medical experts).

That is simply not a vision of representative democracy that we have. We the people can outlaw a medical procedure despite the protests of the experts or allow one despite their protests.

[F.D. Wolf]

The First Amendment itself is a limitation on "representative democracy". It literally begins with, "Congress shall make no law..."

Is it your position that the First Amendment is wholly inapplicable to the medical profession and that the government's ability to regulate it is unfettered?

[wvattorney13]

In the context about which we are talking, yes.

I view this as a regulation of the provision of medical services, services in which the state has plenary power to define their acceptable scope.

In some of these services, there will be speech. I don't believe that as others have said, that this is pure speech because it is made or done so that the patient will take some action in furtherance of it and the patient relies on the professional, and on the state, that what he is getting is quality and solid acceptable advice from the medical professional. For this reason it can be regulated within that framework.

Again, that's not to say that a therapist does not have the right to post on this website, publish articles in journals, lobby against the law, post on Facebook, or otherwise tell the patient himself that she would provide conversion therapy if she could, but the state won't let her. She can provide an out of state website and encourage travel there.

But in the limited forum where the state controls: the interaction between licensed therapist and patient as therapy, the state can say that certain treatments, even if primarily speech, are outside what the state recognizes as acceptable treatment.

[Josh R]

What makes this case difficult (and beyond the existing case law) is the speech is, in and of itself, medicine (*). You could view the statute as a content and viewpoint-based regulation of speech subject to strict scrutiny. Or, you could view it as a reasonable regulation of a licensed medical practice not subject to strict scrutiny even though the medical practice is pure speech. Another possibility that avoids strict scrutiny is the speech is fraudulent.

(*) Your teaching example is not medicine. Likewise, the regulation struck down in NIFLA was not itself medicine.

[F.D. Wolf]

What the Court said in NIFLA was there is no special category for "professional" speech. Any regulation of it must pass strict scrutiny. Can the state prohibition here pass strict scrutiny? Maybe (though I doubt it).

[Josh R]

The NIFLA Court said strict scrutiny does not apply when the state regulates professional conduct that incidentally burdens speech. Again, the difficulty in this case (unlike in any other cases) is the speech itself is a medical practice. As such, the Court might view the statute as regulation of the conduct of a medical practice that incidentally burdens speech. On the other hand, it might view the statute as content-based regulation of speech.

Zooming out a bit, it strikes me that the state ought to be able to ban what it thinks is medical quackery even if the quackery is speech. Whether that can be justified within NIFLA or requires some revised doctrine is OK by me.

[JoeFromtheBronx]

To underline something I noted, that regulation here is not just applicable to speech. "Conversion therapy" includes a range of things, both speech and action-related.

Also, one thing to look out for is whether the Supreme Court further confuses the ability of the government to regulate professional speech, particularly in medical care.

Licensed therapists providing medical care are separate from a minister, for instance, providing unlicensed religious-based counseling.

[Josh R]

The petitioner in this case uses only talk therapy.

[wvattorney13]

And the doctor who tells you to use leeches is only talking. He's not prescribing leeches or doing anything but talking.

[Josh R]

Assuming the doctor does nothing more (not referring you to any practitioner or giving instructions on how to use leeches), that would appear to be a regulation of speech. I can think of three possibilities on how the present case and a statute which banned leech advice are handled (all of this is not settled law):

1) Both are subject to strict scrutiny as content-based regulations of speech.

2) Only the leech advice statute is subject to strict scrutiny because (unlike conversion therapy) leech advice is not itself a medical practice.

3) Both are not subject to strict scrutiny because any advice given by a doctor is viewed as being part of the practice of medicine.

[wvattorney13]

"or giving instructions on how to use leeches)"

So the conversation goes like this:

Doctor: That's a nasty infection there. I recommend attaching leeches to it.

Patient: Excellent will do.

Now, so far, you would argue pure speech. But what if the conversation continued:

Patient: So should I use big leeches or small ones?
Doctor: Big ones.

Now he has crossed the line into conduct?

What if instead of "big ones" he says "I decline to answer your question"? He stayed on the pure speech side of the line?

[Josh R]

I didn't say the first conversation was necessarily "pure speech." It could be viewed (#3) as a regulation of the practice of medicine that doesn't trigger strict scrutiny. If #2 applies, it will fall to the courts to figure out when the line between advice and medical practice lies.

[F.D. Wolf]

No one is suggesting that the state can't regulate what medical professionals can say, only that it must show a compelling governmental reason when it does so.

In Conant v. Walters, 309 F.3d 629 (9th Cir. 2002), cert. denied, 540 U.S. 946 (2003), the court struck down an FDA policy that would strip a doctor's license to prescribe controlled substances if he recommended the use of marijuana to a patient.

The government's policy in this case seeks to punish physicians on the basis of the content of doctor-patient communications. Only doctor-patient conversations that include discussions of the medical use of marijuana trigger the policy. Moreover, the policy does not merely prohibit the discussion of marijuana; it condemns expression of a particular viewpoint, i.e., that medical marijuana would likely help a specific patient. Such condemnation of particular views is especially troubling in the First Amendment context.

Id. at 637

[wvattorney13]

Could the board sanction a doctor if he told a patient that they should consume a half gallon of whiskey for breakfast? Would that be viewpoint based discrimination?

[JoeFromtheBronx]

Okay. Duly noted. Again.

It's still true that the law overall is not just targeting speech. It is about conversion therapy. Seems to be notable.

Not just "conversion therapy" as a whole either. It isn't a ban on any sort of CT or recommendation of it, etc. It is specifically a regulation of licensed therapy. The lower court even noted that a therapist could recommend CT to some degree. They could let a patient know about it. It is the act of therapy itself banned.

I also reaffirm that just talking about "talk therapy" when the speech is brigaded with action in this context is somewhat artificial. Talk therapy regarding conversion therapy is hard to separate from orientation and actions arising out of it.

[Josh R]

It's still true that the law overall is not just targeting speech. It is about conversion therapy. Seems to be notable.

Perhaps. But the Court in 303 Creative rejected the dissent's argument that anti-discrimination law targets more than speech. For the state to prevail, I would think the Court will have to view talk therapy as a medical practice rather than (just) speech.

[wvattorney13]

Isn't 303 Creative more of the flip side of this argument? The analogy would be if therapists were compelled to offer conversion therapy on pain of civil penalties and loss of license.

That seems to have a different analysis. It would be like telling lawyers that they must practice in certain areas.

[Josh R]

Is there precedent for treating speech compulsions differently than speech prohibitions?