The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
No First Amendment Exception for Professional-Client Speech: States Can't Ban "Conversion Therapy" Speech for Minors
So the Supreme Court held today.
From Justice Gorsuch's opinion for a nearly unanimous Court today in Chiles v. Salazar (only Justice Jackson dissented):
In 2019, Colorado adopted a law prohibiting licensed counselors from engaging in "conversion therapy" with minors…. Colorado's ban on conversion therapy reaches [to cover speech], forbidding "any practice or treatment … that attempts … to change an individual's sexual orientation or gender identity." The law forbids as well any "effor[t] to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attraction or feelings toward individuals of the same sex."
At the same time, the law explicitly allows counselors to engage in "practices" that provide "[a]cceptance, support, and understanding for the facilitation of an individual's … identity exploration and development." Likewise, the law allows counselors to provide "[a]ssistance to a person undergoing gender transition." …
The Court held that the law was an unconstitutional viewpoint-based restriction on the counselors' speech, and in the process held that there's no general First Amendment exception for professional-client speech:
[O]ur precedents have expressly rejected the State and dissent's notion that "professional speech" represents some "separate category of speech" subject to "diminished constitutional protection." [Holder v. Humanitarian Law Project (2010); NIFLA v. Becerra (2018).] History is littered with examples of official efforts to manipulate and control professional speech—including "the content of doctor-patient discourse"—in ways designed "to increase state power," "suppress minorities," and muzzle "unpopular ideas." And the "dangers associated with" censorship, we have recognized, are no less acute "in the fields of medicine and public health" than they are anywhere else….
NIFLA left open the possibility that a future party might present "persuasive evidence … of a long (if heretofore unrecognized) tradition" of content regulation regarding additional categories of professional (or other) speech that might likewise warrant only "diminished" First Amendment protection.… [But an argument that such an exception should be recognized] comes with a daunting burden. Under our precedents, the State must present "persuasive" historical evidence in order to overcome our "especia[l]" "reluctan[ce] to mark off new categories of speech for diminished constitutional protection." …
[Colorado argues that] States have traditionally enjoyed wide latitude to proscribe "substandard care" even when that involves regulating the content of speech. As evidence, Colorado points to the history of state laws [1] licensing the practice of medicine, [2] regulating informed consent, and [3] permitting tort suits for medical malpractice….
This argument stumbles out of the gate, for it proceeds at far too high a level of generality. From three specific sets of laws, Colorado and the dissent ask us to recognize a cavernous "First Amendment Free Zone," one in which States may censor almost any speech they consider "substandard care." It is, once more, an approach our precedents already foreclose.
Consider a couple examples. In U.S. v. Alvarez (2012), the federal government pointed to specific, historical laws proscribing fraud and defamation and asked us to extrapolate from them a much broader rule allowing it to enforce content-based restrictions on any "false statements." In NIFLA, California suggested that informed-consent laws and our speech-incident-to-conduct doctrine might be cobbled together to sustain the recognition of a field of "professional speech" subject only to rational-basis review. We rejected both efforts, stressing instead that discrete traditions of content-based regulations cannot be aggregated together to sustain some new and broader category of lesser-protected speech. And Colorado's similar effort can succeed no more than others like it have in the past.
Beyond that problem lies another. Taking each of the three traditions Colorado and the dissent invoke on its own terms—as we must—none delivers the support they suppose.
[1.] Start with Colorado's suggestion, endorsed by the dissent, that the State's statute represents nothing more than a traditional law licensing the practice of medicine…. First, the State has not presented persuasive evidence that its law is part of a historical tradition. When assessed at the level of generality our precedents demand, what Colorado describes turns out to be a relatively recent innovation. Indeed, the briefing before us suggests that the very first state "counselor-licensure bill" was adopted only in 1976. And that is far from the sort of "persuasive evidence" of a historically grounded practice our precedents require.
Second, licensing laws have traditionally addressed what qualifications an individual must possess before practicing a particular profession. And whatever traditional interest a State may have in ensuring a professional possesses a particular set of qualifications, that interest does not automatically entail a right to dictate a professional's point of view….
[2.] [I]nformed-consent laws … generally require a doctor to inform a patient about "the nature of [a proposed] procedure" and its attendant "risks." As such, informed-consent laws do not usually trigger strict scrutiny because they regulate speech only incident to separate physical conduct that would, "without [the] patient's consent," amount to "an assault." Usually, too, informed-consent laws require practitioners to disclose only factual and uncontroversial information. But[,] … [a]s applied to Ms. Chiles, the State seeks neither to regulate her speech incident to any conduct, nor does it seek to compel disclosure of factual and uncontroversial information. Instead, it seeks to silence a viewpoint she wishes to express….
[3.] In a traditional malpractice action, liability attaches only if the plaintiff shows, among other things, that he has suffered an injury caused by the defendant's breach of the applicable duty of care. Those kinds of "[e]xacting proof requirements," we have observed, may "provide sufficient breathing room for protected speech." Yet Colorado's law contains nothing like them, instead threatening individuals with fines, probation, and the loss of their licenses simply for expressing a particular view.
Nor does Colorado's law allow clients to consent to practices that depart from the prevailing standard of care, while malpractice law sometimes does. See Restatement (Third) of Torts: Medical Malpractice § 11 [allowing "the governing standard of care" to be modified with the patient's consent "to the extent that a reasonably informed patient: (a) refuses one or more elements of recommended care; (b) affirmatively seeks a different approach that does not violate public policy; (c) agrees to a different approach where public policy affirmatively favors allowing such an agreement to foster improvement of medical care, provided the agreement is voluntary and the provider reasonably believes that the patient has actual knowledge of the approach's known risks and potential drawback" -EV]; Schneider v. Revici (2d Cir. 1987) [holding that "a patient should not be allowed to make an informed decision to go outside currently approved medical methods in search of an unconventional treatment" -EV].
Consider, too, where the State and dissent's logic leads. Not long ago, many medical experts and organizations, including the American Psychiatric Association, considered homosexuality a mental disorder. On the view Colorado and the dissent advance, a law adopted during that era prohibiting counselors from engaging in the "substandard care" of affirming their clients' homosexuality would have been subject to only rational-basis or intermediate-scrutiny review—and likely upheld.
Today, tomorrow, and forever, too, any professional speech that deviates from "current beliefs about the safety and efficacy of various medical treatments" could be silenced with relative ease. It is a consequence Colorado freely acknowledges. And one the dissent embraces. So what if that kind of reflexive deference to currently prevailing professional views may not always end well? Cf. Buck v. Bell (1927).
Fortunately, that is not the world the First Amendment envisions for us. Licensed professionals "have a host of good-faith disagreements" about the "prudence" and "ethics" of various practices in their fields. Medical consensus, too, is not static; it evolves and always has. A prevailing standard of care may reflect what most practitioners believe today, but it cannot mark the outer boundary of what they may say tomorrow. Far from a test of professional consensus, the First Amendment rests instead on a simple truth: "[T]he people lose" whenever the government transforms prevailing opinion into enforced conformity….
We do not doubt that the question "how best to help minors" struggling with issues of gender identity or sexual orientation is presently a subject of "fierce public debate." But Colorado's law addressing conversion therapy does not just ban physical interventions. In cases like this, it censors speech based on viewpoint. Colorado may regard its policy as essential to public health and safety. Certainly, censorious governments throughout history have believed the same. But the First Amendment stands as a shield against any effort to enforce orthodoxy in thought or speech in this country. It reflects instead a judgment that every American possesses an inalienable right to think and speak freely, and a faith in the free marketplace of ideas as the best means for discovering truth. However well-intentioned, any law that suppresses speech based on viewpoint represents an "egregious" assault on both of those commitments….
In a separate post, I discuss another facet of the majority opinion—the conclusion that the law here should be seen as a speech restriction, not a conduct restriction. I also have a post on Justice Kagan's concurrence (joined by Justice Sotomayor), and I hope to have one soon on Justice Jackson's dissent.
James A. Campbell (Alliance Defending Freedom) argued on behalf of Chiles; Hashim Mooppan of the Solicitor General's Office argued on behalf of the federal government as amicus.
