Washington, DC — Can state officials avoid the rigors of First Amendment analysis by characterizing speech they dislike as “conduct?”
That’s a core issue in a case that the Supreme Court is reviewing.
The Institute for Free Speech filed an amicus brief in Chiles v. Salazar, urging the Court to reverse a Tenth Circuit decision that upheld Colorado’s restrictions on talk therapy.
Chiles concerns a Colorado law that prohibits licensed therapists from providing to minors talk therapy aimed at exploring or reducing unwanted same-sex attractions or gender identity conflicts, even though the patient voluntarily seeks it. Licensed therapist Kaley Chiles challenged the law, arguing that it violates her and her clients’ First Amendment rights.
“Speech is not incidental to talk therapy—without speech suffusing its every part, psychotherapy could not exist,” the Institute’s brief explains. Yet, the Tenth Circuit upheld Colorado’s Minor Conversion Therapy Law by treating Ms. Chiles’s talk therapy as conduct, or as speech incidental to conduct, and thus devoid of First Amendment protection.
The Institute warns that the lower court’s reasoning allows governments to sidestep strict scrutiny, the normal standard of judicial review for cases dealing with speech restrictions, by manipulating definitions and analyzing laws at abstract levels far removed from the actual burden on speech. “The panel majority bypassed the freedom of speech protection that should inhere in something called and characterized as ‘talk therapy’ by refusing to apply the required constitutional analysis to Ms. Chiles’s speech,” the brief notes.
The brief also highlights the serious deficiencies in Colorado’s evidentiary justifications for its law. “While uncertainty, alternative theories, and even attempts to silence opposing views are not surprising, the First Amendment demands better evidence than that provided by Colorado to limit core First Amendment rights,” the Institute’s brief argues. Pointing to the replication crisis generally affecting the social sciences, as well as serious methodological problems with the studies the state relied on, the brief contends that Colorado’s proffered evidence falls short of demonstrating the requisite compelling interest to legally justify the law’s conflict with the First Amendment.
Finally, the brief warns that lower courts are making similar errors when ruling on challenges to campaign finance laws, noting how courts too often defer to legislative judgments that rest on suspect evidence rather than requiring rigorous proof of actual harms. “The government in these cases has relied on uncertain, amorphous evidence to ‘encroach[] upon protected First Amendment interests,’” the brief observes, quoting the Supreme Court’s decision in McCutcheon v. FEC.
For these reasons, the Institute for Free Speech urges the Supreme Court to reverse the Tenth Circuit’s ruling in Chiles v. Salazar and reaffirm robust First Amendment protections for both therapists and patients, which will benefit other speakers and those who wish to listen to them.
To read the Institute’s full Supreme Court amicus brief in Chiles v. Salazar, click here.
About the Institute for Free Speech
The Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment.
