Kaley Chiles is a licensed mental health counselor in Colorado who provides talk therapy to clients, including minors. Her practice involves discussing clients' goals, which sometimes include a desire to reduce unwanted sexual attractions or change sexual behaviors. In 2019, Colorado enacted a law prohibiting licensed counselors from engaging in conversion therapy with minors, defined as any practice that attempts to change an individual's sexual orientation or gender identity. While the law permitted counselors to provide acceptance and support for identity exploration, it explicitly forbade speech that attempted to change a client's orientation or identity. Chiles challenged the law as applied to her talk therapy, arguing it violated her First Amendment rights. Both the district court and the Tenth Circuit denied her request for a preliminary injunction, reasoning that the law regulated professional conduct and only incidentally burdened speech, thus requiring only rational-basis review. The Supreme Court granted certiorari to resolve a circuit conflict regarding the level of scrutiny required for such laws.
Justice Gorsuch delivered the opinion of the Court, holding that the Colorado law regulates speech based on viewpoint. The Court began by reaffirming that the First Amendment protects the right of every individual to decide how best to speak, and laws regulating speech based on content are presumptively unconstitutional, triggering strict scrutiny. The Court emphasized that viewpoint discrimination is an egregious form of content regulation that governments must nearly always abstain from. The Court rejected Colorado's argument that the law regulated professional conduct rather than speech. It noted that Chiles engages only in talk therapy; her speech does not become conduct simply because the state labels it a 'treatment' or 'therapeutic modality.' The Court cited NAACP v. Button, stating that the First Amendment is no word game and rights cannot be nullified by mere labels. Furthermore, the Court held that licensed professionals do not possess diminished constitutional protection. Citing National Institute of Family and Life Advocates v. Becerra, the Court stated that professional speech is not a separate category exempt from ordinary First Amendment principles. The Court also rejected Colorado's attempt to fit the law into historical exceptions like licensing, informed consent, or malpractice. Licensing laws traditionally address qualifications, not viewpoints. Informed consent laws regulate speech incident to physical conduct and require factual disclosure, whereas Colorado's law silences a specific viewpoint. Malpractice claims require proof of injury, whereas Colorado's law imposes penalties simply for expressing a view. The Court concluded that the law trains directly on the content of speech, permitting some viewpoints while forbidding others, and thus violates the First Amendment.
The Supreme Court's decision reverses the lower courts' judgment and remands the case. The lower courts must now apply strict scrutiny to determine if Colorado's conversion therapy ban can survive heightened judicial review. The ruling clarifies that laws regulating licensed professionals' speech based on viewpoint are presumptively unconstitutional and that the state cannot avoid strict scrutiny by labeling therapeutic speech as conduct. It leaves open the question of whether a content-based but viewpoint-neutral law regulating medical treatments would face the same level of scrutiny, though the concurring opinion suggests such laws might raise different constitutional questions.