Conversion Therapy Bans, as Applied to Talk Therapy, Regulate Speech and Not Just Conduct

Justice Gorsuch’s opinion for a nearly unanimous Court today in Chiles v. Salazar (only Justice Jackson dissented) struck down Colorado’s ban on conversion therapy for minors. The Court held that the ban regulated speech and not just conduct, because it covered pure “talk therapy” and not just physical conduct such as electric shock therapy or administering drugs:

[A] law regulating the content of speech cannot avoid searching First Amendment review just because it mostly regulates non-expressive conduct. Take a classic illustration: Cohen v. California (1971). There, the State of California charged Paul Cohen with “maliciously and willfully disturb[ing] the peace.” Often, of course, a person disturbs the peace through conduct alone (say, by brawling at a city council meeting). But that is not always true. And in Mr. Cohen’s case, California charged him for disturbing the peace because he wore a jacket bearing the words “‘Fuck the Draft'” in the corridor of a municipal courthouse. As applied to him, the Court recognized, the law implicated core First Amendment concerns because the only “‘conduct'” he engaged in was the speech he displayed. And, we held, California could not constitutionally punish him because of the “content” of his message.

We repeated the point in Holder v. Humanitarian Law Project (2010). That case involved a federal law banning the provision of “‘material support'” to certain foreign terrorist organizations. Much as California had in Cohen, the federal government in Holder argued that the law did not trigger strict scrutiny because it addressed “conduct, not speech.” We disagreed. True, we acknowledged, the law often might regulate conduct. But, we observed, in the case before us the government threatened to prosecute lawyers, doctors, and others for providing spoken training and expert advice (such as “‘how to use humanitarian and international law to peacefully resolve disputes'”) to certain groups. And that application of the law, we held, sought to “regulat[e] speech on the basis of its content” and thus demanded strict-scrutiny review…..

As a talk therapist, all Ms. Chiles does is speak with clients; she does not prescribe medication, use medical devices, or employ any physical methods…. Colorado seeks to regulate the content of Ms. Chiles’s speech. When it comes to issues of human sexuality, some of her clients “are content with” their sexual identity and orientation and want help only “with social issues [or] family relationships.” But other clients seek her counsel on how to “reduce or eliminate unwanted sexual attractions, change sexual behaviors, or grow in the experience of harmony with [their] bod[ies].” And in those cases, Colorado regulates how Ms. Chiles may respond. Under its law, she may not speak in any way that attempts to change a client’s “sexual orientation or gender identity”—including a client’s “behaviors or gender expressions”—or in any way that seeks to “eliminate or reduce” a client’s “sexual or romantic attraction or feelings toward individuals of the same sex.”

[Colorado] insists … that its law does not “regulate expression” at all, only “conduct,” “treatment,” or a “therapeutic modality.” As a result, Colorado reasons, its law triggers no more than rational-basis or intermediate-scrutiny review…. In many applications, the State’s law banning “conversion therapy” may address conduct—such as aversive physical interventions. But here, Ms. Chiles seeks to engage only in speech, and as applied to her the law regulates what she may say. Her speech does not become conduct just because the State may call it that. Nor does her speech become conduct just because it can also be described as a “treatment,” a “therapeutic modality,” or anything else. The First Amendment is no word game. And the rights it protects cannot be renamed away or their protections nullified by “mere labels.”

Our precedents have long made that much clear. California faulted Mr. Cohen for the “conduct” of wearing an offensive jacket. The federal government insisted that its law banning support to terrorists regulated “conduct” even as applied to the written and spoken advice of professionals like lawyers and doctors. Holder. But the effort to recast speech as conduct failed in those cases—and it must here too. Under the First Amendment, what matters is not how a government describes its law or whether the law may regulate conduct in other circumstances. What matters is whether, in fact, the law regulates speech in the case at hand.

As applied here, Colorado’s law does not just regulate the content of Ms. Chiles’s speech. It goes a step further, prescribing what views she may and may not express. For a gay client, Ms. Chiles may express “[a]cceptance, support, and understanding for the facilitation of … identity exploration.” For a client “undergoing gender transition,” Ms. Chiles may likewise offer words of “[a]ssistance.” But if a gay or transgender client seeks her counsel in the hope of changing his sexual orientation or gender identity, Ms. Chiles cannot provide it. The law forbids her from saying anything that “attempts … to change” a client’s “sexual orientation or gender identity,” including anything that might represent an “effor[t] to change [her client’s] behaviors or gender expressions or … romantic attraction[s].” … [V]iewpoint restrictions like that … represent “an egregious form of content discrimination” where First Amendment concerns are at their most “blatant.”

And though the Court has also recognized a First Amendment exception for certain restrictions on “speech incident to conduct,” the Court held that this exception didn’t apply here:

If a government could reclassify talk therapy as speech incident to conduct, it might just as easily do the same for speech incident to “teaching or protesting.” “[B]oth are activities, after all.” Were that the rule, “[w]hat an opportunity for [the] suppression of dissent this would offer.” Governments could easily wield all manner of laws regulating some conduct to silence speech they disfavor. It is a result that would not “compor[t] with the First Amendment’s animating principles” so much as betray them.

Recognizing as much, our precedents in Cohen and Holder already foreclose exactly this move. California prosecuted Mr. Cohen under a law banning disturbances of the peace. The federal government threatened lawyers and doctors with prosecution under a law prohibiting support for terrorists. In both cases, the government defended its actions on the ground that the law in question was generally aimed at certain types of conduct. But in both cases, we emphatically rejected that argument. Just because a law may “generally functio[n] as a regulation of conduct,” we held, does not exempt it from demanding First Amendment review when a government seeks to apply that law to speech alone.

At bottom, Colorado and the dissent fundamentally misconceive this Court’s speech-incident-to-conduct precedents. In these cases, the question is not whether a law mostly addresses conduct and only sometimes sweeps in speech.

Instead, the focus lies on two entirely different questions: [1] whether the law in question restricts speech only because it is integrally related to unlawful conduct—or [2] whether the law restricts expressive conduct only for reasons unrelated to its content. Illustrative of the first category, this Court has held that strict scrutiny does not apply to regulations aimed at speech promoting the sale of contraband because such speech is often bound up with traditional criminal conduct. Illustrative of the second category, “an ordinance against outdoor fires” would not require a court to apply strict scrutiny even if it prohibited burning a flag in protest, because the law forbids conduct without regard to the message it may convey.

Colorado’s law does not regulate speech incident to conduct under either test. The State does not dictate what Ms. Chiles may say because her speech bears a close causal connection to some separately unlawful conduct like a traditional crime. Rather, Ms. Chiles seeks to speak with interested clients about steps they might take to change unwanted behaviors, expressions, or attractions related to sexual orientation or gender identity—conduct Colorado itself does not dispute those clients (or anyone else) may lawfully undertake….

For the Court’s rejection of Colorado’s proposal that the Court recognize a special “professional-client speech” exception, see this post.