The Line Between Conduct and Speech, Between Treatment and Non-Treatment

On Tuesday, the Court heard oral argument in Chiles v. Salazar. This case considers the constitutionality of Colorado’s ban on conversion therapy.

As a general rule, the First Amendment protects speech, but not conduct. It is true that some conduct, like flag-burning, has speech-like properties, so is protected by the First Amendment. It is also true that some speech incidental to conduct is not fully protected by the First Amendment. The doctrine here is complex.

During argument, several Justices asked how to draw the line between “treatment” and “non-treatment.” This questions seemed to presume that treatment would not be protected by the First Amendment, while non-treatment (that is speech) was protected by the First Amendment.

Colorado argues that therapy that consists entirely of speaking is still a form of medical treatment, and is therefore considered conduct, rather than protected speech. Chiles, by contrast, argued that her therapy that consists entirely of speaking is not a form of medical treatment, and should be considered speech rather than conduct.

I’m not sure the line between treatment and non-treatment really matters. James Campbell, counsel for Chiles, explained that the line doesn’t matter “because the First Amendment depends on the difference between speech and conduct, not on the difference between treatment and non-treatment.” And I agree with Hashim Mooppan, the Deputy Solicitor General, that treatment and non-treatment are just “labels” that don’t make a conceptual difference.

Still, I think there might be a way to draw this line based on how the care is received. First, care that consists entirely of talk, which implicates only the senses of hearing and sight, is not medical treatment. Second, care that is not limited to talk, which implicates the senses of touch, taste, or smell, would be medical treatment. The First Amendment protects the former category of care, but not the latter category of care.

So-called “aversive” therapy, which might include electro-shock therapy, is not limited to talk, but implicates the sense of touch, so would be medical treatment. I don’t think any would argue that shock therapy is protected speech. Providing a patient with medicine that they have to ingest would implicate the sense of taste, so would be medical treatment. Any type of surgery that requires a scalpel would clearly be medical treatment.

The treatment at issue in Chiles does not involve any physical touching. And Chiles is not licensed to prescribe medicine or perform any sorts of medical treatment. Her all-talk care, which can only be heard, is not treatment, and is not conduct, but is speech.

I don’t think this issue is conceptually difficult under the First Amendment.