A new certiorari petition in Chiles v. Salazar allows the Supreme Court to address an issue that several Justices recently noted implicates a “question of national importance” and “has divided the Courts of Appeals and strikes at the heart of the First Amendment.”
The petitioner is Kaley Chiles, a licensed professional counselor in Colorado who helps clients with a variety of mental health needs, including issues related to trauma, personality disorders, eating disorders, addiction, gender dysphoria, and sexual attraction. She is challenging Colorado’s restrictions on what counselors may say to their clients. Colorado law forbids any counseling that might encourage minors to change their “sexual orientation or gender identity, including efforts to change behaviors or gender expressions”—even if “change” is precisely what the client has requested.
Though the certiorari petition in Chiles is new, the issue has percolated in the lower courts for over ten years. More than 20 states and 100 local jurisdictions have adopted laws like Colorado’s. The first case to address the issue, Pickup v. Brown, set the tone by holding that government officials can evade the Free Speech Clause by labeling speech as “conduct.” In Pickup, the Ninth Circuit posited that First Amendment rights exist on a continuum, where “public dialogue” gets robust protection, speech in a professional setting gets some protection, and conduct gets no protection at all. It held that California’s counseling restriction targeted a “treatment,” and “treatments” are categorically conduct.
From the beginning, there were “serious doubts about whether Pickup was correctly decided.” The Third Circuit, for instance, expressly rejected Pickup’s characterization of counseling as “conduct,” stating that “speech is speech, and it must be analyzed as such for purposes of the First Amendment.” Labeling “certain verbal or written communications ‘speech’ and others ‘conduct’ is unprincipled and susceptible to manipulation.” Nonetheless, the Third Circuit embraced Pickup’s continuum and held that counseling exists in the middle as “professional speech,” subject to different rules than other protected speech.
Amidst the doctrinal confusion that Pickup created, the Supreme Court decided National Institute of Family & Life Advocates v. Becerra (NIFLA). NIFLA involved not a counseling restriction, but a law requiring crisis pregnancy centers to post government-drafted notices advertising, among other things, California’s abortion services. California argued—and the Ninth Circuit agreed—that these notices were “professional speech” falling in the middle of Pickup’s continuum. Yet the Supreme Court unequivocally rejected this argument. According to the Court, “Speech is not unprotected merely because it is uttered by ‘professionals.’” The Court disapproved of several contrary cases by name—including Pickup—that used the government’s application of labels to reduce professionals’ First Amendment rights.
The Eleventh Circuit subsequently applied NIFLA to strike down as unconstitutional a municipal counseling restriction virtually identical to the one upheld in Pickup. The government tried the same arguments the Ninth Circuit had accepted: that counseling is a “medical procedure” and therefore not speech but conduct free from the First Amendment’s scope. Like the Third Circuit, the Eleventh Circuit “rejected the practice of relabeling controversial speech as conduct.” The counseling at issue “consisted entirely of speech,” and if it could be relabeled as conduct, so too could “teaching or protesting,” “[d]ebating,” or even “[b]ook clubs.”
A few years later, Washington State found a more receptive audience in the Ninth Circuit. Analyzing yet another counseling restriction there, the Ninth Circuit did not feel constrained by NIFLA and doubled down on its conclusion in Pickup that such laws regulated “treatments,” and that “treatments” are categorically conduct. To the extent such counseling restrictions involve speech, the Ninth Circuit recognized a historical habit of “governing the practice of those who provide health care within state borders,” such that the restrictions survive First Amendment scrutiny. Though the Supreme Court denied certiorari, three Justices—Thomas, Alito, and Kavanaugh—indicated that they would have heard the challenge. Justice Thomas noted that “the issue . . . will come before the Court again,” and that, when it does, the Court must decide “what the First Amendment requires.”
Chiles v. Salazar presents the Court with an opportunity to do that. In 2019, Colorado enacted its counseling restriction, and Chiles brought a pre-enforcement suit seeking to enjoin it. Both the district court and the Tenth Circuit followed the Ninth Circuit’s path and held that counseling is a treatment subject to no First Amendment protection, even when that “treatment” consists entirely of words. In other words, counseling is a “therapeutic modality” even when “carried out through use of verbal language.” If these restrictions regulate speech at all, the majority held, they do so incidental to Colorado’s regulation of professional conduct.
Judge Hartz dissented. He condemned the majority for playing a “labeling game” in which “all the government needs to do to regulate speech without worrying about the First Amendment” is to categorize the speech broadly enough that it also encompasses non-speech and then “declare that any regulation of speech within the category is merely incidental to regulating the conduct.” And he chastised the majority for sidestepping NIFLA. After all, NIFLA had cited disapprovingly “circuit decisions” that upheld identical censorship restrictions In which “[t]he context was essentially identical.” When the Court criticized lower courts that “except professional speech from the rule that content-based regulations of speech are subject to strict scrutiny,” Hartz argued, it “undoubtedly” had in mind counseling restrictions like Colorado’s. “It would be passing strange for the Court to cite critically those particular cases if it thought the decisions were ultimately correct.”
The Tenth Circuit’s decision to treat counseling as conduct ripples beyond its immediate context. For example, states have enacted laws prohibiting medical “misinformation” and certain social media posts. And they have done so under the guise of regulating professional conduct—even though these laws, too, apply to words alone. Some states have even tried controlling what a foster parent may say in her own home by treating her as a “professional” and her speech as “conduct.”
Counseling restrictions like Colorado’s also stifle one side in a “fierce public debate.” That has real-world consequences. An independent policy review commissioned by the English National Health Service noted the urgent and unmet need for mental health services to support “gender-questioning young people.” And it linked this shortage to restrictions like Colorado’s. Such restrictions have “left some clinical staff fearful” of “providing professional support” to young people at all.
When the government decides “which ideas should prevail,” “the people lose.” In the face of the 2–2 circuit split and the many young people being denied necessary counseling, the Supreme Court has an opportunity to prevent government officials from evading the First Amendment through labeling games.
Disclosure: The author is counsel for the petitioner.
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