Are therapists protected by the First Amendment during talk therapy sessions with their clients? And are these free speech protections so robust that they prevent the government from regulating talk therapy to ensure that it does not harm patients or depart from professional standards of care?
That’s the central question in Chiles v. Salazar, which the Supreme Court will hear on October 7. And, while the idea that incompetent or even abusive talk therapists may be immune from regulation altogether may seem extreme, there is a very real chance that this Court will embrace that uncompromising position.
That’s because the Chiles case also involves one of the bitterest cultural disputes in US politics: whether the rights of conservative Christians trump the rights and interests of LGBTQ Americans. And this Court’s Republican majority routinely hands broad victories to the religious right when confronted with this dispute.
Chiles concerns “conversion therapy,” a practice where therapists attempt to change their patient’s sexual orientation or gender identity. According to a federal appeals court, “every major medical, psychiatric, psychological, and professional mental health organization opposes the use of conversion therapy.” The American Psychological Association, for example, says that conversion therapy “puts individuals at a significant risk of harm,” and is not effective in changing a patient’s sexual orientation or gender identity.
About half of US states ban “conversion therapy” for patients under age 18, including Colorado, whose law is at issue in Chiles. That law prohibits licensed therapists from engaging in “any practice or treatment … that attempts or purports to change an individual’s sexual orientation or gender identity.” The law also includes an exception for counselors “engaged in the practice of religious ministry.”
The plaintiff in Chiles is a therapist represented by Alliance Defending Freedom (ADF), a conservative Christian law firm that frequently brings cases seeking to limit LGBTQ rights. And, for what it is worth, ADF’s core argument in Chiles is fairly intuitive. The First Amendment protects free speech. Colorado’s law limits what talk therapists are allowed to say to their patients. Therefore, ADF argues, the law is unconstitutional.
Historically, however, states have been permitted to regulate professional advice that licensed professionals give to their patients or clients. A lawyer who tells a client that “it is legal to rob a bank” may be sued for malpractice or disbarred. A physician who tells a patient to cure their Covid-19 infection by injecting themselves with household bleach may be charged with murder if their patient follows the doctor’s orders.
Certainly, the First Amendment should provide some protections to talk therapists. A state could not, for example, require licensed therapists to tell their patients to vote for the incumbent governor in an upcoming election. But the amendment has not historically been understood to prevent states from sanctioning professionals who provide counsel that falls far below the standard of care within their profession.
Yet, when the Christian right knocks on this Supreme Court’s door, the Republican justices rarely seem to consider whether ruling in their favor would harm important institutions. Just last term, for example, those justices handed down a sweeping decision requiring public schools to notify parents before their child is taught any lesson that the parent might object to on religious grounds. As Justice Sonia Sotomayor noted in dissent, this decision is likely to cause “chaos” and “impose impossible administrative burdens” on educators, who cannot possibly anticipate in advance which parents might object to which books or lessons.
In the past, parents sued schools because they objected to lessons touching on topics as varied as divorce, interfaith couples, “immodest dress,” evolution, pacifism, magic, women achieving things outside of the home, and “false views of death.”
Drawing an appropriate line dividing professionals’ statements that should enjoy full First Amendment protection from statements that states may regulate in order to protect patients and clients, is not an easy task. And even a very capable panel of judges would likely struggle with where to place this line.
But Chiles will be heard instead by six justices with a history of damaging important institutions to serve partisan and ideological goals. And that means that there is a real danger that they will draw the line in a completely nonsensical place.
The law has historically required licensed professionals to adhere to the standard of care established by members of their own profession
As a general rule, the First Amendment prohibits viewpoint discrimination by the state. The government may not, for example, arrest anti-abortion protesters who vandalize a sidewalk, while allowing pro-abortion protesters who do the same to go free. It cannot admit Republicans, but not Democrats, to a public forum. And it typically cannot deny someone a license to practice therapy because it disagrees with that person’s political views.
In its brief to the justices, ADF attempts to paint Colorado’s law as a form of viewpoint discrimination. The law, they argue, permits their therapist client “to speak if she helps them embrace a transgender identity.” But they claim it doesn’t allow her to express the opposite viewpoint to her clients.
Colorado, it’s worth noting, says that ADF is misreading the law. The law, they argue, only forbids two things: therapy that seeks to “change” someone’s sexual orientation or gender identity. It does not require therapists to affirm someone’s identity, nor does it even forbid them from disparaging transgender people. It merely forbids them from attempting to convert a trans person into something else.
But let’s take ADF’s characterization of the law at face value, and assume that it does prefer some viewpoints over others. One problem with ADF’s argument is that some degree of viewpoint discrimination is inherent in professional regulation. A doctor who tells their patients that antibiotics are an effective way to fight bacterial infection, for example, will not face professional sanction. But a doctor who tells a patient the opposite — that they must not take antibiotics to treat such an infection — risks a malpractice lawsuit or other professional sanctions.
Colorado’s brief points to a long list of state laws and court decisions that regulate speech by professionals, including an Alabama law prohibiting physicians from making “any untruthful or deceptive or improbable statements concerning … the effects or results of his or her proposed treatment”; an Arkansas law prohibiting physicians from “representing to a patient that a manifestly incurable condition of sickness, disease, or injury can be permanently cured”; and an Oklahoma Supreme Court decision requiring doctors to tell patients of the risks and benefits of a particular treatment — even when the doctor’s proposed treatment is to do nothing.
Colorado also proposes a framework that can govern when states are allowed to regulate speech between licensed professionals and their clients or patients. Malpractice laws and similar professional regulations, the state argues, have historically been permitted to “require professionals to comply with their discipline’s standard of care” as determined by the “evidence-based consensus of the professional community.” And this is true regardless of whether a professional is performing a surgery or speaking to a client.
Thus, under Colorado’s proposed framework, the important question in Chiles is whether a therapist provided “substandard treatment” as determined by the consensus among other mental health professionals. That may lead to tough First Amendment cases, if a state tries to ban a practice that is contested within a profession. But Chiles is not such a case because of the overwhelming consensus among professional organizations that conversion therapy is dangerous and ineffective.
The Supreme Court’s precedents on professional speech are incoherent and fairly partisan
Unfortunately, two of the Supreme Court’s most important precedents on professional speech arose in abortion cases. So they are infected with politics.
The first is a famous case, Planned Parenthood v. Casey (1992). Although the case is mostly known for its (now overruled) conclusion that the Constitution protects the right to have an abortion, that decision also limited the First Amendment rights of abortion providers — and that part of the Casey opinion remains good law.
Ordinarily, the First Amendment prohibits the government from compelling someone to speak, but Casey upheld a Pennsylvania law requiring abortion providers to make several disclosures to their patients, including requiring them to inform the patient of materials printed by the state that seek to encourage adoption and discourage the patient from having an abortion.
In National Institute of Family and Life Advocates (NIFLA) v. Becerra (2018), however, the Republican justices struck down a California law that was the mirror image of the Pennsylvania law upheld in Casey. The California law required many “crisis pregnancy centers” — anti-abortion clinics that often provide some health care services but try to discourage pregnant people from having abortions — to inform their patients of state programs that help make abortion more widely available.
It is hard to come up with a principled explanation for how these two decisions can coexist. As Justice Stephen Breyer wrote in his NIFLA dissent, “if a State can lawfully require a doctor to tell a woman seeking an abortion about adoption services, why should it not be able, as here, to require a medical counselor to tell a woman seeking prenatal care or other reproductive healthcare about childbirth and abortion services?”
Unsurprisingly, ADF relies heavily on NIFLA in the Chiles case, pointing to a line in NIFLA stating that “States may regulate professional conduct, even though that conduct incidentally involves speech.” As ADF sees it, the Pennsylvania law at issue in Casey was constitutional because it regulated “the performance of a ‘medical procedure,’” and only required doctors to provide patients with certain information to gain their “informed consent” to that procedure. Talk therapy, by contrast, does not concern a medical procedure — it is just speech — and thus may not be regulated under the First Amendment.
But if this argument is correct, that means that all kinds of misconduct and malpractice by professionals may not be sanctioned. A doctor who tells their patient to take poison, or a lawyer who advises their client to commit a crime, does not engage in any conduct on their own outside of speech. Indeed, if mere speech between a therapist and a patient cannot be regulated by the state, then there can be no legal consequences for a therapist who encourages a suicidal patient to take their own life, or for one that bullies a patient into self-harm.
Realistically, there is little chance that this Supreme Court, with its 6-3 Republican supermajority, will uphold Colorado’s law. Just as the five Republicans who decided NIFLA applied a more favorable rule to anti-abortion clinics than the Court applied to abortion providers in Casey, the Court’s current majority is likely to reach a result in Chiles that aligns with their personal political beliefs.
But, if they aren’t careful, they could wind up gutting longstanding regulations of medical, legal, mental health, and many other professionals in the process. As Colorado argues in its brief, states have long sanctioned professionals who fall far below the standard of care within their profession. And it is difficult to draw a principled line between a lawyer who gives incompetent advice to a client, and a therapist who provides treatment that is wildly inconsistent with the standard of care established by every professional organization of mental health care providers.
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