Summary
The Supreme Court held that Colorado's law prohibiting licensed counselors from engaging in conversion therapy with minors regulates speech based on viewpoint when applied to a counselor's talk therapy. The Court concluded that the law does not fall within a recognized exception to ordinary First Amendment scrutiny and reversed and remanded the Tenth Circuit's decision. The case also addresses Article III standing for an as-applied pre-enforcement challenge.
Topics
Practice areas
Questions Presented
- Whether Chiles had Article III standing to pursue an as-applied, pre-enforcement challenge to Colorado's conversion-therapy law.
- Whether Colorado's law, as applied to Chiles's talk therapy, regulates speech or merely professional conduct that incidentally burdens speech.
- Whether the law regulates speech based on viewpoint by permitting affirming or supportive messages while prohibiting messages seeking to change a client's sexual orientation or gender identity.
- Whether the law falls within a historically recognized category of content regulation receiving diminished First Amendment protection, such as professional licensing, informed-consent regulation, or medical-malpractice law.
- Whether Chiles was entitled to a preliminary injunction against enforcement of the law.
Holdings
- Chiles has standing to pursue her as-applied pre-enforcement challenge because she alleged an intention to engage in speech prohibited by the statute and a credible threat of enforcement.
- As applied to Chiles's talk therapy, Colorado's law regulates speech, not merely professional conduct.
- Colorado's law, as applied to Chiles's talk therapy, discriminates on the basis of viewpoint.
- The law does not regulate speech merely incidentally to conduct under the applicable First Amendment doctrine.
- Colorado failed to establish that its law falls within a long-standing tradition of permissible content regulation warranting diminished First Amendment protection.
Key quotations
“Colorado’s law banning conversion therapy, as applied to Ms. Chiles’s talk therapy, regulates speech based on viewpoint, and the lower courts erred by failing to apply sufficiently rigorous First Amendment scrutiny.” (607 U.S. ___, at 7)
“The First Amendment is no word game. And the rights it protects cannot be renamed away or their protections nullified by “mere labels.”” (607 U.S. ___, at 13)
“Colorado does not regulate speech incident to conduct; it regulates “speech as speech.”” (607 U.S. ___, at 17)
“However well-intentioned, any law that suppresses speech based on viewpoint represents an “egregious” assault on both of those commitments.” (607 U.S. ___, at 23)
Factual background
Kaley Chiles is a licensed Colorado mental-health counselor who provides only talk therapy and formulates counseling methods based on clients' stated goals. Some minor clients seek help changing unwanted sexual attractions, sexual behaviors, or gender-related experiences, and Chiles seeks to assist them in pursuing those objectives. Colorado's law prohibits licensed counselors from providing conversion therapy to minors, including speech attempting to change sexual orientation or gender identity, while expressly permitting acceptance, support, identity exploration, and assistance with gender transition.
Procedural history
Chiles filed suit in the United States District Court for the District of Colorado and sought a preliminary injunction against enforcement of Colorado's conversion-therapy law as applied to her talk therapy. The district court and the Tenth Circuit held that she had Article III standing but denied preliminary relief, concluding that the law regulated professional conduct and burdened speech only incidentally, warranting rational-basis review. The Supreme Court reversed the Tenth Circuit and remanded.
Remand instructions
The case was remanded to the Tenth Circuit for further proceedings consistent with the Supreme Court's opinion.