Today I Learned: The Chiles v Salazar Holding

In her challenge to the Colorado law prohibiting conversion therapy with minors, therapist Kaley Chiles states that she only offers talk therapy and that her speech is protected by the First Amendment. She maintains that she always takes her lead from her clients and only helps them change their sexual behaviors in accordance with their own stated objectives, and she may even believe that is the case. It seems that the Justices of the Supreme Court did believe that. But what would be the outcome if her client told her that they didn’t want to live anymore and she, taking her lead from their stated objectives, discussed effective methods of suicide with them? There are restrictions on what medical professionals may do.

Although Chiles claims that she only does “talk therapy,” it is therapy and can be regulated to prevent harm to clients. As Justice Jackson stated in her dissent, “The degree to which medical providers speaking within the boundaries of providing patient care can express themselves is limited because their interactions with patients are constrained by their well-established duties to those patients and the requirement that they meet the standard of care.” What the majority misses is this context.

Although I have aways been a strong defender of the First Amendment, here, there is no restriction on Ms. Chiles’ speech, except as it relates to her practice of therapy, which is regulated by the state. It is appropriate and reasonable to hold her to the established standards of care for her profession. She certainly could be held liable for malpractice if she were to verbally encourage her clients to commit suicide, and she should similarly be held liable if she continues to espouse conversion therapy, which has been determined to be harmful to minors. Multiple professional organizations, including the American Academy of Child Adolescent Psychiatry, the American Psychiatric Association, the American Medical Association, and the National Alliance on Mental Illness have condemned this practice as ineffective and harmful. Relying on these expert opinions, it is entirely appropriate that the state prohibit conversion therapy to protect minors. Chiles, in challenging the Colorado law is, in effect, hoping to be allowed to continue practicing a known harmful technique with her clients.

The majority determined that the speech in this case warranted strict scrutiny, that is, the highest level of scrutiny for laws limiting freedom of speech. Under strict scrutiny, only laws which demonstrate a compelling government interest and are narrowly tailored to address that interest can survive. The lone dissenting justice, Justice Jackson, argues that a lesser level of scrutiny was appropriate, since the speech in question was not speech as speech, but, rather, speech as part of a therapeutic intervention. However, I would argue that, even under strict scrutiny, this law could be found constitutional, since the state certainly has a compelling interest in protecting minors, and the law is narrowly tailored in that it only restricts speech in a specific therapeutic context, not in any other setting.

In my opinion, by treating this case as strictly a First Amendment case, the majority fails to consider the context and, therefore, the impact of their decision. Failing to hold medical professionals responsible for their speech to clients opens the door to abandoning established standards of care, which in turn, can lead to harm to clients. According to Justice Jackson, “Indeed, it is not at all clear how, or to what extent, state regulation of medical care involving practitioner speech can survive this holding.”