The Supreme Court’s 8-1 decision in Chiles v. Salazar rejected Colorado’s ban on certain therapeutic speech, with Justice Gorsuch writing for the majority and Justice Jackson dissenting; the opinion treats viewpoint-based limits on therapy as blatant First Amendment violations while flagging future, content-based regulations for further review.
The Court ruled 8-1 that Colorado cannot bar a licensed therapist from having a particular conversation in the office, and that vote tells you which side of this issue carried the day. More than two dozen state legislatures passed laws like Colorado’s, and lower courts, including the Tenth Circuit, upheld them before the Supreme Court stepped in. This case exposed a simple truth: when government picks a side in a speech exchange, it crosses the First Amendment line.
Kaley Chiles is a licensed mental health counselor in Colorado who provides talk therapy, and the state passed its ban in 2019. Colorado forbids licensed therapists from engaging in any practice that attempts to change a minor’s sexual orientation or gender identity, while allowing affirming approaches. That contrast makes the law viewpoint-based: one conclusion is allowed, the other is punished.
Colorado compounded the problem at oral argument by admitting an “unlicensed life coach” can say everything a licensed therapist cannot. The state conceded that the ban only applies to licensed professionals, which exposes the license as the mechanism of enforcement. If a person lacks a license, the same words are free; if they hold a license, the state can silence them. That is speech control by credential, not neutral professional regulation.
Justice Gorsuch, writing for eight justices, delivered a clear message to lower courts nationwide: “Her speech does not become ‘conduct’ just because a government says so or because it may be described as a ‘treatment’ or ‘therapeutic modality,'” and “The First Amendment is no word game.” Those sentences puncture the state’s attempt to recast speech as mere medical conduct. The opinion remanded to the Tenth Circuit for strict scrutiny, but the message was unmistakable: viewpoint bans in therapy are on shaky ground.
Colorado argued it was regulating medical conduct and that any speech limits were incidental, but Gorsuch invoked NIFLA v. Becerra to reject that framing. “Colorado does not regulate speech incident to conduct,” Gorsuch wrote. “It regulates ‘speech as speech.'” That doctrinal line is decisive: when speech itself is the target, heightened scrutiny applies. Lower courts that treat these bans as neutral professional rules will now have to rethink their approach.
Gorsuch did more than textbook doctrine; he used history to warn against deferring to prevailing professional opinion. He cited Buck v. Bell as a cautionary example and reminded readers that the American Psychiatric Association classified homosexuality as a mental disorder until 1974. Under the logic Justice Jackson endorses, government could freeze a professional consensus into law and crush dissenting speech. “The people lose,” Gorsuch wrote, “whenever the government transforms prevailing opinion into enforced conformity.”
Justice Ketanji Brown Jackson stood alone in dissent, arguing that the regulation was incidental to medical treatment and therefore subject to lower scrutiny. Eight justices disagreed. Even two liberals who dissented in NIFLA joined the majority here rather than follow Jackson’s approach, which underscores how stark the divide is between free speech principles and the instinct to regulate controversial therapies.
Justice Kagan, while joining the majority, wrote a brief concurrence that matters for what comes next. She agreed this law was “textbook” viewpoint discrimination but flagged a different kind of law: “I write only to note that if Colorado had instead enacted a content-based but viewpoint-neutral law,” Kagan wrote, “it would raise a different and more difficult question.” That distinction—banning a viewpoint versus banning an entire topic—gives future legislatures a roadmap for crafting new restrictions that may face less exacting review.
Kagan’s note is a tactical move. She is signaling how a content-based but viewpoint-neutral rule might be argued into survival, and that will shape future litigation strategy on both sides. Gorsuch handed lower courts a tool to strike down obvious viewpoint bans; Kagan quietly told blue-state lawmakers how to try again. It’s lawyering and courtcraft, not magnanimity.
Today’s decision leaves open hard questions. If a state were to ban all talk about sexual orientation and gender identity for minors, converting the rule into a subject-wide prohibition, courts will have to sort whether that is content regulation worthy of different treatment. The next cases will test whether the majority’s clear line around viewpoint discrimination can be preserved without opening new loopholes for content-based rules.
For now, the Court protected licensed therapists from being forced into a particular viewpoint, and it rejected the notion that professional licensing can be used to muzzle speech. The ruling is a win for free expression in clinical settings, and it forces states to choose between blunt, topic-wide restrictions and the dead end of viewpoint bans. The legal fights ahead will decide whether that choice stays meaningful.
