Media Law for the Real World: Right on cue: SCOTUS just handed down the Chiles decision
Following up on last week’s deep dive into Chiles and Otto, the Supreme Court has officially weighed in. Here is a breakdown of the 8-1 decision and why viewpoint discrimination was a deciding factor.
I should probably start playing the lottery. Just last week, I wrote about the high-stakes First Amendment battle in Chiles v. Salazar — and yesterday, the Supreme Court handed down its decision, and it largely aligns with what I predicted.
A refresher
Chiles v. Salazar involved a Colorado state law banning sexual orientation change efforts (SOCE) for minors. SOCE refers to counseling practices that aim to change a person’s sexual orientation or gender identity.
Kaley Chiles, a licensed counselor, challenged the Colorado law, saying it violated her First Amendment right to free speech. Chiles argued that her therapy is conducted solely through speech with no medication or procedure involved.
The Colorado law prohibited licensed counselors from engaging in conversion therapy with minors that have the goal of changing the minor’s sexual orientation or gender identity. However, the law did allow therapists to provide acceptance, support, or understanding of identity exploration and development, as well as assist minors undergoing gender transition. Because of this exception to the law, not all conversations about sexual orientation or gender identity were banned — only conversations with a specific goal or viewpoint were.
What Supreme Court precedent says
In NIFLA v. Becerra, the Supreme Court held that professional speech is not a lesser category of speech. Speech does not lose its First Amendment protection simply because it happens in a professional setting.
A content-based regulation means the government must examine the content of a message you’re delivering in order to enforce a punishment. A viewpoint-based regulation goes even further, meaning the government is taking a position on a topic and allowing one viewpoint while prohibiting the other. Viewpoint discrimination is considered the most egregious form of content discrimination under the First Amendment. Both content-based and viewpoint-based regulations are held to strict scrutiny — the highest level of judicial review.
When applied to Chiles v. Salazar, the Colorado law allowed a minor to talk about being gay and wanting to be more comfortable with that identity, but it did not allow a minor to talk about being gay and wanting to change that. That means the government would have to examine the viewpoint of the conversation in order to determine whether it was legal or not.
Under strict scrutiny, the government must show that the law (1) advances a compelling governmental interest and (2) is narrowly tailored to achieve that interest. This is a very difficult standard for the government to meet.
The decision
On Tuesday, the Supreme Court ruled in an 8-1 decision that Colorado’s law was unconstitutional because it “regulates speech based on viewpoint, and the lower courts erred by failing to apply sufficiently rigorous First Amendment scrutiny.”
Justices Kagan and Sotomayor wrote a concurring opinion, noting that if the law had been written as a content-based regulation instead of a viewpoint-based regulation, the case may have been more difficult to decide.
Justice Jackson dissented, arguing that there is a difference between speech and conduct. She believes SOCE is a medical treatment that just happens to be delivered through speech, and the state has a right to regulate professional medical standards to protect public health.
However, the story does not end here. The Supreme Court did not fully resolve the case. Instead, it sent the case back down to the lower courts and instructed them to apply strict scrutiny.
This means the Colorado law technically still stands for now, but the lower courts must now determine whether the law can survive strict scrutiny — which is very unlikely.
In other words, the Supreme Court did not write the final chapter of this case, but it told the lower courts exactly how the Constitution must be applied when they do.
What this means
In a time where political division is extreme, this decision reinforces that the Constitution still functions as a framework and can withstand controversy. This is the rule of law playing out in real time. The system is working, even when the outcomes are controversial.
This case primarily expands protections for freedom of speech, but it may also have an impact on freedom of religion, especially in situations where speech and religious beliefs overlap.
The First Amendment often protects speech that people strongly disagree with, and cases like this test how far that protection goes.
The tension
This is where constitutional law can get complicated.
On one side, LGBTQ+ advocates argue that allowing minors to be subject to conversion therapy can cause real psychological harm, including increased depression and anxiety. Some argue that SOCE can make minors feel like they are not accepted for who they are and that change is being forced on them.
On the other side, if the Court were to allow the Colorado law, First Amendment protections would be at risk — particularly the danger of allowing the government to decide which viewpoints professionals are allowed to express.
As I’ve said many times before — once you crack the door to allow the government to decide what viewpoint of a conversation is and isn’t allowed, the door can easily be kicked down. That’s a power the Constitution was designed to prevent the government from having.
A ruling can safeguard one group’s rights while raising concerns for another.
But the beauty of constitutional law is you don’t have to like the potential implications of a decision in order to understand why the Court made it.
My take
My intention in designing this series is to provide a content-neutral platform to educate people on what the law is and how to apply it.
However, because I have been following this case since oral arguments in October — and because it was one of the first First Amendment cases I studied with real passion — I do want to offer a brief perspective.
For me, this is not a red versus blue ruling. It’s a people versus government ruling. And yesterday, the people won.
Although this decision may raise serious concerns, particularly for the LGBTQ+ community, it also demonstrates a principle that is often lost in today’s polarized climate: holding the government accountable to the Constitution.
When the Supreme Court holds the government accountable by refusing to allow it to impose restrictions on the people’s foundational freedoms, there is something in that to be celebrated.
This decision gave power back to the people (and parents in particular) to choose how they carry out their faith and what they do in their own private lives.
Therapy, by its nature, involves deeply personal conversations. We should never want the government to dictate what can and cannot be said in a private conversation. Expanding governmental authority into that space raises constitutional questions that would be a recipe for disaster.