Legal Docket: Speech and silence

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MARY REICHARD, HOST: It’s The World and Everything in It for this 11th day of August, 2025. Thank you for joining us today. Good morning! I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. It’s time for Legal Docket.

We’ll begin with 10 key words from the text of the First Amendment: Congress shall make no law (that’s five) abridging the freedom of speech (that makes 10). Ten words that protect far more than public speeches. They cover political advocacy, art, even private conversations in the office of a counselor. Sometimes, they protect the right NOT to speak, to keep certain information private. This term, the Supreme Court will hear two cases that test those boundaries.

REICHARD: One of them comes from Colorado. Licensed professional counselor Kaley Chiles works with teens on trauma, addiction, sexuality, and gender identity. She integrates her Christian faith into her sessions. But she’s challenging a state law that stops her from doing that. She says it violates her right to free speech.

Alliance Defending Freedom is representing her. Here’s ADF Chief Legal Counsel Jim Campbell:

CAMPBELL: Counseling conversations, when Kaylee sits down with one of her clients — those conversations are protected by the First Amendment to the US Constitution. And as a result, The government has no business telling Kaylee what she and her client can discuss.

EICHER: When someone challenges a law under the First Amendment, the first question is: what’s being regulated.

Is it speech itself, or is it conduct that just happens to involve speech?

The answer matters, because the court uses different standards to decide if the law is constitutional.

REICHARD: Laws that target speech have to clear the highest bar, called strict scrutiny. The government must prove a law serves a compelling interest and does so in the narrowest way possible.

If the law mainly regulates conduct and only incidentally affects speech, the bar is much lower. Think, health and safety regulations or requirements for professional licensing. The state only needs to show the law is reasonable. That’s rational-basis review. Easy to meet; most any reason will do.

EICHER: Back to Kaley Chiles.

Six years ago, Colorado passed the Mental Health Practice Act. It bans certain counseling for minors with gender dysphoria—what the state dismissively terms “conversation therapy.” And the law defines that term in only one direction. Campbell explains:

CAMPBELL: Colorado says that Kaylee can’t help these kids — that if she is going to help a child dealing with issues of gender confusion, she has to counsel them in a way that she thinks is irresponsible. And she wants to be free to counsel them consistent with their faith.

Campbell says the law is a textbook case of viewpoint discrimination: when the government allows only one side of a debate but bans the other. That’s a serious First Amendment problem:

CAMPBELL: They tell a counselor you can help a child down the so-called path of transition, but you can’t help a child become comfortable with their bodies. That kind of viewpoint discrimination is directly in conflict with the First Amendment.

REICHARD: I called the office of the Colorado Attorney General but didn’t hear back. So I’ll summarize Colorado’s view by what the state has said in court filings. One key contention Colorado makes is that Chiles the counselor is engaged in conduct, not speech—and therefore the state has legitimate authority to regulate her. That has been persuasive to lower courts, which have ruled against her.

Another key contention of the state is related to the first: that conversion therapy is a discredited practice, which is why it’s banned. Colorado’s law defines “conversion therapy” broadly — banning any counseling for minors that aims to change their sexual orientation or gender identity. But it makes exceptions for counseling that affirms LGBTQ identity or supports a gender transition. In other words, it’s a one-way street: counseling toward transition is allowed, but counseling away from it is not.

EICHER: Campbell says that definition sweeps in a kind of counseling far removed from the coercive or shaming practices many people associate with the term “conversion therapy.” He’s talking instead about voluntary, non-coercive talk therapy — the kind where a client wants help living according to a traditional sexual ethic.

CAMPBELL: There isn’t true medical consensus. There are many pockets of the medical community that agree that providing this kind of counseling conversation with a minor is actually in their best interest. Certainly there are many professional associations that take a different view. But they’re simply wrong. In fact, if you read what they say, they acknowledge there’s a dearth of evidence and that there still needs to be an assessment. And so At the end of the day, people should be free to set their own counseling goals and select counselors who will help them achieve those goals. The government shouldn’t be sticking its nose in the counseling room.

REICHARD: It’s not just counseling conversations under scrutiny this term. Another case asks whether the government can force nonprofits to open their donor rolls to state officials.

In effect: sticking its nose into private giving.

EIICHER: That dispute comes from New Jersey and centers on the right not to speak— to keep certain information confidential. This case is about the privacy of people who donate money to pregnancy care centers.

First Choice Women’s Resource Centers is a pro-life nonprofit that serves women in crisis. It offers free pregnancy tests, ultrasounds, counseling, and baby supplies.

REICHARD: Aimee Huber is executive director of First Choice. She says she was blindsided last November when the state attorney general’s office served her with a sweeping subpoena. The state’s demand for records went far beyond routine oversight.

HUBER: It commanded us to produce up to 10 years of documentation on our donor communications, on identities of our donors and advertising,and basically everything you could think of. You can imagine that if you’re a small nonprofit, and you usually have open staff positions and you’re busy and serving a lot of people, that just the thought of producing that much information for up to ten years is completely overwhelming and daunting. So every hour that we would be using to produce documentation would be an hour that would be taken away from serving our women.

The New Jersey attorney general didn’t respond to my request for comment. So, again, I’m left to summarize the state views based on public court filings. New Jersey has argued that its subpoena is part of legitimate oversight to ensure compliance with state laws and not engaging in misleading advertising. Huber doesn’t think so. Her view is that the demand is driven by hostility to her group’s pro-life stance.

HUBER: We don’t perform or refer for abortions, and I think that’s the reason for the attack.

EICHER: Lawyer Jim Campbell says this kind of pressure has become more common over the last three years:

CAMPBELL: Ever since the Supreme Court overturned Roe v Wade in the Dobbs decision, there’s been an onslaught of harassment, discrimination, and vandalism against pro-life pregnancy centers. And one of the forms in which that harassment has taken is certain state attorneys general have been going after them through lawsuits and also through overbearing subpoenas and other demanding requests for their internal documents. And that’s exactly what this case involves.

Campbell points to a 20-21 Supreme Court precedent out of California: Americans for Prosperity v. Bonta. That case struck down a law requiring nonprofits to turn over their donor lists to the state. The court made two key holdings: one, the mandate violated freedom of association, and two, it wasn’t narrowly tailored to serve a state interest.

What precipitated that case was that then-Attorney General Kamala Harris and later Rob Bonta required nonprofits to disclose donors to the state. That information leaked, a challenge to the law then followed, and the Supreme Court ruled against California.

CAMPBELL: Similarly here, the state of New Jersey should have to answer in federal court for its efforts to dig into the private donor information of pregnancy centers.

REICHARD: As is so often the case, the first question for the court to answer is a basic one: Which court should hear the case?

CAMPBELL: Ultimately, it’s a jurisdictional question… Everyone whose constitutional rights are violated should be able to go to federal court. The lower courts here got it wrong.

Campbell says the decision will matter beyond the pro-life movement:

CAMPBELL: What we see around the country is lots of state officials that are using their very broad powers under the law to issue these demands for confidential and internal documents that not just include pregnancy centers. But these are going to groups on the right — like gun advocacy organizations — and groups on the left, like immigration advocacy groups,. And so there are a lot of private entities both in the for profit and non-profit sectors that have an interest in ensuring that whenever they receive these kinds of requests, if they believe those requests are violating their federal rights, they should be able to go to federal court and get a ruling.

For Aimee Huber, the executive director of First Choice, the fight’s been exhausting:

HUBER: There has certainly been a personal toll, but it has drawn me closer to Christ… The leadership of our state has made no secret of the fact that they are promoting abortion. We are a sanctuary state for abortion. We have money in our state budget to actually bring abortionists from other states to New Jersey to provide more abortions for women. So pregnancy centers like First Choice do not provide abortions or refer for abortions.

The aggression she’s seen still surprises her:

HUBER: I would hope that government and leadership would be supportive of nonprofits that provide free services to women. So I have been surprised by how long our legal battle has continued and the aggression really by our state leadership.

EICHER: On the surface, these two disputes could not be more different: in one, a counselor’s private conversations with clients; in the other, a nonprofit’s right to keep its donor list confidential.

REICHARD: But the core of each is the same constitutional question: how far can the government go in controlling speech, whether by dictating what can be said or by discouraging certain viewpoints through exposure?

And that’s this week’s Legal Docket.

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