Legal Docket: When speech is treatment

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NICK EICHER, HOST: It’s The World and Everything in It for this 13th day of October, 2025. We’re so glad you’ve joined us today. Good morning! I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. It’s time for Legal Docket.

Last week, the showdown at the U.S. Supreme Court over what’s speech versus what’s conduct…. between a licensed counselor and a client who’s a child.

EICHER: Six years ago, Colorado passed what’s known as a SOGI law … S-O-G-I … an acronym for sexual orientation and gender identity.

This particular SOGI law bars licensed counselors from performing any counseling / that has the aim of helping young people get comfortable with the body God made for them. That’s unlawful.

What is lawful in Colorado is for a counselor to affirm a child’s desire to be the opposite sex. Colorado calls that simply regulating professional conduct.

REICHARD: Kaley Chiles is a licensed therapist and a Christian. She says the ban violates her free speech rights under the First Amendment, because her work is nothing but speech.
So the question is this: when words themselves are the treatment, does the government get to decide which words to say?

EICHER: Jim Campbell represents Chiles.

JIM CAMPBELL: This law prophylactically bans voluntary conversations, censoring widely held views on debated moral, religious, and scientific questions….the State of Colorado would allow a 12-year-old without their parents' consent to enter into counseling that would go the opposite way on these issues of gender identity and sexual orientation, but if that same 12-year-old with their parents' consent want to seek counseling in the opposite direction, the kind that my client would provide, they are not able to do that.

EICHER: Justice Sonia Sotomayor made the argument that nobody’s been prosecuted under this law. In her view, there has to be a credible threat of prosecution to count as chilling speech.

But that argument has never really carried the day: Colorado has already lost two high-profile First Amendment cases at the Supreme Court involving SOGI. In 20-18, the court found in favor of Jack Phillips of Masterpiece Cakeshop. And two years ago, the justices again ruled that Colorado could not compel a website designer to create speech she disagreed with. Justice Sotomayor dissented in both cases.

REICHARD: Even so, the liberal justices focused less on free speech and more on professional regulation. Listen to this exchange between Campbell and Justice Ketanji Brown Jackson:

JUSTICE JACKSON: I’m just unclear as to whether or not you’re categorizing her therapy as a medical treatment?

CAMPBELL: I don't believe that we are categorizing it that way, but I don't think it matters because the First Amendment depends on the difference between speech and conduct, not on the difference between treatment and non-treatment.

REICHARD: Justice Jackson kept at it:

JACKSON: But I guess it seems very odd that you could have two scenarios where you have two licensed professionals both attempting to provide treatment to an individual, say, for the same issue, that you know, the person says, I’d like to live consistently with my biological sex. I feel that I’m not doing that. I’d like your help. Medical Professional A treats that "condition" with medication. Medical Professional B treats that condition with talk therapy.

REICHARD: The counselor’s lawyer responded these are two different fact scenarios, dependent upon what the patient or client desires.

EICHER: Defending the law, Colorado’s Solicitor General Shannon Stevenson. The state argues the law only regulates a narrow category within a licensed profession:

SHANNON STEVENSON: A healthcare provider cannot be free to violate the standard of care just because they are using words. And a state cannot be required to let its vulnerable young people waste their time and money on an ineffective, harmful treatment just because that treatment is delivered through words… . Petitioner asks you to enjoin a bipartisan law passed by 25 different states, but she did not put one single piece of evidence into the record, not a single expert, not a single study, not a single mental health professional willing to endorse conversion therapy, and there is a mountain of evidence to the contrary.

EICHER: The state leaned on medical consensus and professional standards to define what’s safe for patients.

But the counselor’s side countered that the studies the state relies on are flawed—based on activist assumptions, not sound evidence.

CAMPBELL: All of those studies relied on biased sampling, self-reporting, they conflated aversive techniques with voluntary counseling, they did not isolate licensed counselors, and they did not purport even in their own study to prove causation.

EICHER: Justice Samuel Alito looked to history to show that medical professionals aren’t always as authoritative as the state claims:

JUSTICE ALITO: Your argument depends very heavily on the standard of care, which I take it is defined by medical consensus. Is that correct?

STEVENSON: That’s correct.

ALITO: …I mean, the medical consensus is usually very reasonable and it’s very important. But have there been times when the medical consensus has been politicized, has been taken over by ideology?

STEVENSON: We have no facts about that in this case, but I — I wouldn’t disagree that that’s possible. And I think it’s a really —

ALITO: — isn’t it a fact that it’s happened in the past?

STEVENSON: I think that’s —

ALITO: Three generations of idiots are enough?

REICHARD: Justice Alito’s reference is to Supreme Court Justice Oliver Wendell Holmes … who once offered the view that “three generations of imbeciles are enough.” It’s from a 19-27 case called Buck v. Bell … which upheld a Virginia law that allowed compulsory sterilization of people the state deemed “feeble minded.” That was the consensus at the time. Justice Alito gave another example of medical “consensus.”

ALITO: Was there a time when there were many medical professionals who thought that every child born with Down syndrome should be immediately put in an institution?

STEVENSON: I — I don’t know that, Your Honor.

REICHARD: Backed into a logical corner … the lawyer for Colorado let her lawyer instinct kick in. She skirted Justice Alito’s historical analogy and reframed state law as modern and evidence-based. If she hadn’t, then her opponent surely would use it to his advantage. As in, “see the danger in state-controlled professional speech? It was wrong then, and it’s wrong now.”

Justice Sotomayor took a more tenuous route, posing a hypothetical about eating disorders, but Campbell spotted the false equivalence. Listen to this:

SOTOMAYOR: A state tells dietitians don't encourage anorexic patients to engage in more restricted eating, all right? I don't think the state has to provide a study to show that that advice is not sound. Do you agree?

CAMPBELL: Justice Sotomayor, I think that might be true, but that's because that kind of hypothetical is very different than what we have here. In that --

SOTOMAYOR: So explain the difference.

CAMPBELL: …..later…. if what the state is getting at is a statement by a professional that's telling someone to harm their body, that's a different category.

REICHARD: The state nimbly tried to distinguish the facts here as “special context:”

STEVENSON: …if you go to a life coach or you go to someone else, they’re not licensed by the state. You’re not expecting them to be complying with standards of care. You have a different expectation. When you’re going to see a licensed healthcare professional who owes you fiduciary duties, your expectations are different. You’re expecting information that is complying with the standard of care…

EICHER: ….arguing that the requirement of a license transforms speech into professional conduct. A tough sell, given that the high court has already rejected the idea that professional speech has less First Amendment protection.
That led Justice Amy Coney Barrett to press the state’s lawyer: was Colorado’s position really viewpoint discrimination?

JUSTICE BARRETT: Can a state pick a side? I want to be very clear. It's not that the medical community says we just don't know. It's that there are competing strands, and some states like, say, Tennessee, which was the state at issue in Skrmetti, pick one side. Colorado picks another side. Your position is that rational basis applies?

EICHER: That’s key … because rational basis is the easiest level of judicial review for a state law to survive. So score one for Colorado … but it’s a Pyrrhic victory. That position has the state walking right into a trap. Namely: the state would be saying in essence that even if the law is viewpoint discrimination, that’s okay.

Which is not a strong argument.

So the state hedged, saying what really matters is the standard of care. But Justice Barrett would not be deterred:

BARRETT: …just answer that question.

STEVENSON: No. Our view is that that would not be the right rule here…

REICHARD: Just answer the question …Yikes! And when she did … it left a tougher level of scrutiny the state has to satisfy. The Supreme Court’s already said content-based regulation of professional speech has to meet strict scrutiny standards of judicial review.

Colorado’s Solicitor General Stevenson must have been feeling the knot tighten…and then Justice Alito brought it all back around to stark, contrasting scenarios:

ALITO: One viewpoint is the viewpoint that a minor should be able to obtain talk therapy to overcome same-sex attraction, if that's what he --or he or she wants. And the other is the viewpoint that the minor should not be able to obtain talk therapy to overcome same-sex attraction, even if that is what he or she wants. Looks like blatant viewpoint discrimination.

REICHARD: Justice Kagan seemed to be in vigorous agreement with him:

JUSTICE KAGAN: …that seems like viewpoint discrimination in the way we would normally understand viewpoint discrimination.

EICHER: A conservative justice and a liberal justice, in agreement.
So for an outside perspective, we asked Washington producer Harrison Watters to call up to Eugene Volokh, a leading authority on the First Amendment. Volokh says the lower courts have muddied the issue:

EUGENE VOLOKH: But I think it's a mistake for a court to say, as the lower court did, that this isn't really speech, it's just conduct. That just sounds to me like an argument by relabeling. And I wanted to urge the Supreme Court to resist that path of just saying this isn’t speech, it’s conduct.

EICHER: If the high court accepts that logic, Volokh warns that other kinds of expression could lose First Amendment protection too.

REICHARD: I think that’s highly unlikely; I do predict free speech will win out. A unanimous vote would be unifying… .but more likely we’ll have one or two liberal justices in dissent.
And that’s this week’s Legal Docket.

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