Blue Brief 2025-2026

therapy consists of “the spoken word[,] … perhaps the quintessential form of protected speech.” Colorado law permitted Ms. Chiles to help clients affirm their LGBTQ identity but not help a client change their LGBTQ orientation or tendencies. “As applied” to Ms. Chiles, therefore, “Colorado’s law … . prescrib[es] what views she may and may not express” — viewpoint discrimination in a nutshell. The Court remanded to the lower court to review the ban under strict scrutiny, which is almost impossible to satisfy. Here it may be particularly difficult for Colorado to satisfy. Ms. Chiles’s therapy focuses on helping her clients to achieve their own goals; she neither practices aversive therapy nor pushes her clients to change their gender identity or sexual orientation. When the client, not the therapist, chooses the therapeutic goals, the argument that such therapy causes serious harm to minors is weaker. Viewpoint discrimination is the third rail of First Amendment law. “[T]he First Amendment protects the inalienable right of every individual to decide for himself how best to speak” even if that speech is “misguided, offensive, or cause[s] incalculable grief,” Justice Gorsuch wrote. State laws that restrict speech because of its viewpoint must satisfy “strict scrutiny” by proving that “its restriction on speech is narrowly tailored to serve compelling state interests.” In dissent, Justice Jackson argued that these particular First Amendment goals made no sense in the context of the medical and psychological treatment of minors. Therapy is not part of the “marketplace of ideas.” It is treatment of a vulnerable child or teen in distress. Government regulation of medicine is by its nature “pervasively and unavoidably viewpoint based,” she wrote. A medical “standard of care” that “punishes a doctor

for providing care outside of that standard, … necessarily limits what medical professionals can say and do on the basis of viewpoint.” Colorado had similarly argued that its conversion therapy ban was analogous to malpractice law. Conversion therapy was malpractice, Colorado argued , because medical and scientific communities have discredited it as ineffective, harmful, and possibly life-threatening.

Viewpoint discrimination is the third rail of First Amendment law.

The Court rejected Colorado’s analogy. When suing a therapist for malpractice, a plaintiff has to prove by the preponderance of evidence that the therapist’s care fell below accepted medical standards; and that that breach caused the plaintiff actual injury. Such “exacting proof requirements … may [themselves] provide sufficient breathing room for protected speech.” In contrast, Colorado’s law set the medical standard of care — anything but supportive therapy violated the law. Actual harm to a person was also not an element of Colorado’s law, which was premised on the idea that conversion therapy hurt minor patients. Colorado’s law, therefore, lacked the “breathing room” that malpractice law provided.

UNIVERSITY OF SAN DIEGO SCHOOL OF LAW | Faculty Review of 2025-2026 U.S. Supreme Court Term | Page 21