The Counselor Will See You Now—And So Will the First Amendment: The Consequences of Chiles v. Salazar

On March 31, 2026, the U.S. Supreme Court issued its decision in Chiles v. Salazar, confronting whether a state may prohibit a licensed mental‑health professional from engaging in talk‑based counseling with minors. The case presented a focused but consequential question: when a state bans conversion therapy but the challenged conduct consists solely of speech between therapist and client, is the state regulating professional conduct or restricting expression in a way that may violate the First Amendment?

Kaley Chiles, who practices exclusively through talk therapy, is a licensed counselor in Colorado. According to her original complaint, filed in the United States District Court for Colorado, she begins each session by asking clients to describe their goals, and some minors seek her help in reducing unwanted same‑sex attraction, modifying certain sexual or gender‑related behaviors, or addressing distress connected to gender identity. Colorado’s 2019 Minor Conversion Therapy Law prohibits licensed professionals from engaging in any conversion therapy aimed at changing a minor’s sexual orientation or gender identity, including “efforts to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attraction or feelings toward individuals of the same sex.” At the same time, the statute expressly allows counseling that supports “identity exploration” or assists a minor “undergoing gender transition.” Chiles challenged the law only as applied to her talk‑based therapy.

Both the District Court of Colorado and the Tenth Circuit, relying on United States v. O'Brien (1968), denied a preliminary injunction, reasoning that the statute regulated professional conduct and burdened speech only incidentally. In other words, a law that doesn’t target speech itself, but only affects speech as a side effect, is constitutional if three things are true: 1) it serves an important government goal; 2) that goal has nothing to do with trying to limit free speech; and 3) the law doesn’t restrict speech any more than necessary to achieve that goal.

Applying rational basis review, both courts upheld the law. Dissenter Judge Hartz of the Tenth Circuit argued that the statute, in this context, regulated speech and required heightened scrutiny. The Supreme Court granted certiorari to resolve the division among the circuits over how the First Amendment applies to similar laws.

Writing for an 8-1 Court, Justice Gorsuch delivered an opinion reversing the lower courts’ decision, holding that strict scrutiny applied, and remanded the case to the Tenth Circuit to apply the new standard. The majority’s reasoning centered on its conclusion that, as applied to Chiles, Colorado’s law regulates speech rather than conduct. Because Chiles’s therapy consists solely of spoken communication, the statute’s operation in her case directly restricts what she can say to clients who express particular goals. For the majority, the statute’s flaw was that the law allowed therapists to express supportive or affirming views about a client’s identity or gender transition while forbidding them from engaging in conversations intended to change sexual orientation or gender identity. That inconsistency, the Court held, constituted viewpoint discrimination. The majority stressed that the state cannot avoid First Amendment scrutiny by characterizing the speech as “treatment” or “modality,” because constitutional protections do not evaporate when the government labels speech as professional activity. As Justice Gorsuch puts it: “The First Amendment is no word game. And the rights it protects cannot be renamed away or their protections nullified by mere labels.”

The Court also rejected Colorado’s argument that professional speech is a category traditionally subject to diminished First Amendment protection. Relying on National Institute of Family and Life Advocates v. Becerra (2018), the majority reaffirmed that professional speech is not treated as a special, lesser‑protected class. Although NIFLA recognized two limited circumstances in which speech regulation does not trigger strict scrutiny — mandatory disclosure of factual, noncontroversial information in commercial speech, and burdens on speech incidental to regulation of conduct — the majority held that neither applied here. Colorado’s law neither compelled factual disclosures nor regulated conduct with only incidental effects on expression. With respect to Chiles, the majority reasoned, the statute targeted speech directly and drew distinctions based on viewpoint.

Justice Kagan, joined by Justice Sotomayor, concurred in the judgment but wrote to highlight an important distinction. She agreed that Colorado’s law, as applied to talk therapy, was viewpoint‑based and therefore unconstitutional. However, she suggested that a different statute — one that was content‑based but viewpoint‑neutral — might merit a different level of scrutiny. For example, just two terms earlier, the same court declined to apply strict scrutiny to a content-based but viewpoint-neutral trademark restriction in Vidal v. Elster (2024). In Vidal, the court declined to apply strict scrutiny to the Lanham Act’s “names clause,” which prohibits the registration of a trademark that “[c]onsists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent.” In the majority opinion, Justice Thomas argued that while the “names clause” restriction was content-based since it depended on whether a mark contains a name, it was actually viewpoint-neutral because it was applied regardless of the message. For Kagan, the constitutional defect lay not merely in the regulation of speech within a therapeutic context but in the state’s choice to allow one perspective while forbidding its opposite.

Justice Jackson, the lone dissenter, offered a fundamentally different conception of both the First Amendment and the state’s authority over medical practice. She argued that the Colorado law regulates professional conduct — the provision of a harmful or ineffective medical treatment — and only incidentally burdens speech. Framing the case within a long tradition of states exercising police powers to ensure safe and competent medical care, she maintained that Planned Parenthood of Southeastern Pa. v. Casey (1992) and NIFLA both support an approach that is more deferential to the government when speech is restricted as part of regulating treatment. In her view, applying strict scrutiny in this context undermines states’ ability to enforce standards of care, particularly in fields like mental health, where treatment often consists entirely of speech. Jackson warned that the majority’s reasoning threatens a broad range of licensing and malpractice regimes, potentially shielding harmful or substandard therapeutic practices from state oversight so long as they are delivered verbally.

The Court’s decision in Chiles v. Salazar is poised to reshape the legal landscape surrounding professional speech and state regulation of therapy. By treating talk‑based therapeutic interactions as fully protected speech subject to strict scrutiny, the decision casts doubt on the enforceability of many existing conversion‑therapy bans that distinguish between supportive and change‑oriented counseling. The ruling also signals a broader shift toward more robust First Amendment protection for professionals whose practice consists largely or entirely of communication, raising questions about how states may regulate potentially harmful speech‑based treatments without engaging in viewpoint discrimination. At the same time, the Court expressly left open how content‑based but viewpoint‑neutral regulations of professional speech should be analyzed, suggesting that future litigation will further define the boundaries of states’ authority in this area.