—Rishika Verma, LL.B graduate, Campus Law Centre, University of Delhi and legal researcher working on constitutional law, human rights and questions of state regulation
The recent ruling of the U.S. Supreme Court (SCOTUS) in Chiles v. Salazar rests on the deeply contested premise that the regulation of speech can be evaluated without regard to underlying structures of power. This post engages with the reasoning of the majority, focusing on how it conceptualises the relationship between speech, conduct and harm.
The liberal construction of free speech has long rested upon the premise that speech is an exchange between autonomous individuals, whose ideas compete in a neutral marketplace. One of the enduring questions in First Amendment doctrine is where to draw the line between speech and conduct. The answer matters because it determines the intensity of constitutional scrutiny. While pure speech attracts the most demanding protection, conduct (especially professional conduct) may be regulated more freely.
The SCOTUS, in this case, resolves this question in a rather striking way. It holds that talk therapy is “speech as speech” and that any attempt to regulate it must be treated as a restriction on expression. The reasoning advanced by the Court treats the therapist and the minor as equal participants in a marketplace of ideas. The Court attempts to extend this premise – that therapeutic interaction is an exchange between formally equal speakers, requiring state neutrality – into the domain of psychotherapy, holding that Colorado’s prohibition on conversion therapy constitutes impermissible viewpoint discrimination. In doing so, the majority’s reasoning transforms a question of harm into one of neutrality and, in doing so, constitutionalises a fiction.
The Regulatory Asymmetry
At the heart of the case lies a challenge to a Colorado statute prohibiting licensed therapists from engaging in “conversion therapy” with minors, defined broadly to include attempts to change a minor’s sexual orientation or gender identity, while permitting counselling that affirms or supports identity exploration. Within this framework emerges a regulatory asymmetry, according to which a licensed therapist may engage in counselling that affirms a minor’s sexual orientation or gender identity but may not pursue therapeutic approaches to attempt to alter it. The Court, in its judgment, treats this asymmetry as constitutionally decisive and untenable. Because the law permits one set of messages while prohibiting another, it is said to “prescribe what views [the therapist] may and may not express” and therefore constitutes viewpoint discrimination, which in turn attracts strict scrutiny.
However, this conclusion is not arrived at in a vacuum. The Court makes a deliberate initial choice of classifying the activity as speech by emphasising that the therapist “does not prescribe medication” and that “all she does is speak”. This is in stark contrast to the lower courts’ ruling, which had understood Colorado’s conversion therapy ban as regulating professional conduct, with only incidental effects on speech – a characterisation which the Supreme Court rejects. The constitutional analysis that follows is therefore directly and adversely impacted by that initial classificatory choice, which means that the outcome is all but determined.
Why Classification Matters
The significance of this classification is clearly situated within the conception of the First Amendment doctrine. As the Court reiterates, laws that regulate pure speech based on its content are “presumptively unconstitutional” and trigger strict scrutiny. In addition, if the law is found to discriminate on the basis of viewpoint, it is treated as an especially egregious form of content regulation. By contrast, where the State regulates conduct, even if it involves speech, it is not ordinarily subject to this level of constitutional suspicion, and the State retains broader regulatory authority, particularly in professional domains where licensing regimes, standards of care, and malpractice frameworks have been recognised as legitimate.
The First Amendment inquiry is thus transformed from what might have been examined as a harm-based regulation of therapeutic conduct into a restriction on the content of expression. This transformation is visible in the Court’s treatment of the State’s justifications. Colorado had pointed to evidence linking conversion therapy to adverse mental health outcomes among minors, including depression, anxiety, and suicidal ideation. Yet, once the activity is classified as speech, these considerations do not occupy the core of the analysis.
Collapsing the Distinction
In treating the therapist-client interaction in conversion therapy as indistinguishable from ordinary speech, the Court ceases to acknowledge the distinction between speech and conduct in a particular professional context. The Court also reminds us that the First Amendment does not recognise professional speech as a category subject to diminished protection and that licensed professionals enjoy the same expressive rights as any other speaker. The implication here is that just because speech occurs within a regulated professional relationship, this does not automatically mean that the constitutional status is altered.
This position carries significant consequences for future perceptions of professional regulation. Such regulation has traditionally operated on the premise that certain forms of speech, like diagnosis, advice, and counselling, are integral to the provision of services and may therefore be subject to standards of care. Collapsing the distinction between these disparate forms of activity, there is now an increased risk that professional services will be under the shadow of strict scrutiny whenever the speech used can be framed as content-based. And once therapeutic interaction is treated as pure speech, any regulatory differentiation between permissible and impermissible counselling practices would simply appear as a preference between ideas.
What has essentially happened is that a legal prohibition on conversion therapy becomes indistinguishable from a law that favours one side of a public debate. The fact that the State’s regulation is grounded in concerns about harm, or directed at a specific professional context, does not alter its constitutional character. The only thing that seems to matter is that one set of messages is permitted while another is not.
Erasure of Context
The interpretation advanced by SCOTUS also exemplifies a broader tendency within liberal constitutional thought to abstract individuals from the social and institutional contexts in which they are situated. It is worth pausing to reflect on what the Court’s reasoning actually requires. For a law to count as viewpoint discrimination, the interaction between therapist and client must first be understood in a particular way: as an exchange of ideas between two speakers, where the only constitutionally relevant question is which ideas are being permitted and which are being excluded.
Describing the interaction in this stripped-down way requires setting aside a number of features that would ordinarily be relevant. The therapist is not just another speaker, but instead occupies a position of professional authority. The setting is not an open forum but a structured relationship which is governed by norms, expectations, and crucially, trust. And the client, in this case, is a minor. None of this disappears because the medium of interaction is language.
The point is not that these considerations must necessarily justify the law. It is that they do not figure in the Court’s analysis at all. Once the activity is framed as “speech as speech”, they have no place to enter, and this analysis is completely divorced from its underlying social context.
The Court appears to present the problem as one of treating competing viewpoints equally. But that neutrality is achieved only after the underlying interpersonal interaction has been recast in a way that removes the very features that complicate the dynamic, and any attempt to regulate it takes on the appearance of censorship.
The Disappearance of Harm
The most significant consequence of this new judicial framework is that it displaces the harm that the State had sought to emphasise in its justification for the law, which was grounded in evidence of the harmful effects of conversion therapy on minors. Yet, within the Court’s analysis, these concerns are subordinated to the imperative of viewpoint neutrality.
This means that even though the harm is not explicitly denied or refuted, it is treated as secondary, and the focus of the constitutional inquiry shifts away from consequences toward classification. The First Amendment, as interpreted, does not directly engage with the question of whether the regulated practice is harmful. Instead, it asks whether the regulation treats competing ideas equally.
Conclusion
Chiles can thus be best understood as a case about constitutional baselines and the reconfiguration of the relationship between speech and harm. The difficulty is that this baseline is not neutral, but a product of an analytical choice which renders certain forms of regulation constitutionally suspect. What remains less clear is whether the categories themselves can bear the weight being placed upon them. If therapeutic practices can be redescribed entirely as speech, the space for regulating them as professional conduct correspondingly narrows. Whether that is a consequence the First Amendment requires or intends, or one that follows from how the problem is framed, is a question left open for future consideration.
Suggested citation: Rishika Verma, The Fiction Of Neutrality: How the US Supreme Court Recasts Therapeutic Regulation as Speech in Chiles v. Salazar, Int’l J. Const. L. Blog, May 10, 2026, at: http://www,iconnectblog.com/the-fiction-of-neutrality-how-the-us-supreme-court-recasts-therapuetic-regulation-as-speech-in-chiles-v-salazar/