Regulating professionals’ speech

Buckle Up: A trip to the U.S. Supreme Court (and back)

Before you worry that this is a one-way flight, today’s post takes us from Austin to Washington D.C. and back again. It was a high-profile, hot-button week at One First Street. As you’ve no doubt heard, the Supreme Court issued opinions in one of its high profile cases—Chiles v. Salazar, which involved a First Amendment challenge to Colorado’s ban on “conversion therapy.” And on April 1, the Court heard arguments in Trump v. Barbara, the “birthright citizenship” case.

Briefly, Chiles held that Colorado’s law banning conversion therapy, as applied to Chiles’ talk therapy, regulates speech based on viewpoint.

Below, I’ll take you through each of the opinions in Chiles (Justice Gorsuch’s majority, Justice Kagan’s concurrence, and Justice Jackson’s dissent). Each section provides some thoughts, and (most importantly for you) discuss how it calls into question some of the reasoning in the Texas Supreme Court’s 2024 decision in Texas Department of Insurance v. Stonewater Roofing—a professional licensure case.

Speech vs. Conduct — A thorny problem

The regulation of professional’s speech has been a problem across the country for years. The current framework requires courts to determine whether the law regulated (1) speech, (2) conduct, or (3) speech incidental to conduct. As the Eleventh Circuit (echoing the words of the Third Circuit) has written, “the enterprise of labeling certain verbal or written communications ‘speech’ and others ‘conduct’ is unprincipled and susceptible to manipulation.” Wollschlaeger v. Governor, Fla., 848 F.3d 1293, 1308 (11th Cir. 2017) (en banc) (quoting King v. Governor of N.J., 767 F.3d 216, 228 (3d Cir. 2014)). That is, “characterizing speech as conduct is a dubious constitutional enterprise.” Otto v. City of Boca Raton, 981 F.3d 854, 865 (11th Cir. 2020) (quoting Wollschlaeger, 848 F.3d at 1308–09).

This speech versus conduct framework is highly manipulable and yields inconsistent results, particularly in politically charged cases. For example, the Eleventh Circuit decided a challenge to Florida’s law regulating registered dieticians. Del Castillo v. Secretary, Florida Department of Health, 26 F.4th 1214 (11th Cir. 2022). Those laws, unlike the conversion therapy laws in Chiles and other cases, were content neutral. Florida prohibited the unlicensed practice of “nutrition and dietetics.” Del Castillo ran a “[o]ne-on-one health coaching” business, which she described as “meeting with clients and discussing overall health and wellness, as well as goal setting.” She gave clients advice on dietary choices, exercise habits, and general lifestyle strategies. The Eleventh Circuit wormed its way out of this problem, concluding that the licensing scheme regulated professional conduct and only incidentally burdened Del Castillo’s speech. The court of appeals concluded that the statute regulated “[a]ssessing a client’s nutrition needs, conducting nutrition research, developing a nutrition care system, and integrating information from a nutrition assessment are not speech.” The court of appeals acknowledged that “[t]he profession also involves some speech—a dietician or nutritionist must get information from her clients and convey her advice and recommendations. But, to the extent the Act burdens speech, the burden is an incidental part of regulating the profession’s conduct.”

The Takeaway

Today’s post is looooong. You’re all busy. So I wanted to put some takeaway thoughts up front for those who may not make it to the end (you should!). Chiles makes clear that States cannot justify restrictions on content of a professional’s speech with the history of professional licensure regulation. As Justice Gorsuch noted, those laws typically address who can practice the profession—they spell out the qualifications necessary to hold yourself out as a doctor, a lawyer, a mental health counselor. But that history of regulation doesn’t get a state where it wants to go to regulate the content of what those professionals say. The First Amendment does not carry “far less salience” for the Nation’s millions of “medical professionals” than for everyone else. “The Constitution does not protect the right of some to speak freely; it protects the right of all.” Nor can a state simply call something the “act” of doing something or suggest that speaking is some form of “conduct” because it’s intended to achieve a particular aim (“treatment”). “Word games” are insufficient to avoid the “First Amendment’s jealous protections for the individual’s right to think and speak freely.”

Another big takeaway comes in Justice Gorsuch’s clarification of the “speech incident to conduct” doctrine. I don’t think many conceptualized it the way Justice Jackson or Colorado did—a state can regulate speech as long as most of what they’re targeting is conduct. But many courts, from federal circuit courts to the Texas Supreme Court understood it as speech directly related to any conduct. Justice Gorsuch’s opinion notes that this doctrine asks whether the law restricts speech only because it is integrally related to unlawful conduct, or whether the law restricts expressive conduct only for reasons unrelated to its content (like a broad ban on public burning, which incidentally prohibits burning a flag in protest).

The Colorado Conversion Therapy Ban

In 2019, Colorado adopted a law prohibiting licensed counselors from engaging in “conversion therapy” with minors. Conversion therapy, under the law, is defined as “any practice or treatment . . . that attempts . . . to change an individual’s sexual orientation or gender identity.” §12–245–202(3.5)(a). The law also forbids any “effor[t] to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.” But the law explicitly allows counseling that encourages “[a]cceptance, support, and understanding for the facilitation of an individual’s . . . identity exploration and development.” §12–245–202(3.5)(b)(I). The law also permits counselors to provide assistance to anyone undergoing gender transition.

To put it plainly: if a minor comes to a licensed counselor and says “I’m gay and I want to explore what that means for me,” the counselor can engage with that fully. If a minor comes in and says “I’m gay and I wish I weren’t—can you help me with that?” the counselor is forbidden from attempting to do so. The counselor is permitted to affirm one orientation toward the client’s identity and forbidden from affirming another.

Colorado’s rationale was public health: the state legislature had made findings that conversion therapy causes serious psychological harm to minors.

Kaley Chiles and the Lawsuit

Kaley Chiles is a licensed professional counselor in Colorado and a practicing Christian. She believes, as a matter of faith, that people flourish when they live consistently with their biological sex. She wants to be able to help clients who come to her seeking assistance in reducing unwanted same-sex attraction or achieving what she describes as harmony with their physical body. She filed suit arguing that Colorado’s law violated her First Amendment rights by censoring certain conversations between her and her clients based on the viewpoint she would express. As part of her as-applied challenge, Chiles emphasized that she did not prescribe any medicine, she offered no physical treatments, and she employed no aversive practices. Put simply, she talked to people.

The U.S. District Court upheld the law. The Tenth Circuit affirmed. Both courts reasoned, following a line of Ninth Circuit precedent stretching back to Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2014), that conversion therapy is a “treatment” and “treatments” are categorically conduct, and conduct can generally be regulated without implicating the First Amendment even if the conduct incidentally burdens speech. Because the law only incidentally burdened Chiles’ speech, it need only pass rational basis review. The state’s health and safety rationale was sufficient.

The Tenth Circuit was not alone—other circuits had grappled with similar laws. Washington State passed a law much like Coloardo’s, which prohibited licensed healthcare providers from “[p]erforming conversion therapy on a patient under age eighteen.” Wash. Rev. Code §18.130.180(26). Brian Tingley, a licensed therapist sued the state, arguing that the law restricted his speech based on its viewpoint and content in violation of the First Amendment. The Ninth Circuit held that the law does not regulate speech at all because counseling is a type of “medical treatment.” (This is the approach Justice Jackson would ultimately take in Chiles.) Tingley’s work therefore was only “professional conduct.” Tingley v. Ferguson, 47 F.4th 1055, 1080 (9th Cir. 2022). The Supreme Court denied certiorari with Justice Thomas dissenting.

Two courts of appeals reached different conclusions. The Eleventh Circuit concluded that nearly identical city and county ordinances regulated speech. The court concluded that the laws were content-based regulations of speech that could not survive strict scrutiny. Otto, 981 F.3d 854. Addressing a similar New Jersey law barring conversion therapy, the Third Circuit held that laws regulating talk therapy—to prevent conversion therapy—regulated speech, not conduct. King v. Governor of New Jersey, 767 F.3d 216, 224 (3d Cir. 2014), abrogated on other grounds by National Institute of Family and Life Advocates v. Becerra, 585 U. S. 755 (2018). Because the Third Circuit had adopted a “professional speech” exception, the court of appeals subjected the New Jersey regulations to intermediate scrutiny and upheld the laws as a permissible regulation on professional speech. 767 F.3d at 240.

The Majority

The eight-Justice majority concluded that Colorado’s law, as applied to Chiles, was a textbook example of viewpoint discrimination. The law prohibited Chiles’ disfavored speech while allowing speech on the same issue from therapists taking a different viewpoint.

Justice Gorsuch wrote the majority, joined by the Chief Justice and Justices Thomas, Alito, Kagan, Sotomayor, Kavanaugh, and Barrett. That is worth pausing on. We’ll come back to it.

The core of the majority’s analysis is straightforward. “Consistent with the First Amendment’s jealous protections for the individual’s right to think and speak freely, this Court has long held that laws regulating speech based on its subject matter or communicative content are presumptively unconstitutional.” Justice Gorsuch noted that, with few exceptions, content-based restrictions on speech trigger strict scrutiny.

Colorado’s law plainly discriminates based on viewpoint. A licensed counselor may encourage a minor client’s LGBTQ+ identity, may support gender transition, and may facilitate “identity exploration and development” in an affirming direction. What a counselor may not do is express or work from the viewpoint that a client’s same-sex attraction or gender identity is something to be reduced, changed, or approached with anything other than affirmation. The state has not just picked a subject matter—it has picked a side within that subject matter, permitting speech that goes one direction and forbidding speech that goes the other. That is viewpoint discrimination.

As Justice Gorsuch wrote, “Colorado may regard its policy as essential to public health and safety. Certainly, censorious governments throughout history have believed the same. But the First Amendment stands as a shield against any effort to enforce orthodoxy in thought or speech in this country.”

The majority rejected the state’s primary defense—the law covers a wide range of activities. So it regulates mostly conduct and only incidentally burdens speech. Justice Gorsuch swiftly rejected this: “The First Amendment is no word game.” The rights it secures “cannot be renamed away or their protections nullified by ‘mere labels.’” NAACP v. Button, 371 U.S. 415, 429 (1963). Justice Gorsuch pointed to two prior decisions where this theory had been offered: Cohen v. California (“Fuck the draft”) and Holder v. Humanitarian Law Project (ban on “material support”). “[T]he effort to recast speech as conduct failed in those cases—and it must here too.”

This was, after all, an as-applied challenge. That Colorado’s law may have been intended to bar aversive physical interventions does not permit it to escape heavy First Amendment scrutiny here.

Nor can the law escape scrutiny because it regulates only licensed professionals. As Justice Gorsuch wrote, “[t]he fact that the State’s viewpoint regulation targets only licensed healthcare professionals like Ms. Chiles changes nothing.” The Court had previously rejected the category of “professional speech” and the idea that such speech received less protection in NIFLA v. Becerra. Here, Justice Gorsuch took aim at Justice Jackson’s dissent—she fails to recognize that her argument runs afoul of that earlier decision:

Colorado and the dissent may believe that the First Amendment should carry ‘far less salience’ for the Nation’s millions of ‘medical professionals’ than for everyone else. They may believe that state-imposed orthodoxies in speech pose few dangers and many benefits in this field (and who knows what others). But their policy is not the First Amendment’s. The Constitution does not protect the right of some to speak freely; it protects the right of all.

The Court was equally unmoved by the “speech incident to conduct” doctrine as a safe harbor. That doctrine asks whether speech is restricted because it bears a “close causal connection” to separately unlawful conduct—or whether expressive conduct is regulated for reasons unrelated to its content. Colorado’s law does neither. Chiles’s speech doesn’t connect to any separately unlawful conduct (Colorado itself acknowledged at argument that an unlicensed life coach could legally deliver the same advice). And the law trains directly on viewpoint. The Court put it plainly: Colorado doesn’t regulate speech incident to conduct; it regulates “speech as speech.”

In a line that echoes something Justice Young said in TDI v. Stonewater, which I’ll get back to below, Justice Gorsuch calls out the logical extension of this problematic view: “If a government could reclassify talk therapy as speech incident to conduct, it might just as easily do the same for speech incident to ‘teaching or protesting.’” (Or, as Justice Young pointed to, journalism and preaching.)

The State’s Historical Traditions Argument: No Dice

Sensing the doctrinal currents, Colorado pivoted to a historical argument. Its law, the state urged, fits within a long tradition of permissible regulation of professional conduct, particularly the history of medical licensing laws, informed consent requirements, and malpractice liability.

The Court rejected all three:

1. Licensing laws traditionally address who may practice a profession, i.e., qualifications, not viewpoints. “And whatever traditional interest a State may have in ensuring a professional possesses a particular set of qualifications, that interest does not automatically entail a right to dictate a professional’s point of view.” Counselor licensing also fails as an analogy. These regulations are a relatively recent innovation (the first state counselor-licensure bill dates to 1976, according to the record). That’s not the kind of “persuasive evidence” of a long historical tradition the Court’s precedents require.

2. Informed consent laws regulate speech incidentally to separate physical conduct (a procedure that, without consent, amounts to battery) and typically require disclosure of factual, uncontroversial information only. Colorado’s law does neither.

3. Malpractice liability attaches only on proof of injury caused by a breach of duty. That level of “exacting proof,” the Court has recognized, provides “breathing room for protected speech.” Colorado’s law, by contrast, threatens fines, probation, and loss of license simply for expressing a disfavored view—and doesn’t allow the client to consent their way out of the restriction.

The majority also offered a historical hypothetical that cuts to the heart of the dissent’s position. Not long ago, many medical experts, including the American Psychiatric Association, considered homosexuality a mental disorder. Under the dissent’s framework, a law from that era prohibiting counselors from affirming their clients’ homosexuality would have been subject only to rational-basis review and likely upheld. “Today, tomorrow, and forever,” the majority observed, any professional speech that deviates from prevailing medical consensus could be silenced with relative ease under Colorado’s view. And a cite to Buck v. Bell here—however brief—suggests the majority understands what deference to “current medical consensus” has sometimes meant in practice.

The Court did not hold that Colorado’s law is unconstitutional. Instead, it remanded the case with instructions to apply strict scrutiny—to ask whether the law is narrowly tailored to serve a compelling governmental interest. The majority’s opinion leaves little doubt about how it expects that analysis to come out, but it stopped short of declaring the law dead on arrival.

The Kagan Concurrence: A Content Neutral Approach?

Justice Kagan, joined by Justice Sotomayor, concurred in the majority opinion but wrote separately to make a point about content neutral laws.

She agreed that this case was easy—a “textbook” example of viewpoint discrimination. Some commentators have condemned the decision. But Justice Kagan recognizes a point they overlook: the Court’s decision protects patients in conservative states, as well.

[I]t does not matter what the State’s preferred side is. Consider a hypothetical law that is the mirror image of Colorado’s. Instead of barring talk therapy designed to change a minor’s sexual orientation or gender identity, this law bars therapy affirming those things. As Ms. Chiles readily acknowledges, the First Amendment would apply in the identical way.

Free speech is not a one-way door. Indeed, the Texas AG issued an opinion that the state’s ban on gender transition therapies includes professionals who cannot prescribe or perform any procedures, including licensed professional counselors and marriage and family therapists. While the state refused to comment whether the law applied to talk therapy because of the ongoing litigation in Chiles, its intent was sweep as broadly as possible. Justice Kagan’s concurrence highlights that sweeping in pure gender-affirming talk therapy could run afoul of the First Amendment.

Justice Kagan wrote separately to flag the lurking question: What if Colorado, or some other state, went back to the drawing board and enacted a content-based but viewpoint-neutral law?

Imagine Colorado amended its statute to prohibit licensed counselors from any attempts to change a minor’s sexual orientation or gender identity in either direction—no affirming, no discouraging, no counseling aimed at influencing the client’s sexuality or gender at all. That would be content-based (it singles out a subject matter) but viewpoint-neutral (it doesn’t pick a side). Justice Kagan noted that “when a law, though based on content, raises no real concern that the government is censoring disfavored ideas—[the Court has] not infrequently ‘relax[ed] our guard.’”

Justice Kagan goes on to explain:

[O]ur precedents respecting those laws recognize complexity and nuance. We apply our most demanding standard when there is any “realistic pos- sibility that official suppression of ideas is afoot”—when, that is, a (merely) content-based law may reasonably be thought to pose the dangers that viewpoint-based laws al- ways do. Davenport v. Washington Ed. Assn., 551 U. S. 177, 189 (2007); see supra, at 1–2. But when that is not the case—when a law, though based on content, raises no real concern that the government is censoring disfavored ideas—then we have not infrequently “relax[ed] our guard.”

That’s fair to say in some circumstances, but it doesn’t seem like even a content-neutral law here would fall within those circumstances the Court relaxes its guard. For example, Justice Kagan cites Vidal v. Elster, a content-based trademark restriction. That case dealt with a provision of the Lanham Act regarding trademarks using the name of living individuals without their consent. This was a man seeking to trademark a slogan with President Trump’s name—a third party was hoping to profit off the name of another person and protect his economic enterprise.

Justice Kagan suggests that perhaps the regulation of medical professionals’ speech as in her hypothetical above a content-neutral ban might be akin to those the dissent cites—state laws that require medical professionals “make every reasonable effort to promote the welfare, autonomy and best interests of ” the client. Ga. Comp. Rules & Regs., Rule 135–7–.01(1) (2026); see Ind. Admin. Code, tit. 839, §1–§5–5(1) (2026); Conn. Gen. Stat. §17a–542 (requiring “[h]umane and dignified treatment”) (2025); Ala. Admin. Code Rule 255–X–11–.01 (Supp. 2016) (requiring that the professional “assure client welfare and protection” during medical care). I’m not sure I see it. Indeed, the dissent may be right that some of these laws are now harder to enforce.

But, as with all things involving the First Amendment and tiered scrutiny (much like the Second Amendment before Bruen), the inquiry can be shaped and the standards relaxed as the Court wants. So they can pretty much find their way to whatever decision they would like.

Justice Kagan noted that the Court had no occasion to decide how to treat such a law.

In other words: in Justice Kagan’s view, Colorado may have lost this case by playing favorites.

Justice Jackson’s Dissent: Alone and ignoring NIFLA?

Justice Jackson wrote alone—35 pages from which she read excerpts from the bench.

The questions at oral argument foreshadowed this opinion quite well. You can’t always tell where a judge is going from what they ask at argument. But, aside from the fact that it seemed unlikely Justice Jackson would ever tolerate this law, her questions focused on the “word game” of trying to reclassify Chiles’ speech as “treatment.”

Justice Jackson: Can I get you to address whether or not the provision of therapy and the kind of therapy that your client practices is a medical treatment?

I mean, I understood the sort of basis of the Tenth Circuit’s view to be that she’s a licensed professional who is providing medical treatment, but your answers to the Chief Justice and Justice Kagan suggested that you’re putting the practice of medicine on one side and her therapy on another.

So I’m just unclear as to whether or not you’re categorizing her therapy as a medical treatment.

Chiles’ lawyer ably responded that it doesn’t matter what you call something—it matters only whether what you are regulating is “speech” or “conduct.”

Mr. Chiles: I -- I don’t believe that we are categorizing that -- 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.

Unfortunately, the difference didn’t seem to compute. Justice Jackson went on to suggest that she didn’t understand why the law would treat differently Doctor A who was administering medication to address the condition and Doctor B was doing talk therapy.

Justice 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 -- 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. And I guess, under your theory, those two scenarios are sufficiently different from a constitutional perspective that one could be allowed and the other not?

Indeed, it’s not odd at all—one is conduct and the other is speech. “Word games”—calling both “treatment”—don’t change the significance of the First Amendment when it comes to speech.

Justice Jackson’s opinion adopted exactly the approach her questions at oral argument telegraphed. Her dissent rests on a framework she calls “professional medical speech.” This word game already raises red flags. The idea that “professional speech” is a category deserving of lesser protection was explicitly rejected in NIFLA. And while Justice Jackson seems to recognize that NIFLA rejected that category which courts had held was deserving of lesser protection. But her opinion is riddled with undertones that suggest she’s fallen into the same trap.

Justice Jackson suggests that this regulation doesn’t apply to “all speech uttered by professionals.” “Rather, it is speech by healthcare professionals made as part of their provision of medical care to patients.” Chiles is free to write and speak and try to change the world that way. But speech that is uttered within the bounds of the professional-patient relationship is entirely different, in her view. “[P]rofessional medical speech is speech within the healthcare provider’s area of expertise as a member of the medical community.” And, finally, she says this is speech made for the purpose of “providing medical care.” It’s little surprise this characterization and justification did not sway even her two liberal colleagues. This would do exactly what courts that adopted a categorical exception for “professional speech” wanted.

My first read left me feeling like Justice Jackson ignores NIFLA while telling us it’s all going to be ok because legislatures can change the laws when medical consensus shifts.

In support of her opinion, Justice Jackson relies heavily on medical malpractice liability. This issue got attention at oral argument. For example, Justice Barrett asked whether Chiles’ position threatened the viability of medical malpractice lawsuits. Chiles’ counsel assured the Court that her argument did not. He suggested that the high bar and the elements of medical malpractice were sufficient to protect Chiles and others. But Justice Jackson was unsatisfied.

Her dissent is rooted in the idea that the standard of care is a form of viewpoint regulation—and always has been. When a state establishes that a particular treatment is below the standard of care, or harmful, or prohibited, it necessarily restricts what a medical professional can say and do on the basis of the viewpoint embodied in that treatment. For example, the government conceded at oral argument that it would likely be permissible for the state to prevent dieticians, through the standard of care, from telling an anorexic patient to eat less.

The majority’s counter is that this framing proves too much—that virtually any regulation of professional speech could be recast as a “standard of care” question, swallowing the First Amendment whole in the professional context.

And, again, it’s not a one-way door. Her logic means that Texas, which has decided to ban transgender gender-affirming care, could restrict the viewpoint of talk therapists within the state. Perhaps, she is ok with that. But, given her dissent in Skrmetti, I doubt she would be. Perhaps her retort would be that Texas is wrong on the standard of care. But that isn’t an issue set at the national level—states regulate the practice of medicine.

The 8-1 vote is worth returning to. Eight justices—including two of the Court’s most liberal members—concluded that Colorado crossed a constitutional line. Whatever you think of the policy merits of conversion therapy bans, the constitutional infirmity of this particular law was apparently clear enough to draw near-unanimity, including from Justice Sotomayor who is typically in dissent on “culture war” issues like this one.

Back to Austin: What does this all mean for Texas lawyers?

This brings me to the connection that makes this week interesting for those of us who follow both the Texas Supreme Court and One First Street.

In June 2024—almost two years before Chiles—the Texas Supreme Court decided TDI v. Stonewater Roofing. The facts are quite different (and far more mundane): Stonewater is a roofing company who wanted to offer services that could run afoul of the state’s law regulating licensed public adjusters. The law at issue regulates what a roofer working on a damaged house can say to an insurance company—no one but a licensed public adjuster can negotiate with an insurance company on behalf of an insured. Despite this giant chasm, the legal issues are in the same neighborhood.

Stonewater was in the business of helping its customers navigate property insurance claims. It would assess damage, communicate with insurers, negotiate settlements, and generally act as the homeowner’s advocate in the claims process. Texas law requires anyone engaging in that work to hold a public adjuster’s license. Stonewater didn’t have one. The Texas Department of Insurance came after them, and Stonewater responded by arguing that the public adjuster licensing statute was an unconstitutional restriction on their speech.

The Texas Supreme Court held, unanimously, that Stonewater was wrong: the statute regulates conduct (acting in a representative capacity), not speech. Any speech involved is “incidental” to that nonexpressive, commercial conduct. The regulation is therefore constitutional. This has always struck me as wrong. By this logic, the government could reclassify any number of things to simply say “you’re doing it on behalf of another, so you can’t say that.”

Stonewater would go the other way under Chiles, right? It sounds like it adopts a theory that Justice Gorsuch rejected. The Texas Supreme Court said “Sections 4102.051(a) and 4102.163(a) of the Insurance Code are conventional licensing regulations that are triggered by the role a person plays in a nonexpressive commercial transaction, not what any person may or may not say.” But, as Justice Gorsuch noted, professional licensure is usually about regulating who enters the profession, not what they say within the profession. A recent Fifteenth Court of Appeals case about whether a person with certain criminal convictions can become a licensed mental health counselor is more typical of regulations “within the conventional licensing regulation.” Stonewater also adopts a view that the Texas Supreme Court treated the First Amendment like a “word game.” Remember, “t[]he First Amendment is no word game, and “the exercise of constitutional rights” cannot be circumscribed “by mere labels.” (“[Chiles] speech does not become “conduct” just because a government says so or because it may be described as a “treatment” or “therapeutic modality.”).

The more interesting discussion in Stonewater for today wasn’t in the majority opinion. It was in Justice Young’s concurrence.

Justice Young’s Concurrence: First Amendment Jurisprudence is Flawed

Justice Young joined the majority fully, but wrote separately to make clear his basis for joining the majority. His point was essentially this: the majority reached what he believed was the right answer, but it got there by emphasizing that the statutes regulate “agency capacity”—a non-speech concept—rather than speech itself. Justice Young suggested that framing gives too much work to a relatively thin distinction. Put simply, the capacity framing is a crutch. As I noted above, he wrote that “[a]gency, in my view, is therefore all but irrelevant to the First Amendment analysis—except that it is too easily looked upon to abridge First-Amendment rights.”

Instead, Justice Young viewed this regulation as prohibiting speech incidental to conduct, much the way the 11^th Circuit did with the regulation of dieticians in Del Castillo (the law regulated all the things the dietician did before getting to communicating the diet plan to the client): “Because of the Court’s narrow statutory construction, any speech that that the statute touches is only incidental to conduct, the regulation of which is of even less concern to the First Amendment than it is to the due-process clause.”

Importantly, he flagged that there are going to be cases where the conduct-versus-speech line is genuinely hard to draw, and that first-amendment doctrine as it currently exists does not give courts a reliable framework for drawing it.

Justice Young “emphasize[d] that, to benefit from today’s holding, it is not enough for the State to call something conduct. The State wins today despite, not because of, its overweening theory of what constitutes ‘conduct’ that it may subject to professional regulation.” He also recognized the danger in the speech-conduct dichotomy. As I noted above, Justice Gorsuch points to “speech incident to teaching” or “speech incident to protesting.”

Justice Young wrote the following:

Imagine licensing not just the structural engineer who will ensure that a new cathedral does not collapse, but also the bishop who will preach in it. Or not just the truck driver who transports stacks of hot-off-the-press newspapers, but the journalists who write the articles printed in them. Likewise for poets, painters, political consultants, and on and on. Would such licenses satisfy the free-speech clause (and perhaps other clauses)?

Chiles lands exactly in the bucket of cases that Justice Young identifies—speech is the essence of the job. As applied to Chiles, the Colorado law regulates nothing but conversation—words spoken in a therapeutic context between a counselor and a client. There is no physical conduct, that the speech is “incidental” to—no procedure is performed for which factual information must be given and consent obtained to avoid being an “assault.” The speech is the service. The very essence of talk therapy is speaking, much like journalism.

Justice Young also flagged the significant problems with tiered scrutiny. He noted that the tiers, much like the “speech-conduct” divide, is easily manipulable. It also lacks “[any] basis in the text or original meaning of the Constitution.” Rather, “[t]hey emerged as a political solution invented by the justices to navigate internal factions at the Supreme Court, and they do not withstand critical analysis even on their own terms.”

So would Stonewater turn out the same today? With the clarity Justice Gorsuch provides about the “speech-incidental-conduct” doctrine, it might not.

The way Justice Gorsuch conceptualizes speech incident to conduct is much different than Justice Young’s concurrence (along with the Eleventh Circuit judges who decided Del Castillo and many others). Under Justice Gorsuch’s understanding of the Supreme Court’s doctrine, the common misapplication of “speech incidental to conduct” is to mean speech incidentally related to any conduct. This is different (and in my view much less egregious) than Justice Jackson’s and Colorado’s desired application, which asks courts to look at what a law primarily regulates, i.e., the speech doesn’t need to be related to subsequent conduct. The law simply needs to primarily regulate conduct.

As Justice Gorsuch noted in Chiles, the Court’s speech-incident-to-conduct doctrine asks whether the law restricts speech only because it is integrally related to unlawful conduct, or whether the law restricts expressive conduct only for reasons unrelated to its content.

Illustrative of the first category, this Court has held that strict scrutiny does not apply to regulations aimed at speech promoting the sale of contraband because such speech is often bound up with traditional criminal conduct. United States v. Williams, 553 U. S. 285, 297–298 (2008); see also Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 502 (1949); Brief for Eugene Volokh as Amicus Curiae 3–11. Illustrative of the second category, “an ordinance against outdoor fires” would not require a court to apply strict scrutiny even if it prohibited burning a flag in protest, because the law forbids conduct without regard to the message it may convey.

Informed consent laws fall under the former “because they regulate speech only incident to separate physical conduct that would, ‘without [the] patient’s consent,’ amount to ‘an assault.’”

Perhaps most importantly, and the enduring message of Justice Young’s concurrence, is that existing First Amendment doctrine is poorly equipped to handle legitimate public-licensing regulation that affects speech or expressive conduct.

As it stands today, the relevant First Amendment doctrine is a mind-numbing morass of tangled precedents developed in contexts very different from professional licensing. There is just enough of a whiff of original meaning to disguise a stew of ad hoc conclusions—the way that heavy sauces can fool diners into enjoying meat that sat for hours out in the sun.

Justice Young’s concurrence was a thoughtful warning that the Court’s professional-speech jurisprudence was going to generate hard cases that existing doctrine couldn’t cleanly resolve. Chiles is those cases, delivered on schedule.

What Happens Next?

The broader doctrinal issues remain unresolved. The Court has now emphatically rejected both the “professional speech” carve-out and the reflexive “it’s conduct, not speech” move. But it still employs the murky standards of “conduct vs. speech” and tiered scrutiny, which find “no basis in the text or original meaning of the Constitution. They emerged as a political solution invented by the justices to navigate internal factions at the Supreme Court, and they do not withstand critical analysis even on their own terms.” Justice Young’s concern—that doctrine is poorly equipped for this territory—remains as valid today as when he wrote it. We’ll see how things evolve.

Thanks for flying 14th & Colorado. Until next time . . . .