Welcome back to SCOTUS oral arguments and opinions.

We're continuing our Supreme Court oral argument previews.

Today, we're discussing one of the most anticipated cases of the October 2025 term, Chiles versus Salazar, which the court will hear arguments on October 7th.

This case generated massive interest.

We're talking about over 50amicus briefs filed on the merits alone.

50.

For context listeners, most Supreme Court cases might get a handful of amicus briefs.

To put that in perspective, Villarreal versus Texas, the focus of yesterday's podcast episode, only drew about seven amicus briefs.

So when you see 50 plus organizations weigh in, you know this touches some serious nerves.

Absolutely.

So let's break down what this case is about at its core.

We have Kaylee Chiles, a licensed counselor in Colorado, challenging the state's ban on what's called conversion therapy for minors.

Now, for our listeners who might not be familiar, conversion therapy is a loaded term.

Colorado defines it as any practice or treatment that tries to change a minor's sexual orientation or gender identity.

This can include efforts to change behaviors, expressions, or feelings related to these topics.

And here's where it gets constitutionally interesting.

Chiles argues this is a free speech violation because, and this is key, she says speech is the only tool she uses in her counseling sessions.

No physical procedures, no aversive techniques like electric shock therapy from decades past.

Just conversations.

Right.

And that's what makes this case so fascinating.

From a First Amendment perspective, the question becomes, when does speech become conduct that the government can regulate more easily?

Because if it's speech, Chiles has a much stronger constitutional argument.

Before we dive into the case details, let me read our listeners the constitutional text at the heart of this dispute.

This is from the First Amendment.

Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press or the right of the people peaceably to assemble and to petition the government for a redress of grievances.

You know, every time I hear that text read aloud, I'm struck by how straightforward it sounds.

Congress shall make no law abridging the freedom of speech.

It seems pretty absolute on its face.

Right.

And that's exactly what makes this case so fascinating.

The Founders wrote no law, not no unreasonable law or no law, except for professional regulations, just no law.

But of course, courts have never interpreted it as completely absolute.

The question in Chiles vs Salazar is really about where we draw the lines around that protection, especially when it comes to professional conversations between counselors and their clients.

Exactly.

And While the text says Congress shall make no law, the 14th Amendment extends that protection to to state and local governments, too, which is why Colorado's law is even subject to First Amendment scrutiny in the first place.

Perfect point.

So let's start with the background.

At the center of this case is Kaylee Chiles, a licensed professional counselor in Colorado Springs.

She works at a place called Deeper Stories Counseling, and she's passionate about helping young people with various mental health struggles.

And Chile's brings a particular perspective to her work.

She's a Christian counselor who often works with clients who share her faith.

Many of her clients come to her specifically because they want counseling that incorporates their religious beliefs.

Right.

So Chiles describes herself as a client directed counselor, meaning she lets her clients set their own goals rather than imposing her agenda on them.

Some of her minor clients have come to her wanting to discuss their gender identity or sexual orientation, sometimes seeking what she calls harmony with their physical body, or wanting to change certain behaviors.

And let's be really specific about what Chiles actually does in these counseling sessions.

She begins by talking with clients about their goals, objectives, and religious or spiritual beliefs, then discusses gender roles, identity, sexual attractions, root causes of desires, and behavior and values.

Throughout these conversations, she says she challenges and confronts clients to assist them in building their own sense of self, but always letting the client set their own goals rather than imposing her agenda.

And here's the crucial detail.

Chile says speech is the only tool she uses in these counseling sessions.

She's not doing any physical procedures or what she calls a aversive techniques, just conversations.

But in 2019, Colorado enacted a law that throws a wrench into this.

The state banned what it calls conversion therapy for minors, defined as any practice or treatment that attempts to change a minor's sexual orientation or gender identity, including efforts to change behaviors or expressions.

And that law applies to licensed mental health professionals like Chiles.

If she violates it, she could face fines up to $5,000 suspension, or even lose her license entirely.

So in 2022, more than three years after the law went into effect, Chiles filed what's called a pre enforcement challenge.

Basically, she sued before the state actually took any action against her, arguing the law violates her First Amendment rights.

The district court said not so fast, and denied her request for a preliminary injunction.

The judge applied what's called rational basis review, the most deferential standard, and concluded Colorado had a reasonable justification for the law.

Then a divided 10th Circuit panel affirmed that decision.

The majority treated Chiles's counseling conversations as professional conduct rather than speech, so they didn't think it deserved strong First Amendment protection.

But Judge Hartz wrote a pretty scathing dissent, calling the majority's approach remarkable and contrary to Supreme Court precedents.

He argued this was clearly speech regulation that should get strict scrutiny.

And that split is exactly why the Supreme Court granted certiorari in this case.

When appeals courts disagree about fundamental constitutional questions, that's prime territory for Supreme Court review.

So the Court granted cert on the question whether a law that censors certain conversations between counselors and their clients based on the viewpoints expressed regulates conduct or violates the Free Speech Clause.

Notice how that question is framed.

It's already suggesting this is about censoring conversations and viewpoints.

That framing tends to favor Chiles's position that this is a speech case, not a professional regulation case.

Exactly.

And with that set up, we got this massive outpouring of interest over 50amicus briefs on the merits.

For comparison, most Supreme Court cases get maybe a handful.

Villarreal vs Texas, which the court's hearing the day before on October 6, only drew seven amicus briefs.

That tells you this case touches some really deep nerves in American society.

Parental rights, LGBTQ issues, religious freedom, professional regulation, free speech.

It's a perfect storm of hot button topics.

And arguments are set for October 7th, so we're going to get answers soon.

Let's now dive into how each side is making their case.

Let's look at how the two sides frame this, because they're seeing completely different constitutional landscapes here.

And it all comes down to a fundamental what level of scrutiny should courts apply when reviewing this law?

Right.

And for our listeners who might not be familiar with these terms, scrutiny is basically how hard courts look at government restrictions.

Think of it like a road system with different speed limits and barriers.

Rational basis review is like a highway the government gets to cruise through with minimal obstacles.

They just need some reasonable justification, like having a speed limit.

Intermediate scrutiny is more like a busy road with stop signs and traffic lights.

The government has to slow down and show they have important reasons and that their approach actually works.

But strict scrutiny, that's like a road closure.

The government faces the nearly impossible task of proving they have a compelling reason and they're using the absolute, least restrictive means possible.

As one justice once said, strict scrutiny is fatal.

In fact, governments almost never survive it.

We covered this analogy and more on First Amendment levels of scrutiny in our August 19 episode called August 19 episode called Road Work.

How for 2024 cases may be reshaping First Amendment scrutiny.

Check it out.

If you're interested in more, we'll link to this episode in the show.

Notes exactly right.

There are three main Rational basis review is the most deferential.

The government just needs to show they had some reasonable justification.

Intermediate scrutiny is in the middle.

The government needs an important reason, and the law has to be substantially related to that goal.

And strict scrutiny is the toughest standard.

The government needs a compelling reason and has to use the least restrictive means possible.

And here's the which standard applies, often determines who wins the case.

Under rational basis, the government almost always wins.

Under strict scrutiny, the government almost always loses.

So let's see how each side frames this.

Chiles and her lawyers push hard for strict scrutiny.

They argue Colorado's law is what's called content based and viewpoint based discrimination.

Can you break that down?

What makes something content based versus viewpoint based?

Sure.

Content based means the government is treating speech differently based on the topic or subject matter, Chiles argues.

The law poses no bar if Chiles affirms her adolescent client's desire to change his binge eating habit, but it's illegal if she affirms that same client's goal to change any behavior associated with sexual orientation.

So, Colorado argues you can help clients change in these areas, but not in these other areas.

That's content discrimination, right?

And viewpoint discrimination is even more specific.

It's when the government allows one perspective on a topic but bans another.

Chiles argues the law allows counselors to speak messages supporting a gender transition, but forbids speech encouraging a gender dysphoric child to become comfortable with her body.

So on the same topic, how to help kids with gender dysphoria, Colorado allows one viewpoint but censors the other.

That's classic viewpoint discrimination, which is supposed to be almost always unconstitutional.

Colorado's strategy is to reframe this as professional conduct regulation, not speech regulation.

They argue they're not censoring Chile's speech.

They're regulating professional healthcare treatment that happens to involve words.

It's like the difference between saying doctors can't lie to patients versus doctors can't express certain political views.

The first is seen as professional conduct regulation, the second as speech restriction.

Right.

Colorado argues this falls under state's traditional authority to ensure healthcare professionals meet basic standards of care.

They say it's just like malpractice law.

The government can prohibit substandard treatment even even when that treatment involves words.

And if courts buy that framing, Colorado only needs to meet rational basis review.

They just have to show they had some reasonable justification for thinking conversion therapy might be harmful.

But here's where it gets interesting.

Colorado also hedges their bets.

Even though they argue for rational basis.

They also claim they can satisfy the higher standards if needed.

They say the law satisfies any level of scrutiny.

That's pretty standard legal strategy.

Argue for the easiest standard, but be prepared for the harder ones.

Just in case.

And Chiles acknowledges some middle ground, too.

She says that at a minimum, Colorado must satisfy intermediate scrutiny because the law at least creates an incidental burden on speech.

But, she argues, Colorado's case is so weak that it cannot satisfy even intermediate scrutiny.

So we've got this huge range from rational basis all the way up to strict scrutiny.

And the fascinating thing is this level of scrutiny question often determines the whole case outcome before you even get to the specific arguments about evidence or narrow tailoring.

Exactly.

Which is why both sides are fighting so hard over this threshold issue.

If Chiles wins on strict scrutiny, she's probably going to win the whole case.

If Colorado wins on rational basis, they're probably home free.

And that scrutiny battle flows directly into how each side makes their specific arguments.

Let's briefly look at how the parties frame presidential Supreme Court cases, because that's another battleground.

There are two major cases that both sides fight over.

National Institute of Family and Life Advocates versus Becerra, which we'll call NIFLA from 2018, and Reid versus Town of Gilbert from 2015.

Let's break those down.

Reid established that when the government restricts speech based on its content, like saying you can talk about topic A but not topic B, courts apply strict scrutiny.

It's a very speech protective rule.

Nifla, on the other hand, dealt with professional speech.

Specifically, the court said professional speech generally gets full First Amendment protection, but it left some wiggle room for regulating professional conduct that incidentally involves speech.

And this is where it gets fun.

Each side reads NIFLA completely differently.

Chiles says NIFLA proves that professional conversations are fully protected speech.

Colorado says NIFLA allows them to regulate substandard professional treatment even when it involves words.

Now here's something really fascinating about the timing of this case that our listeners should know about.

There was a major Supreme Court decision that came down between when these briefs were filed, free speech coalition versus Paxton on June 27th.

That's right.

So Chile's filed her brief first, then Paxton dropped.

Then Colorado filed their response brief.

And while neither side explicitly cites Paxton, Colorado's arguments mirror some interesting new developments from last term.

Can you explain what you mean by that?

Sure.

In our August 19 episode called Road Work How Four Cases May Be Reshaping First Amendment Scrutiny this podcast covered the discussion of what some scholars call partial protection theory, the idea that certain speech gets less than full First Amendment protection in specific contexts.

Like in Paxton, where the court said adults essentially don't have a First Amendment right to access pornography without showing ID first, the court carved out an exception to usual strict scrutiny rules.

Colorado makes a very similar argument here.

Even though they don't cite Paxton directly, they're essentially saying licensed professionals don't have a First Amendment right to provide substandard treatment through speech without state regulation.

It's what some call contextual constitutionalism, where the constitutional protection depends heavily on the specific context rather than applying rigid categorical rules, which is a pretty noticeable shift from traditional First Amendment analysis, where speech is speech regardless of who's speaking or in what professional context.

Let's talk about the evidence battle, because this is crucial to how the case might come out.

Colorado submitted tons of evidence from medical organizations saying conversion therapy is harmful and ineffective.

But here's the kicker.

During oral argument at the appeals court level, Colorado's lawyer admitted she knew of no studies specifically focusing on talk therapy by a licensed counselor with a willing minor seeking change on these specific issues.

That's a pretty significant concession if you're trying to justify restricting speech under strict scrutiny.

Courts generally want solid evidence of actual harm, not just theoretical concerns, and Chiles.

Points to recent developments like the Cass review from the UK and a new HHS report that questions some of the assumptions underlying these restrictions.

The narrow tailoring argument is interesting, too.

Chiles argues the law is both too broad and too narrow.

What lawyers call overinclusive and underinclusive Right.

Too broad because it bans all counseling conversations when a client seeks any change related to sexual orientation or gender identity, even voluntary exploratory conversations.

Too narrow because it only applies to licensed professionals.

Life coaches, mentors, religious counselors can still have these exact same conversations.

If the speech is really as dangerous as Colorado claims, why allow unlicensed people to engage in it?

That's the underinclusive argument.

And under strict scrutiny, that kind of inconsistency can be fatal to the government's case.

Now let's talk about what this case might mean beyond just Kaylee Chile's in Colorado.

The implications here are pretty broad.

Absolutely.

If the court sides with Chile's and applies strict scrutiny, it could call into question how states regulate professional speech more generally.

We're talking about doctors discussing treatment options, therapists providing various forms of counseling, even how states regulate what professionals can and can't say to their clients.

On the flip side, if Colorado wins with their professional conduct framing, it might give states much broader authority to regulate professional conversations as long as they can point to some public health or safety rationale.

And given the current cultural and political debates around gender identity and parental rights, this case sits right at the intersection of several major social issues.

One thing that strikes me about this case is how it reflects broader tensions about expertise versus individual choice.

Colorado is essentially saying we know what's best based on professional consensus.

Chiles is saying families and their chosen counselors should be able to decide for themselves.

That's a theme we're seeing across multiple areas of law right now, the tension between regulatory expertise and individual autonomy, especially when it comes to controversial social issues.

Looking ahead to oral arguments on October 7, what are you going to be listening for?

I'll be really interested to see how the justices react to the speech versus conduct framing.

Do they buy Colorado's argument that this is just professional regulation with incidental speech effects, or do they see it as Chile's does, direct censorship based on viewpoint?

And I'll be watching for questions about the evidence.

How much proof do the justices think Colorado needs to justify restricting these conversations?

Are they satisfied with professional organization statements, or do they want more concrete evidence of actual harm?

The narrow tailoring questions should be interesting too.

If Colorado can't explain why they allow unlicensed people to have these conversations but ban licensed professionals, and that could be a problem.

Plus, given some of the Court's recent decisions showing skepticism of broad professional speech restrictions, it'll be fascinating to see where the justices come down.

I predict that Paxton may come up during the oral arguments.

You know, this feels like one of those cases that could go either way, depending on how the justices view the core framing question.

If they see it as speech regulation, Chile's probably wins.

If they see it as professional conduct regulation, Colorado probably wins.

Given the Court's trends in this area, I think a majority of the judges will fall on Chiles side in oral arguments.

I agree, and with 50 plus amicus briefs, you know every major stakeholder group is watching this one closely.

We'll definitely be covering the oral arguments on October 7, so make sure you're subscribed.

Thanks for joining us for this deep dive into Chiles vs Salazar.

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