A Supreme Mistake
The Supreme Court’s decision in Chiles v. Salazar was clearly presented as a robust defense of the First Amendment. But its doctrinal framing and First Amendment analysis is based on a troubling error, one that risks redefining mental health care as little more than speech subject to constitutional absolutism, rather than a regulated health profession grounded in patient safety, ethics, and evidence-based practice. While the Court’s First Amendment analysis is thoroughly explored , their conceptual understanding is a supreme mistake. By collapsing therapy into “pure speech,” the Court sidesteps the clinical realities of mental health treatment and, in doing so, undermines the legitimacy of mental health professionals as healthcare providers and endangers patients.
At the heart of the decision is the Court’s insistence that talk therapy is indistinguishable from other forms of protected expression. While it is true that therapy relies on language and talk, this framing ignores the structured, clinical, and outcome-oriented nature of therapeutic practice. Indeed, while the Court’s opinion would be perfect if applied to unregulated approaches like life-coaching, the truth is that mental health counseling is not casual conversation. On the contrary, it is a trained intervention, informed by diagnostic frameworks, ethical obligations, and measurable risks. By treating therapeutic dialogue as constitutionally equivalent to ordinary speech, the Court strips away the professional context that justifies regulation in the first place. This is a significant departure from how other areas of healthcare are treated, where even purely communicative acts, like for example medical advice, are understood as part of regulated clinical conduct.
The danger in this reasoning becomes clearer when considering the role of professional standards. Mental health practitioners operate within established guidelines designed to protect patients, particularly vulnerable populations like LGBTQ+ populations and minors. These standards evolve through research, consensus, and evidence-based practices often reflecting decades of clinical observation about what causes harm. The Colorado law at issue was grounded in precisely this kind of evidence, citing increased risks of depression, anxiety, and suicidality associated with conversion therapeutic approaches. Yet the Court dismisses this framework in favor of a rigid speech analysis, effectively elevating individual provider discretion over collective medical judgment. That shift is not neutral, it privileges ideology over empiricism and weakens the safety of state regulation.
Equally concerning is the Court’s rejection of analogies to malpractice and informed consent. While the opinion correctly notes important differences in structure, it overlooks the shared principle underlying these doctrines. The idea that professional speech can and should be regulated when it directly impacts patient well-being shouldn’t be controversial. The Court’s approach creates a false dichotomy between “speech” and “treatment,” when in reality, for mental health professionals, the two are inseparable. By refusing to acknowledge this overlap, the decision weakens the regulatory tools that states rely on to prevent harm. It suggests, implicitly, that states cannot protect patients so long as harm is delivered through words rather than physical acts.
This reasoning carries broader implications. If mental health treatment is reframed primarily as protected speech, then regulatory bodies may find themselves increasingly constrained in addressing harmful or unethical practices. The decision opens the door to challenges against a wide range of professional standards, from trauma-informed care requirements to restrictions on exploitative therapeutic relationships. Such a weakening of key safeguards would risks eroding public trust. Patients seek therapy with the expectation that practitioners are bound by more than personal belief, but rather that they are guided by science, ethics, and accountability. Undermining that framework in favor of expansive speech protections destabilizes that trust.
Ultimately, the Court’s opinion reflects a failure to fully grapple with the dual identity of mental health professionals as both speakers and healthcare providers. Protecting free expression is undoubtedly vital, but therapists who support conversion therapy would be free to continue presenting their views in professional papers, public lectures, conference presentations, etc. However, when it comes to preserving the integrity of professions tasked with safeguarding human well-being states need to be able to provide evidence-based safeguards. By prioritizing the former at the expense of the latter, the decision in Chiles v. Salazar risks creating a legal landscape where the most vulnerable patients are left with fewer protections not more. This, as mentioned before is a supreme mistake, and one we are supremely disappointed in. Know that at The LegalMind Society, our peer support will always be welcoming of LGBTQ legal professionals, as all peer support programs and mental health providers should.