Is counseling entitled to protection under the First Amendment?

In Chiles v. Salazar, the U.S. Supreme Court has agreed to address what therapists may say to their patients—specifically, whether counseling is “conduct” or “speech,” and whether counseling is entitled to protection under the First Amendment and the Free Exercise Clause. Kaley Chiles, a Colorado-licensed professional counselor, is challenging a state restriction that bars her from practicing conversion therapy—counseling minors to change their “sexual orientation or gender identity, even if clients have requested wanting to change their behaviors or gender expressions,” as stated in her petition. Colorado law prohibits mental health care providers from engaging in conversion therapy with patients younger than age 18, based on “overwhelming evidence that efforts to change a child’s sexual orientation or gender identity are unsafe and ineffective.”

But Chiles is fighting to continue practicing conversion therapy, calling it freedom of speech rather than conduct, which can be regulated and has no First Amendment protection. She asserts that state governments “do not have a freer hand to regulate speech simply because the speaker is ‘licensed’ or giving ‘specialized advice.’”

In fact, there’s no clear consensus among the circuit courts on First Amendment protections regarding professional speech. Some have held that there is a continuum: At one end of the spectrum, when the therapist is speaking in public, they have all the rights that free speech gives to any other citizen with the strongest protections possible. At the other end, when a professional engages in treatment or professional counseling, this is considered conduct—not expressive speech—and has no protection. In the middle of the continuum, when a professional engages in speech as part of their professional capacity, there may be some, but not full, protection.

In past cases, the U.S. Supreme Court did not agree with the concept of a continuum and has held that there is only speech and conduct. However, in taking up the Chiles case, the court noted it implicates a “question of national importance” and “has divided the Courts of Appeals and strikes at the heart of the First Amendment.” Some courts have opined counseling conversations are speech, and that speech protections are the same even when someone is speaking in a professional capacity. Other courts have insisted that health professionals must provide treatment, or conduct, consistent with the standard of care as regulated by the government.

How the Supreme Court decides Chiles has broad implications for mental health professionals beyond whether the prohibition of conversion therapy for minors is upheld. One area of concern is the potential fallout from Dobbs v. Jackson Women’s Health Organization, overturning Roe v. Wade. Relying on Dobbs, Texas does not allow abortions for rape or incest. Therapists who counsel pregnant patients who seek counseling to discuss the trauma caused by such harmful events and whether to end the pregnancy could be liable depending on how professional speech is characterized after Chiles.

Chiles will examine the important question of regulation of professional speech and the balance between state regulatory power and free speech rights within professional contexts. State psychological associations working in tandem with APA can provide legislators with evidence-based research as guidance for drafting sound policies and standards of care in therapy.