Supreme Court Decides Chiles v. Salazar

On March 31, 2026, the U.S. Supreme Court decided Chiles v. Salazar, No. 24-539, holding that a First Amendment challenge to a law that regulates talk therapy based on the counselor’s viewpoint triggers strict scrutiny, requiring the government to prove its restriction is narrowly tailored to serve compelling state interests.

A Colorado mental-health counselor who offers talk therapy brought a First Amendment challenge to a Colorado law prohibiting licensed counselors from engaging in “conversion therapy” with minors. Colo. Rev. Stat. § 12-245-224(1)(t)(V) (2025). Generally, the Colorado law bans “any practice or treatment” “to change an individual’s sexual orientation or gender identity,” and any “effor[t] to change” certain “behaviors or gender expressions.” Colo. Rev. Stat. § 12-245-202(3.5)(a). The Colorado law, however, allows counselors to facilitate “identity exploration and development,” and to provide “[a]ssistance to a person undergoing a gender transition.” Colo. Rev. Stat. § 12-245-202(3.5)(b). The counselor sought a preliminary injunction to enjoin enforcement of the law as applied to her talk therapy practice, which involves only spoken word, based on a violation of her First Amendment right to free speech.

The Colorado District Court and the Tenth Circuit denied preliminary injunctive relief. In so doing, the courts reviewed the Colorado law under rational basis review, which requires the state “to show merely that its law is rationally related to a legitimate government interest.” The courts reasoned that rational basis review applied because the purpose of the law was to regulate professional conduct, and the law regulated speech only incidentally.

The Supreme Court reversed and remanded. The Court reasoned that: (1) the counselor was engaged in therapy that involved only the “spoken word,” which is “perhaps the quintessential form of protected speech” under the First Amendment; and (2) the Colorado law seeks to regulate the content of the counselor’s speech, regardless of whether that speech could be called “conduct” or “treatment.” The Court emphasized that, as applied to the counselor, the Colorado law amounts to a viewpoint restriction of her speech because it “prescrib[es] what views she may and may not express.” And because viewpoint restrictions “represent ‘an egregious form of content discrimination’ where First Amendment concerns are at their most ‘blatant,’” strict scrutiny applies to review the counselor’s First Amendment challenge.

The Court explained that when analyzing whether a law regulates speech incident to conduct, the “focus lies” on “whether the law in question 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.” The Court reasoned that the Colorado law fails both speech-incident-to-conduct tests because: (1) there is no “close causal connection to some separately unlawful conduct like a traditional crime”; and (2) the Colorado law does not seek to regulate speech “for reasons unrelated to its content.” Rather, the law “trains directly on the content” of the counselor’s speech and “permits her to express some viewpoints and not others.” In sum, it “regulates ‘speech as speech.’”

Justice Gorsuch delivered the opinion of the Court, in which Chief Justice Roberts and Justices Thomas, Alito, Sotomayor, Kagan, Kavanaugh, and Barrett joined. Justice Kagan filed a concurring opinion, in which Justice Sotomayor joined. Justice Jackson filed a dissenting opinion.