If Talk Therapy Is Speech, Can Parental Consent Still Be Required?
The Supreme Court's recent decision in Chiles v. Salazar insists talk therapy is like any other form of speech, but this raises some big questions.
On March 31, the United States Supreme Court decided the case of Chiles v. Salazar, in which a talk therapist was challenging a Colorado law that prohibited her from providing conversion therapy to minors. Chiles v. Salazar, No. 24–539, slip op. (U.S. Mar. 31, 2026).
The court held in favor of Kaley Chiles, holding, essentially, that the law infringed on her First Amendment right to freedom of speech.1 In this post, I’ll recap the decision before homing in on some newly opened questions I plan to address in a later post.2
States May Not Prohibit a Talk Therapist from Providing Conversion Therapy to Minors
In 2019, Colorado adopted a law prohibiting licensed counselors from engaging in conversion therapy with individuals under 18 years of age, where conversion therapy refers to “any practice or treatment…that attempts…to change an individual’s sexual orientation or gender identity”. See CO Rev Stat § 12-245-224 (2024). In non-legal terms, “conversion therapy” usually refers to any attempt to change a person’s gender or sexual identity to align with heterosexual and cisgender norms, e.g. trying to make a gay person become straight or a trans person become cis.
Kaley Chiles is a talk therapist in Colorado. The only form of treatment she provides is talking to patients. At issue is whether the Colorado law violates Chiles’s First Amendment right to speak to her minor clients. The United States Supreme Court held (more or less, again, see Footnote 1 to this post) that it did.
Justice Gorsuch wrote the opinion of the court in which every justice other than Justice Jackson joined, making it an 8-1 decision. Justice Kagan filed a concurrence joined by Justice Sotomayor. Justice Jackson dissented.
Speech incident to conduct, reviewed
The majority opinion spends much of its time on what could work as a first-year law school lecture on speech incident to conduct.
The simplest argument that the court addresses is rather weak on its face. Colorado points out that the law prohibits a wide range of conduct, most of which isn’t speech, but some of which is speech. They claim, essentially, that when you weigh all of this, the burden on speech is “incidental” to the larger operation of the law.
It’s easy to see why this argument fails. A law could theoretically list 1000 non-speech actions that are prohibited in a public park, but if the 1001st is “depicting a public official in a manner resembling the Mad Hatter”, then that prohibition will be struck down as violating the First Amendment. Or, less facetiously, the majority points to Cohen v. California, 403 U. S. 15 (1971) (wearing a ‘Fuck the Draft’ jacket can’t be prosecuted as disturbing the peace) and Holder v. Humanitarian Law Project, 561 U. S. 1 (2010) (lawyers providing legal advice can’t be prosecuted for providing material support to terrorists).
Both the ‘Fuck the Draft’ jacket in Cohen and the legal advice in Holder are quintessential examples of speech. And laws that seek to regulate that speech are subject to strict scrutiny, regardless of whether the laws also ban lots of non-speech conduct. So here, the law bans lots of non-speech conduct, but that doesn’t earn it a pass on the instances where it regulates speech. Chiles, slip op. at 15 (“All Ms. Chiles does is speak—and, as far as she is concerned, speech is all Colorado seeks to regulate.”)
A slightly more nuanced argument in support of the Colorado law is that it is regulating conduct that just so happens to come in the form of speech, or an activity that just so happens to involve speaking. This is a path the court is wholly uninterested in wandering down:
“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.’ [Otto v. Boca Raton, 981 F. 3d 854 at 865]. ‘[B]oth are activities, after all.’ Ibid.” Chiles, slip op. at 16.
An analogy to fire bans and flag burning likewise fails. Colorado might want the court to treat the law as applied to talk therapy analogously to a fire ban applied to the burning of a flag. It’s clear as day that the government has broad powers to regulate fire-starting, and one cannot evade those restrictions simply by claiming the fire is speech (e.g. by burning a flag in protest). Sorrell v. IMS Health Inc., 564 U. S. 552, 567 (2011)
Unfortunately for Colorado, and crucial to understanding how the majority sees this case—Chiles wasn’t starting fires. Her only physical action was verbally speaking words. Simple as it may seem, this is really the key for the majority—there’s no conduct other than speech at issue in this case. See Chiles, slip op. at 17.
I won’t have time to address Justice Jackson’s dissent which, as noted above, was not joined by any members of the court. I will briefly return to the concurrence, though, as it sheds at least a sliver of light on the question I want to highlight today.
Why isn’t Chiles v. Salazar about speech to kids?
Notably, neither the opinion of the court, nor the concurrence, nor the dissent focused on the fact that the law at issue regulated speech to kids, specifically.
One reason the posture of this issue vis-a-vis kids didn’t get much attention from the court is that it is relatively well-settled that while states can regulate or prohibit the distribution of obscene materials to children, states cannot restrict protected speech from being disseminated to children solely on the grounds that children are different:
“Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.” Brown, et al. v. Entertainment Merchants Assn. et al., 564 U.S. 786 (2011) (quoting Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975)).
And so, in this case, focusing on the children at issue would have put the cart before the horse—the proponents of the Colorado law first had to make the argument that there was no issue of protected speech here, an argument that they lost.
But there is one other interesting connection between these two cases. Here’s a quote from a dissent in Brown:
Specifically, I am sure that the founding generation would not have understood “the freedom of speech” to include a right to speak to children without going through their parents. As a consequence, I do not believe that laws limiting such speech—for example, by requiring parental consent to speak to a minor—“abridg[e] the freedom of speech” within the original meaning of the First Amendment. Brown, 564 U.S. at 835 (2011) (Thomas, J., dissenting)
Now, in case the mention of the founding generation didn’t give it away by the time you got to the citation, that’s a quote from Justice Clarence Thomas.
Justice Thomas was in the majority on Chiles, which puts him in the potentially awkward position of arguing in favor of restricting speech to kids in one case (Brown) and voting against restrictions on speech to kids in another (Chiles).
The key distinction here is, presumably, where the parents sit in all this. In Brown, Justice Thomas would have interpreted the violent video game law through a parental consent lens—parents can always go buy these games for their kids, so the law essentially prohibits selling these games to kids without parental consent, his argument suggests.
In Chiles, however, the law was not specific enough to raise the issue of parental consent (more on this below). Instead, the law was broad enough to cover a situation in which a parent and child both consented. It is likely, for example, that Justice Thomas would find a law prohibiting parents from playing violent video games with their kids to be unconstitutional.
To be sure, there is plenty of room for future cases to put Justice Thomas in more of a logistical bind. For example, a state might prohibit the distribution of literature on conversion therapy to minors. Since a parent can always acquire the literature and provide it to a child, this looks a lot like Brown, and it would likely behoove Justice Thomas to distinguish such a case from either Brown or Chiles.
What about parental consent in the talk therapy setting?
A future case might more directly raise the issue of parental consent in the talk therapy setting, too.
The nature of parental consent is at issue in Brown, and Justice Scalia addresses Justice Thomas’s understanding of the matter in Footnote 3 of his majority opinion:
Most of [Justice Thomas’s] dissent is devoted to the proposition that parents have traditionally had the power to control what their children hear and say. This is true enough. And it perhaps follows from this that the state has the power to enforce parental prohibitions—to require, for example, that the promoters of a rock concert exclude those minors whose parents have advised the promoters that their children are forbidden to attend. Brown, 564 U.S. at 795 n.3 (2011).
Justice Thomas would allow a state to presume parents do not consent to children receiving certain speech, and thus allow a state to prohibit children from receiving that speech absent an affirmative showing of consent by a parent.
The majority would not only require first an affirmative objection by a parent, but even in the presence of such an objection would only “perhaps” allow states to enforce the parental objection.
Combining the lessons of Brown and Chiles then reveals two more now-open questions:
May a state require parental consent for talk therapy, or specific forms thereof?
May a state require providers to comply with parent prohibitions on talk therapy, or specific forms thereof?
A general rule in the medical field is that “Parents should generally be recognized as the appropriate ethical and legal surrogate medical decision-makers for their children and adolescents.” Pediatrics (2016, Reaffirmed January 2023) 138 (2): e20161484. Available here.
States vary in the age at which they define minors as having the ability to consent to medical and mental health treatment, but there’s little question that parental consent can be required for the vast majority of non-emergency treatments. This would, for the moment at least, usually include talk therapy.
But the Chiles framing of talk therapy as speech certainly makes Brown relevant in potential future cases:
If talk therapy is just protected speech, then it’s not clear that Brown allows states to require parental consent before a minor can engage in talk therapy.
If talk therapy is some sort of special speech—a conclusion that seems to be rejected in Chiles—it’s possible parental consent could be required, in line with generally accepted medical ethics (and Justice Thomas’s perspective in Brown).
Footnote 3 of Brown leaves open the possibility that even if talk therapy is protected speech, a provider could still be prohibited from providing talk therapy over a parent’s known objection.
These three topics merit further inquiry that I plan to provide in a followup to this post. As a preface to that, it’s worth looking briefly at the concurrence from Justice Kagan.
Concurrence to the rescue?
In many cases, we look to a concurrence to sort of shed some alternative light on the majority opinion or to enlighten us as to a justice’s thinking on a matter not properly before the court. This is particularly the case where the justice who penned the concurrence also joined the majority opinion—as here.
In her concurrence, Justice Kagan addresses a matter just beyond the scope of the majority opinion. The majority opinion held that the Colorado law engaged in unconstitutional viewpoint discrimination—Chiles was allowed to speak openly with clients on matters of sexuality, except if she wanted to espouse views in favor of conversion therapy.
Justice Kagan thinks this viewpoint discrimination is key to the case, critically noting that a viewpoint neutral law (i.e. one that regulated talk therapist speech without regard to the viewpoint espoused by that speech) might be permissible:
Once again, because the State has suppressed one side of a debate, while aiding the other, the constitutional issue is straightforward. It would, however, be less so if the law under review was content based but viewpoint neutral. Chiles, slip op. concurrence at 3 (Kagan, J., concurring).
She further reminds us that “Medical care typically involves speech, so the regulation of medical care (which is, of course, pervasive) may involve speech restrictions.” Chiles, slip op. concurrence at 4 (Kagan, J., concurring).
Immediately, I’d point to a law that required, for example, parental consent before a talk therapist engages in therapy with a minor, as a law that is content-based, not viewpoint-based, and thus one that Justice Kagan might analyze differently. One could even hone things a bit and consider a law that restricted (either contingent on parental consent or just altogether) a talk therapist from discussing matters of sexuality and gender identity with minor children.
The bottom line for today, though, is that nothing in the majority opinion shines a light on this corner of the dispute. As discussed in the first part of this post, the majority, responding to the arguments of Colorado and the dissent, hits hard on the simple point that talk therapy is speech. See, e.g., Chiles, slip op. at 17 (Colorado does not regulate speech incident to conduct; it regulates “speech as speech.”).
The majority also takes the opportunity to distinguish other cases involving speech in a medical context. The Colorado law is not like informed-consent laws because informed consent laws “regulate speech only incident to separate physical conduct that would, without the patient’s consent, amount to an assault.” Chiles, slip op. at 21 (internal quotation marks omitted, emphasis added).
To be clear, Justice Kagan does not misread the majority opinion. That opinion frames the issue very clearly as one of viewpoint discrimination, and so it makes sense that Justice Kagan joined it.
But there’s clearly a gap between Justice Kagan and the six conservative justices, none of whom joined her concurrence. While Justice Kagan is insistent that this was a viewpoint discrimination case at the end of the day, the broad language of the majority opinion suggests that talk therapy—speech as speech, not speech incident to any physical conduct—might not be as amenable to restrictions as she seems to think.
What’s next?
In an opinion backed by 8 of 9 justices, the Supreme Court held that Colorado’s sweeping ban on conversion therapy constituted viewpoint discrimination as applied to a talk therapist who might want to speak—and only speak—to her clients about conversion therapy.
To reach that conclusion, the majority opinion emphasized that all the therapist wanted to do was speak, and it distinguished her case from other medical speech cases involving speech incident to some other physical procedure.
While Justice Kagan’s concurrence—joined by only Justice Sotomayor—sounds hopeful this was only a case about viewpoint discrimination, the breadth of the majority opinion seems greater.
If the majority is correct in its assessment that regulating a talk therapist’s conversations with her clients is regulating “speech as speech”, then Chiles brings regulation of talk therapy with minors—such as a requirement that a talk therapist obtain consent before speaking with a minor—into a potential conflict with the well-settled principle that speakers generally cannot be prohibited from speaking to minors.
In a future post, I’ll dive into this topic more. I’ll discuss whether the gap between Justice Kagan and her colleagues can be closed (is talk therapy actually special speech?). And we’ll see whether some other theory can bring cohesion and clarity to the now-open question of whether talk therapy can be regulated, at all, like other mental health interventions.
Technically, the court held that the lower courts needed to subject the law to a higher level of scrutiny than either rational basis or intermediate scrutiny. The only heretofore established higher level of scrutiny is “strict scrutiny”, the highest level of scrutiny, which the court awkwardly enough doesn’t explicitly say is the right level of scrutiny here. The court does implicitly-but-very-loudly say it, though, and just about as implicitly-but-very-loudly they say this law will be struck down at that level of scrutiny.
At the threshold, I want to note I’m only addressing the specific, legal question I’ve noted here. This post doesn’t address matters of policy, including the important considerations of how this decision will impact LGBTQ+ youth in Colorado.