Amicus Curiae Brief — Kaley Chiles, Petitioner v. Patty Salazar, in Her Official Capacity as Executive Director of the Colorado Department of Regulatory Agencies, et al.

No. 24-539

IN THE

Supreme Court of the United States

KALEY CHILES,

Petitioner,

v.

PATTY SALAZAR, IN HER OFFICIAL CAPACITY AS

EXECUTIVE DIRECTOR OF THE COLORADO DEPARTMENT

OF REGULATORY AGENCIES, ET AL.,

Respondents.

On Writ of Certiorari to the United States Court of

Appeals for the Tenth Circuit

AMICUS CURIAE BRIEF OF NATIONAL

RELIGIOUS BROADCASTERS IN SUPPORT

OF PETITIONER

MICHAEL P. FARRIS

Counsel of Record

NATIONAL RELIGIOUS

BROADCASTERS

20 F. Street NW, 7th Fl.

Washington, D.C. 20001

(571) 359-6000

mfarris@nrb.org

i

Table of Contents

Table of Contents ........................................................ i

Table of Authorities ................................................... ii

Interest of Amicus Curiae .......................................... 1

Summary of the Argument ........................................ 2

Argument.................................................................... 3

I. Professional Speech is Fully Protected............... 3

II. Professional Speech Demands More, Not Less,

First Amendment Scrutiny .................................... 7

A. Professionals Guide The Marketplace Of

Ideas ..................................................................... 8

B. Professionals Retain a Unique Autonomy

Interest on Behalf of the Speaker (Themselves)

and the Listener (Their Client in Need) ........... 13

i. Professional Autonomy Interests .............. 13

ii.

Patient Autonomy Interests ................... 14

III. There is a Troubling History of Governmental

Abuse of Professional Speech ............................... 16

A. Abuse of Licensing ........................................ 16

B. Government Imposition of State-Sponsored

Opinion............................................................... 19

Conclusion ................................................................ 22

ii

Table of Authorities

Cases

Abrams v. United States, 250 U.S. 616 (1919) .......... 7

Animal Legal Defense Fund v. Kelly, 9 F.4th 1219

(10th Cir. 2021) ....................................................... 4

Bd. of Educ., Island Trees Union Free Sch. Dist. No.

26 v. Pico, 457 U.S. 853 (1982) ............................. 14

Canterbury v. Spence, 464 F.2d 780 (D.C. Cir. 1972).

................................................................................. 9

Chiles v. Salazar, 116 F.4th 1178 (10th Cir. 2024)…..

..................................................................3, 6, 10, 12

Cincinnati v. Discovery Network, Inc., 507 U.S. 410

(1993) ..................................................................... 16

Citizens United v. Fed. Election Comm'n, 558 U.S.

310 (2010) .............................................................. 10

City of Lakewood v. Plain Dealer Publ'g Co., 486

U.S. 750 (1988) ...................................................... 16

Conant v. Walters, 309 F.3d 629 (9th Cir. 2002)……

................................................................... 11, 18, 21

Dobbs v. Jackson Women's Health Org., 597 U.S. 215

(2022) ....................................................................... 6

Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995)

............................................................................... 11

Griswold v. Connecticut, 381 U.S. 479 (1965)………

......................................................................... 14, 15

Grosjean v. Am. Press Co., 297 U.S. 233 (1936) ...... 17

Holder v. Humanitarian Law Project, 561 U.S. 1

(2010) ..................................................................... 13

King v. Governor of New Jersey, 767 F.3d 216 (3d

Cir. 2014) ............................................................... 21

Lesbian/Gay Freedom Day Comm., Inc. v.

U.S.I.N.S., 541 F. Supp. 569 (N.D. Cal. 1982) ..... 10

McCullen v. Coakley, 573 U.S. 464 (2014) ............ 4, 6

iii

National Association for the Advancement of

Psychoanalysis v. California Board of Psychology,

228 F.3d 1043 (9th Cir. 2000) ............................... 13

Nat'l Inst. of Fam. & Life Advocs. v. Becerra, 585

U.S. 755 (2018)............... 2–10, 12, 13, 16, 18, 19, 22

Otto v. City of Boca Raton, Fla., 981 F.3d 854 (11th

Cir. 2020) ..................................................... 5, 14, 21

Planned Parenthood of Southeastern Pa. v.

Casey, 505 U.S. 833 (1992) ..................................... 6

R.A.V. v. St. Paul, 505 U.S. 377 (1992) ..................... 4

Reed v. Town of Gilbert, Ariz., 576 U.S. 155 (2015)….

....................................................................... 4, 5, 21

Thomas v. Collins, 323 U.S. 516 (1945) .................. 18

United States v. Stevens, 559 U.S. 460 (2010) ........ 21

Ward v. Rock Against Racism, 491 U.S. 781 (1989)…

................................................................................. 4

Wollschlaeger v. Governor, Fla., 848 F.3d 1293 (11th

Cir. 2017) ..................................................... 8, 13, 21

Other Authorities

Claudia E. Haupt, Professional Speech, 128 YALE

L.J. 1238 (2016) ............................................. 8, 9, 15

Claudia E. Haupt, The Limits of Professional Speech,

128 YALE L.J.F. 185 (2018) ..................................... 5

COLLET DOBSON COLLET, HISTORY OF THE TAXES ON

KNOWLEDGE, vol. I (London, T. Fisher Unwin 1899)

............................................................................... 17

Marc Jonathan Blitz, Free Speech, Occupational

Speech, and Psychotherapy, 44 HOFSTRA L. REV.

681 (2016) ........................................................ 11, 12

Paula Berg, Toward a First Amendment Theory of

Doctor Patient Discourse and the Right to Receive

Unbiased Medical Advice, 74 B.U. L. REV. 201

(1994) ..................................................................... 13

iv

ROBERT C. POST, DEMOCRACY, EXPERTISE, AND

ACADEMIC FREEDOM: A FIRST AMENDMENT

JURISPRUDENCE FOR THE MODERN STATE (2012) .. 13

Robert van Voren, Political Abuse of Psychiatry—An

Historical Overview, 36 SCHIZOPHRENIA BULL. 33

(2010) ............................................................... 19, 20

Robin Munro, Judicial Psychiatry in China and Its

Political Abuses, 14 COLUM. J. ASIAN L. 1 (2000) ....

............................................................................... 20

Rodney A. Smolla, Professional Speech and the First

Amendment, 119 W. VA. L. REV. 67 (2016)……….

................................................................... 11, 12, 17

Susanne M. Stronski Huwiler & Gary Remafedi,

Adolescent Homosexuality, 33 REV. JUR. U.I.P.R.

151 (1999) .............................................................. 16

Virginia Act for Establishing Religious Freedom,

reprinted in 5 The Founders’ Constitution 84 (P.

Kurland & R. Lerner eds., Univ. of Chi. Press

1987) ...................................................................... 18

Statutes

Colo. Rev. Stat. § 12-245-202 ................................... 18

1

Interest of Amicus Curiae

National Religious Broadcasters (NRB) is a

non-partisan association of Christian broadcasters

united by their shared purpose of proclaiming

Christian teaching and promoting biblical truths.

NRB’s 1,487 members reach a weekly audience of

approximately 141 million American listeners,

viewers, and readers through radio, television, the

Internet, and other media.1

Since its founding in 1944, NRB has worked to

foster excellence, integrity, and accountability in its

membership. NRB also works to promote its

members’ use of all forms of communication to ensure

that they may broadcast their messages of hope

through First Amendment guarantees. NRB believes

that religious liberty and freedom of speech together

form the cornerstone of a free society.

Radio and television stations operate under

licenses from the government. If licensing agencies

may silence mental health professionals from

expressing opinions contrary to official viewpoints, a

dangerous precedent is set that could lead to the

empowerment of regulators to silence unwelcome

speech by broadcasters. Free speech must never be

regulated under such principles.

1 Pursuant to Supreme Court Rule 37.6, counsel for your amicus

certifies that no counsel for any party authored this brief in

whole or in part. No person or entity other than NRB furnished

any monetary contribution for the preparation of this brief.

2

Summary of the Argument

The key holding of the Tenth Circuit was that

advice by a licensed mental health professional

regarding sexual orientation or gender identity

constitutes conduct since it is medical treatment. As

conduct, the Circuit held, it is not entitled to the

normal protections of the First Amendment. There is

no logical ground for limiting this holding to this

particular topic. The rule announced by the Tenth

Circuit applies with equal force to every topic upon

which a mental health professional offers advice.

Accordingly, it is not just mental health professionals

offering advice to minors on sexual topics who lose the

full protection of the First Amendment under this

rubric. All advice by all mental health professionals is

subject to the same rule.

Accordingly, the Circuit’s ultimate holding was

that mental health professionals offering verbal

advice only receive rational basis review when the

government censors their speech. This approach is

suited to substantive due process, not the First

Amendment. This semantic sleight of hand cannot be

legitimized. Medical professionals’ advice and

counseling are clearly and robustly protected by the

First Amendment.

In National Institute of Family and Life

Advocates v. Becerra, 585 U.S. 755, 766–67 (2018),

this Court clearly held that content-based laws

suppressing or compelling professional speech must

satisfy strict scrutiny. Id. Colorado’s law is

unquestionably content-based. See id. at 766. The

state must, like other content-based laws, show that

3

the law is narrowly tailored to fulfill a compelling

government interest. See id.

If anything, professional speech should be

entitled to even greater First Amendment protection

because of the important role that professionals play

in the development of the marketplace of ideas.

Moreover, the rights of listeners are acutely at stake

when their medical advisers are prevented from

giving advice freely according to the client’s needs.

While there is some dispute about the nature of

the conversations that Ms. Chiles has with her

clients, this brief assumes the posture of the Tenth

Circuit: that Ms. Chiles provides professional mental

health advice. This approach, if NIFLA is to be

followed, results in no diminution of her free speech

rights.

Argument

I. Professional Speech is Fully Protected

The Tenth Circuit professed to follow this

Court’s ruling in NIFLA. Chiles v. Salazar, 116 F.4th

1178, 1201–03 (10th Cir. 2024). But the Circuit

robbed this professed compliance of any meaning by

adopting the premise that all advice given by licensed

mental health professionals is “medical treatment”

and is thus subject to the lowest level of constitutional

review. Id. at 1206-07. The principle adopted by the

Tenth Circuit leaves medical health professionals,

like Ms. Chiles, with no speech rights within the

practice of her profession. Substantive due process

provides a curtailed certain freedom for conduct, but

4

such protections are vastly inferior to the First

Amendment’s protection for freedom of speech.

In NIFLA, this Court rejected content-based

restrictions on professional speech. It should do the

same here. Strict scrutiny provides the necessary

balance between Ms. Chiles’s freedom of speech and

the adequate regulation of the medical profession.

NIFLA, 585 U.S. at 767.

It is a longstanding rule that “[c]ontent-based

laws . . . are presumptively unconstitutional” and

survive judicial scrutiny only if “narrowly tailored to

serve compelling state interests.” Reed v. Town of

Gilbert, Ariz., 576 U.S. 155, 163 (2015). See also

R.A.V. v. St. Paul, 505 U.S. 377, 386 (1992) (Laws that

censor based on content and viewpoint are

“presumptively invalid”). A law is content-based if it

“target[s] speech based on its communicative

content,” Reed, 576 U.S. at 163, or where it “require[s]

enforcement authorities to examine the content of the

message that is conveyed to determine whether a

violation has occurred.” Animal Legal Defense Fund

v. Kelly, 9 F.4th 1219, 1228 (10th Cir. 2021) (quoting

McCullen v. Coakley, 573 U.S. 464, 479 (2014)

(brackets in original). Alternatively, laws are

considered content-based, where the laws cannot be

“‘justified without reference to the content of the

regulated speech,’ or that were adopted by the

government ‘because of disagreement with the

message [the speech] conveys.’” Reed, 576 U.S. at 164

(quoting Ward v. Rock Against Racism, 491 U.S. 781,

791 (1989)) (brackets in original).

5

NIFLA applied the content-based rule to

professional speech. The Court held that “professional

speech” is not a “unique category [of speech],” and

thus “[a]s with other kinds of speech . . . regulating

the content of professionals' speech” must survive

strict scrutiny. Id. at 767, 771 (cleaned up). To permit

otherwise “pose[s] the inherent risk that the

Government seeks not to advance a legitimate

regulatory goal, but to suppress unpopular ideas or

information.” NIFLA, 585 U.S. at 771 (quoting Reed,

576 U.S. at 163) (brackets in original).

The Tenth Circuit erred when it failed to

recognize that the Colorado law is a content-based

law subject to strict scrutiny under NIFLA. Id. at 767.

Ms. Chiles professional speech is not a “unique

category” of speech. Content-based regulations of Ms.

Chiles’s professional speech are subject to strict

scrutiny. Id. at 767, 771. And the Colorado law was a

content-based regulation. First, the law targeted the

“communicative content” of Ms. Chiles’s speech to her

clients. Reed, 576 U.S. at 163. Talk therapy “is not

just carried out in part through speech: the treatment

. . . is entirely speech.” Otto v. City of Boca Raton, Fla.,

981 F.3d 854, 865 (11th Cir. 2020) (emphasis in

original). And the regulation directly censored the

content of that speech by suppressing what content

Ms. Chiles could or could not say. See Claudia E.

Haupt, The Limits of Professional Speech, 128 Yale

L.J.F. 185, 188 (2018) (“[T]he regulation of

professional speech, in order to achieve its aim,

cannot be content-neutral; indeed, the value of

professional advice depends on its content.”)

(emphasis added) (footnote omitted). Second, the

Colorado law required “enforcement authorities to

6

examine the content” of Ms. Chiles’s speech “to

determine whether a violation ha[d] occurred.”

McCullen 573 U.S. at 479. Under both standards, the

Colorado law is content-based.

To avoid this presumption, the Tenth Circuit

relied on an exception to content-based scrutiny. The

Circuit pointed to Casey, asserting that “[a]ny speech

affected by the [MCTL] is incidental to the

professional conduct it regulates.” Chiles, 116 F.4th

1178, 1209 (10th Cir. 2024) (quoting App. at 776).

The Tenth Circuit attempts to wrap itself in the

mantle of a three-judge opinion from Planned

Parenthood v. Casey. See Planned Parenthood of

Southeastern Pa. v. Casey, 505 U.S. 833, 884

(1992) (Joint opinion of O'Connor, Kennedy, and

Souter, JJ.) overruled on other grounds by Dobbs v.

Jackson Women's Health Org., 597 U.S. 215 (2022);

Chiles, 116 F.4th at 1209. But in Casey, the doctors

were required to give certain information to their

patients prior to performing a surgical abortion. See

Casey, 505 U.S. at 881. That was speech genuinely

incident to professional conduct and was upheld by

this Court. Id. at 884.

In NIFLA, California sought to treat everything said

by the medical professionals in a licensed facility as

speech incidental to conduct. See Brief for the State

Respondents at 34, Nat’l Inst. of Fam. & Life Advocs.

v. Becerra, No. 16-1140, 2018 WL 1027815 (U.S. Feb.

20, 2018). But this Court recognized that the doctors

and other licensed professionals in the prolife centers

were only speaking with their patients, not

performing surgery. See NIFLA, 585 U.S. at 770.

7

NIFLA held that when the entire interaction between

a medical professional and a client is verbal, normal

First Amendment rules presumptively apply. Id.

The Colorado law can only be explained as a contentbased prohibition of speech on a particular topic. A

Christian minor, who wants to follow her faith and

expresses that she understands that her faith forbids

same-sex relationships but also expresses that she

may have same-sex attraction, cannot be told to follow

her faith. The law forces Christian counselors affirm

the sexual attraction thereby counseling a disavowal

of a faithful walk with God. By so doing, the counselor

is required to advocate for a change in the client’s

religious beliefs. Calling this rule “anti-change” is

disingenuous. It is hard to imagine a more brazen

repudiation of this nation’s core commitments to

freedom of speech than the ruling below, which

affirmed a categorical denial of free speech

protections for mental health professionals as

justification for a content-based limitation on speech.

II. Professional Speech Demands More, Not

Less, First Amendment Scrutiny

A fundamental principle undergirding the

First Amendment is “that the best test of truth is the

power of the thought to get itself accepted in the

competition of the market[.]” Abrams v. United

States, 250 U.S. 616, 630 (1919) (Holmes, J.,

dissenting). Professionals hold an influential role in

that marketplace. Governments recognize this and

have tried—time and time again—to use professionals’ place

of pedigree to further their coercive ends. Accordingly,

8

“[i]f anything, the doctor-patient relationship provides more

justification for free speech, not less.”

Wollschlaeger v. Governor, Fla., 848 F.3d 1293, 1328

(11th Cir. 2017) (en banc) (Pryor, J., concurring)

(emphasis added).

A. Professionals Guide The Marketplace Of

Ideas

Professionals speak from expertise. That gives

their speech a weight deserving special protection.

NIFLA, 585 U.S. at 772. As one scholar describes:

The information that the knowledge community

communicates to clients through individual

professionals cumulatively enhances the basis

upon which public opinion is formed. This is not

simply a matter of enabling self-government

through ordinary deliberation by adding another

opinion to the public discussion. Rather,

professionals contribute specialized, technical

knowledge to which lay citizens would not

otherwise have access. It is precisely in their

capacity as members of knowledge communities

that professionals enhance the process of selfgovernance, and so as members of knowledge

communities that they should enjoy First

Amendment protection.

Claudia E. Haupt, Professional Speech, 125 YALE L.J.

1238, 1244 (2016) (footnotes omitted).

The public relies on the professional

marketplace of ideas. “The professional-client relationship is

9

typically characterized by an asymmetry of knowledge.” Id. at

1243. “The average patient has little or no

understanding of the medical arts and ordinarily has

only his physician to whom he can look for

enlightenment with which to reach an intelligent

decision.” Canterbury v. Spence, 464 F.2d 772, 780

(D.C. Cir. 1972). “The client seeks the professional’s

advice precisely because of this asymmetry.” Haupt,

Professional Speech, 125 YALE L.J. at 1243. But when

professional speech is censored or compelled, the

listener cannot discern professional truth from stateenforced propaganda.

Professional speech also forms the basis for

professional standards, what can be termed the

“epistemic marketplace.” Id. at 1244. In any field,

professionals

have

“a

host

of

good-faith

disagreements, both with each other and with the

government, on many topics in their respective

fields.” NIFLA, 585 U.S. at 772. It is this good-faith

disagreement that allows for the growth and

development of professional standards. Haupt,

Professional Speech, 125 YALE L.J. at 1244

(“Professional standards are generated by testing

insights in that marketplace.”). The Court in NIFLA

provided examples:

Doctors and nurses might disagree about the

ethics of assisted suicide or the benefits of medical

marijuana; lawyers and marriage counselors

might disagree about the prudence of prenuptial

agreements or the wisdom of divorce; bankers and

accountants might disagree about the amount of

money that should be devoted to savings or the

benefits of tax reform.

10

NIFLA, 585 U.S. at 772.

Indeed, prior to 1973, the American Psychiatric

Association viewed homosexuality as a mental

disorder. Lesbian/Gay Freedom Day Comm., Inc. v.

U.S.I.N.S., 541 F. Supp. 569, 572 (N.D. Cal. 1982)

(citing Press Release of American Psychiatric

Association (December 15, 1973)). In that era, a

proper interpretation of the First Amendment would

clearly have prevented a state licensing board from

punishing mental health professionals who dared to

disagree with the APA’s view and shared that

disagreement with their patients. If it was

permissible to coerce unanimity of professional

opinion in the pre-1973 era, then a change of position

by the APA might never have occurred.

The First Amendment exists to protect the very

conditions in which such disagreement can thrive.

“The right of citizens to inquire, to hear, to speak, and

to use information to reach consensus is a

precondition to enlightened self-government and a

necessary means to protect it.” Citizens United v. Fed.

Election Comm'n, 558 U.S. 310, 340 (2010). “[T]he

people lose when the government is the one deciding

which ideas should prevail.” NIFLA, 585 U.S. at 772.

Accordingly, “[c]ourts must be particularly wary that

in a contentious and evolving field, the government and its

supporters would like to bypass the marketplace of ideas and

declare victory for their preferred ideas by fiat.” Chiles,

116 F.4th 1178, 1238 (10th Cir. 2024) (Hartz, J.,

dissenting).

11

Of course, while the public is “free to hear and

decide for themselves the merits of various

contributions people make to democratic discourse,

they are not similarly left to fend for themselves when

faced with possibly fraudulent or ineffective

professional or commercial services.” Marc Jonathan

Blitz, Free Speech, Occupational Speech, and

Psychotherapy, 44 HOFSTRA L. REV. 681, 732 (2016).

The application of strict scrutiny creates the effective

balance “of filtering out government regulation that .

. . attempt[s] to skew the marketplace of ideas” and

those regulations that are necessary for the

maintenance of compelling government interests.

Rodney A. Smolla, Professional Speech and the First

Amendment, 119 W. VA. L. REV. 67, 112 (2016).

Here, the Tenth Circuit’s decision risks stifling

the professional marketplace of ideas without demonstrating

any compelling governmental need to do so. Ms.

Chiles speaks from a place of expertise to her clients.

See App. at 42, 44. Her clients depend on and trust in

her care. See Id. at 31. This asymmetry of knowledge

is exactly why she must never become a mouthpiece

for the government. Her professional speech should

be entitled to “the strongest protection our

Constitution has to offer.” Conant v. Walters, 309 F.3d

629, 637 (9th Cir. 2002) (quoting Florida Bar v. Went

For It, Inc., 515 U.S. 618, 634 (1995)).

Ms. Chiles also offers a distinct voice within the

professional community, grounded in both clinical

training and a religious worldview. See App. 042-43.

Many of her clients seek her counseling to address

“sexual attraction[s], behaviors, or identity” precisely

because of this religious worldview. App. 037. By

12

drawing on her faith-informed perspective, Ms. Chiles

contributes to the epistemic marketplace in a unique

capacity. The First Amendment protects that

contribution not despite its distinctiveness, but

because of it.

Claims of scientific consensus supply no

legitimate basis for censorship of other views. A real

and present danger arises from enforcing the

government’s ideology concerning gender and sexual

identity in order to “bypass the marketplace of ideas

and declare victory for their preferred ideas by fiat.”

Chiles, 116 F.4th at 1238 (Hartz, J., dissenting).

Protecting Ms. Chiles speech does not mean

exempting it from all regulation. The public is not left

to “fend for themselves” when facing fraudulent or

incompetent services. Blitz, Free Speech, Occupational

Speech, and Psychotherapy, 44 HOFSTRA L. REV. at 732. But

“existing First Amendment doctrines are perfectly suited to the

task.” Smolla, Professional Speech and the First

Amendment, 119 W. VA. L. REV. at 69. The application

of strict scrutiny will serve to determine whether the

government is merely seeking to “skew the

marketplace of ideas” or to provide protection for a

compelling government interest. Id. at 112.

13

B. Professionals Retain a Unique Autonomy

Interest on Behalf of the Speaker (Themselves)

and the Listener (Their Client in Need)

i. Professional Autonomy Interests

Professionals do not shed their First

Amendment protections upon dawning the white

coat, the suit and tie, or the hard hat. NIFLA, 585

U.S. at 767 (“Speech is not unprotected merely

because it is uttered by ‘professionals.’”) (citation

omitted). Nor do they shed their First Amendment

protections simply by providing “specialized advice.”

NIFLA, 585 U.S. at 771 (citing Holder v.

Humanitarian Law Project, 561 U.S. 1, 27–28 (2010)).

Professionals are entrusted with a duty to provide the

best suited provisions to meet the clients’ needs. See

Robert C. Post, Democracy, Expertise, And Academic

Freedom: A First Amendment Jurisprudence for the

Modern State 47 (2012) (“Clients are presumed to be

dependent upon professional judgment and unable

themselves independently to evaluate its quality.”).

To fulfill that duty, “candor is crucial.” NIFLA, 585

U.S. at 771 (quoting Wollschlaeger, 848 F.3d at 1328

(Pryor, J., concurring)). Professionals must be able to

freely express, prod, challenge, inform, encourage,

refute, or agree with the patient to provide adequate

care. See Paula Berg, Toward a First Amendment

Theory of Doctor Patient Discourse and the Right to

Receive Unbiased Medical Advice, 74 B.U. L. REV.

201, 235-36 (1994). Any restriction on the

professionals’ speech will necessarily hinder their

ability to treat the patient’s needs. See e.g. National

Association for the Advancement of Psychoanalysis v.

14

California Board of Psychology, 228 F.3d 1043, 1056

(9th Cir. 2000) (Upholding a California licensing

requirement, noting that California did not attempt

to “dictate the content of what is said in therapy.”).

Restricting the speech that Ms. Chiles may use

during talk therapy undermines her professional

autonomy interest by impeding her duty to her

clients. Ms. Chiles works with “adults who are

seeking Christian counseling and minors who are

internally motivated to seek counseling.” App. at 4142. Several patients have sought out Ms. Chiles,

“seeking to live a life consistent with their faith . . .

which sometimes includes clients seeking to reduce or

eliminate unwanted sexual attractions, change

sexual behaviors, or grow in the experience of

harmony with one's physical body.” App. at 38, 44.

Ms. Chiles’ only opportunity to aid these clients is

speech. Otto, 981 F.3d 854, 865 (11th Cir. 2020) (talk

therapy “is not just carried out in part through

speech: the treatment . . . is entirely speech.”). A law

that imposes an undue burden on her ability to

exercise that speech, and thus prevents her from

fulfilling her clients’ goals, inhibits her from fulfilling

her role as a counselor and helping her clients

effectively.

ii.

Patient Autonomy Interests

“[T]he Constitution protects the right to receive

information and ideas,” which “is an inherent

corollary of the rights of free speech and press.” Bd. of

Educ., Island Trees Union Free Sch. Dist. No. 26 v.

Pico, 457 U.S. 853, 867 (1982)). Decisional autonomy

15

for the patient or client is even more important. In

Griswold v. Connecticut, this Court reaffirmed that

“[t]he right of freedom of speech” necessarily includes

“the right to receive [speech], the right to read and

freedom of inquiry.” 381 U.S. 479, 482 (1965). “In

other words, the State may not, consistently with the

spirit of the First Amendment, contract the spectrum

of available knowledge.” Id. Patient autonomy is a

cornerstone of the American medical practice.

[T]he last century has seen the recognition of

patients’ autonomy interests and, as a result,

significant changes in the doctor-patient

relationship. “Autonomy soon became the

driving principle used to resolve issues within

medicine,” and, with it, “informed consent

doctrine . . . driven in large part by a desire to

combat the paternalism of medicine.”

Haupt, Professional Speech, 125 YALE L.J. at 1287-88

(quoting Sonia M. Suter, The Politics of Information:

Informed Consent in Abortion and End-of-Life

Decision Making, 39 AM. J.L. & MED. 7, 13, 15 (2013))

(footnotes omitted).

Permitting Colorado to silence Ms. Chiles does

not merely restrict her speech, it denies her clients

the right to hear it. Clients seek Ms. Chiles counsel

precisely because of her “Christian counseling.” App.

042–43. Griswold makes clear that these clients have

the “the right to receive” this counseling and the

“right to inquir[e]” about matters deeply personal to

them. Griswold, 381 U.S. at 482. The MCTL law

inhibits both from occurring in talk therapy. The

Tenth Circuit’s decision, by endorsing a one-sided

16

restriction on counseling, allows Colorado to “contract

the spectrum of available knowledge” to Ms. Chiles’

clients and affronts the First Amendment in doing so.

Id.

In one study, “[a]lmost 12% of the respondents

reported homosexual contact after 15 years of age,

and only 6.7% did so after 19 years, which suggests

that same-sex behavior may be more frequent during

adolescence and may not reflect a long-lasting

homosexual orientation.” Susanne M. Stronski

Huwiler

&

Gary

Remafedi,

Adolescent

Homosexuality, 33 REV. JUR. U.I.P.R. 151, 154

(1999). Given the experimental and transient nature

of adolescent sexual activity, common sense forecloses

any suggestion that counselors should not be able to

guide a minor client in a direction different from their

most recent sexual experience.

III. There is a Troubling History of Governmental

Abuse of Professional Speech

“Throughout history, governments have

‘manipulat[ed] the content of doctor-patient

discourse’ to increase state power and suppress

minorities.” NIFLA, 585 U.S. at 771 (citation

omitted). Two methods recur: (1) the abuse of

licensing to suppress speech, and (2) direct imposition

of state-approved views. NIFLA warned against both.

Id. at 771, 773.

A. Abuse of Licensing

Licensing cannot serve as a pretext to suppress

speech. Allowing content-based licensure gives states

17

a “powerful tool to impose ‘invidious discrimination of

disfavored subjects.’” NIFLA, 585 U.S. at 773 (quoting

Cincinnati v. Discovery Network, Inc., 507 U.S. 410,

423-424, n. 19 (1993). See also City of Lakewood v.

Plain Dealer Publ'g Co., 486 U.S. 750, 750 (1988)

(“When a licensing statute vest unbridled discretion

in a government official over whether to permit or

deny expressive activity . . . . Such a statute

constitutes a prior restraint and may result in

censorship, engendering risks to free expression”).

And the danger extends beyond the medical

profession. If licensing authority implies the power to

regulate content, then the First Amendment yields

wherever the state requires a license. NIFLA, 585

U.S. at 773. The state may exert suppression or

compulsion of speech over “virtually any licensed

calling,” including, lawyers, architects, teachers,

truck drivers, bartenders and even fortune tellers.

Smolla, Professional Speech and the First

Amendment, 119 W. VA. L. REV. at 68.

For more than a century prior to the adoption

of the First Amendment, the British government

relied on licensing schemes to restrain disfavored

expression. Grosjean v. Am. Press Co., 297 U.S. 233,

245 (1936) (citing COLLET DOBSON COLLET, HISTORY

OF THE TAXES ON KNOWLEDGE, vol. I, 4–6 (London, T.

Fisher Unwin 1899). The Star Chamber’s 1637 decree

required printers to obtain licenses from church

authorities, and punished unauthorized printing with

whipping, the pillory, and imprisonment. COLLET, vol

I, at 3. When formal licensing ended in 1695,

Parliament required printing approvals in the form of

stamps. Beginning in 1712, Parliament imposed

stamp

requirements

on

newspapers

and

18

advertisements as means to “suppress all expression

of discontent” towards the Crown. Id. at 2, 14. While

the stamp acts were promulgated under the guise of

preventing sedition and libel, “[a]ny man who carried

on printing or publishing for a livelihood was actually

at the mercy of the Commissioners of Stamps, when

they chose to exert their powers.” Grosjean, 297 U.S.

at 245 (quoting COLLET, vol I, at 14).

In this context, the early American tradition

rejected content-based licensure. Grosjean, 297 U.S.

at 248. In 1779, Thomas Jefferson’s Virginia Bill for

Establishing Religious Freedom warned that “to

compel a man to furnish contributions of money for

the propagation of opinions which he disbelieves, is

sinful and tyrannical.” Virginia Act for Establishing

Religious Freedom, reprinted in 5 The Founders’

Constitution 84 (item #44) (P. Kurland & R. Lerner

eds., Univ. of Chi. Press 1987). His warning

undergirded the First Amendment’s adoption twelve

years later.

Here, the state seeks to propagate opinions

that Ms. Chiles disbelieves and threatens the possible

revocation of her license if she refuses to comply.

COLO. REV. STAT. § 12-245-202(3.5) (a). This licensure

abuse flies in the face of the First Amendment. “Being

a member of a regulated profession does not, as the

government suggests, result in a surrender of First

Amendment rights.” Conant, 309 F.3d 629 (9th Cir.

2002) (citing Thomas v. Collins, 323 U.S. 516, 531

(1945)). If the state is permitted to regulate talk

therapy simply because Ms. Chiles is a licensed

professional, they are free to “invidiously discriminate”

based on viewpoints on which they disagree. NIFLA,

19

585 U.S. at 778. Permitting this justification here will

allow licensure abuse not just in the medical

profession, but in every profession where the

government chooses to impose a license. Id.

B. Government Imposition of State-Sponsored

Opinion

Throughout history, governments routinely

use content-based laws to directly impose statesponsored opinions. NIFLA, 585 U.S. at 771–72. This

danger is present here. NIFLA provided examples of

government mandating the content of doctors’ speech:

[D]uring the Cultural Revolution, Chinese

physicians were dispatched to the countryside

to convince peasants to use contraception. In

the 1930s, the Soviet government expedited

completion of a construction project on the

Siberian railroad by ordering doctors to both

reject requests for medical leave from work and

conceal this government order from their

patients. In Nazi Germany, the Third Reich

systematically violated the separation between

state ideology and medical discourse. German

physicians were taught that they owed a higher

duty to the ‘health of the Volk’ than to the

health of individual patients. Recently, Nicolae

Ceausescu's strategy to increase the Romanian

birth rate included prohibitions against giving

advice to patients about the use of birth control

devices and disseminating information about

the use of condoms as a means of preventing

the transmission of AIDS.

20

NIFLA, 585 U.S. at 771–72 (quoting Berg, Toward a

First Amendment Theory of Doctor–Patient Discourse and

the Right To Receive Unbiased Medical Advice, 74

B.U.L. REV. 201, 201–202 (1994)) (footnotes omitted).

Further historical review provides additional

instances relating to counseling and diagnosis. For

example, “[h]istorically seen, using psychiatry as a

means of repression has been a particular favorite of

Socialist-oriented regimes.” Robert van Voren

Political Abuse of Psychiatry—An Historical

Overview, 36 SCHIZOPHRENIA BULL. 33, 34 (2010).

The political abuse of psychiatry in the Soviet

Union originated from the concept that persons

who opposed the Soviet regime were mentally

ill because there was no other logical

explanation why one would oppose the best

sociopolitical system in the world. The

diagnosis ‘‘sluggish schizophrenia”. . . provided

a very handy framework to explain this

behavior. [M]ost experts agree that the core

group of psychiatrists who developed this

concept did so on the orders of the party and

the Soviet secret service KGB[.]

Id. at 33–34.

In China, between the 1970s and 1980s, “the

diagnosis of choice in political cases appears to have

shifted towards ‘paranoid psychosis.’” Robin Munro,

Judicial Psychiatry in China and Its Political Abuses,

14 COLUM. J. ASIAN L. 1, 16 (2000). A textbook on

forensic psychiatry produced in 1983 by the official

publishing house of the Chinese Ministry of Public

21

Security serves as an incredibly potent example of

governments’ ability to dictate ideology by controlling

the advice to be given by mental health professionals:

Under the dominant influence of pathological

thinking and other symptoms of psychological

disease, mentally ill people may engage in

behavior that sabotages the proletarian

dictatorship and the socialist state . . . . The

most commonly encountered pathological states

involving counterrevolutionary behavior by the

mentally ill are delusions of grandeur and

delusions of persecution.

Munro, Judicial Psychiatry in China and Its Political

Abuses, 14 COLUM. J. ASIAN L. at 38 (quoting Liu

Anqiu (ed.), Sifa Jingshenbingxue Jichu Zhishi [Basic

Knowledge in Forensic Psychiatry] 18-19 (1983)).

Content-based regulation of speech is also

found in the United States. But Circuit courts have

largely rejected the government’s attempts to do so.

In Otto v. City of Boca Raton, the Eleventh Circuit

struck down a municipal ban on sexual orientation

change efforts (SOCE) parallel to Colorado rule here.

981 F.3d 854, 864 (11th Cir. 2020). In Conant v.

Walters, the Ninth Circuit overturned the revocation

of a doctor’s license for giving advice on the medical

benefits of marijuana. 309 F.3d 629, (9th Cir. 2002).

In Wollschlaeger v. Governor of Florida, the Eleventh

Circuit en banc again struck down a Florida law that

prohibited doctors from asking patients about firearm

ownership. 848 F.3d 1293, 1307 (11th Cir. 2017) (en

banc) (quoting King v. Governor of New Jersey, 767

F.3d 216, 229 (3d Cir. 2014)).

22

Colorado contends that it is protecting

patients, but “[i]nnocent motives do not eliminate the

danger of censorship presented by a facially contentbased statute, as future government officials may one

day wield such statutes to suppress disfavored

speech.” Reed, 576 U.S. 155, 167 (2015). See also

United States v. Stevens, 559 U.S. 460, 480 (2010)

(“[T]he First Amendment protects against the

Government; it does not leave us at the mercy of

noblesse oblige. We would not uphold an unconstitutional

statute merely because the Government promised to use it

responsibly.”).

***

NIFLA resolved this very issue: “professional

speech,” as is directly found here, is not a “unique

category . . . that is exempt from ordinary First

Amendment principles.” NIFLA, 585 U.S. at 755, 773.

“[T]his Court's precedents have long protected the

First Amendment rights of professionals.” Id. at 771.

And this court should protect them again here. The

Tenth Circuit’s decision invites sweeping and

dangerous intrusions on protected speech.

Conclusion

For the foregoing reasons, the judgment of the

United States Court of Appeals for the Tenth Circuit

should be reversed.

23

Respectfully submitted,

MICHAEL P. FARRIS

Counsel of Record

NATIONAL RELIGIOUS

BROADCASTERS

20 F. Street NW, 7th Fl.

Washington D.C. 20001

(202) 341-4783

mfarris@nrb.org

Counsel for Amicus Curiae