Are therapists protected by the First Amendment during talk therapy sessions with their clients? And are these free speech protections so robust that they prevent the government from regulating talk therapy to ensure that it does not harm patients or depart from professional standards of care?

That’s the central question in Chiles v. Salazar, which the Supreme Court will hear on October 7. And, while the idea that incompetent or even abusive talk therapists may be immune from regulation altogether may seem extreme, there is a very real chance that this Court will embrace that uncompromising position.

That’s because the Chiles case also involves one of the bitterest cultural disputes in US politics: whether the rights of conservative Christians trump the rights and interests of LGBTQ Americans. And this Court’s Republican majority routinely hands broad victories to the religious right when confronted with this dispute.

Chiles concerns “conversion therapy,” a practice where therapists attempt to change their patient’s sexual orientation or gender identity. According to a federal appeals court, “every major medical, psychiatric, psychological, and professional mental health organization opposes the use of conversion therapy.” The American Psychological Association, for example, says that conversion therapy “puts individuals at a significant risk of harm,” and is not effective in changing a patient’s sexual orientation or gender identity.

About half of US states ban “conversion therapy” for patients under age 18, including Colorado, whose law is at issue in Chiles. That law prohibits licensed therapists from engaging in “any practice or treatment … that attempts or purports to change an individual’s sexual orientation or gender identity.” The law also includes an exception for counselors “engaged in the practice of religious ministry.”

The plaintiff in Chiles is a therapist represented by Alliance Defending Freedom (ADF), a conservative Christian law firm that frequently brings cases seeking to limit LGBTQ rights. And, for what it is worth, ADF’s core argument in Chiles is fairly intuitive. The First Amendment protects free speech. Colorado’s law limits what talk therapists are allowed to say to their patients. Therefore, ADF argues, the law is unconstitutional.

Historically, however, states have been permitted to regulate professional advice that licensed professionals give to their patients or clients. A lawyer who tells a client that “it is legal to rob a bank” may be sued for malpractice or disbarred. A physician who tells a patient to cure their Covid-19 infection by

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