`
`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.
`
`ON WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE TENTH CIRCUIT
`
`BRIEF FOR THE UNITED STATES
`AS AMICUS CURIAE SUPPORTING PETITIONER
`
`
` D. JOHN SAUER
`Solicitor General
`Counsel of Record
`BRETT A. SHUMATE
`Assistant Attorney General
`HASHIM M. MOOPPAN
`Deputy Solicitor General
`ZOE A. JACOBY
`Assistant to the Solicitor
`General
`MICHAEL S. RAAB
`LOWELL V. STURGILL JR.
`Attorneys
`Department of Justice
`Washington, D.C. 20530 -0001
`SupremeCtBriefs @usdoj.gov
`(202) 514 -2217
`
`
`
`
`
`
`
`
`(I)
`QUESTION PRESENTED
`A Colorado statute prohibits mental -health profes-
`sionals from engaging in “any practice or treatment” —
`including talk therapy —that “attempts or purports to
`change” a minor’s “sexual orientation or gender iden-
`tity.” Colo. Rev. Stat. § 12-245-202.(3.5) (a) (2024); id.
`§ 12-245-224(1)(t)(V). The statutory prohibition covers
`“efforts to change behaviors or gender expressions or
`to eliminate or reduce sexual or romantic attraction or
`feelings toward individuals of the same sex ,” but ex-
`cludes practices or treatments that provide “[a]cceptance,
`support, and understanding for the facilitation of an in-
`dividual’s coping, social support, and identity explora-
`tion and development.” Id. § 12-245-202(3.5)(a) and
`(b)(I). The question presented is:
`Whether, as applied to talk therapy, Colorado’s stat-
`ute is a content-based regulation of speech subject to
`strict scrutiny.
`
`
`
`
`
`
`
`(III)
`TABLE OF CONTENTS
`Page
`Interest of the United States....................................................... 1
`Introduction ................................................................................... 1
`Statement ...................................................................................... 4
`Summary of Argument ................................................................ 8
`Argument:
`A. The standard of scrutiny under the First
`Amendment varies based on the manner in
`which speech triggers a law regulating conduct ........ 11
`1. Laws that restrict speech based on
`content are generally subject to strict
`scrutiny, even if they also restrict non-
`speech conduct ......................................................... 11
`2. The same rule applies in the context of
`professional speech and conduct ........................... 15
`3. An exception exists for laws regulating
`conduct that burden speech incidentally,
`but that applies only if the speech is
`restricted based on its connection to some
`separate regulated conduct or for reasons
`unrelated to its communicative content ................ 17
`B. The MCTL is subject to strict scrutiny here
`because it restricts petitioner’s speech based on
`content ............................................................................ 21
`C. The court of appeals erred in treating the
`MCTL’s speech restriction as incidental to the
`regulation of professional conduct ............................... 27
`D. Vacatur and remand is warranted for the lower
`courts to apply strict scrutiny in the first instance .... 31
`Conclusion ................................................................................... 35
`
`
`
`
`
`
`
`
`
`IV
`
`TABLE OF AUTHORITIES
`Cases: Page
`Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986) .............. 21
`Bridges v. California, 314 U.S. 252 (1941) .................... 14, 28
`Buck v. Bell, 274 U.S. 200 (1927) .......................................... 32
`City of Austin v. Reagan Nat’l Adver.
`of Austin, LLC, 596 U.S. 61 (2022) ............................. 12, 22
`Cohen v. California,
`403 U.S. 15 (1971) .................................. 13, 21, 23, 24, 28, 33
`Conant v. Walters, 309 F.3d 629 (9th Cir. 2002),
`cert. denied, 540 U.S. 946 (2003) ....................................... 26
`Davenport v. Washington Educ. Ass’n,
`551 U.S. 177 (2007).............................................................. 12
`Giboney v. Empire Storage & Ice Co.,
`336 U.S. 490 (1949).............................................................. 19
`Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975) ......... 31
`Holder v. Humanitarian Law Project,
`561 U.S. 1 (2010) ....................... 2, 8, 12-14, 16, 20-23, 27, 28
`Iancu v. Brunetti, 588 U.S. 388 (2019) ................................ 23
`King v. Governor, 767 F.3d 216 (3d Cir. 2014),
`cert. denied, 575 U.S. 996 (2015), abrogated by
`National Inst. of Family & Life Advocates
`v. Becerra, 585 U.S. 755 (2018) .................................... 22, 24
`McCullen v. Coakley, 573 U.S. 464 (2014)........................... 16
`National Inst. of Family & Life Advocates
`v. Becerra, 585 U.S. 755 (2018) ................ 2, 3, 6, 7, 9, 15-18,
` 20-22, 24-26, 28-30
`New York v. Ferber, 458 U.S. 747 (1982) ............................. 31
`New York State Rifle & Pistol Ass’n, Inc.
`v. Bruen, 597 U.S. 1 (2022) ................................................ 25
`Ohralik v. Ohio State Bar Ass’n,
`436 U.S. 447 (1978)......................................................... 18-20
`
`
`
`
`
`
`
`
`V
`
`Cases—Continued: Page
`Otto v. City of Boca Raton, 981 F.3d 854
`(11th Cir. 2020) .................................................................... 32
`Pickup v. Brown, 740 F.3d 1208 (9th Cir.),
`cert. denied, 573 U.S. 945 (2014), abrogated by
`National Inst. of Family & Life Advocates
`v. Becerra, 585 U.S. 755 (2018) .................................... 22, 24
`Planned Parenthood of Se. Pa. v. Casey,
`505 U.S. 833 (1992)........................................................ 18, 29
`Police Dep’t v. Mosley, 408 U.S. 92 (1972) .......................... 11
`R.A.V. v. City of St. Paul,
`505 U.S. 377 (1992)............................................ 12, 20, 21, 24
`Reed v. Town of Gilbert, 576 U.S. 155 (2015) .......... 11, 12, 22
`Rosenberger v. Rector & Visitors of Univ. of Va.,
`515 U.S. 819 (1995).............................................................. 23
`Rumsfeld v. Forum for Academic & Inst. Rights,
`Inc., 547 U.S. 47 (2006) ....................................................... 19
`Simon & Schuster, Inc. v. Members of N.Y. State
`Crime Victims Bd., 502 U.S. 105 (1991) ........................... 12
`Snyder v. Phelps, 562 U.S. 443 (2011) ................................. 14
`Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) ........... 20, 25
`Texas v. Johnson, 491 U.S. 397 (1989) .......................... 20, 21
`Tingley v. Ferguson, 144 S. Ct. 33 (2023) ..................... 23, 25
`United States v. Hansen, 599 U.S. 762 (2023) .................... 19
`United States v. National Treasury Emps. Union,
`513 U.S. 454 (1995).............................................................. 27
`United States v. O’Brien, 391 U.S. 367 (1968) .................... 21
`United States v. Playboy Entm’t Grp. Inc.,
`529 U.S. 803 (2000).............................................................. 34
`United States v. Stevens, 559 U.S. 460 (2010) .............. 12, 25
`United States v. Williams, 553 U.S. 285 (2008) ................. 19
`
`
`
`
`
`
`
`
`
`VI
`
`Cases—Continued: Page
`Williams-Yulee v. Florida Bar, 575 U.S. 433 (2015) ......... 27
`Zauderer v. Office of Disciplinary Counsel,
`471 U.S. 626 (1985).............................................................. 17
`Constitution and statutes:
`U.S. Const.:
`Amend. I .............................................. 2, 3, 6-16, 19, 21, 33
`Free Speech Clause ......................................... 1, 11, 31
`Amend. XIV ....................................................................... 6
`18 U.S.C. 2339A(b)(1) ............................................................ 13
`Mental Health Practice Act, Colo. Rev. Stat.
`§ 12-245-101 et seq. (2024) .................................................... 4
`§ 12-245-202(3.5)(a) ........................................... 2, 5, 22, 23
`§ 12-245-202(3.5)(b) ........................................................... 5
`§ 12-245-202(3.5)(b)(1) ..................................................... 22
`§ 12-245-224 ........................................................................ 4
`§ 12-245-224(1)(t)(III) ....................................................... 4
`§ 12-245-224(1)(t)(V) .................................................... 4, 22
`§ 12-245-225 ........................................................................ 5
`§ 12-245-225(1)(a) .............................................................. 5
`§ 12-245-225(1)(b) .............................................................. 5
`§ 12-245-225(1)(c) ............................................................... 5
`§ 12-245-225(1)(f ) ............................................................... 5
`§ 12-245-225(2) ................................................................... 5
`§ 12-245-225(3) ................................................................... 5
`§ 12-245-302 ........................................................................ 4
`§ 12-245-304 ........................................................................ 4
`§ 12-245-602 ........................................................................ 4
`§ 12-245-604 ........................................................................ 4
`§ 12-245-802 ........................................................................ 4
`
`
`
`
`
`
`
`
`VII
`
`Statutes —Continued: Page
`§ 12-245-804 ........................................................................ 4
`Minor Conversion Therapy Law,
`2019 Colo. Sess. Laws 3409-3412 ........................................ 4
`Miscellaneous:
`Am. Psychological Ass’n, Report of the American
`Psychological Association Task Force on
`Appropriate Therapeutic Responses to Sexual
`Orientation (2009) ........................................................ 31, 33
`Restatement (Second) of Torts (1965) ................................. 14
`U.S. Dep’t of Health & Human Servs.:
`Substance Abuse and Mental Health Servs.
`Admin., Ending Conversion Therapy:
`Supporting and Affirming LGBTQ Youth
`(Oct. 2015) ................................................................... 31
`Treatment for Pediatric Gender Dysphoria:
`Review of Evidence and Best Practices
`(May 1, 2025), https://opa.hhs.gov/sites/
`default/files/2025-05/gender-dysphoria-
`report.pdf.................................................................... 34
`Eugene Volokh, The “Speech Integral
`to Criminal Conduct” Exception,
`101 Cornell L. Rev. 981 (2016) ............................... 14, 19, 20
`
`
`
`
`
`
`
`(1)
`In the Supreme Court of the United States
`
`No. 24-539
`KALEY CHILES, PETITIONER
`v.
`PATTY SALAZAR, IN HER OFFICIAL CAPACITY AS
`EXECUTIVE DIRECTOR OF THE COLORADO DEPARTMENT
`OF REGULATORY AGENCIES, ET AL.
`
`ON WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE TENTH CIRCUIT
`
`BRIEF FOR THE UNITED STATES
`AS AMICUS CURIAE SUPPORTING PETITIONER
`
`
`INTEREST OF THE UNITED STATES
`This case concerns whether and under what circum-
`stances a general regulation of professional conduct
`that restrict s what a professional can say to her clients
`violates the First Amendment’s Free Speech Clause.
`The United States has a substantial interest in protect-
`ing citizens’ constitutional right s of free expression and
`also in preserving the ability of governments to regulate
`conduct despite incidental burdens on speech .
`INTRODUCTION
` A recurring issue in free -speech jurisprudence is
`how to distinguish between speech and conduct . As part
`of a broad regulation of the practice of mental -health
`professionals , Colorado has passed a law preventing
`
`
`
`
`
`
`
`2
`
`providers from employing “any practice or treatment”
`that “attempts or purports to change” a minor’s “sexual
`orientation or gender identity.” Colo. Rev. Stat. § 12 -
`245-202(3.5) (a) (2024). The statute reaches conduct that
`has no First Amendment protection because it is not
`carried out through speech , such as using negative stim-
`uli to create a n aversive response. But the statute also
`covers talk therapy —a course of mental -health treat-
`ment conducted solely through the spoken word. The
`question presented is whether, as applied to petitioner’s
`talk therapy , the law operates as a content -based
`speech restriction or merely as a regulation of conduct
`that incidentally burdens speech.
` This Court’s precedents supply a clear answer: Col-
`orado’s law is a content-based restriction on petitioner’s
`speech because it is triggered by that speech’s commu-
`nicative content. In Holder v. Humanitarian Law Pro-
`ject, 561 U.S. 1 (2010), and similar cases, this Court has
`held that even if a law “may be described as directed at
`conduct,” it operates as a content -based speech re-
`striction , as applied, if “the conduct triggering coverage
`under the statute consists of communicating a mes-
`sage.” Id. at 28. That is equally true in the context of
`“ ‘professional speec h,’ ” which this Court “has not rec-
`ognized * * * as a separate category of speech” under
`the First Amendment . National Inst. of Family & Life
`Advocates v. Becerra, 585 U.S. 755, 769 (2018) (NIFLA).
`The Holder principle resolves this case.
` Below, t he court of appeals and respondents took a
`different view . They contended that the State’s law is
`not subject to First Amendment scrutiny, reasoning
`that it is a regulation of conduct that only “incidentally
`involves speech.” Pet. App. 37a . But while this Court
`has recognized an exception to strict scrutiny for
`
`
`
`
`
`
`
`3
`
`conduct regulations that “incidentally” burden speech ,
`that exception applies only if the speech is restricted
`(1) based on its connection to some separate regulated
`conduct or (2) for reasons unrelated to its communica-
`tive content. Here, the only conduct of petitioner ’s that
`Colorado is regulating is the words that she says to
`their clients , and the State is doing so because it disa-
`grees with the viewpoint conveyed —in short, the law
`regulates speech as speech .
` This Court should r eaffirm that Holder is the doc-
`trine that applies when speech triggers a regulation be-
`cause of its communicative content independent from
`any other regulated conduct. Doing so would not upend
`state regulations of professional conduct. States may
`still regulate professional speech based on its connec-
`tion to separate regulated conduct or for reasons unre-
`lated to its content (or if it is otherwise historically rec-
`ognized as unprotected ). And while strict scrutiny will
`apply to certain regulations of professional speech ,
`States can meet that burden when they make a suffi-
`cient showing that they need to restrict speech that is
`harmful or ineffective . What a State cannot do, how-
`ever, is avoid the rigors of strict scrutiny by labeling
`talk therapy as conduct rather than speech.
` This Court warned in NIFLA that “ regulating the
`content of professionals ’ speech poses the inherent risk
`that the Government seeks not to advance a legitimate
`regulatory goal, but to suppress unpopular ideas or in-
`formation.” 585 U.S. at 771. Here, Colorado is muzzling
`one side of an ongoing debate in the mental -health com-
`munity about how to discuss questions of gender and
`sexuality with children . Under the First Amendment,
`the State bear s a heavy burden to justify that content -
`based restriction on protected speech .
`
`
`
`
`
`
`
`4
`
`STATEMENT
` 1. a. Colorado regulates the licensure and practice
`of mental -health professionals under the Mental Health
`Practice Act , Colo. Rev. Stat. § 12-245-101 et seq. The
`Act establishes state boards of examiners to oversee
`various mental -health subfields, including psychology,
`professional counseling, and addiction counseling. See,
`e.g., id. §§ 12 -245-302, 12 -245-602, 12 -245-802. And i t
`sets out qualifications that professionals in those sub-
`fields must satisfy to obtain the licenses, registrations,
`or certifications required to practice in the State . See,
`e.g., id. §§ 12-245-304, 12-245-604, 12-245-804.
` The Act also regulates the conduct of Colorado’s
`mental-health professionals once they are authorized to
`practice . Among other things, i t contains a list of “[p]ro-
`hibited activities .” Colo. Rev. Stat. § 12 -245-224. This
`includes , for example, performing “any service or treat-
`ment that is contrary to the generally accepted stand-
`ards of the person’s practice and is without clinical jus-
`tification .” Id. § 12-245-224(1)(t)(III).
` b. In 2019, Colorado enacted the Minor Conversion
`Therapy Law (MCTL), 2019 Colo. Sess. La ws 3409 -
`3412. As relevant here, t he MCTL makes it a prohibited
`activity for a covered mental-health professional to en-
`gage in “[c]onversion therapy with a client who is under
`eighteen years of age.” Colo. Rev. Stat. § 12 -245-
`224(1)(t)(V). The MCTL defines “[c]onversion therapy”
`as:
`any practice or treatment * * * that attempts or
`purports to change an individual’s sexual orientation
`or gender identity, including efforts to change be-
`haviors or gender expressions or to eliminate or re-
`duce sexual or romantic attraction or feelings toward
`individuals of the same sex.
`
`
`
`
`
`
`
`5
`
`Id. § 12-245-202(3.5)(a). The statute further clarifies :
`“Conversion therapy ” does not include practices or
`treatments that provide:
`(I) Acceptance, support, and understanding for
`the facilitation of an individual’s coping, social sup-
`port, and identity exploration and development, in-
`cluding sexual -orientation -neutral interventions to
`prevent or address unlawful conduct or unsafe sex-
`ual practices, as long as the counseling does not seek
`to change sexual orientation or gender identity; or
`(II) Assistance to a person undergoing gender
`transition.
`Id. § 12-245-202(3.5)( b).
`A covered mental-health professional who violates
`the conversion -therapy ban is subject to various statu-
`tory penalties . See Colo. Rev. Stat. § 12 -245-225.
`Among other things, the relevant state board may issue
`her a letter of admonition , place her on probation , re-
`voke her authorization to practice , apply for an order
`enjoining her from practicing , and issue a $5000 admin-
`istrative fine per violation. Id. § 12 -245-225(1)(a), (b),
`(c), and (f ), (2), and (3).
` 2. a. Petitioner is a licensed professional counselor
`in Colorado . Pet. App. 12a . She i s a Christian who
`works with “adults who are seeking Christian counsel-
`ing and minors who are internally motivated to seek
`counseling.” Id. at 13a. Petitioner ’s counseling practice
`consists exclusively of talk therapy . Id. at 14a. In her
`practice, petitioner seeks “to assist clients with their
`stated desires and objectives in counseling.” Ibid. Ac-
`cording to petitioner, t hese objectives sometimes in-
`clude “seeking to reduce or eliminate unwanted sexual
`
`
`
`
`
`
`
`6
`
`attractions, change sexual behaviors, or grow in the ex-
`perience of harmony with one’s physical body.” Ibid.
` In 2022, petitioner brought this pre-enforcement suit
`against respondents —Colorado officials who adminis-
`ter the MCTL and two state boards of examiners . Pet.
`App. 14a-15a. Petitioner alleged that the MCTL vio-
`lates her (and her minor clients’) rights to freedom of
`speech and free exercise of religion under the First
`Amendment , as well as her right to due process under
`the Fourteenth Amendment . Id. at 15a & n.8. Peti-
`tioner sought a preliminary injunction on all of those
`grounds. Id. at 135a.
` b. The United States District Court for the District
`of Colorado denied a preliminary injunction. Pet. App.
`135a-173a.
` The district court first determined that petitioner
`had standing to assert her own rights, but not the rights
`of her clients. Pet. App. 145a-147a. It then held that
`petitioner was unlikely to succeed on the merits of her
`free-speech claim . Id. at 150a.
` The district court reasoned that the MCTL “regu-
`lates professional conduct” in the form of a particular
`type of medical treatment, “ not speech .” Pet. App.
`150a. It acknowledged that petitioner’s practice of the
`prohibited treatment —talk therapy —“is administered
`through words .” Id. at 154a. But it opined that the stat-
`ute’s effect on speech was merely “incidenta l[]” to its
`regulation of a particular course of medical treatment.
`Id. at 150a (citing National Inst. of Family & Life Ad-
`vocates v. Becerra, 585 U.S. 755, 768 (2018)).
` The district court next concluded that rational -basis
`review applied. Pet. App. 155a. It rejected petitioner’s
`argument that the MCTL is subject to strict scrutiny
`for discriminat ing based on viewpoint , reiterating the
`
`
`
`
`
`
`
`7
`
`conclusion that the law “prohibits therapeutic prac-
`tices” and burdens speech only incidentally. Id. at 155a
`n.8. And t he court finally determined that the law sat-
`isfies rational -basis review. Id. at 157a.
` c. A divided panel of the United States Court of Ap-
`peals for the Tenth Circuit affirmed. Pet. App. 1a-82a.
` In an opinion by Judge Rossman, joined by Judge
`Moritz, the court of appeals emphasized that NIFLA
`stated that the regulation of “professional conduct that
`‘incidentally involves speech’  ” is permissible under the
`First Amendment . Pet. App. 3 7a (quoting 585 U.S. at
`768). The Tenth Circuit concluded that the MCTL is a
`regulation of professional conduct because it “regulates
`mental health professionals practicing their profes-
`sion.” Id. at 38a-39a. The court further held that the
`MCTL’s application to talk therapy was also a regula-
`tion of professional conduct, because talk therapy is “a
`medical treatment.” Id. at 42a. It acknowledged that
`“an aspect of the counseling conduct, by its nature, nec-
`essarily involves speech.” Id. at 50a. But the court de-
`termined that petitioner’s freedom of speech was only
`“implicated ,” not “abridged,” because the MCTL only
`“incidentally involves speech.” Ibid. It reasoned that
`the MCTL “does not regulate expression ,” because the
`law leaves petitioner free to “share with her minor cli-
`ents her own views on conversion therapy.” Id. at 46a-
`47a. Instead, the court found that the “only conduct
`prohibited” is providing a “treatment” to minor clients.
`Id. at 47a.
` The court of appeals further held that rational -basis
`review applie s and is satisfied . Pet. App. 59a-72a. It
`noted that the State has legitimate interests in “safe-
`guarding the physical and psychological well -being of a
`minor” and in “regulating and maintaining the integrity
`
`
`
`
`
`
`
`8
`
`of the mental -health profession.” Id. at 63a. The court
`concluded that the MCTL is rationally related to those
`interests, upholding the district court’s findings on the
`preliminary -injunction record. Id. at 67a.
`Judge Hartz dissented. Pet. App. 83a-125a. He rea-
`soned that the MCTL is subject to strict scrutiny be-
`cause it regulates petitioner’s talk therapy based on its
`expressive content . Id. at 87a-88a. Judge Hartz identi-
`fied “serious questions ” about respondents’ ability to
`satisfy strict scrutiny on the current evidentiary record ,
`id. at 86a, and would have remanded to allow the district
`court to address those issues in the first instance . Id.
`at 106a. 1
`SUMMARY OF ARGUMENT
`The question presented is whether , as applied to talk
`therapy, Colorado’s Minor Conversion Therapy Law
`(MCTL)—which prohibits any mental -health treatment
`by licensed therapists that attempts to change a minor’s
`sexual orientation or gender identity —operates as a
`content-based speech restriction subject to strict scru-
`tiny under the First Amendment . The answer is yes.
`A. When speech triggers a law that regulates con-
`duct, the level of First Amendment scrutiny that applies
`depends on how the law operates. As a general rule, if
`the speech is covered based on its communicative con-
`tent, then the law triggers strict scrutiny, even if the
`law also covers non -speech conduct. For example, in
`Holder v. Humanitarian Law Project , 561 U.S. 1 , 28
`(2010), the Court applied strict scrutiny to a federal
`
`1 Petitioner also appealed the district court’s separate holding
`that petitioner is unlikely to succeed on her free-exercise claim ,
`which the court of appeals affirmed as well. Pet. App. 72a-82a, 161a-
`171a. Petitioner did not seek further review of that question .
`
`
`
`
`
`
`
`9
`
`statute banning “material support” to terrorist organi-
`zations because, as applied to the plaintiffs’ intended
`speech, the law banned the speech based on its message.
`The same general rule applies to a law regulating
`professional speech, which is subject to the same First
`Amendment rules as other speech . See National Inst.
`of Family & Life Advocates v. Becerra, 585 U.S. 755 ,
`766-773 (2018). A professional conduct regulation that
`is applied to restrict speech based on its content is thus
`generally subject to strict scrutiny, even if it also covers
`non-speech conduct.
`This Court in NIFLA recognized an exception to
`that general rule: “States may regulate professional
`conduct, even though that conduct incidentally involves
`speech.” 585 U.S. at 768. NIFLA used the term “inci-
`dental” to describe two different types of relationships
`between speech and conduct. First, speech may be “in-
`cidentally” burdened in the sense that the speech is
`closely connected to separate, non -speech conduct that
`is being regulated. Second, speech may be “inciden -
`tally” burdened in the sense that the speech is regulated
`for reasons unrelated to its content. Importantly, how-
`ever, Holder dictates that a law does not qualify as an
`“incidental” burden in either sense simply because it ap-
`plies to both speech and non -speech conduct.
`B. Under those principles, strict scrutiny is the
`proper standard for petitioner’s free -speech claim.
`The MCTL restricts what she may say to her minor cli-
`ents based on the content and viewpoint of her speech ,
`which generally triggers strict scrutiny. That the
`MCTL also applies to non -speech conduct does not
`change the analysis, per Holder. And the MCTL is not
`a conduct regu lation that “incidentally” burdens speech
`under NIFLA. The MCTL’s ban on petitioner’s speech
`
`
`
`
`
`
`
`10
`
`is not tied to any separate non -speech conduct, but ra-
`ther regulates speech solely as speech . And the MCTL
`bans that speech because of its message, not for a ny
`content-neutral reason.
`C. The Tenth Circuit erroneously applied rational -
`basis review, reasoning that the MCTL regulates a par-
`ticular mental -health “treatment” and that any burden
`on petitioner’s speech is “incidental [].” Pet. App. 46a -
`47a, 54a-56a. The court essentially deemed the MCTL’s
`burden on speech to be “incidental” simply because the
`statute also regulates conduct. That reasoning contra-
`dicts Holder and misreads NIFLA. Relatedly, the court
`treated petitioner’s speech differently from other speech
`because it is spoken by a professional, disregard ing
`NIFLA ’s admonition that professional speech should
`not be treated differently from other speech under the
`First Amendment.
`D. This Court should vacate and remand for the lower
`courts to apply strict scrutiny in the first instance. But
`to the extent the Court wishes to offer guidance on that
`score, the record strongly suggests that respondents
`cannot carry their burden. While Colorado has compel-
`ling interests in protecting minors from harmful or in-
`effective treatments provided by licensed mental-health
`professionals, the State appears to lack persuasive evi-
`dence that the MCTL’s ban on conversion therapy sub-
`stantially advances those interests , raising the infer-
`ence that the Stat e is merely seeking to suppress a dis-
`favored viewpoint .
`
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`11
`
`ARGUMENT
`A. The Standard Of Scrutiny Under The First Amendment
`Varies Based On The Manner In Which Speech Triggers
`A Law Regulating Conduct
`When speech triggers a law that regulates conduct,
`the level of First Amendment scrutiny that applies de-
`pends on how the law operates . In general, if the speech
`is covered because of its communicative content , then
`the law is subject to strict scrutiny , notwithstanding that
`it also covers non -speech conduct. And the same gen-
`eral rule applies for professional speech. An exception
`exists, however, whe n the conduct regulation only inci-
`dentally burdens speech. But that exception applies
`only if the speech is restricted based on its connection
`to so me separate regulated conduct or for reasons un-
`related to its communicative content.
`1. Laws that restrict speech based on content are gen-
`erally subject to strict scrutiny , even if they also re-
`strict non-speech conduct
`a. The core guarantee of the Free Speech Clause of
`the First Amendment, applicable to the States through
`the Fourteenth Amendment, is that the government may
`not “restrict expression because of its message, its ideas,
`its subject matter, or its content.” Police Dep’t v. Mos-
`ley, 408 U.S. 92, 95 (1972). Thus, “[c]ontent -based laws
`—those that target speech based on its communicative
`content—are presumptively unconstitutional.” Reed v.
`Town of Gilbert, 576 U.S. 155, 163 (2015). Absent an ex-
`ception, s uch laws “may be justified only if the govern-
`ment proves that they are narrowly tailored to serve
`compelling state interests.” Ibid.
`A speech restriction is content -based if it “applies to
`particular speech because of the topic discussed or the
`
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`12
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`idea or message expressed.” Reed, 576 U.S. at 163 ; see
`City of Austin v. Reagan Nat’l Adver. of Austin, LLC ,
`596 U.S. 61, 73 -74 (2022). In other words, if a speaker’s
`violation of the law “depends on what they say” —their
`topic or message —the law is content -based. Holder v.
`Humanitarian Law Project , 561 U.S. 1, 27 (2010 ).
`Content-based laws are presumptively unconstitu-
`tional because “content discrimination ‘raises the spec-
`ter that the Government may effectively drive certain
`ideas or viewpoints from the marketplace.’  ” Davenport
`v. Washington Educ. Ass’n , 551 U.S. 177, 188 (2007)
`(quoting R.A.V. v. City of St. Paul , 505 U.S. 377, 38 7
`(1992)). There are some circumstances “in which that
`risk is inconsequential, so that strict scrutiny is unwar-
`ranted,” ibid., including for certain “historic and tradi-
`tional categories” of unprotected speech, United States
`v. Stevens, 559 U.S. 460, 468 (2010). Bans on fighting
`words and defamation are classic example s. See R.A.V.,
`505 U.S. at 383. But outside such exceptions, the First
`Amendment “put[s] the decision as to what views shall
`be voiced largely into the hands of each of us,” to play
`out in the marketplace of ideas. Simon & Schuster, Inc.
`v. Members of the N.Y. State Crime Victims Bd. , 502
`U.S. 105, 116 (1991).
`b. Content-based speech restrictions sometimes
`arise in the context of laws that more broadly regulate
`non-expressive conduct . In a long line of cases , involv-
`ing many types of laws , this Court has consistently held
`that even general conduct regulations warrant strict
`scrutiny when they are applied to restrict speech based
`on its communicative content. In other words , a law
`that regulates speech based on its content is no less sus-
`pect just because the law can also be violated by conduct
`that does not communic ate a message.
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`13
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`Cohen v. California , 403 U.S. 15 (1971), is a leading
`illustration of the principle . In Cohen, a man w ho wore
`a jacket bearing the words “Fuck the Draft” in a county
`courthouse , in order to protest the Vietnam War , was
`convicted under a state law that prohibited “maliciously
`and willfully disturbing the peace.” Id. at 16 (brackets
`omitted). The law did not facially target speech as such;
`a person can disturb the peace through non -expressive
`conduct (like engaging in a riot ). But th is Court held
`that, as applied to Cohen, the law operated as a content-
`based speech restriction , because the conviction “quite
`clearly rest[ed] upon the asserted offensiveness of the
`words Cohen used to convey his message .” Id. at 18.
`Put differently , Cohen violated the law only because of
`the communicative content of his jacket; a jacket bear-
`ing a different message would not have disturbed the
`peace.