In Chiles v. Salazar, 607 U.S. ___, 146 S.Ct. 1010 (March 31, 2026), slip opinion accessible here, the Supreme Court invalidated Colorado’s ban on providing conversion therapy to minor patients as violative of the Free Speech Clause.  In a precursor to the ruling, National Institute of Family and Life Advocates v. Becerra, 585 U.S. 755, 766–767 (2018)(“National Institute”), the Court had refused to recognize professional speech as “a general exception to “unprotected” expression subject to more extensive regulation.[1]  However, National Institute did not involve talk therapy or the speaking professions.  In invalidating the Colorado ban, the Chiles v. Salazar Court not only reaffirmed, but extended, its refusal to accord government authorities enhanced flexibility to regulate professional speech.    

This post explores the decision’s implications for professional disciplinary proceedings and malpractice actions. However, I will first discuss the Court’s inattention to the challenged statute’s application only to therapeutic counseling involving minors.  (I have uploaded on SSRN a paper, Just Talk: Professional Regulation and Medical Malpractice Litigation After Chiles v. Salazar, laying out the analysis below, with more extensive citations. 

I.  Are Regulation Limiting Communication Solely to Children Different?

Justice Gorsuch’s majority opinion in Chiles v. Salazar notes that Colorado’s ban on conversion therapy applies only to minors, 146 S.Ct. at 1017-18, 1029, but neither he nor the two concurring Justices accord that limitation any particular significance.    Colorado’s prohibition of certain types of counseling only with respect to children is critical, if not ultimately outcome-determinative.

A.  Supreme Court Caselaw Regarding the Free Speech Rights of Children

The Court has long held that “[s]tates validly may limit the freedom of children to choose for themselves in the making of important, affirmative choices with potentially serious consequences.”  Bellotti v. Baird, 443 U.S. 622, 635 (1979).  Such limitations are permissible due to most minors’ lack of the “experience, perspective, and judgment to recognize and avoid choices that could be detrimental.”  Id. 

Scientific research has confirmed these intuitions and identified aspects of brain development that result in far different decision-making by minors, and even those in their early twenties.[2]  Just last term, in United States v.  Skrmetti, 605 U.S. 495, 517, 522-23 (2025), the Court relied upon such concerns in upholding prohibitions against gender-affirming medical treatments with parental consent.  The Court found persuasive the Tennessee legislature’s concerns regarding children’s capacity to make decisions about their sexuality that had long term consequences and could lead to regret.[3] 

Though the Court’s statement in Bellotti v. Baird was made in the context of the now-defunct right to abortion, it extends to the free speech context. New York v. Ferber, 458 U.S. 747, 756-57 (1982)(upholding application of a statute prohibiting child pornography to a retailer selling films depicting children engaging in sexual acts); FCC v. Pacifica Foundation, 438 U.S. 726, 749-50 (1978)(upholding FCC’s ban on obscene speech over broadcast networks);[4] Ginsberg v. New York, 390 U. S. 629, 640 (1968)(upholding statute prohibiting the sale of sexually-explicit material to minors); Prince v. Massachusetts, 321 U. S. 158, 170 (1944).  In Prince v. Massachusetts, the Court upheld a statute prohibiting use of a child to distribute literature on the street, notwithstanding the statute’s effect on a First Amendment activity.  In doing so, the Court observed that “[a] democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens.”  Id. at 170.

Brown v. Entertainment Merchants Ass’n, 564 U.S. 786 (2011), which struck down a California ban on selling or renting “violent video games” to minors, might appear to confine the precedents above to limitations on access to obscenity.[5]  California could “adjust the boundaries of an existing category of unprotected speech,” such as obscene speech, “to ensure that a definition designed for adults is not uncritically applied to children.”  Id. at 794.  But it could not suppress protected speech “solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.”  Id. at 795.

Unlike depictions of violence disseminated to the general public or to children in particular, which has historically been left unregulated, the practice of psychotherapy has long been and remains subject to regulation seeking to protect clients’ mental health when undergoing such treatment.  Mental health professionals have been and remain subject to ex post sanctions, by means of malpractice actions or professional discipline, for counselling that departs from the acceptable standard of care in ways that harm patients.

Given the one-on-one relationship between patient and therapist, atypical communications directed to the general public, the use of psychotherapeutic techniques poses significant risks.  Brief of the American Psychological Association, the American Psychiatric Association, etc. as Amici Curiae in Support of Respondents, Chiles v. Salazar, Dkt. No. No. 24-539, 12 (Aug. 26, 2025) 2025 WL 2532655 (“Amer. Psych. Ass’n Brief”)(accessible here)(therapy is not merely engaging in conversation).  The risk is all the greater because children lack maturity and often lack control or understanding of their own emotions.  Id., at 30-33 (youth may be “particularly vulnerable” to the potential harms of conversion therapy).  Moreover, youths are precisely likely to downplay future consequences and to undervalue risk.[6]    The expression of a desire to convert to one’s birth gender might well reflect a desire to conform to one’s peers or to parental preferences. 

In any event, the harms from such therapy can be quite serious, see Amer. Psych. Ass’n Brief, supra, at 25-28,  particularly with respect to minors, who often lack full control of their emotions as well as the maturity to combat depression or self-loathing.  

B.  Viewpoint Discrimination

The caselaw above does not suggest that viewpoint discrimination is permissible.  So long as the Supreme Court views conversion talk therapy bans as viewpoint discrimination, concerns about speech directed to children cannot carry the day.  See, R.A.V. v. City of St. Paul, 505 U.S. 377, 383-84, 391-92 (1992).[7]

But Colorado sought to distinguish exploratory therapy from conversion therapy.  Colorado defines “conversion therapy” broadly to include any practice or treatment “that attempts or purports to change an individual’s sexual orientation or gender identity, including efforts to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attraction or feelings toward individuals of the same sex.”  Col. Rev. Stat. §12-240-104 (5.5)(a)(2024). But a proviso narrows the definition’s breadth, excluding any therapy or treatment that provides “[a]cceptance, support, and understanding for the facilitation of an individual’s coping, social support, and identity exploration and development.”   Col. Rev. Stat. §12-240-104 (5.5)(b)(2024).  Thus, Colorado sought to distinguish therapy seeking to aid minors in discovering their innate sense of themselves from therapy directed at a pre-ordained goal that may not reflect the child’s innate sense of themselves.  Such a distinction may be more difficult to categorize as viewpoint based. 

Indeed, various codes of professional ethics for mental health professionals suggest that distinction’s importance,[8] requiring therapists to both avoid imposing their own values and attitudes on their clients and avoid doing harm.  Principle E of the American Psychological Association’s Ethical Principles of Psychologists and Code of Conduct demands that “[p]sychologists respect the dignity and worth of all people, and the rights of individuals to . . . self-determination.”  Principle A specifies that “[p]sychologists strive to benefit those with whom they work and take care to do no harm.”  The Association cited both in its February 2021 Resolution on Sexual Orientation Change Efforts (accessible here).[9] 

Counseling with respect to a child’s identity could theoretically lead to the client to conclude either that their birth gender is who they “are,” or that their gender differs from their birth gender.[10]  Such an approach suggests that gender-affirming talk therapy might run afoul of the exploratory versus result-oriented therapy distinction in some circumstances.  Yet the Colorado statute specifically excludes “[a]ssistance to a person undergoing gender transition” from the definition of conversion therapy.  Col. Rev. Stat. §12-240-104 (5.5)(b)(2024).

Perhaps on remand Colorado can focus on whether children are different in the context of talk therapy in arguing that there is a compelling state interest in protecting children from conversion therapy.  Such an approach may enhance the argument that its ban on conversion therapy is a narrowly tailored one needed to prevent serious harm to children’s long-term and short-term emotional well-being due to the dissonance created by pushing minors to reject their innate feelings.

II.  Implications for Professional Discipline and Medical Malpractice Litigation

This post focuses upon Chiles v. Salazar’s implications for medical malpractice actions, and, to a lesser extent, professional disciplinary actions. Justice Gorsuch, for the majority, and Justice Jackson, in dissent, briefly discusses both in their opinions.[11]

Justice Gorsuch’s opinion largely forecloses content-based regulation of talk therapy by way of professional rule, treating a professional rule as largely indistinguishable from a criminal prohibition (or a law providing for injunctive relief).  That focus largely preordains the result.  In particular, while counseling for teens who wish to conform to their birth identity is prohibited, gender-affirming counseling for teens who sense their true gender differs from their birth gender is permitted.  See, Chiles v. Salazar, 146 S.Ct. at 1024.

The Court’s opinion does not appear to preclude government professional licensing bodies from imposing discipline on mental health professionals on a case-by-case basis for use of talk therapy in particular cases that results in harm to patients.  The case also appears to leave intact potential malpractice liability for the use of talk therapy in specific circumstances.  Id. at 1028.  This is not surprising.

Free speech doctrine tends to favor civil liability based on specific harms for which individuals seek compensation over licensing regimes, criminal liability, and injunctions that can be wielded by the government.[12]  Below I will draw out some of the implications of the potential for more individualized medical malpractice actions and disciplinary proceedings in the context of conversion therapy.

Justice Gorsuch recognizes the existence of state regulation of professional practice, id. at 1028, but professional regulation is a bit broader than he envisions.  It not only includes ensuring that practitioners attain and maintain the knowledge and skill to practice competently, but also resolving complaints against practitioners for violating professional standards.[13] 

A.  Rules vs. Case-By-Case Adjudication

Chiles v. Salazar involved the validity of a professional rule of practice as applied to “talk therapists” in general, albeit enforceable by means of professional disciplinary board proceedings.  It did not involve a disciplinary proceeding against a talk therapist in connection with treatment provided to a specific patient.  The problem with rules of the sort challenged in Chiles v. Salazar is that they often sweep more broadly than the harms they target.[14]  On the other hand, rules provide certainly and an assurance of “equal” treatment at the cost of taking individual circumstances into account.[15] 

Broad rules present a special problem in the context of regulating speech, which prohibits substantial overbreadth of rules, see generally, RODNEY A. SMOLLA, SMOLLA & NIMMER ON FREEDOM OF SPEECH§§ 6:1–2, 6:13 (St. Paul: Clark, Boardman, Callaghan, 2025) (available on westlaw), and subjects content-based rules to heightened scrutiny.  Defending such rules presents an additional challenge because of the heightened scrutiny to which the Court subjects speech restrictions aimed at diffuse, rather than individualized, harm, see, United States v. Alvarez, 567 U.S. 709, 718-23  (2012).[16]

Civil liability suits require complainants to prove individualized harm in a judicial proceeding.  Moreover, the standards in medical malpractice are far less rule-like and far more fact-specific.   The plaintiff need not prove that talk-based conversion therapy is harmful to patients in general, but merely that the therapist should have concluded that conversion therapy was inappropriate for him or her and caused harm.  See, Chiles v. Salazar, 146 S.Ct. at 1028; RESTATEMENT (THIRD) OF TORTS: MEDICAL MALPRACTICE §4 (tent. draft)(available on westlaw).

How might such claims based on standards adopted by private professional organizations play out?[17]

B.  Medical Malpractice Liability

Medical malpractice liability involves two distinct categories of claims – claims based on the failure to perform competently and those based on the lack of informed consent.[18]

1.  Failure to Provide Competent Care

Claims against therapists for failure to meet professional standards of care or competence are governed by the professional standard of care. In other words, “[t]he standard of reasonable medical care is the care, skill, and knowledge regarded as competent among similar medical providers in the same or similar circumstances.”  RESTATEMENT (THIRD): MEDICAL MALPRACTICE, supra, §5; accord, RESTATEMENT (SECOND) OF TORTS § 299A. 

Application of the professional standard would appear to make the conversion therapist’s defense difficult to sustain.  Under the most prevalent standards among mental health professionals, conversion therapy is considered sufficiently dangerous and ineffective that it should not be used.  E.g., American Psychological Ass’n February 2021 Statement, supra.  However, medical malpractice law recognizes that differing schools of medical practice may exist, such as Jungians and Freudians.  Where two or more schools of thought regarding proper medical treatment exist, and each is recognized as legitimate, the practitioner must be judged by the standards of his or her own school of thought.  RESTATEMENT (THIRD): MEDICAL MALPRACTICE, supra, at §5, comm. k, Reporters Notes, comm. k.  Thus, if conversion therapy qualifies as a respected school of thought, it might appear that only talk therapists could render admissible opinions on the proper therapeutic approach.[19]  This will pose a challenge for plaintiffs seeking to secure admissible expert testimony.

But even if the defendant prevails on such an issue, the analysis could potentially be more complicated.  Assume that conversion talk-therapy might sometimes be appropriate and sometimes not.  The need to assess which type of therapy is appropriate and to determine whether to discontinue therapy may mean that therapists can be held accountable on a case-by-case basis on subsidiary questions independent of their respective school. 

Such subsidiary matters might include the following.  Should the therapist have realized that the client’s expressed desire for conversion therapy was ill-formed and that psychologically the client needed a different approach? Should the therapist have recognized that the patient was seeking such conversion therapy due to parental pressure or feelings of embarrassment stemming from interactions with peers or others in the community?  Should the therapist have noticed signs that the therapy directed at reaffirming birth gender was causing distress and the prospect of self-harm, and thus should have been discontinued? 

Presumably such assessments are ones all therapists are trained to make, regardless of their “school of thought.”  If expert testimony from those outside the practitioner’s school of thought is admissible on such subsidiary questions, plaintiff could more easily secure expert testimony and will have a greater prospect of proving a departure from the appropriate standard of competence.[20] 

Causation would need to be proven.[21]  Plaintiffs or their survivors would have to establish what would have happened had they not been subjected to conversion talk therapy.  Would the therapist’s patient have committed suicide, attempted suicide, or suffered emotional harm even if they had not been subjected to conversion talk therapy?  That itself is a challenging issue that would likely require yet more expert testimony. Legislation is pending in at least two states to attempt to ease that burden.[22]  Jurors’ attitudes regarding gender and changing gender, in addition to their attitudes toward the parties, their lawyers, and their experts might play a big role in their resolution of such a difficult and somewhat  speculative question.

2.  Failure to Provide Informed Consent

In informed consent cases, either of two standards govern depending on the state: the “patient-centered” or the “provider-centered” standard.  RESTATEMENT (THIRD): MEDICAL MALPRACTICE, supra, §12(c) & comm. f, & Reporter’s Notes to comm. f.  Under the patient-centered standard, often referred to as “the reasonable patient standard,” the doctor must advise the patient of information the reasonable patient would find material in deciding whether to undergo treatment.  Under the provider-center standard, the required content of the disclosures is determined by standard practice in the medical profession.[23] 

However, states may possess the power to prescribe the required disclosures.  National Institute, supra, suggests that such a limitation would be considered incidental to the practice of medicine.  585 U.S. at 769-770. The National Institute Court cited the state mandatory disclosure requirements related to abortion upheld in Planned Parenthood v. Casey.  Id.  Indeed, in Gonzales v. Carhardt, 550 U.S. 124 (2007), the Court suggested that legislatures could require physicians to detail the particulars of the dilation and extraction procedure, to ensure that the patient’s choice to have a late-term abortion were fully informed, despite the contrary practice of physicians. Id., at 159-60.

But assume that the state does not specify the required disclosure.

In jurisdictions that have adopted the reasonable patient standard, the conversion talk therapist fails to disclose the professional consensus regarding talk therapy at his or her peril.  The reasonable patient would surely find the existence of a professional consensus regarding the risk and ineffectiveness of the treatment material.   

Where informed consent is governed by the professional standard, resolution of the issue may prove more difficult.  The professional standard turns on the disclosures competent therapists would make to the patients.  But which therapists, therapists in general or conversion talk therapists?  This raises all the questions previously discussed regarding application of the “schools of thought” doctrine. 

If conversion talk therapy is not a respected school of practice, then powerful testimony could be provided by a talk-therapist that agrees with the professional consensus regarding conversion talk therapy.  Even if conversion talk therapy is a respectable school of practice, the therapist may be liable nevertheless for failing to meet the standards of informed consent among conversion talk therapists.  RESTATEMENT (THIRD): MEDICAL MALPRACTICE, supra, at §5, comm. k .

Plaintiffs will face particularly daunting challenges when seeking to prove causation in informed consent cases.  They must first establish that they would not have agreed to the therapy if fully advised of the risks and professional consensus.  Id. at §13.  The proposed Restatement (Third)’s standard  for “decisional causation” melds objective and subjective elements: plaintiff must show that if properly informed, plaintiff would have chosen a different course, and that such a choice would have been reasonable under the circumstances.” Id. at §13(a)(1).  Then plaintiff would have to show “injury causation” ─ that the conversion therapy caused the emotional harm suffered.  Id.  Again, ultimately these cases might turn heavily on the nature of the community and the jury, with attitudes toward gender dysphoria being critical.

3.  Uncertainty of Liability

Conversion talk therapy may, in effect, be regulated by civil litigation.  Verdicts (or even settlements) will likely be inconsistent based on the nature of the jury pool,the plaintiff’s likeability, the defendant’s likeability, and the quality of the litigating lawyers.  Such inconsistency is undesirable and perhaps leaves talk therapists without a clear “rule” to guide their conduct.  On the other hand, theoretically at least, case-by-case adjudication has the potential to take all circumstances into account.  Such an approach is more acceptable under convention First Amendment standards, which favors case-by-case civil adjudication over more generalized rules.  However, it is not at all clear whether such case-by-case adjudication will be beneficial for anyone, clients or practitioners, in terms of fairness, consistency, and certainty.

4.  Medical Malpractice Insurers

Medical malpractice insurers, chary about potential malpractice claims, might either impose constraints on those who practice conversion therapy or charge higher premiums to such practitioners, if it is permissible to do so.  Thirteen jurisdictions have shield laws shielding providers of gender-affirming care and reproductive health care from “adverse action” imposed by insurers, including premium increases for providing such therapy.  UCLA School of Law Williams Institute, Shield Laws for Reproductive and Gender Affirming Health Care: A State Law Guide (Table: Shield Law Protections By State). The statutes may tend to be more broadly phrased, for instance Maryland’s statute covers all “legally protected health care.”  Md. Ins. Code 19-117(b). In states that lack any such protections, insurers could presumably refuse to cover conversion therapy, particularly given the adverse medical consensus. Alternatively, insurers could charge high premiums for such coverage given the liability risk they must shoulder in extending coverage to conversion therapists. 

Such practices by insurance companies might have effects that would resemble the rule of practice imposed by the Colorado legislature, but by means of a few civil judgments and private decisions of malpractice insurers.  Indeed, there is a proposal in the Maryland legislature to impose a surcharge on premiums for providers offering conversion therapy, which would go into a state fund to compensate those harmed as a result of such therapy.  S.B. 950, 2026 Genl Assemb., 448th Sess. (Md. 2026) (proposed amendment to Md. Ins. Code 19-117(a))(accessible here).[24]   

C. Disciplinary Proceedings

If practicing conversion therapy led to professional disciplinary proceedings, some of the vagaries of jury trials would be avoided.  In addition, state disciplinary boards need not grapple with knotty questions of causation, because they do not award compensatory damages to the medical professional’s complaining client. But professional disciplinary proceedings may incorporate their own biases.  State boards may be lax in bringing proceedings, either due to lack of resources or a desire to protect fellow practitioners.[25] On the other hand, state boards might persecute unconventional practitioners outside the professional consensus. 

Conclusion

While Chiles v. Salazar may resolve the questions regarding the validity of absolute ban of conversion “talk therapy,” practitioners may continue to find themselves subject to case-by-case review of their practices by juries, insurers, and professional disciplinary boards.

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[1] Little more than a decade before, several Courts of Appeal had recognized a professional speech exception, permitting otherwise impermissible constraints on professional speech. E.g., King v. Governor, 767 F.3d 216, 232 (3d Cir. 2014);  Pickup v. Brown, 740 F.3d 1208, 1227–1229 (9th Cir. 2014);  Moore–King v. County of Chesterfield, 708 F.3d 560, 568–570 (4th Cir. 2013).    

The question of whether rules of professional practice for talking professions are constrained by the First Amendment, came before the Court approximately 41 years ago in Lowe v. SEC, 472 U.S. 181, 189 (1985). Lowe involved the question of whether publishing a newsletter containing investment advice subjected the publisher to regulation as an investment advisor.  The Court side-stepped the constitutional issue by narrowly construing the relevant statute.  See generally, Alfred C. Aman, Jr., SEC v. Lowe: Professional Regulation and the First Amendment, 1985 SUP. CT. REV. 93 (“distinguished three frameworks for addressing professional speech, namely the regulatory, First Amendment, and commercial speech frameworks”).

[2] See Laura Cohen, Freedom’s Road: Youth, Parole, And the Promise of Miller v. Alabama and Graham v. Florida, 35 CARDOZO L. REV. 1031,1043-48 (2014); Laura Cohen & Randi Mandelbaum, Kids Will Be Kids: Creating A Framework For Interviewing And Counseling Adolescent Clients, 79 TEMP. L. REV. 357 (2006). See, American Psychological Assn, Gender-Affirming Therapy, Psychiatry.org  (transgender patients often live in a transphobic environment and suffer from trauma, shame, depression, among other things, which can result in self-harm).

[3] Justice Thomas, in a separate concurrence, focused on these concerns. U.S. v. Skrmetti, 605 U.S. at 540-43. 

[4] Justice Powell, for himself and Justice Blackmun noted that indecent “speech may have a deeper and more lasting negative effect on a child than on an adult.”  FCC v. Pacifica Foundation, 438 U.S. at 757-58 (Powell, J., concurring).

[5] The draft Restatement of Children and the Law takes that position: “Minors have a right to gain access to . . . expressive content[, which] constrains government actors’ power to restrict minors’ access to speech and other expressive material,” except with respect to “sexually explicit material deemed harmful to minors.”  RESTATEMENT OF CHILDREN & THE LAW §18.11 (Tent. Draft No. 5 (March 2023))(accessible on westlaw).

[6] See, Grace Icenogle, et al., Adolescents’ Cognitive Capacity Reaches Adult Levels Prior To Their Psychosocial Maturity: Evidence for a “Maturity gap” in a Multinational, Cross-Sectional Sample, 43 LAW HUM. BEHAV., no. 1, 69-85 (Feb. 2019).

[7] Justices Kagan and Sotomayor concurred with the decision to invalidate the Colorado statute primarily for that reason.  Chiles v. Salazar,  146 S.Ct. at 1029-30. 

[8] States “have a legitimate interest “in protecting the integrity and ethics of the medical profession.” Washington v. Glucksberg, 521 U. S. 702, 731 (1997). 

[9] Accord, 2014 American Counseling Association Code of Ethics §A.4.b (accessible here)(“[c]ounselors are aware of—and avoid imposing—their own values, attitudes, beliefs, and behaviors”); National Board for Certified Counselors, Inc. and Affiliates Code of Ethics, Rule 17 (Aug. 24, 2023) (accessible here)(“[c]ounselors shall take proactive measures to avoid harming their clients, and avoid imposing personal values on those who receive their professional services”). 

[10] Chiles denied that she begins therapy with any predetermined goals or imposes her values upon clients.  146 S.Ct. at 1017.  Taking the allegation of the complaint as true, Justice Gorsuch describes Chiles’  approach as follows:

On matters of sexuality and gender, Ms. Chiles’s clients, including minors, come to her with different goals in mind. Some “are content with” their sexual orientation and gender identity and seek assistance only with “social issues, family relationships,” . . . In cases like those, Ms. Chiles does not try to persuade her clients to “change their attractions, behavior, or identity,” but aims instead to help them address their stated goals.  Other clients, however, come to her hoping to “reduce or eliminate unwanted sexual attractions, change sexual behaviors, or grow in the experience of harmony with [their] bod[ies].”  And in these cases, too, Ms. Chiles seeks to help her clients reach their own stated objectives.

Id.  But there appears to be little indication that Chiles explores the reasons clients have particular goals and whether those reasons have implications for the minor client’s mental health. Taking Chiles’ description of her practice at face value, it is not entirely clear that her practice would violate Colorado’s statute.

[11] Practitioners of conversion therapy may also be held liable under state consumer fraud laws.  See, Ferguson v. JONAH, 445 N.J. Super. 129 (Hudson Co. 2014). 

[12] In the realm of speech regulation, content-based licensing includes military censorship and obscenity control regimes. Their distinctive feature is that the speaker must secure government permission before speaking. Such regimes constitute the classic “prior restraint” prohibited by the First Amendment.  Criminal liability specifies certain statements that can result in penal sanctions. Especially in the speech area, criminal statutes must be precise, focusing specifically on constitutionally unprotected expression.  A third form of regulation, issuance of injunctions, requires the government or a private party to seek a judicial order preluding a speaker from making or continuing to make certain statements. The party seeking the injunction must prove that the statements violate a statutory or common law right.  Efforts to seek injunctions based on the content of speech are treated like licensing regimes, as “prior restraints,” and there is a heavy presumption against entry of such injunctions. 

The fourth mode of regulation lies largely in the hands of private individuals, namely civil liability. Such liability allows individuals to recover monetary damages for tortious speech or speech that otherwise invades their legal rights. Defamation is one such civil cause of action.  While subject to some constraints, such civil suits are much more likely to pass constitutional muster. 

I will lay out this taxonomy in more detail in a forthcoming chapter entitled “Constraints on Government Efforts to Control Disinformation in the United States” in PLATFORM REGULATION AND THE FREEDOM OF EXPRESSION IN THE UNITED STATES AND EUROPE: ACROSS THE GREAT DIVIDE (Andras Koltáy & Ronald J. Krotoszynski, Jr. eds,, Oxford University Press, forthcoming).

[13] Federation of State Medical Boards, About Physician Discipline; Tristan McIntosh, What Can State Medical Boards Do to Effectively Address Serious Ethical Violations?, 51 J. LAW MED. ETHICS 941-953 (2023).

[14] Bernard W. Bell, Dead Again: The Nondelegation Doctrine, the Rules/Standards Dilemma and the Line Item Veto, 44 VILL. L. REV. 189, 199-201 (1999)(“Dead Again”); see generally, FREDERICK SCHAUER, THINKING LIKE A LAWYER 24-29 (Harvard Univ. Press 2009).

[15] Dead Again, supra note 14, 44 VILL. L. REV. 189, 199-201.

[16] The harms from conversion therapy are by no means diffuse – specific patients often suffer severe harm. However, when the validity of the professional rule categorically banning potentially harmful professional speech is at issue, the critical fact is that the professional rule is violated even if the client does not perceive themselves to be harmed.

[17] State legislators may be paying attention to the prospect of medical malpractice liability.  E.g., Col. HB 26-1322 (re engrossed April 4, 2026); S.B. 934 , 2025-26 Reg. Sess. (Cal. 2026); S.B. 950, 2026 Genl Assemb., 448th Sess. (Md. 2026). 

[18] The two distinct duties of care are outlined in sections 12 and 5 respectively of the Restatement (Third) of Torts: Medical Malpractice.  These distinctions reflect a dichotomy evident in broad swaths of tort law between two methods of addressing dangers – reducing the risk of an activity or warning those at risk of the dangers.  I explore these two strands and how they interact in Unnecessary Dangers and Acceptance of Risk, and in a previous contribution to this blog, see, Chewy v. U.S. Department of Labor: Undermining OSHA’s Regulatory Regime (July 5, 2023).

[19] The test appears to resembler the now-defunct federal standard for the admissibility of expert evidence, namely that scientific evidence is admissible only if based on principles generally accepted as valid by the relevant scientific community.  Frye v. United States, 293 Fed. 1013 (D.D.C. 1923). But the principles underlying Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993), might be relevant to judge’s potential gatekeeping role regarding the respectability of a particular schools of thought.  For a discussion of those standards, see 29 CHARLES ALAN WRIGHT & AUTHUR R. MILLER , FED. PRAC. & PROC. EVID. § 6267 (2d ed.)(westlaw)(current through April 2026 update).

[20] Justice Gorsuch points to the proposed Restatement (Third) which addresses emerging therapeutic approaches. Chiles v. Salazar, 146 S.Ct. at 1028; RESTATEMENT (THIRD): MEDICAL MALPRACTICE, supra, at §11; see generally, id. at §5, comm. f.  Perhaps conversion talk therapy could be viewed as such an emerging approach.  Nevertheless, the demands with respect to obtaining informed consent may be more stringent in this context.

[21] Id., at §6.

[22] For example, Colorado H.B. 26-1322 creates specific provisions for establishing general causation and specific causation.  H.B. 26-1322, supra, at §§5, 6; accord, Cal. S.B. 934, supra (proposed Code of Civil Procedure 340.12(e). 

[23] The draft Restatement (Third): Medical Malpractice modifies the provider-center standard with two additional obligations.  The practitioner “must tell patients the general nature and purpose of the proposed treatment.”  RESTATEMENT (THIRD): MEDICAL MALPRACTICE, supra, §12 comm. g.  Second, the practitioner must “furnish information that a particular patient seeks or that the provider is otherwise aware the patient reasonably wants to know.”  Id.

[24] The selective taxation cases involving media entities would suggest that a surcharge statute targeting constitutionally protected talk therapy, by singling out such practitioners for government-mandated higher premiums, may be unconstitutional.  See, Leathers v. Medlock, 499 U. S. 439, 447 (1991).

[25] One group of researchers observes that “[f]ailures to use severe disciplinary actions to protect the public have attracted significant attention.”  Tristan McIntosh, et al., What Can State Medical Boards Do to Effectively Address Serious Ethical Violations?, 51 J. OF LAW, MEDICINE & ETHICS, 941, 941 (2023); see generally, id. at 941-43, 950-51; Robert E. Oshel and Robert Steinbrook, Ranking of the Rate of State Medical Boards’ Serious Disciplinary Actions, 2021-2023 (Oct. 4, 2024).