By Michael Nevradakis, Ph.D.

The U.S. Supreme Court (SCOTUS) on Tuesday sided with a Colorado-licensed counselor who challenged the state’s law banning “conversion therapy” for minors. The therapist argued that the law violates her First Amendment right to free speech.

SCOTUS ruled that state laws regulating professional speech based on viewpoint are subject to increased First Amendment scrutiny.

Legal experts suggested Tuesday’s ruling may positively affect the outcome of two pending medical free speech lawsuits filed by Children’s Health Defense (CHD).

‘State cannot suppress a licensed professional’s speech by relabeling it as ‘conduct’ or ‘treatment’

In its 8-1 ruling in Chiles v. Salazar, the SCOTUS ruled in favor of Kaley Chiles, who said Colorado’s 2019 law wrongfully subjected her to possible punishment for using talk therapy to help teenage minors struggling with their sexual orientation or gender dysphoria.

Lower courts previously upheld Colorado’s law, ruling that it did not violate the First Amendment; it only regulated professional conduct. In its ruling, the SCOTUS found instead that laws governing professional speech are subject to “strict scrutiny” — the highest standard of judicial review.

Under “strict scrutiny,” courts view laws from a presumption of unconstitutionality, placing the burden of proof on the government to demonstrate that the law is constitutional, “narrowly tailored” to further a “compelling government interest,” and the “least restrictive means” to accomplish its objective.

Writing for the majority, Associate Justice Neil Gorsuch wrote that Colorado’s law “does not just ban physical interventions. In cases like this, it censors speech based on viewpoint.” He added:

“Colorado may regard its policy as essential to public health and safety. Certainly, censorious governments throughout history have believed the same. But the First Amendment stands as a shield against any effort to enforce orthodoxy in thought or speech in this country.”

In a Substack post, attorney Rick Jaffe, who was not involved in Chiles v. Salazar but is the attorney for CHD’s two medical speech lawsuits, wrote that Tuesday’s ruling is “as significant as it is clear: a state cannot suppress a licensed professional’s speech by relabeling it as ‘conduct’ or ‘treatment.’”

Jaffe said Colorado’s law is an example of “viewpoint discrimination, which the [Supreme] Court has long held to be the most egregious form of content regulation under the First Amendment.”

“The First Amendment protects professional speech with the full force of strict scrutiny, even when the speech is the treatment itself,” Jaffe wrote.

CHD General Counsel Kim Mack Rosenberg said the ruling is important for many reasons.

“The Court made clear that viewpoint discrimination is inapposite with the fundamental tenets of the First Amendment and that professional speech is subject to the same protections as other speech. Thus, laws seeking to limit professional speech are subject to strict scrutiny — a very high standard of review. The Colorado law failed to survive that scrutiny,” Mack Rosenberg said.

Ruling has ‘immediate consequences’ for two CHD medical speech lawsuits

The ramifications of Tuesday’s ruling may soon be felt in a pair of pending medical free speech cases — Kory v. Bonta and Stockton v. Brown.

Kory v. Bonta, filed in 2024, builds on Hoang v. Bonta, a CHD-supported lawsuit that challenged California Assembly Bill No. 2098 (AB 2098), a law allowing the Medical Board of California to discipline doctors who disseminate “misinformation” about COVID-19 for engaging in unprofessional conduct.

Hoang v. Bonta resulted in a successful injunction blocking AB 2098. The law was later repealed.

Kory v. Bonta is a follow-up to that successful challenge. The suit alleges that even though the California legislature repealed AB 2098, the Medical Board of California continues to target COVID-19 “misinformation” under its general “standard of care” authority and continues to threaten physicians with disciplinary proceedings.

Three medical professionals — Dr. Brian Tyson, a board-certified family practitioner who owns an urgent care facility; Dr. LeTrinh Hoang, a pediatric osteopathic physician; and Dr. Pierre Kory, president emeritus of the Independent Medical Alliance — launched the lawsuit.

Stockton v. Brown — formerly Stockton v. Ferguson — filed in 2025, alleges the Washington Medical Commission (WMC) COVID-19 “misinformation” policies violated physicians’ free speech rights.

The suit also accused the commission of violating the public’s right to hear dissenting information about the pandemic and unconventional treatments, including ivermectin.

Plaintiffs in Stockton v. Brown include Dr. Richard Eggleston and Dr. Thomas T. Siler, who face disciplinary charges from the WMC for their “soapbox” speech; Dr. Daniel Moynihan, who alleges the WMC’s threats chilled his speech on pandemic-related topics; basketball hall-of-fame player John Stockton, who is co-host of “The Ultimate Assist Podcast,” and CHD.

Stockton and CHD argue that the WMC’s actions violated their constitutional right to freely hear medical speech.

Jaffe wrote on Substack that Tuesday’s ruling by SCOTUS has “immediate consequences” for both cases.

Jaffe noted that Kory v. Bonta “has been on administrative hold at the Supreme Court since June 2025, almost certainly awaiting this decision.”

Stockton v. Brown “has a cert petition” — a petition for certiorari, asking the Supreme Court to review a lower court’s decision — pending with the state’s response due this Friday.”

Jaffe explained how Tuesday’s ruling may impact the two cases. He told The Defender:

“The Supreme Court just held that physician speech is fully protected even when the speech is the treatment itself. Our case, Kory v. Bonta, involves physician speech that isn’t even treatment, just information and recommendations. If strict scrutiny applies to treatment speech, our case is a fortiori decided. We expect a GVR [grant, vacate, remand] shortly.

“Washington’s lawyers in Stockton have to file their response to our cert petition on Friday. They now have to explain to the Supreme Court why the lower court’s decision should stand when eight Justices just held that the constitutional framework underlying it is wrong.”

Ruling confirms ‘professional speech’ is protected, even when speech is the treatment

In Tuesday’s ruling, SCOTUS drew from recent judicial precedent, including a 2018 Supreme Court ruling, National Institute of Family and Life Advocates v. Becerra.

In that case, the court held that “there is no separate category of ‘professional speech’ subject to diminished constitutional protection,” Jaffe wrote.

“Chiles now confirms that this principle applies even when the speech is the treatment itself,” Jaffe wrote.

In 2020, the 11th U.S. Circuit Court of Appeals issued a similar ruling in Otto v. City of Boca Raton. In that decision, the 11th Circuit issued a preliminary injunction against the enforcement of local ordinances prohibiting conversion therapy.

The ruling in Otto v. City of Boca Raton conflicted with a 2022 decision in Tingley v. Ferguson, in which the 9th Circuit upheld the ability of professional boards in Washington to restrict members’ speech, arguing this is similar to the boards’ enforcement of “other restrictions on unprofessional conduct.”

Tuesday’s ruling in Chiles v. Salazar resolved this “circuit split,” Jaffe wrote.

“The Court in Chiles, in deciding in favor of Chiles and protecting professional speech, relied on many of the same precedents as we rely on in Kory as well as Stockton v. Brown,” Mack Rosenberg said.

Judicial precedent supported protection of professional speech

The Kory v. Bonta case is even more clear-cut than Chiles, Jaffe wrote.

“The physicians in Kory are not providing talk therapy. They are providing information, recommendations, and risk-benefit analyses to patients about COVID vaccines, boosters, and off-label treatments. …

“These are not treatments. They are professional judgments and scientific perspectives. If strict scrutiny applies to speech that is the treatment, it obviously applies to speech that is merely information and recommendation.”

Chiles ruling may lead SCOTUS to send Kory v. Bonta back to the 9th Circuit for reconsideration as soon as next week, Jaffe wrote.

Further action from the Supreme Court in Stockton v. Ferguson is expected after lawyers for the state of Washington submit their written response to the plaintiffs’ petition for certiorari later this week.

“Professional speech is not a separate category,” Jaffe wrote. “Speech does not become conduct because a state says so. Medical orthodoxy is not a license to censor. We told the Court all of this. The Court agreed. Now it just needs to apply the holding to our cases.”

Related articles in The Defender

• Doctors, CHD Ask Supreme Court to Review Medical Free Speech Case
• Doctors, Children’s Health Defense to Take Censorship Case to U.S. Supreme Court After Appeals Loss
• U.S. Supreme Court Rejects Emergency Appeal in Medical Free Speech Case
• CHD, Basketball Legend John Stockton and Censored Doctors Sue Washington Medical Commission
• ‘I Can’t Stay Silent’: Basketball Legend Joins Lawsuit to Protect Free Speech After Son, Father Injured by Vaccines
• CHD, Doctors Ask Supreme Court to Hear Medical Free Speech Case

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