The Supreme Court ruled 8-1 today that Colorado cannot ban a therapist from having a conversation. The case is called Chiles v. Salazar, and the vote count alone tells you how badly the left got it wrong. More than two dozen state legislatures passed laws like this one. The Tenth Circuit upheld it. Every level of the legal system that touched this case failed the most basic First Amendment test.

The majority opinion is, all things considered, a short majority opinion. Justice Neil Gorsuch, writing for eight justices, told every lower court in the country that viewpoint-based bans on therapeutic speech are dead on arrival.

The Supreme Court got it right, while Justice Jackson is once again out to lunch, even to her own side of the aisle.

What Colorado actually did

Kaley Chiles is a licensed mental health counselor in Colorado. She does talk therapy. In 2019, Colorado passed a lawbanning licensed therapists from engaging in any practice that attempts to change a minor's sexual orientation or gender identity. Twenty-six states have similar bans.

Here is what that means in practice. A licensed therapist in Colorado can affirm a minor's gender identity. She can encourage a transition. But if a minor walks into her office and says he wants help reducing unwanted attractions, she cannot help him. Same office. Same license. Same conversation. One viewpoint is legal. The other is a violation.

Colorado made it worse at oral argument. The state conceded that an "unlicensed life coach" can say everything Chiles wants to say. The ban only applies to licensed professionals. Think about what that means. The state is using a professional license as a weapon to force every therapeutic conversation in one direction. If you have a license, you can only affirm. If you do not have a license, you can say whatever you want.

The state is tacitly admitting that, without the license, this is clearly speech discrimination. The license is the only thing making it legal.

The First Amendment is no word game.

Justice Gorsuch, writing for the eight-justice majority, left little room for ambiguity. "Her speech does not become 'conduct' just because a government says so or because it may be described as a 'treatment' or 'therapeutic modality,'" he wrote. "The First Amendment is no word game."

Technically, the Court remanded the case to the Tenth Circuit to apply strict scrutiny. In practice, the opinion reads like a signal: any law that bans one viewpoint in a therapeutic conversation and permits the opposite viewpoint is finished.

Colorado tried the word game anyway. The state argued it was regulating medical conduct, not speech, and that the speech restrictions were incidental. Gorsuch cited NIFLA v. Becerra, the 2018 case where the Court struck down California's attempt to force crisis pregnancy centers to post notices advertising state abortion services. The framework is the same in both cases. "Colorado does not regulate speech incident to conduct," Gorsuch wrote. "It regulates 'speech as speech.'"

That framework is what makes NIFLA the fault line in this opinion. Justice Ketanji Brown Jackson, the lone dissenter, reads the same case and reaches the opposite conclusion. She argues NIFLA actually supports lower scrutiny here because Colorado is regulating a medical treatment — talk therapy — and the speech restriction is incidental to that regulation. Eight justices told her she is wrong. The two liberal justices who actually dissented in NIFLA joined Gorsuch's majority rather than follow Jackson.

Think about what that means. Kagan and Sotomayor disagreed with the Court's First Amendment framework in NIFLA. They thought California's law should have survived. And they still looked at Colorado's law and said, "This is viewpoint discrimination." When the justices who wanted to uphold compelled speech at crisis pregnancy centers refuse to join your dissent about a conversion therapy ban, you are alone for a reason. Justice Jackson continues her trend of writing dissents targeted at the BlueSky audience rather than serious legal opinions.

Gorsuch drove the point home with history. He cited Buck v. Bell, the 1927 case that blessed forced sterilization, as a warning about deferring to "prevailing professional views." He noted that the American Psychiatric Association classified homosexuality as a mental disorder until 1974. Under Jackson's logic, a state ban on therapy that affirmed homosexuality would have survived rational-basis review for decades. "The people lose," Gorsuch wrote, "whenever the government transforms prevailing opinion into enforced conformity."

What Kagan is actually doing

The majority opinion will get the headlines. Kagan's four-page concurrence is where the real work is happening.

She agreed the case was "textbook" viewpoint discrimination. Then she planted a flag. "I write only to note that if Colorado had instead enacted a content-based but viewpoint-neutral law," Kagan wrote, "it would raise a different and more difficult question."

The distinction matters. A viewpoint-based law picks a side. Colorado's law does that: it bans therapy aimed at changing orientation but permits therapy aimed at affirming it. A content-based but viewpoint-neutral law restricts an entire subject without picking a winner. A state that banned all talk therapy touching sexual orientation for minors, conversion and affirmation alike, would be regulating the topic, not the conclusion.

Kagan is saying that the second kind of law might survive under a lower standard of review. She is telling the next Democratic legislature exactly how to draft the bill, although some enterprising Republican legislatures might take up her challenge, too.

"Fuller consideration of that question, though, can wait for another day." That is a reservation of a future position, Kagan said, joining the 8-1 majority. She is banking political capital. When that "content-based but viewpoint-neutral" case arrives, and it will, she has already told you where she might stand.

That is not magnanimity. That is horse-trading. Gorsuch told lower courts how to kill the current laws. Kagan told blue-state legislatures how to write the next ones. And in the process, by trying to side with the majority on one of these cases, Kagan is trying to help sway other cases on the docket.

That's the part Justice Jackson hasn't realized, yet. There are only three liberals on the court, and they have to pick their spots to sway opinions. Justice Jackson is swinging for the dissent fences every opinion, while Kagan tries to use cases like this as a way to swing other important decisions.

The case that hasn't been filed yet

Today's case was easy. The next one will not be. This case reached the Supreme Court because an entire tier of the American legal system could not identify viewpoint discrimination when it was staring them in the face.

There's still plenty of room to litigate on this matter. Today, free speech thankfully won the day. Democrats bellyached across the spectrum, predictably. But the simple hypothetical is this: should red states force medical professionals to state the opposite of what was in this case?

If your answer is no, then you should side with the majority opinion in this case. But, like with most things, Democrats still want government-mandated speech—the collapse of traditional liberalism to progressive illiberalism continues apace. Thankfully, the First Amendment still controls in the highest court in the land.