Attorney Explains Free Speech To Supreme Court Justice Ketanji Brown Jackson

Supreme Court Justice Ketanji Brown Jackson is fresh off summer recess and approaching the new term with typical insight. 

Jackson and her colleagues sat for oral argument in the case of Chiles v. Salazar this Tuesday. One of Jackson’s questions prompted an attorney to refer the justice to the First Amendment. 

The case is brought by Kaley Chiles, a licensed therapist and evangelical Christian. Chiles is allegedly barred by Colorado law from verbally dissuading her clients to pursue same-sex relationships and/or a “gender transition.” (RELATED: Left-Wing Media Frames Therapists Who Affirm Biological Reality As Practicing ‘Conversion Therapy’)

Jackson interjected with a clarifying question for Hashim M. Mooppan, a principal deputy solicitor general. Mooppan was arguing in support of Chiles. 

“So can I ask you just one final question just sort of from a very broad perspective? I’m wondering why this regulation at issue here isn’t really just the functional equivalent of [United States v. Skrmetti]. I mean, I realize that — that there were two different constitutional provisions at issue, but the regulations work in basically the same way and the question of scrutiny applies in both contexts. So it just seems odd to me that we might have a different result here.”

In United States v. Skrmetti, the Court held that a Tennessee state law prohibiting “certain medical treatments for transgender minors is not subject to heightened scrutiny under the Equal Protection Clause of the Fourteenth Amendment.” 

“Well, Skrmetti was a law that regulated on the basis of age and medical treatment,” Mooppan replied.

“No, but here’s what I mean, right? In Skrmetti, we had a state that wanted to prohibit certain medical treatment, gender-affirming care, being given to minors in the form of medication. And we said that was okay. And I understand there are particulars with respect to how the — the arguments, the constitutional arguments, worked, but the state can prohibit that,” Jackson explained. 

“Here, we have a state that wants to prohibit gender-related medical treatment in the form of talk therapy, but we now have the First Amendment that is inhibiting the state’s ability to do that. And I’m just, from a very, very broad perspective, concerned about making sure that we have equivalence with respect to these things,” Jackson concluded. 

Of course. All therapy is conversion therapy inasmuch as it seeks to resolve psychological distress by changing ideas and behavior. The current law in Colorado says that psychologists can only convert patients to ideas and behavior approved by left-wing sexual revolutionaries. https://t.co/rEbRczQEz1

— Michael Knowles (@michaeljknowles) October 8, 2025

“Well, from a very broad perspective, there shouldn’t be equivalence because —”

“Okay.”

“— obviously, we have a First Amendment,” Mooppan said. “So, when you’re free to make that call on speech —”

“Because talk therapy — talk therapy — the speech is what is at the core for you?”

“Right,” Mooppan agreed. 

“It’s not necessarily the state’s interest in protecting minors from what it believes to be certain harmful … treatments,” Jackson concluded. (RELATED: Supreme Court Greenlights Tennessee’s Ban On Sex-Change Procedures For Kids)

“Right.”

This is the crux of Chiles’ defense. A talk therapist who does not prescribe medical or surgical intervention based on her discussions with clients exclusively deals in speech. Medical speech is still subject to state regulation, but must meet the standard of strict scrutiny — the highest standard of judicial review, applied to government action which burdens a fundamental right. Once strict scrutiny is applied, the burden of persuasion is shifted to the government, according to Cornell Law School’s Legal Information Institute. 

To meet that burden, “the government must show that its actions were ‘narrowly tailored’ to further a ‘compelling government interest,’ and that they were the ‘least restrictive means’ to further that interest,” the Legal Information Institute notes.

Imagine how Colorado’s argument might proceed.

“Your honor, mutilating and sterilizing children is certainly a compelling government interest, because we need a generation of hopeless dependents to empower the Democrat Party.”

At 14, I thought transition was liberation. Only later did I see it for what it was: a repackaged form of conversion therapy.

Ginny Welsh shares her powerful story of pain, healing, and liberation from the constraints of gender ideology.

Read here 👉 https://t.co/MoY89cEj2O” pic.twitter.com/lWE3VfQQQb

— Genspect (@genspect) August 27, 2025

Generously, Jackson was engaging Mooppan in the Socratic method. 

Realistically, Jackson herself may have had a tough time comprehending the distinction between regulating speech and regulating medical prohibitions. 

Slate praised Jackson’s line of questioning, saying Jackson’s inquiry “stripped away the veneer of constitutional principle from the Supreme Court’s latest blatant culture war.” 

At another point, Jackson speculated, “I mean, I think there are, like, 25 states or something who have similar laws, so someone has some evidence related to the harmfulness of this activity, right?”

The popularity of a practice does not betray profound evidence that said practice is good. Of course. 

Colorado’s law is so blatantly unconstitutional, even liberal Supreme Court Justice Elena Kagan approached with skepticism. 

Kagan offered the example of two doctors speaking to a gay client.

This shouldn’t really be surprising. Kagan might be a lib, but she’s also intelligent. If Colorado actually banned “conversion therapy,” it would have to outlaw all of clinical psychology. Instead, Colorado bans only certain viewpoints, which is untenable. https://t.co/vaQysX6xst

— Michael Knowles (@michaeljknowles) October 8, 2025

“If a doctor says, I know you identify as gay and I’m going to help you accept that, and another doctor says, I know you identify as gay and I’m going to help you to change that, and one of those is permissible and the other is not, that seems like viewpoint discrimination in the way we would normally understand viewpoint discrimination,” Kagan said. 

The attorney for the defense agreed with Kagan, but referred to a special carve-out for medical treatment.

“Medical treatment has to be treated differently, because anytime you exclude one harmful practice, you are by definition saying these things are allowed because they are not harmful and these things are excluded because they are harmful.” 

In this case, remember, the “harmful practice” might be simply affirming to a boy that he is not a girl. 

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