What the Supreme Court’s Decision in Chiles v. Salazar Means for Free Expression Online
The Supreme Court’s recent 8 to 1 decision in Chiles v. Salazar has implications that reach far beyond the counseling sessions where it originated. Yet the Court’s decision did not change or reshape doctrine, it simply clarified an important truth: the government can’t rebrand speech as “conduct” and expect the First Amendment to turn a blind eye to its censorship efforts.
Kaley Chiles is a licensed counselor in Colorado. Her counseling efforts do not involve prescribing medication or administering treatments. All she does is talk to clients about their goals and how to achieve them: some clients want to talk to accept their identities while others want to talk to align their gender identity with their biological sex. Colorado said the latter conversations were illegal and threatened to revoke her license if she kept talking.
The “Labeling Game” Is Over
The State’s core argument in Chiles will sound familiar to anyone following online speech litigation. Colorado insisted its law regulated conduct, not speech, and that any effect on expression was merely incidental. Two lower courts bought that framing. The Supreme Court saw through Colorado’s ruse.
The opinion is blunt: a speaker’s words don’t become conduct just because the State calls them a “treatment,” a “therapeutic modality,” or anything else. As the Court put it, the First Amendment “is no word game,” and rights “cannot be renamed away or their protections nullified by mere labels.” The majority drew directly on Cohen v. California and Holder v. Humanitarian Law Project to close the door on this maneuver; in both cases, the government defended speech restrictions as conduct regulations, and in both cases, the Court “emphatically rejected that argument.”
By drawing on past examples, the Court made clear that attempts to evade the First Amendment are doomed to fail, not just in the counseling context. Legislatures drafting online speech mandates have deployed exactly this playbook for years—claiming that requiring platforms to carry certain content, or barring AI systems from making certain recommendations, regulates “business conduct” rather than constitutionally protected speech and expression. Chiles foreclosed that strategy. The First Amendment’s reach doesn’t shrink because the government curates a viewpoint restriction in regulatory clothing.
No “Professional Speech” Exception
The Court also used Chiles to put the final nail in the coffin of the idea that licensed professionals enjoy second-class constitutional status. The opinion warns that history is full of official efforts to control professional speech in ways designed to increase State power, suppress minorities, and silence unpopular ideas. Those dangers, the Court held, are no less acute in medicine and public health than anywhere else.
The implications extend directly to AI and digital-services regulation. Legislatures are increasingly targeting the speech of engineers, developers, and the systems they build, arguing that “algorithmic outputs” or “AI-generated content” deserve less First Amendment protection because they involve technical or professional judgment. Chiles answers that argument before it gets off the ground: the Constitution “does not protect the right of some to speak freely; it protects the right of all.”
Medical Consensus Cannot Mark the Boundary of Protected Speech
Perhaps the most forward-looking passage in the opinion addresses the government’s common argument that professionals can simply be required to conform to prevailing standards of care set by the State. The Court rejected this with striking force, noting that not long ago, major medical organizations classified homosexuality as a disorder—and that, under Colorado’s logic, a law from that era prohibiting counselors from affirming their clients’ homosexuality would likely have survived scrutiny. The Court’s conclusion: medical consensus “is not static; it evolves and always has,” and a prevailing standard of care “cannot mark the outer boundary of what [professionals] may say tomorrow.”
This passage could prove critical. A wave of State AI bills seek to enforce a government-approved vision of how AI systems must communicate—mandating disclosures, prohibiting certain outputs, and commanding specific speech based on whatever regulators deem the current expert consensus. Chiles is a direct warning: the First Amendment “rests on a simple truth” that We the People lose whenever the government transforms its preferred opinions into enforced conformity.
The Bottom Line
Chiles v. Salazar is a clean, powerful reaffirmation of first principles. When the government targets what you say based on the viewpoint it expresses, the First Amendment demands rigorous judicial scrutiny. States cannot engineer their way around that by relabeling speech as conduct, deferring to expert consensus, or carving out professional speakers as a lesser constitutional class. Those principles don’t just protect counselors—they protect every speaker the government finds inconvenient, including the platforms and services that power free expression for hundreds of millions of Americans.
NetChoice will keep defending them.
Learn more about NetChoice’s First Amendment litigation at netchoice.org/litigation.
Image via Unsplash.