In Chiles v. Salazar, No. 24–538 (Mar. 31, 2026), the U.S. Supreme Court, in both majority and dissenting opinions, cited the Restatement of the Law Third, Torts: Medical Malpractice, in an analysis of how the First Amendment interacted with Colorado’s Minor Conversion Therapy law, which prohibited licensed counselors from engaging in “conversion therapy” with minors, when it was applied to talk therapy.
In this case, a licensed mental-health counselor in Colorado filed an action in the U.S. District Court for the District of Colorado against the Executive Director of the Colorado Department of Regulatory Agencies, seeking a preliminary injunction prohibiting the state from enforcing Colorado’s Minor Conversion Therapy law against her, and raising a First Amendment challenge to the law as it applied to her talk therapy, which was designed to meet each of her client’s individual goals regarding, among other things, gender identity and sexuality. Both the district court and the U.S. Court of Appeals for the Tenth Circuit denied the counselor’s request for a preliminary injunction, finding that the law was best understood as regulating professional conduct and that it regulated speech only incidentally, and that the counselor was not entitled to injunctive relief. The Supreme Court granted certiorari to resolve a circuit conflict over how the First Amendment interacted with laws like Colorado’s.
Justice Gorsuch, delivering the opinion of the Court, reversed the judgment of the Tenth Circuit and remanded, holding that Colorado’s law banning conversion therapy for minors, as applied to the counselor’s talk therapy, regulated speech based on viewpoint and implicated the First Amendment. The Court reasoned that “Colorado’s law d[id] not just regulate the content of [the counselor’s] speech. It [went] a step further, prescribing what views she [could] or [could] not express.” As an example, the Court pointed out that, under Colorado’s law, the counselor could express acceptance, support, and understanding for the facilitation of a minor client’s identity exploration, but it also forbade her from saying anything that attempted to change a client’s sexual orientation or gender identity. The Court rejected the state’s arguments that the law was analogous to traditional tort malpractice claims, citing Restatement of the Law Third, Torts: Medical Malpractice § 11 (T.D. No. 2, 2024) in explaining that Colorado’s law did not “allow clients to consent to practices that depart[ed] from the prevailing standard of care, while malpractice law sometimes did.” Thus, the Court concluded that the lower courts erred by failing to apply sufficiently rigorous First Amendment scrutiny to the Colorado law.
Justice Jackson, in a dissenting opinion, argued that it was a “long-recognized responsibility of States to regulate the medical profession for the protection of public health,” and that Colorado’s law restricted treatment-related speech uttered by medical professionals only as part of a larger regulatory scheme aimed at setting limits on who could practice medicine and regulating how those professionals could practice by requiring them to adhere to a standard of care. Justice Jackson reasoned that state enforcement of the standard of care, which Restatement of the Law Third, Torts: Medical Malpractice § 5 (T.D. No. 2, 2024) defined as “the care, skill, and knowledge regarded as competent among similar medical providers in the same or similar circumstances,” had and still served as the touchstone for regulating medical professionals’ conduct to ensure that modern healthcare practices, which were not limited to only medical procedures, conformed to the standard of care. The dissent argued that “the law operate[d] by prohibiting a particular medical treatment the State consider[ed] harmful, and nothing about it implicate[d] . . . First Amendment rights in a markedly different fashion than other States’ traditional efforts to regulate and enforce the standard of care.”
Read the full opinion here.