I’ll explain the Supreme Court’s Chiles decision and Justice Ketanji Brown Jackson’s lone dissent, lay out why conservatives see this as a win for free speech, show how recent examples of censorship shaped the debate, and flag the danger if Jackson’s approach became the norm on a packed court.
The Supreme Court’s 8-1 decision in Chiles v. Salazar struck down Colorado’s restriction on licensed counselors, protecting “any practice or treatment” that “attempts or purports to change” a minor’s sexual orientation or gender identity. Justice Ketanji Brown Jackson dissented, warning that “to be completely frank, no one knows what will happen now.” For many conservatives, that warning read as fear of losing control over what the state can ban in the name of settled science.
Jackson argued the state should be able to regulate professionals to prevent harm, treating certain counseling as conduct rather than speech. She warned that allowing debate around these topics would “open a can of worms,” a phrase that captures the unease among those who favor stricter protective rules. Republicans see the majority opinion as a reaffirmation that free speech includes unpopular professional viewpoints.
Justice Neil Gorsuch put it bluntly about the First Amendment in the Court’s opinion: “reflects … a judgment that every American possesses an inalienable right to think and speak freely, and a faith in the free marketplace of ideas as the best means for discovering truth … any law that suppresses speech based on viewpoint represents an ‘egregious’ assault on both of those commitments.” That line matters because it draws a bright line against government efforts to silence a side of a debate.
Justice Elena Kagan also pushed back at Jackson’s framing, stressing the constitutional problem when a state “has suppressed one side of a debate, while aiding the other, the constitutional issue is straightforward.” She warned that Jackson’s view “rests on reimagining — and in that way collapsing — the well-settled distinction between viewpoint-based and other content-based speech restrictions.” Those are technical words, but the practical effect is blunt: if dissent can be recast as conduct, free debate shrinks.
This is not theory only. Abroad, prosecutors in Malta once pursued a man for discussing his own departure from homosexuality after a religious conversion, a case that alarmed free speech advocates and highlighted how fragile debate can be under different legal regimes. Back home, anniversaries of pandemic-era censorship still sting; critics point to how dissenting medical views were labeled conspiracies rather than debated.
Dr. Jay Bhattacharya, who co-authored the Great Barrington Declaration, faced professional pushback for opposing widespread shutdowns and school closures. Those who tried to ostracize him are now forced to reckon with outcomes: some of the policies he questioned were later reconsidered, and his critics have had to answer for their earlier calls to silence dissent. The lesson for many conservatives is simple: questioning dominant policies should not mean getting canceled.
The lab-leak debate offers a clear example of shifting consensus. Early on, some outlets treated the theory as “debunked” coronavirus “conspiracy theory,” and other reporters dismissed discussion of the lab angle as “racist.” Over time, federal agencies came to see the lab theory as plausible, showing how prematurely closing debate can mislead policy decisions.
Similarly, questions about blue surgical masks, natural immunity, and the six-foot rule were once sidelined. Anthony Fauci later admitted that the six-foot rule “sort of just appeared” and “wasn’t based on data,” a candid moment that underscores how public health orthodoxy can harden before evidence catches up. For those who value free inquiry, those episodes are proof that vigorous debate matters.
Legal accountability still exists: counselors can be sued for malpractice or negligence, and juries can and do award damages, as happened when a New York jury awarded $2 million to Fox Varian over a double mastectomy performed while she was a minor. State associations and professional bodies can publish guidance and recommendations without silencing alternate views, keeping professional norms and public debate separate.
Colorado’s broader record on free speech has been contentious, from ballot fights to attempts to compel businesses into compliance with social policies. Efforts to treat political advocacy as conduct or to force speech from private actors repeatedly collided with constitutional restraints. That history feeds the Republican argument that the Court did the right thing by defending speech, even when the content is unpopular.
Now there’s a real political stake. Jackson is being held up as a model by some, and the push to expand the Court raises alarms among conservatives who fear her approach would multiply. To paraphrase the Chiles decision, “to be completely frank, we know exactly what will happen then.”
