Courthouse Steps Decision: Chiles v. Salazar

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Welcome to fedsoc Forums, a podcast of the Federal Societies
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Practice Groups. I'm Niy kas Merrick, vice President and Director
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of Practice.
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Good afternoon, everyone, and welcome to fedsock Forums. Today's Courthouse
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Steps Decision program. We'll be discussing the recent eight one
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decision in Charles v. Salazar, which is the Supreme Court
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released this past week. My name is Livy Dickinson and
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I'm an associate director with the Federal Societies Practice Groups.
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As a reminder, all opinions expressed are those of our
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speakers and not of the Federalist Society. We are honored
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to have a fantastic panel of legal experts here today
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to discuss this important decision.
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I will briefly introduce them, but you can.
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Access their full and very impressive bios on our website
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at fedsock dot org. That is fed sooc dot org.
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First off, we have Paul Avla, who is a senior
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attorney at the Institute for Justice. Then we have Professor
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Stephanie Barty, professor of Law and faculty co director with
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the George Talent Center for the Constitution at the Georgetown
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University Law Center. Our distinguished moderator today is Casey Maddox,
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vice president for Legal Strategy at stend Together. If our
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audience has any questions about the webinar that pertained to
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the topic at hand, please submit them through Zoom's Q
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and a feature located at the bottom of your screen
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and not the chat, so that we'll be able to
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access them later in the program. With that note, I
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will turn things over to our moderator to start today's discussion. Casey,
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thank you so much for joining us today.
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Thank you Libby, Thanks to Fedsock for hosting this, and
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thanks to our panelists for doing this obviously on short notice.
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The decision just came out on Tuesday. But this is
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the same panel that brought you the preview of the decision.
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So here we are to talk about the post mortem.
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What has happened now that we do have a decision
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in the child's case, and as Libby mentioned, is an
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eight to one decision, We're going to go first.
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Professor, thanks for Barclay.
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Can you give us just sort of a rundown of
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what the court did decide on Tuesday.
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Sure, and thanks for having me, thanks for putting this together.
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I think this case is a really important victory for
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freedom of speech protections.
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In Childs versus Salazar, the.
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Court held eight to one that Colorado's conversion therapy ban,
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as applied to licensed talk therapists, is regulating speech based
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on viewpoint and therefore demands far more rigorous First Amendment
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scrutiny than the rational basis approach that had been applied
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by the lower courts below. So, the court emphasized the
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fact that miss Childs was allowed to engage in talk
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therapy that would have been affirming of a patient or
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client's desire to pursue a gender transition, but Colorado would
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not allow Miss Childs.
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To engage in talk therapy.
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And for a client who sought to avoid something like
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a gender transition and instead grow more comfortable in the
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body that they were born with, and importantly Miss Childs,
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it was important to the court miss Childs is seeking
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to help clients accomplish their own goals, not imposed goals
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on them. So this is voluntary talk therapy only there's
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no other sorts of drugs or physical interventions that are involved.
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And that's important because Justice Jackson, as the loan dissenter,
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was arguing, as Colorado had been, this is just conduct
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that's not subject to First Amendment protection. And the Supreme
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Court said the First Amendment is not a labeling game.
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Just because government calls something conduct doesn't transform it into
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conduct when all we're dealing with are words coming out
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of someone's mouth. So, writing for eight justices, Justice course
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it stretch stress that point that we can't just transform
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it into conduct just because it's a treatment by licensed professionals.
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Those licensed professionals still retain First Amendment rights. Colorado failed
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to identify any sort of historical tradition of content regulation
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as an.
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Exception to that default norm.
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Of professionals being able to retain First Amendments rights and
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to justify a diminished protection, And so the Court ultimately
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reversed and remanded for further proceedings under the correct strict
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scrutiny standard, the most rigorous standard the First Amendment offers
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didg tell us how strict scrutiny will go, though the
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Court said a lot of things about how viewpoint discrimination,
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the type of discrimination an issue in this case is
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the most suspect and the.
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Most problematic under the law.
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The only two courts to address this so far, the
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Sixth Circuit and Eleventh Circuit under the appropriate standard, have
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said that this type of application of the laws is unconstitutional,
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and I think Colorado is going to have a steep,
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uphill battle below. In further proceedings, Justice Kagan and Justice
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of we are joining the opinion in full. Justice Kagan
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also wrote separately to flag that it's possible that a
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content based but viewpoint neutral regulation of professional speech would
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present different constitutional issues and signaling that not all regulation
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of therapeutic speech is necessarily foreclosed. And of course, one
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other thing I'll flag about the majority is ruling in
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this case is because this is just and as applied ruling,
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not facial invalidation. It means that states like Colorado can
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continue to prohibit lots of different types of things that
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all the parties in this case saree are problematic aversive treatments,
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coercive treatments, things like shock therapy that can still be prohibited.
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The application of this case is.
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Just about voluntary talk therapy that the government is trying
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to regulate in a viewpoint discriminatory way.
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Thank you, Paul. I'm going to come to you.
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First of all, feel free to reply add on to
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anything that.
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You just heard.
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But I also wanted to ask you particularly, is this
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the end of the professional speech doctrine? Is this the
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like you know, after Niffla, it seemed like it was
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probably dead, but it's sort of the goal in the
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night sort of situation from Scalia's terminology that just seems
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to keep going, despite the fact that the court seems
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to keep saying that it's it's not looking kindly upon it.
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What's your take on that? And feel free to respond
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to anything else you just turned.
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I mean, my take on that is that NIFLA was
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supposed to be the nail in the coffin for this,
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and I think what was happening in the lower courts
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is that they were struggling with, for whatever reason, a
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particular exception that Niffla was talking about when it came
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to professional speech, and that was the speech.
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Incidental to conduct idea In Niffla.
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The court said, look, the speech of professionals is, of
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course speech.
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It's protected as speech. There are some.
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Ordinary rules of speech churisprudence. One of those rules however,
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is that speech, the regulation of speech incidental to the
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regulation of conduct is still is not fully protected as speech,
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and a lot of courts were misunderstanding I think what
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that was. And so I think the best thing about
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this decision, about the majority's decision is the degree to
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which it really clarifies what speech incidental to conduct means
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and what it doesn't mean. And I think that really
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accounts for the difference between the eight majority and the
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one descent, which Justice Jackson's dissent is really the professional
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speech doctrine reapplied, and it's the professional speech doctrine reapplied
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because her take on it is that any regulation of
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speech within a larger regulatory sphere, regulation that encompasses both
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conduct and speech, or a regulation of say a general
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practice that includes speech, that.
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Just means it's if you look.
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At it that way, regulations of speech are incidental because
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what the government is mostly regulating is conduct. And Niffola said,
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that's not what Nifhl said. And the Majority does an
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excellent job of really walking through the relevant cases, especially
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Cohen v. California and holder of the humanitarian law, to
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say no, that's not the right inquiry, the right inquiry
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is what is the speaker doing. It's a speaker based inquiry,
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and so I think that is the most important part
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of this decision really.
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I think putting to bed the.
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Misunderstanding of speech incidental to conduct doctrine, and going forward
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the rest of these cases should should be fairly easy
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to sort out, although, as Stephanie noted, like, there's still
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going to be questions as to okay, we're in strict
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scrutiny land, now what are the interests and how do
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we do the balancing?
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That's right?
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So yeah, and obviously this case is not over at
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least in stretch scrutiny is often deemed fatal in fact,
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is how the Court has described it, at least sometimes
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in the past. That often times when these cases are
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when stretch scrutiny is applied, that's usually very often the
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end of the analysis.
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But it's not technically over right.
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This case goes back now to the lower court for
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the actual application of strict scrutiny. I guess either to
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the Tenth Circuit. At first glance, I would imagine that
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the ten Circuit then sends it back to the District
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Court and asks them as the District Court judge to
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apply strict scrutiny is that the assumption, right, well, this
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came up.
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As a PI, as an appeal from a PI. That's
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right right. We're not even at the final judgment stage
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of any of this yet.
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Yeah, And I think it's quite possible that the Tent
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Circuit doesn't need to send it back for trial proceedings.
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The Tent Circuit very well made out of prudence, but
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I think there's.
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Any legal reason why they need to.
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Because Colorado had the opportunity to introduce evidence in the
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trial proceeding below. I think they did a very good job,
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but that's not like a legal reason why they get
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a second bite at the apple at doing evidentiary introduction
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of different experts or declarations or reports, and there own
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evidence a trial below acknowledged one of their experts acknowledged that,
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and one of their reports acknowledged that they could not
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establish causation between harm and the type of therapy at
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issue in this case. And some Supreme Court precedent, including
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a case called Brown, require under strict scrutiny that that
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sort of evidentiary burden be met. That it's the States
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arguing that its actions are necessary to avoid some sort
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of harm. And I would say that that's different than balancing.
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It's more like the state has some permissible harms that
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can avoid, and then it has to prove on an
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evidentiary basis that in fact, its actions are linked to that.
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They have to show through causation that sort of link,
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and they haven't here. I think they will have an
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uphill battle of showing that sort of evidence here because
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they weren't able to point to a single study or
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survey that singled out this type of therapy. All the
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surveys they pointed to were either looking at things like
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shock therapy, course of therapy a versus therapy, or some mix,
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but none of them that could single out voluntary talk
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therapy by licensed professional with a liner and show that
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that therapy causes harm. Which is why I think the
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sixth and the eleventh Circuit said, yeah, this easily fails
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strict scrutiny. When we're looking at the appropriate legal standard.
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The state can't just sort of say, we have a
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compelling interests generally speaking, and therefore in your individual case,
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we have a compelling interest in applying that that standard
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to you. Right that it's got to be tailored to
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the actual conduct that's occurring from the person that they're
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looking to try to apply that that law.
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To YEPI, especially when we're dealing with an as apply challenge.
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Right, right, So one thing that sort of divides the
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the small divide between the majority or the main opinion
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the six justices, and then the concurrence from Kagan and
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so to my or Kagan so to me or indicate
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at least sort of you know, well, in another case,
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there would be some possibility that may be a content
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content based but viewpoint neutral law, which Colorado's is not,
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but one that that actually said just you know, you
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can't do this kind of therapy in either direction with
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regard to sexual orientation, gender identity. Right, that that might
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be a different case. Furious if you have thoughts on that.
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I think one of the interesting things to me, and
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that is always because this language occurs all the time
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in these First Movement cases talking about how content discrimination
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gets you district to strict scrutiny, generally, viewpoint discrimination is
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even worse. So you you might say, wow, then that's
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got to even be worse than strict scrutiny. Right, You've
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got to have an even more elevated level of scrutiny.
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And the answer is, well, no, it's worse, but we
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still just apply straight scrutiny. So I'm curious, h kind
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of how you how you look at that interplay between
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between the justices. They are the six and the two.
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So oh quiet you god? Oh.
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So.
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Justice Kagan's opinion, I think is in line with a
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couple of other things that she has said about what
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are we really doing when we're looking at content based
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restrictions on speech.
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It's actually, i think consistent with.
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Her Law Review article that was written back in nineteen
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ninety six on the importance of government motivations and really
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what we're trying to do is ferret out government motivation
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because we're really concerned about bad motivations. And so she says, look,
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there's sometimes the content based laws don't trigger strict scrutiny
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because we're less concerned about the government's motivation.
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And this is really a pre read v.
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Town of Gilbert idea of what content based regulation or
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law really is and what they're really.
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Concerned about out.
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But you do find echoes of it, I think, more
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recently in the Court's trademark cases of Vidal tam in
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those cases where in Vidal the court upheld or said
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a content based regulation related to trademarks didn't trigger strict
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scrutiny because history and tradition meant that the two lives
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side by side, and so this elevated scrutiny was not
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proper for content based regulations, but was proper for viewpoint
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based regulations. That was written by Justice Thomas, who was
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also the author of Readvtown of Gilbert, which recast in
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much stronger terms the distinction between content or what is
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the content based regulation? And so I do think there's
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some tension here, but there is sort of this longer
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train of thought that hasn't hasn't been majority opinions recently,
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but getting to this distinction that maybe there is some differences.
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Yeah, I think it's an interesting question, interesting to think
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about what would a viewpoint neutral sort of law look
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like here?
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But it's still content based.
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So the majority opinion repeatedly frames it's holding in viewpoint
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specific terms and talks about how Colorado here has gone
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a step further beyond content based to prescribe what views
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as childs may or may not express, and that this
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is an egregious form of content regulation where the concerns
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are most blatant, and Justice Kegan has written about elsewhere
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that one of the reasons we're most concerned about viewpoint
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based regulation.
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Is because it suggests that.
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There's something more about just a disagreement with that position.
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That type of government censorship is a foot one of
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the things that's antithetical to First Amendment freedoms. The first
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the closing paragraph of the majority frames the holding around
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any effort to prescribe and orthodoxy of views when it
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comes to laws that suppress speech based on viewpoint, very
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much in that sort of vein. So the majority opinion
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does preserve the two Niffli categories of permissible content based
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professional speech, which suggests that like not you know, not
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all content based regulation is going to be okay. It
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still has to fit in these categories compelled disclosure of
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factual non controversial information and commercial speech. And also laws
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that only incidentally burden speech or burden conduct. They're regulating conduct,
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and they're only incidentally burdening the speech that is related
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to that, And they also talk about speech that is
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inherently bound up in conduct. And of course there's the
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Casey example of informed consent necessary for a medical procedure.
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So Colorado's law fit into none of those sorts of categories.
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And the Court also suggested that there might be room
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to recognize other sorts of categories if there's some long
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tradition of content based regulation.
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And here they just said Colorado.
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Fell far short of any of the three different attempts
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that they made to show that sort of history that's
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permissible for content regulation. So when it comes to number one,
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medical licensing, the Court said, first, the pedigree is just
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way too thin. The first counselor licensing build was only
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adopted in nineteen seventy six. That's far from the sort
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of persuasive evidence of a historically grounded practice that our
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precedents require. And those sorts of regulations, even if they
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were old enough, they address qualifications of who can practice,
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not the viewpoints of who gets to say something. The
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second potential category of historical content based regulation they looked
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at was informed consent, and the Court here distinguishes informed
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consent laws on two grounds that those laws are again
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regulating speech only incident to the separate physical conduct that
320
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the government can lawfully regulate, like the Casey medical procedure
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and as applied here, Colorado's law isn't regulating any conduct,
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it's only mistrial's words coming out of her mouth. And second,
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those informed consent laws typically require disclosures, again just factual
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and uncontroversial information. And third, Colorado attempt to link this
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to malpractice, and the court pointed out three structural differences
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with malpractice. Malpractice requires exacting proof. The planet has to
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demonstrate an injury that caused was caused by the breach
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or the duty of care. And there's nothing like that here,
329
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but those sort of proof requirements. The court was careful,
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i think, not to say that that means malpractice lawsuits
331
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will always satisfy the First Amendment, but they did say
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that that provides a different type of breathing room for
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protected speech that puts those laws on different constitutional ground
334
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than the laws that issue here. A law that requires
335
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no proof of injury at all and threatens sanctions simply
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for expressing the particular view, and that's it. Also, Colorado's
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law is a categorical ex anti prohibition. Malpractice operates after
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the fact with individualized liability, and malpractice sometimes permits clients
339
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to consent to treatments that depart from the prevailing standard
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of care. Colorado's law allows for no such consent. One
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theme of all of these arguments that the Court points
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out is that Colorado was just operating way too high
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of a level of generality to try and establish some
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history and tradition based exemption from these prohibitions against content
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based regulation.
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So all that is to.
347
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Say, you know, there may be ways in which content
348
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based regulation would be permissible, but they're pretty small categories,
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even those, even though they're different on different constitutional grounds
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than the much more egregious viewpoint regulation.
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Well, note, we have over one hundred people in the
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watching right now. We have no questions yet in the
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Q and A, So if you are watching and have questions,
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please feel free to use that function drop your questions
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there and we will will certainly try to get to those.
356
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So one thing that that sort of raised reading that section,
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I realized that the court, did you know, had some
358
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of this kind of language, the sort of history tradition language,
359
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of these kind of categories of exempted speech in the
360
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in the NIPHLA opinion as well. But it seems to
361
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me like this seems to be a growing approach of
362
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a trying to apply the kind of originalists methodology to
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this question. Curious if if this did seem to either
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of you to be going a kind of a step
365
00:20:30.720 --> 00:20:36.000
further in this with this query, and maybe if that's
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kind of an illustration of the development of the Court's
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approach on this text history tradition, sort of approach to
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understanding constitutional provisions and applying it in the First Amendment
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context here, or if I'm hallucinating, I don't know.
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That this goes any farther than NIFFLA.
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NIFFLA really lays out all of these same ideas more
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in a shorter fashion, to be sure, but I don't
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view I don't view CHILDS as going any further than
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what NIFFLA did. Really, Chiles is CHILDS is kind of boring.
375
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It's just an application of NIFFLA, and in doing so
376
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it clears up I think this incidental regulation idea, that's
377
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the big I think that's the big move of this
378
00:21:27.200 --> 00:21:29.720
case more than anything else. But it didn't there's no
379
00:21:29.759 --> 00:21:33.720
I don't see any daylight between this and NIFLA at all.
380
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I do think that the Court here.
381
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Is spending more time talking about potential ways in which
382
00:21:44.759 --> 00:21:47.720
history might point us to some exceptions to the First
383
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Amendment doctrine, So I don't see those as being intentioned.
384
00:21:51.920 --> 00:21:54.440
I'd agree with Paul in that sense. It's building on NIFFLA.
385
00:21:55.000 --> 00:21:58.759
But you know, in NIFLA, the Court doesn't spend as
386
00:21:58.839 --> 00:22:02.319
much time talking about ways in which if there's been
387
00:22:02.319 --> 00:22:05.880
this long history of things like medical licensing or informed
388
00:22:05.880 --> 00:22:08.200
consent or malpractice at the right level of generality, that
389
00:22:08.240 --> 00:22:11.599
are similar enough that that might suggest a different type
390
00:22:11.599 --> 00:22:16.640
of constitutional protection here. So that's the Court did seem
391
00:22:16.680 --> 00:22:20.559
to be leaning in more to figuring out ways to
392
00:22:20.720 --> 00:22:25.400
use history to shape Firstmenment doctrine without jettison ing important
393
00:22:25.400 --> 00:22:28.519
for doctrine that exists, like strict scrutiny. The Court doesn't
394
00:22:28.799 --> 00:22:31.160
seem to have an appetite from shifting away from that
395
00:22:31.200 --> 00:22:34.720
doctrine here, and Justice Sparitt has said in other contexts
396
00:22:35.200 --> 00:22:39.680
that even where the Court is incorporating more originalism, doctrines
397
00:22:39.720 --> 00:22:41.720
like strict scrutiny in the first tomenment contexts that are
398
00:22:41.720 --> 00:22:44.359
well established probably aren't.
399
00:22:44.079 --> 00:22:45.319
Going anywhere anytime soon.
400
00:22:45.400 --> 00:22:48.359
I think you see that here, But fleshing that out
401
00:22:48.359 --> 00:22:50.920
with more historical analysis is something that seems to be
402
00:22:50.920 --> 00:22:51.920
important to this court.
403
00:22:54.240 --> 00:22:57.720
Well, you mentioned Paul as you were discussing NIFFLA.
404
00:22:57.799 --> 00:23:02.119
I mean, one of the things that studs that stood
405
00:23:02.119 --> 00:23:06.960
out to me is the fact that Justice Kagan in
406
00:23:07.279 --> 00:23:09.319
this opinion is fully.
407
00:23:09.119 --> 00:23:10.680
Joins the majority.
408
00:23:10.720 --> 00:23:13.640
We've got eight votes and it's an opinion that relies
409
00:23:13.680 --> 00:23:14.759
heavily upon NIFFLA.
410
00:23:14.839 --> 00:23:16.599
Points to niphlasas.
411
00:23:16.960 --> 00:23:20.039
As you noted, it doesn't really move the ball very
412
00:23:20.119 --> 00:23:22.079
much in a lot of ways from NIFLA.
413
00:23:23.440 --> 00:23:27.079
Justice Kagan dissented in NIPHLA. She was on the other
414
00:23:27.119 --> 00:23:27.720
side of that case.
415
00:23:27.720 --> 00:23:29.960
And not only that, I think about a week later
416
00:23:30.000 --> 00:23:33.680
in the Janice opinion cited NIFLA as an example of
417
00:23:33.759 --> 00:23:40.640
weaponizing free speech, and so that justice has changed their
418
00:23:40.720 --> 00:23:44.440
views and they're permitted to do that.
419
00:23:44.559 --> 00:23:45.880
They also just sort of.
420
00:23:45.759 --> 00:23:48.519
Like come to accept that this is the rule and
421
00:23:48.559 --> 00:23:52.240
therefore precedent's important to me. Do you have us either
422
00:23:52.279 --> 00:23:55.319
of you have a sense of is this part of
423
00:23:55.839 --> 00:23:59.839
a sort of shift from Justice Kagan potentially in this case.
424
00:24:00.119 --> 00:24:03.240
Is this a reality of the shift and the overall
425
00:24:03.839 --> 00:24:07.119
makeup of the court. Is it a precedent thing kind
426
00:24:07.119 --> 00:24:09.839
of what's your your sense of what might be driving
427
00:24:10.559 --> 00:24:11.319
her vote here?
428
00:24:14.200 --> 00:24:17.640
So, oh, go ahead, you would go first, Paul, No, No,
429
00:24:17.799 --> 00:24:18.079
go ahead.
430
00:24:18.720 --> 00:24:21.240
I think there's both a doctrinal explanation and then also
431
00:24:21.279 --> 00:24:26.680
maybe like a real politique explanation. So in NIFFLA, as
432
00:24:26.720 --> 00:24:29.720
you point out, Kegan joined Briar's descent, but they were
433
00:24:29.880 --> 00:24:34.519
arguing that Colorado's law was different, so they didn't view
434
00:24:34.599 --> 00:24:37.559
Colorado's law as viewpoint based discrimination.
435
00:24:38.720 --> 00:24:42.519
They were law in that case. Right in California, Yeah, right.
436
00:24:42.400 --> 00:24:45.000
California's law in NIFFLA and NIFFLA, of course, is dealing
437
00:24:45.039 --> 00:24:48.960
with a situation where California is requiring her life pregnancy
438
00:24:49.039 --> 00:24:52.000
centers to post notices and forming clients that the state
439
00:24:52.079 --> 00:24:55.119
provides for your low cost abortions, and she and Brier
440
00:24:55.240 --> 00:24:57.440
were making more arguments about ways in which this was
441
00:24:57.640 --> 00:25:02.279
a compelled disclosure of factual information and about existing government programs,
442
00:25:02.319 --> 00:25:05.920
not a compelled endorsement of abortion. So on that reading,
443
00:25:06.079 --> 00:25:08.200
I think Kagan and Bryar are taking the view that
444
00:25:08.640 --> 00:25:12.359
this isn't a this is content based, but viewpoint neutral.
445
00:25:12.480 --> 00:25:14.960
So it's sort of the type of distinction she's saying
446
00:25:15.000 --> 00:25:19.160
in her concurrence in Chiles could be okay. Now she's
447
00:25:19.200 --> 00:25:21.480
taking a broader view of what count can count as
448
00:25:21.920 --> 00:25:26.000
being viewpoint neutral than I think the majority would, and
449
00:25:26.039 --> 00:25:27.279
so it's debatable whether.
450
00:25:27.079 --> 00:25:28.519
That sort of distinction holds.
451
00:25:28.839 --> 00:25:31.480
But nevertheless, to the extent that you know, in her
452
00:25:31.519 --> 00:25:34.960
head she's being consistent about that, I think that's then
453
00:25:35.000 --> 00:25:38.920
consistent with her saying and here it definitely is viewpoint discrimination.
454
00:25:39.160 --> 00:25:42.319
Like maybe we'd debate about it being viewpoint neutral there,
455
00:25:42.400 --> 00:25:43.920
but this definitely isn't.
456
00:25:44.000 --> 00:25:45.480
This is viewpoint discrimination.
457
00:25:45.559 --> 00:25:47.680
And so now I'm coming down on the side of
458
00:25:47.720 --> 00:25:51.079
recognizing that where viewpoint discrimination exists, then it's more likely
459
00:25:51.119 --> 00:25:54.000
that an attempt to impose government orthodoxy is a foot.
460
00:25:54.759 --> 00:25:58.640
The real politic answer is also she may have hoped
461
00:25:58.720 --> 00:26:01.839
that by joining the opinion that would result in a
462
00:26:01.920 --> 00:26:05.440
narrower opinion, and so there was some value to shaping
463
00:26:05.440 --> 00:26:08.359
what was going on as opposed to just a senting
464
00:26:08.400 --> 00:26:10.839
that I do think dec trinally, she probably really believes
465
00:26:10.839 --> 00:26:13.839
that there's a consistency here between the two positions she took.
466
00:26:15.079 --> 00:26:18.119
I think two further points I think along those same themes.
467
00:26:18.279 --> 00:26:23.880
One is that NIFLA is a compelled speech case. In NIFLA,
468
00:26:24.240 --> 00:26:27.039
the speaker was not prohibited from speaking. It's that if
469
00:26:27.079 --> 00:26:30.000
they said certain things, they had to say other things.
470
00:26:29.759 --> 00:26:32.359
That the government wanted them to say. And there are
471
00:26:32.440 --> 00:26:33.519
some notions out there.
472
00:26:33.519 --> 00:26:35.480
I don't think this is right, but there's some notion
473
00:26:35.559 --> 00:26:39.559
out there that compelled speech is less offensive than prohibited
474
00:26:39.559 --> 00:26:42.920
speech because in prohibited speech cases you are silenced, whereas
475
00:26:43.279 --> 00:26:45.559
in compelled speech you can still get.
476
00:26:45.440 --> 00:26:47.119
Your statement out there.
477
00:26:47.240 --> 00:26:49.839
Again, not sure that's right, but there are some people
478
00:26:50.079 --> 00:26:50.880
who think that.
479
00:26:51.240 --> 00:26:53.720
I think the other thing too, is that.
480
00:26:53.880 --> 00:26:58.400
Since NIFFLA came down in twenty eighteen, there I think
481
00:26:58.880 --> 00:27:04.799
the idea that states would then impose viewpoint restrictions on
482
00:27:05.839 --> 00:27:13.079
licensed professionals has become quite more commonplace or visible. Of course,
483
00:27:13.119 --> 00:27:15.400
you had everything to do with COVID. You have, of
484
00:27:15.400 --> 00:27:20.359
course conversion therapy cases. You have gender affirming care cases.
485
00:27:20.440 --> 00:27:23.079
There was a case out of the Eighth Circuit called
486
00:27:23.160 --> 00:27:26.160
Brandt that was, as it was called at the oral
487
00:27:26.240 --> 00:27:28.799
argument in this case, the mirror image of this case,
488
00:27:29.240 --> 00:27:32.480
where you could have a conservative state say that doctors
489
00:27:32.559 --> 00:27:35.240
were not allowed to do certain kinds of talk therapy
490
00:27:36.359 --> 00:27:38.839
for based on viewpoints that they didn't like.
491
00:27:38.880 --> 00:27:40.640
And there's a longer history here too.
492
00:27:40.680 --> 00:27:43.759
There's the Wolschlagger case out of the Eleventh Circuit from
493
00:27:43.799 --> 00:27:46.400
several years ago that had to do with doctors at
494
00:27:46.680 --> 00:27:49.480
asking their patients about guns, and would that have been
495
00:27:49.480 --> 00:27:52.599
a content based or a content neutral kind of regulation?
496
00:27:52.960 --> 00:27:58.119
And so I just think that's out there's this awareness
497
00:27:58.160 --> 00:28:02.440
out there that, in fact, as was warned about in NIPHILA,
498
00:28:03.200 --> 00:28:07.799
states have used their regulatory power over licensing to begin
499
00:28:07.880 --> 00:28:12.160
to impose certain viewpoints out there. And I don't think anyone,
500
00:28:13.039 --> 00:28:15.119
I don't think the eight are super happy about that.
501
00:28:15.559 --> 00:28:17.319
Can I just add really quickly to that.
502
00:28:19.599 --> 00:28:21.799
I agreed that NIFFLA was dealing with compelled speech, and
503
00:28:21.839 --> 00:28:24.440
this is dealing with prohibited speech in a way. But
504
00:28:26.039 --> 00:28:30.160
I think Justice Briar's dissenting opinion in NIFLA that Kagan said,
505
00:28:30.200 --> 00:28:32.799
even if we were dealing with compelled speech, where.
506
00:28:34.000 --> 00:28:35.839
California had said you must.
507
00:28:35.599 --> 00:28:40.559
Say that you endorse abortion, Justice Kagan would agree that
508
00:28:40.559 --> 00:28:45.119
that's viewpoint based. So I think she's not saying all
509
00:28:45.160 --> 00:28:48.319
compelled speech is necessarily going to be different. It's possible
510
00:28:48.359 --> 00:28:51.519
to compel viewpoints with compelled speech too. She just thought
511
00:28:51.680 --> 00:28:55.720
they're compelling factual speech was different.
512
00:28:56.359 --> 00:28:59.279
It makes it more like the mandatory disclosure and commercial
513
00:28:59.319 --> 00:29:04.480
speech that cases like Zouderer, I think, yeah, taking taking.
514
00:29:04.200 --> 00:29:06.119
What she said and maybe that's the way to think
515
00:29:06.160 --> 00:29:07.319
about it from her perspective.
516
00:29:08.319 --> 00:29:11.400
It is interesting, right, I mean, it's interesting that Zauderer
517
00:29:11.519 --> 00:29:15.920
comes up in the in the case that is clearly
518
00:29:16.000 --> 00:29:21.799
not about commercial commercial speech in the sense that in
519
00:29:21.880 --> 00:29:27.319
the or at least traditionally understood in Niffolo, where there
520
00:29:27.359 --> 00:29:31.480
is no exchange of of of dollars. Here you have
521
00:29:32.200 --> 00:29:34.640
a case that is a licensed counselor who is doing
522
00:29:34.680 --> 00:29:39.279
this for a living, and there was basically no discussion
523
00:29:40.160 --> 00:29:45.079
in the in the opinion of that being particularly relevant
524
00:29:45.559 --> 00:29:49.400
to the analysis here. Obviously she's licensed, but the licensing,
525
00:29:49.559 --> 00:29:52.160
licensing of the council or, there's not really much of
526
00:29:52.160 --> 00:29:53.920
a discussion at all in this case about the fact
527
00:29:53.960 --> 00:29:55.160
that she's paid.
528
00:29:55.599 --> 00:29:56.920
Yeah, there's well, there shouldn't be.
529
00:29:56.960 --> 00:30:01.440
Commercial speech isn't speech for Moneymmercial speech is speech that
530
00:30:01.559 --> 00:30:05.240
invites a commercial transaction. If you own a bookstore and
531
00:30:05.279 --> 00:30:07.960
you have a sign outside that says buy your books here,
532
00:30:08.079 --> 00:30:11.880
that's commercial speech. The books for sale inside the bookstore
533
00:30:11.920 --> 00:30:15.240
are not commercial speech. That's ordinary speech. And so here
534
00:30:15.839 --> 00:30:18.599
what she is, the speech that she is engaged in
535
00:30:18.880 --> 00:30:22.599
is is this her talk therapy. She sells the talk
536
00:30:22.680 --> 00:30:26.240
therapy to the extent she's advertising her talk therapy. Only
537
00:30:26.279 --> 00:30:29.119
then is she engaged in commercial speech. And so there
538
00:30:29.160 --> 00:30:31.799
is some notion there's there's been some confusion out there
539
00:30:31.799 --> 00:30:34.960
that paid for speech is somehow commercial speech, and therefore
540
00:30:35.000 --> 00:30:37.839
paid for speech is less protected. The Supreme Court has
541
00:30:37.960 --> 00:30:41.160
never said that. In fact, they have long said the opposite.
542
00:30:41.160 --> 00:30:44.240
Paid for speech is protected just as much as free
543
00:30:44.240 --> 00:30:45.480
speech is free speech.
544
00:30:45.799 --> 00:30:47.960
Yeah, and let me emphasize that for a minute. I
545
00:30:48.000 --> 00:30:52.160
mean New York Times hers Sullivan. The New York Times
546
00:30:52.200 --> 00:30:54.119
gets money for its speech. So it'd be crazy if
547
00:30:54.119 --> 00:30:56.599
any speech that got money was just commercial speech. The
548
00:30:56.720 --> 00:30:59.640
system Chapel was commissioned and paid for most grazed artists
549
00:30:59.680 --> 00:31:01.599
were would be weird to say that that's no longer
550
00:31:01.599 --> 00:31:02.680
protected speech anymore.
551
00:31:02.720 --> 00:31:04.279
You're right, that's not how the doctrine works.
552
00:31:04.920 --> 00:31:08.039
Yeah, it is interesting that the way you will see
553
00:31:08.039 --> 00:31:10.559
this case, in many of these cases, frankly that have
554
00:31:10.920 --> 00:31:15.240
especially the Colorado series of cases, the way you will
555
00:31:15.240 --> 00:31:19.400
see them discussed often the media, definitely online, is very
556
00:31:19.400 --> 00:31:22.759
different from the actual conversations the doctrines that are actually
557
00:31:22.759 --> 00:31:26.799
playing themselves out in the courts. In the Court's opinions
558
00:31:28.640 --> 00:31:34.599
to Paul's point about how you know, the maybe between
559
00:31:34.720 --> 00:31:39.079
NIFFLA and now some of these examples about how look
560
00:31:39.160 --> 00:31:43.400
states really could start using this uh begins to impact things.
561
00:31:43.559 --> 00:31:45.519
I mean, certainly, I mean you give an example, but
562
00:31:45.720 --> 00:31:47.160
I think in.
563
00:31:47.119 --> 00:31:49.839
Cliff Strickland in the in the comments here is asking
564
00:31:49.839 --> 00:31:54.960
about Attorney General Paxston, who issued an opinion toward the
565
00:31:55.039 --> 00:31:58.480
end of March saying the mental health care providers in
566
00:31:58.480 --> 00:32:04.400
Texas who facilitate medical intervations for kids I can violate
567
00:32:04.440 --> 00:32:08.839
state law. And is it basically asking about the comparison there?
568
00:32:08.880 --> 00:32:12.000
So using that also just pointing out I think from
569
00:32:12.000 --> 00:32:16.599
the opinion itself, they're using sort of the mirror example
570
00:32:16.799 --> 00:32:23.119
of a state deciding that we're going to prohibit counselors
571
00:32:23.160 --> 00:32:28.400
from affirming someone's sexual orientation or gender identity, for example, right,
572
00:32:30.519 --> 00:32:34.319
And that doesn't seem like a wild hypothetical. It seems
573
00:32:34.359 --> 00:32:38.759
like a It wouldn't shock me at all if one
574
00:32:38.759 --> 00:32:40.920
of those laws, if this opinion had gone the other way,
575
00:32:40.960 --> 00:32:43.599
if one of those laws had not been passed, it
576
00:32:43.640 --> 00:32:49.160
would be entirely unsurprising. I think in the current political dynamic,
577
00:32:49.400 --> 00:32:52.000
how much do you think that actually ends up impacting
578
00:32:53.200 --> 00:32:57.240
at least some of the justices, particularly maybe Justices Kagan
579
00:32:57.359 --> 00:33:02.240
and Sodomayor, and their understanding of of what actually is
580
00:33:02.240 --> 00:33:04.680
is likely to happen or could very well happen in
581
00:33:04.720 --> 00:33:10.440
the world. And I'll Paul, you're you're welcome to jump
582
00:33:10.440 --> 00:33:13.559
in first, feel like, but either way, I.
583
00:33:13.480 --> 00:33:17.200
Mean, it's it is the proof that the threat was
584
00:33:17.240 --> 00:33:22.079
always there. Again, Nifflett talks about the threat of the
585
00:33:22.200 --> 00:33:28.200
state basically imposing its views through occupational licensing. What we
586
00:33:28.319 --> 00:33:30.920
have seen is that that threat was always real and
587
00:33:30.960 --> 00:33:34.839
not just the hypothetical, and so you know, it has
588
00:33:34.880 --> 00:33:36.319
a way of focusing the mind.
589
00:33:40.279 --> 00:33:45.000
Something that sorry, something I'll add to that is, I
590
00:33:45.079 --> 00:33:49.119
think it depends on is this going to be speech
591
00:33:49.200 --> 00:33:51.920
that is bound up in conduct that the state has
592
00:33:51.920 --> 00:33:54.440
the ability to regulate. So if it's if it's speech
593
00:33:54.480 --> 00:33:57.000
that someone is providing about medical transition one way or
594
00:33:57.000 --> 00:34:00.359
the other that is necessary to or incidental to the
595
00:34:00.400 --> 00:34:05.000
actual medical procedure of hormone therapy or a surgery, then
596
00:34:05.039 --> 00:34:09.280
the state is going to have more leeway to license
597
00:34:09.360 --> 00:34:11.480
that sort of speech, period. But if it's just like
598
00:34:12.000 --> 00:34:16.559
the states trying to prohibit certain medical procedures and they
599
00:34:16.639 --> 00:34:20.760
also want to prohibit any therapists from engaging in talk
600
00:34:20.800 --> 00:34:25.199
therapy to affirm or encourage such procedures. That feels much
601
00:34:25.239 --> 00:34:28.480
more like the flip side of Chiles, the type of
602
00:34:29.400 --> 00:34:31.519
situation that would be protected that we can.
603
00:34:31.760 --> 00:34:32.559
In fact, Justice.
604
00:34:32.400 --> 00:34:34.800
Corsish asked a question to Colorado about this and seem
605
00:34:34.840 --> 00:34:38.639
concerned about the fact that the rule Colorado was asking
606
00:34:38.679 --> 00:34:44.559
for would have allowed states to have laws prohibiting counselors
607
00:34:44.920 --> 00:34:47.599
from engaging in talk therapy that affirmed.
608
00:34:47.400 --> 00:34:48.840
Someone's LGBTQ status.
609
00:34:48.840 --> 00:34:51.000
And so I think that and Colorado said, yeah, like
610
00:34:51.280 --> 00:34:55.199
our rule would allow for counselors to be regulated in
611
00:34:55.239 --> 00:34:57.400
that way. I think the court found that troubling, and
612
00:34:57.440 --> 00:35:00.960
I think their rule in Childs would protect counselors going
613
00:35:01.039 --> 00:35:03.239
either direction and either viewpoint for that sort of talk
614
00:35:03.280 --> 00:35:05.760
therapy when it comes to gender transitions or other procedures
615
00:35:05.840 --> 00:35:06.079
like that.
616
00:35:06.440 --> 00:35:08.559
Yeah, one of the most important facts of this case
617
00:35:08.639 --> 00:35:11.679
is that all that child's does is talk. She doesn't
618
00:35:12.199 --> 00:35:16.880
there's literally no conduct involved, It's just talking. It will
619
00:35:16.920 --> 00:35:19.880
be more difficult if you are doing a surgical procedure
620
00:35:20.000 --> 00:35:23.719
and you are talking. How that's Those are like the
621
00:35:23.800 --> 00:35:28.719
informed consent cases, or especially like in the abortion context,
622
00:35:28.719 --> 00:35:30.639
where the Court is said, well, some of these are
623
00:35:30.679 --> 00:35:32.599
okay and some of them aren't. The question is going
624
00:35:32.639 --> 00:35:36.280
to be how close is the tie between the regulated
625
00:35:36.400 --> 00:35:40.559
conduct and the speech that comes along with it. There's
626
00:35:40.559 --> 00:35:42.639
a fun case out of the Ninth Circuit from several
627
00:35:42.719 --> 00:35:46.960
years ago called Connate, where the US Supreme Court has said,
628
00:35:46.960 --> 00:35:51.599
of course we can restrict doctors prescribing marijuana to people.
629
00:35:52.199 --> 00:35:55.440
The question was, well, can doctors talk to their patients
630
00:35:55.519 --> 00:35:57.199
about the beneficial.
631
00:35:56.679 --> 00:35:57.840
Uses of marijuana?
632
00:35:57.880 --> 00:35:59.760
And the Ninth Circuit says, yes, of course they can
633
00:36:00.440 --> 00:36:04.920
just talking to people. As speech, prescribing something is literally
634
00:36:04.960 --> 00:36:07.760
words on a piece of paper. But the reason the
635
00:36:07.760 --> 00:36:11.639
government is regulating is because that gives you access to
636
00:36:11.719 --> 00:36:15.679
controlled substances. Accessing controlled substances is conduct, So that speech
637
00:36:15.760 --> 00:36:20.239
conduct distinction is critical, as Nichols said it was, and
638
00:36:20.280 --> 00:36:21.920
in this case it was pretty easy because there was
639
00:36:21.960 --> 00:36:24.039
literally no conduct at all.
640
00:36:24.239 --> 00:36:25.400
Yeah, it's that.
641
00:36:26.840 --> 00:36:31.840
I think that, as the opinion describes, part of the
642
00:36:31.960 --> 00:36:35.079
rationale for that right is that the alternative.
643
00:36:34.599 --> 00:36:36.239
Is that you're in a world where.
644
00:36:36.039 --> 00:36:40.920
The state can essentially prescribe this shall be the medical
645
00:36:40.920 --> 00:36:45.920
opinion that shall be delivered to people and then it
646
00:36:45.960 --> 00:36:48.960
can't be challenged, right, it can't develop. And I think
647
00:36:48.960 --> 00:36:52.239
it's sort of in a particularly in a post COVID world.
648
00:36:52.280 --> 00:36:53.960
I think you probably have a lot of people who
649
00:36:54.039 --> 00:36:58.800
are a lot more attuned to the problems of the
650
00:36:58.840 --> 00:37:01.280
government saying this is the answer about whether or not
651
00:37:01.320 --> 00:37:04.320
this treatment is effective, and that's the only thing that
652
00:37:04.400 --> 00:37:08.199
can be communicated to people. Whether you can actually go
653
00:37:08.360 --> 00:37:13.519
forward with an actual intervention, a physical intervention is one thing.
654
00:37:13.639 --> 00:37:13.840
Right.
655
00:37:14.440 --> 00:37:18.360
Whether you can prescribe ivermectin for example, maybe one question.
656
00:37:18.960 --> 00:37:23.000
Whether you can can say, look, I disagree with what
657
00:37:23.000 --> 00:37:26.119
the state is saying here. I think they're wrong, but right,
658
00:37:26.239 --> 00:37:28.519
that is, those are words, and that's it's a very
659
00:37:28.519 --> 00:37:32.360
different thing, and it's necessary to make sure that we're
660
00:37:32.360 --> 00:37:35.239
actually getting this thing right. Right, that you actually have
661
00:37:35.400 --> 00:37:39.519
can have dissent within the medical professionin the scientific community.
662
00:37:39.199 --> 00:37:40.960
And that, by the way, is I've seen I've seen
663
00:37:41.039 --> 00:37:43.519
online some critics like, well, they just said in Scrimmetti
664
00:37:43.599 --> 00:37:45.920
that we're supposed to defer to the legislature, which is
665
00:37:46.280 --> 00:37:49.519
what Scrimmetti does say. But Scrimettis is also very narrow.
666
00:37:49.840 --> 00:37:52.559
That was about the prescribing of certain medications.
667
00:37:52.559 --> 00:37:53.400
For certain treatments.
668
00:37:53.400 --> 00:37:56.920
That's that's conduct, that's accessing controlled substances.
669
00:37:56.960 --> 00:37:59.119
And so to the to.
670
00:37:59.039 --> 00:38:03.039
The extent that Many was addressing sort of in the
671
00:38:03.079 --> 00:38:05.840
same area, it is very much a conduct case.
672
00:38:05.920 --> 00:38:09.960
It's very much not a speech case. And that's not
673
00:38:10.000 --> 00:38:11.039
the mirror image.
674
00:38:11.480 --> 00:38:14.880
Not only is Scremetti not a speech case, that it's
675
00:38:14.920 --> 00:38:17.039
also not an equal protection case.
676
00:38:17.159 --> 00:38:19.599
Is what was one of the things the court was
677
00:38:19.639 --> 00:38:19.960
dealing with.
678
00:38:20.000 --> 00:38:22.440
There, is it some sort of suspect class under the
679
00:38:22.480 --> 00:38:24.559
Constitution that then requires strict scrutiny.
680
00:38:24.920 --> 00:38:25.800
And the answer is no.
681
00:38:26.119 --> 00:38:28.280
And so the default if we don't have a protected
682
00:38:28.360 --> 00:38:32.079
constitutional right at issue is that we're going to give difference.
683
00:38:32.079 --> 00:38:34.760
And here there is a protected constitutional right issue, and
684
00:38:34.840 --> 00:38:38.719
so the difference gets flipped around, and then we're giving scrutiny.
685
00:38:38.360 --> 00:38:42.000
Not deference. Yeah, because this is a speech Yeah yeah, yeah,
686
00:38:42.000 --> 00:38:44.239
it's constitutional right. And there's no constitutional right at issue
687
00:38:44.239 --> 00:38:44.719
in committee.
688
00:38:45.639 --> 00:38:50.480
So i'm the beginning of Justice Jackson's dissent, which is
689
00:38:50.519 --> 00:38:54.360
actually a little bit longer than the rest of the
690
00:38:54.440 --> 00:38:59.639
opinions put together. The beginning of her dissent, we'll read
691
00:38:59.639 --> 00:39:02.360
from it. There is no right to practice medicine, which
692
00:39:02.400 --> 00:39:04.639
is not subordinate to the police power of the states,
693
00:39:04.679 --> 00:39:06.880
and that's citing in nineteen twenty six case in Lambert.
694
00:39:07.320 --> 00:39:09.320
This was true one hundred years ago, and it should
695
00:39:09.320 --> 00:39:14.000
be true today. Obviously there is a conflict there between
696
00:39:14.159 --> 00:39:15.639
a lot of what we've been discussing.
697
00:39:15.719 --> 00:39:17.239
That's the main point of contention.
698
00:39:18.800 --> 00:39:22.239
But were you at all surprised by the I thought
699
00:39:22.239 --> 00:39:27.400
that was it was a large assertion to make as
700
00:39:27.400 --> 00:39:29.719
sort of the centerpiece of an argument that you're going
701
00:39:29.760 --> 00:39:34.079
to make that because the state has the power to
702
00:39:34.559 --> 00:39:39.840
regulate medicine, that is the sort of core question here,
703
00:39:41.920 --> 00:39:44.159
and it's sort of all of the rights arguments kind
704
00:39:44.159 --> 00:39:45.599
of flow from the.
705
00:39:45.599 --> 00:39:47.079
State has this power.
706
00:39:48.840 --> 00:39:51.440
That Were you surprised that it's kind of the breadth
707
00:39:51.480 --> 00:39:54.280
of that assertion at the outset of the opinion.
708
00:39:54.599 --> 00:39:57.239
Yeah, can you imagine if we took that logic to
709
00:39:57.239 --> 00:39:59.840
its logical conclusion of other contexts. The state has the
710
00:40:00.000 --> 00:40:03.480
power to regulate schools, and therefore there's no free extras
711
00:40:03.559 --> 00:40:05.000
drives right in the school context.
712
00:40:05.000 --> 00:40:07.880
Oh wait, except the court just decided, you.
713
00:40:07.880 --> 00:40:10.639
Know, the state has the right to regulate any it
714
00:40:10.760 --> 00:40:14.880
parades road safety, and therefore there's no freedom of speech
715
00:40:14.960 --> 00:40:17.639
rights to have parades.
716
00:40:17.280 --> 00:40:18.320
And protests like it.
717
00:40:18.480 --> 00:40:22.639
Just is this wild carve out that would basically erase
718
00:40:22.719 --> 00:40:26.079
first remember protections and say anytime the police power is
719
00:40:26.119 --> 00:40:29.199
in play, that's the end of the analysis. And of
720
00:40:29.199 --> 00:40:31.480
course she doesn't believe that. She doesn't apply that elsewhere.
721
00:40:32.440 --> 00:40:36.000
The question under constitutional rights is is the government using
722
00:40:36.159 --> 00:40:39.920
is police power appropriately? Given the fact that here we
723
00:40:40.000 --> 00:40:43.559
have reason to be more skeptical about how and for
724
00:40:43.599 --> 00:40:47.000
what justifications the government is using that police power, that's
725
00:40:47.000 --> 00:40:50.559
the entire point of having a constitutional right. Her framework
726
00:40:50.840 --> 00:40:54.800
would negate the existence of our bill of rights basically.
727
00:40:56.079 --> 00:40:59.480
So Justice Jackson's opinion is again just the just the
728
00:40:59.519 --> 00:41:02.960
commer I'm sorry, just the professional speech doctrine all over again.
729
00:41:03.280 --> 00:41:08.320
And the doctrine essentially works like this, And the doctrine
730
00:41:08.360 --> 00:41:14.679
basically finds its origin in an opinion, not a majority opinion,
731
00:41:15.639 --> 00:41:18.280
by Justice White in a case called Low v. SEC
732
00:41:18.639 --> 00:41:21.039
back in the nineteen eighties, and so far as I
733
00:41:21.079 --> 00:41:23.599
can and it's cited in Justice Jackson's dissentence. As far
734
00:41:23.639 --> 00:41:26.400
as I can tell, she is the only Justice sense
735
00:41:27.280 --> 00:41:32.320
Low v. Sec To cite that Justice White's opinion favorably.
736
00:41:32.400 --> 00:41:36.400
So that's how we know that it's the professional speech
737
00:41:36.480 --> 00:41:39.639
doctrine all over again. And what that doctrine says is essentially,
738
00:41:40.079 --> 00:41:45.159
not all speeches speech. Sometimes speeches the practice of some occupation,
739
00:41:45.800 --> 00:41:49.000
and when it is the practice of some occupation, then
740
00:41:49.039 --> 00:41:51.280
it isn't speech at all, it is just conduct. That's
741
00:41:51.320 --> 00:41:56.960
why she continually calls it treatment. Below, there was a
742
00:41:57.119 --> 00:41:59.760
there was a trying to remember there's a particularly or
743
00:41:59.800 --> 00:42:03.920
will in phrase below where it was uh treatment speech,
744
00:42:04.239 --> 00:42:05.119
which was conduct.
745
00:42:05.840 --> 00:42:08.039
And there's this is the relabeling game, right.
746
00:42:08.079 --> 00:42:11.559
This is ordinarily we would know it's speech, but because
747
00:42:11.599 --> 00:42:15.239
it occurs in this you know, special context, then we
748
00:42:15.320 --> 00:42:18.679
know it's not speech, it's it's conduct. And states have
749
00:42:18.760 --> 00:42:21.840
been trying governments have been trying to play this relabeling
750
00:42:21.920 --> 00:42:24.880
game for a long time to get themselves out of
751
00:42:24.920 --> 00:42:28.480
free speech protections, and not just in the in the
752
00:42:28.559 --> 00:42:34.360
professional occupational speech context. There's an Eleventh Amendment or sorry,
753
00:42:34.400 --> 00:42:38.000
eleventh Circuit case a couple of years ago called honeyfund
754
00:42:38.079 --> 00:42:42.519
dot Com where Florida was trying to prohibit DEI trade
755
00:42:42.599 --> 00:42:47.119
mandatory DEI trainings, and so they passed this law that
756
00:42:47.320 --> 00:42:51.239
essentially prohibited mandatory DEI trainings. But their argument was we
757
00:42:51.280 --> 00:42:54.440
haven't prohibited the content. We haven't prohibited the training. What
758
00:42:54.480 --> 00:42:57.800
we've prohibited is the meeting, and meeting is conduct. Therefore,
759
00:42:58.199 --> 00:43:00.320
this is not a speech regulation the eleve. It's get
760
00:43:00.400 --> 00:43:04.360
saw through that real quick speech and speech even when
761
00:43:04.400 --> 00:43:06.840
it's uttered by a professional, even when it's uttered in
762
00:43:06.880 --> 00:43:11.119
the in the in a relationship with a patient or
763
00:43:11.159 --> 00:43:11.639
a client.
764
00:43:11.719 --> 00:43:14.320
And so again, just.
765
00:43:13.920 --> 00:43:17.440
Justice Jackson's decision is just the commercial is just a
766
00:43:17.440 --> 00:43:21.159
professional speech doctrine that was thoroughly rejected in Neflin.
767
00:43:22.800 --> 00:43:25.239
So on some of the questions here, we have a
768
00:43:25.239 --> 00:43:27.719
couple of questions, and I'll throw in another example. We
769
00:43:27.760 --> 00:43:31.119
have a couple of questions about implications of the decision
770
00:43:31.280 --> 00:43:36.679
for other areas professional speech codes. You've got the fight
771
00:43:36.719 --> 00:43:39.199
Overrull eight point four G and be kind of the
772
00:43:39.239 --> 00:43:44.760
professional speech code question generally for lawyers, for real estate brokers,
773
00:43:45.760 --> 00:43:46.840
different books like that.
774
00:43:47.920 --> 00:43:49.239
And then I'll throw.
775
00:43:49.079 --> 00:43:54.320
In maybe another example that occurred to me just because
776
00:43:54.320 --> 00:44:01.159
we recently had those trial court decisions in on the
777
00:44:01.199 --> 00:44:06.000
social media cases that both came out within the last
778
00:44:06.000 --> 00:44:08.599
week or so. Right where a large part of the
779
00:44:08.679 --> 00:44:12.800
question is well, as are the design choices made by
780
00:44:12.800 --> 00:44:17.679
social media platforms are those conduct or are they speech?
781
00:44:18.079 --> 00:44:22.639
Is that the algorithms themselves speech, so kind of unfairly
782
00:44:22.719 --> 00:44:26.119
tossing all those examples to you, But I welcome any
783
00:44:26.159 --> 00:44:26.960
others that come to.
784
00:44:26.920 --> 00:44:30.000
Your mind about sort of the.
785
00:44:29.599 --> 00:44:35.880
Implications of this decision, perhaps for other areas outside of
786
00:44:35.920 --> 00:44:37.800
the fact pattern.
787
00:44:38.440 --> 00:44:41.519
Here I can take on the eight point four rule question.
788
00:44:41.760 --> 00:44:45.159
So the question is about what is the implication of
789
00:44:45.239 --> 00:44:48.599
any of this Court's ruling and childs on the ABA
790
00:44:48.719 --> 00:44:52.000
Smadel rule eight point four G that exposes attorneys to
791
00:44:52.000 --> 00:44:54.679
discipline if they run a foul of some of the
792
00:44:54.719 --> 00:44:58.039
requirements that the abas And I'll discuss those in more
793
00:44:58.119 --> 00:45:01.960
depth in just a second. So this actually was something
794
00:45:02.039 --> 00:45:04.159
that was flagged by the I believe the Christian Legal
795
00:45:04.280 --> 00:45:07.599
Societies a Meekus brief. And so what eight point four
796
00:45:07.679 --> 00:45:10.760
does is it says that it will be professional misconduct
797
00:45:10.800 --> 00:45:12.920
for a lawyer to engage in conduct that the lawyer
798
00:45:13.000 --> 00:45:15.840
knows or reasonably should knows harassment or discrimination on the
799
00:45:15.840 --> 00:45:20.119
basis of race, sex, religion and national origin, ethnicity, disability, age,
800
00:45:20.159 --> 00:45:24.440
sexual orientation, gender identity, marital status, or socioeconomic status in
801
00:45:24.480 --> 00:45:27.360
conduct related to the practice of law. But then importantly
802
00:45:27.400 --> 00:45:32.079
comment three defines discrimination to include quote harmful verbal or
803
00:45:32.079 --> 00:45:34.880
physical conduct that manifests bias or prejudice. So note that
804
00:45:35.239 --> 00:45:40.400
they're defining words to be the type of conduct that
805
00:45:41.039 --> 00:45:43.920
the ABA is applying to. So this is one area
806
00:45:43.920 --> 00:45:47.480
where Child's immediately puts pressure. Is it saying just because
807
00:45:47.840 --> 00:45:50.880
you have given us the label of conduct, It's not
808
00:45:50.920 --> 00:45:51.880
like in Star Wars.
809
00:45:52.480 --> 00:45:54.400
There's not the speech you were looking for. You don't
810
00:45:54.400 --> 00:45:57.199
get to just magic that away.
811
00:45:57.480 --> 00:46:01.000
It's still verbal that the rule is ultimately defining it towards.
812
00:46:01.039 --> 00:46:03.199
So that sort of distinction isn't going to help insulate
813
00:46:03.239 --> 00:46:05.880
the ABA rule anymore after Chrials to the extent it
814
00:46:05.920 --> 00:46:09.679
ever was. And so this rule has been contested by
815
00:46:09.679 --> 00:46:13.440
some arguing that it violates lawyer's freedom of speech rights
816
00:46:13.440 --> 00:46:16.559
and respect to maybe their religious beliefs or political views,
817
00:46:16.559 --> 00:46:19.800
and can have a chilling effect on an expression. Some states,
818
00:46:19.880 --> 00:46:23.039
like I believe the Texas Attorney General has concluded.
819
00:46:22.599 --> 00:46:24.719
That it violates First Amendment rights.
820
00:46:24.800 --> 00:46:27.480
So some of the ways in which Chiles, I think,
821
00:46:27.559 --> 00:46:30.519
continues to put vulnerability on this sort of dispute is
822
00:46:30.559 --> 00:46:33.519
that Childs again affirms what Niffli said, which is that
823
00:46:33.599 --> 00:46:37.559
professional licensing doesn't diminish First Amendment protection. That means that
824
00:46:37.800 --> 00:46:41.719
First Miendment applies to attorneys as well. The majority again
825
00:46:41.800 --> 00:46:44.400
flatly states that professional speech is not in some separate
826
00:46:44.440 --> 00:46:48.199
category of speech subject to diminish constitutional protection, as Paul
827
00:46:48.280 --> 00:46:52.559
points out. Then, also in addition to the mere labels
828
00:46:52.559 --> 00:46:56.559
point I addressed, the third is that I think Chiles
829
00:46:56.639 --> 00:47:00.599
has some relevance here for what counts his viewpoint discriminated discrimination.
830
00:47:01.239 --> 00:47:04.599
So the extent eight point four is prohibiting attorneys from
831
00:47:04.639 --> 00:47:08.039
expressing a certain view that the rule is defining, is
832
00:47:08.239 --> 00:47:11.880
demeaning on certain topics, while permitting speech on that same
833
00:47:11.920 --> 00:47:15.880
topic that is affirming or supportive, and that potentially runs
834
00:47:15.880 --> 00:47:17.280
into the same sort of trouble.
835
00:47:17.079 --> 00:47:18.440
That Colorado has.
836
00:47:18.920 --> 00:47:20.679
Now, how does this cut with the sort of history
837
00:47:20.679 --> 00:47:24.440
and tradition analysis, and that might be where a lot
838
00:47:24.440 --> 00:47:27.760
of the action happens under this dispute. I think one
839
00:47:27.880 --> 00:47:32.719
argument against saying that eight point four is saved by
840
00:47:32.760 --> 00:47:35.480
some sort of history or tradition is that while attorney
841
00:47:35.639 --> 00:47:40.320
regulation does have far deeper historical pedigree than say, counselor regulation,
842
00:47:40.440 --> 00:47:44.079
there's centuries of licensing, there's some requirements going back to
843
00:47:44.079 --> 00:47:46.800
the founding the Child's majority stress that we have to
844
00:47:46.800 --> 00:47:49.360
look at the right level of generality, and also that
845
00:47:49.400 --> 00:47:54.280
traditional licensing regimes focused on qualifications, not the professional's point
846
00:47:54.320 --> 00:47:55.760
of view, and so like, what did you have to
847
00:47:55.760 --> 00:47:58.519
do to be a qualified professional? Not what orthodoxy did
848
00:47:58.559 --> 00:48:01.800
you have to adopt in order to practice this profession?
849
00:48:01.920 --> 00:48:04.480
And so to the extent that rule A point four
850
00:48:04.559 --> 00:48:07.159
looks more like the latter and less like the forwards,
851
00:48:07.199 --> 00:48:10.559
and I think it could potentially run into problems, especially
852
00:48:10.599 --> 00:48:13.639
if it's being applied in ways that are leading to
853
00:48:13.639 --> 00:48:16.239
sanctions or other sorts of harms that get standing in
854
00:48:16.280 --> 00:48:17.400
the First Amendment context.
855
00:48:18.320 --> 00:48:19.719
The two points on lawyer speech.
856
00:48:20.159 --> 00:48:23.039
One is again Nichols says the ordinary rules apply, and
857
00:48:23.079 --> 00:48:28.320
so a big ordinary rule is forum analysis. Courtrooms are
858
00:48:28.360 --> 00:48:31.760
not public forum. Even if you're a licensed attorney. You
859
00:48:31.800 --> 00:48:34.159
can't give up, get up and deliver a mathematics lecture
860
00:48:34.199 --> 00:48:37.639
in an oral argument. So a lot of what we're
861
00:48:37.679 --> 00:48:41.239
talking about here wouldn't apply to rules that govern in
862
00:48:41.360 --> 00:48:43.800
court behavior, words, etc.
863
00:48:44.519 --> 00:48:45.159
By lawyers.
864
00:48:46.119 --> 00:48:48.400
The second one in an issue we haven't really touched
865
00:48:48.440 --> 00:48:51.400
on yet because we've this is Child's is a licensed
866
00:48:51.440 --> 00:48:56.119
professional case? Is what about speech restriction licensing? Restrictions that
867
00:48:56.199 --> 00:49:02.719
affect non licensed persons. So modern unauthorized practice of law
868
00:49:02.880 --> 00:49:06.400
rules prohibit non lawyers from giving legal advice.
869
00:49:07.119 --> 00:49:10.239
What is legal advice? In what context? Is this true?
870
00:49:10.280 --> 00:49:13.360
And especially given the history and tradition where out of
871
00:49:13.519 --> 00:49:16.480
court legal advice wasn't really regulated as the practice of
872
00:49:16.519 --> 00:49:19.880
law until maybe the early twentieth century.
873
00:49:19.920 --> 00:49:21.880
There's a case from the Second Circuit.
874
00:49:21.880 --> 00:49:26.519
It's an IJ case so full disclosure called upsolve, where
875
00:49:26.559 --> 00:49:30.679
a nonprofit wants to use trained but non lawyer volunteers
876
00:49:30.679 --> 00:49:34.360
to help people fill out basic forms for Dennor's court.
877
00:49:35.559 --> 00:49:38.119
Is that legal advice? That New York says it is
878
00:49:38.199 --> 00:49:38.800
legal advice?
879
00:49:38.800 --> 00:49:41.719
And the Second Circuit said, well, it's also free speech.
880
00:49:42.480 --> 00:49:45.840
And so that case is still being litigated. But there
881
00:49:45.880 --> 00:49:48.719
will be more of those kinds of cases as well.
882
00:49:48.760 --> 00:49:51.000
And in fact, the court has been holding a couple
883
00:49:51.039 --> 00:49:54.159
of additional cases, I think for child So we'll see
884
00:49:54.159 --> 00:49:57.440
if those cases are are GVR or otherwise acted on
885
00:49:57.480 --> 00:49:58.480
in the next couple of weeks.
886
00:50:01.360 --> 00:50:04.840
Great, all right, we are getting to the end of
887
00:50:04.840 --> 00:50:08.800
our time here, so I we'll toss it up in
888
00:50:08.800 --> 00:50:15.480
this way and ask both Paul and Professor Barclay and
889
00:50:15.519 --> 00:50:18.719
we'll start with you, Paul, and then go to Professor Barclay.
890
00:50:19.119 --> 00:50:20.840
What's a question I didn't ask that I should have.
891
00:50:22.159 --> 00:50:26.159
How would you like what's the observation you had basically
892
00:50:26.159 --> 00:50:30.519
coming out of this case that.
893
00:50:29.280 --> 00:50:30.960
That you think is noteworthy that we have not yet
894
00:50:30.960 --> 00:50:31.559
talked about.
895
00:50:33.400 --> 00:50:37.000
I do think that it's my personal interest here is
896
00:50:37.000 --> 00:50:40.679
in the cases that don't involve licensed professionals where.
897
00:50:40.679 --> 00:50:43.280
A practicing or a practice.
898
00:50:42.800 --> 00:50:46.599
Act of some kind has been used to prohibit speech
899
00:50:47.199 --> 00:50:51.000
by non professor by non licensed people. So one of
900
00:50:51.039 --> 00:50:52.760
the cases the Supreme Court is holding again in the
901
00:50:52.760 --> 00:50:55.920
interest of full disclosure is a case of mind out
902
00:50:55.920 --> 00:50:58.440
of the Ninth Circuit where a guy who does not
903
00:50:58.599 --> 00:51:02.679
have a surveyor's license because he's not a surveyor got
904
00:51:02.719 --> 00:51:06.400
in trouble for the unlicensed practice of surveying because he
905
00:51:06.559 --> 00:51:10.639
was copying GIS data onto drawings and then selling the drawings.
906
00:51:10.679 --> 00:51:14.239
And the California Court of the California said that that's
907
00:51:13.840 --> 00:51:15.519
the practice.
908
00:51:15.159 --> 00:51:20.800
Of surveying without a license. We made a free speech argument.
909
00:51:20.840 --> 00:51:23.679
All he's doing is using information to create more information
910
00:51:23.800 --> 00:51:24.239
for sale.
911
00:51:24.280 --> 00:51:25.400
That's clearly free speech.
912
00:51:25.440 --> 00:51:30.480
That's sorelbims And the court said, well, no, because what
913
00:51:30.559 --> 00:51:33.840
he's doing is he's actually the California is regulating conduct,
914
00:51:33.880 --> 00:51:39.079
the conduct of practicing surveying, which is again probably mostly
915
00:51:39.079 --> 00:51:41.079
conduct when you get down to it. But all my
916
00:51:41.199 --> 00:51:43.320
guy is doing is speech. How does that work out?
917
00:51:43.679 --> 00:51:46.519
The court said, well, no, that's not how that works.
918
00:51:46.719 --> 00:51:49.840
This is just incidentally regulating his speech even though he's
919
00:51:49.880 --> 00:51:53.840
not engaged in any conduct. Chiles, I think pretty clearly
920
00:51:53.960 --> 00:51:56.079
puts an end to that sort of analysis, which was
921
00:51:56.079 --> 00:52:01.239
something we were seeing nationwide with regard to non licensed persons,
922
00:52:01.239 --> 00:52:03.119
although there was a circuit split on that as well.
923
00:52:03.159 --> 00:52:05.880
So I think that's another thing that has been cleaned
924
00:52:05.920 --> 00:52:08.360
up by trials and that will allow those sorts of
925
00:52:08.360 --> 00:52:10.679
cases to move forward as well.
926
00:52:12.760 --> 00:52:16.840
Mister Berkeley, one thing the last word here, sure.
927
00:52:17.440 --> 00:52:19.320
And thanks for these great questions and for everyone who
928
00:52:19.360 --> 00:52:22.519
participated with good questions. One thing that I think is
929
00:52:22.639 --> 00:52:24.960
important here is there are I think a lot of
930
00:52:25.360 --> 00:52:29.440
good fake individuals who are legitimately worried about the mental
931
00:52:29.480 --> 00:52:33.719
health issues that are affecting young people who are dealing
932
00:52:33.760 --> 00:52:36.079
with gender dysphoria who want to pursue.
933
00:52:35.800 --> 00:52:38.239
Gender transitions, Like how do we help them?
934
00:52:38.280 --> 00:52:41.079
How do we not repeat some of the bad lessons
935
00:52:41.119 --> 00:52:45.280
from the past of truthing true bad therapies like shock
936
00:52:45.360 --> 00:52:49.239
therapy and other coursive treatments that were problematic. And Justice
937
00:52:49.280 --> 00:52:52.280
course it isn't question in Colorado's sincerity here. He doesn't
938
00:52:52.400 --> 00:52:55.639
accuse the state of being a bad actor necessarily. He
939
00:52:55.760 --> 00:52:58.239
talks about, you know, there is this issue of all
940
00:52:58.280 --> 00:53:01.599
of the mounting mental health rist that young people face,
941
00:53:02.639 --> 00:53:05.320
and Colorado may regard its policies essential to public health
942
00:53:05.400 --> 00:53:05.760
and safety.
943
00:53:05.880 --> 00:53:07.480
Is something that Justice Corsitch talks about.
944
00:53:08.000 --> 00:53:10.079
But that's what I think makes his next sentence really
945
00:53:10.199 --> 00:53:14.800
land when he says, certainly censorious governments throughout history have
946
00:53:15.039 --> 00:53:15.800
believed the same.
947
00:53:16.280 --> 00:53:18.079
And I think this rhetorical move is deliberate.
948
00:53:19.199 --> 00:53:21.079
Justice cor in the majority are making the point that
949
00:53:21.119 --> 00:53:26.039
good intentions are constitutionally insufficient when we're dealing with First
950
00:53:26.079 --> 00:53:27.239
Amendment rights.
951
00:53:27.320 --> 00:53:28.679
We have to look for more than that.
952
00:53:28.760 --> 00:53:30.800
We have to look for an evidentiary basis that really
953
00:53:30.920 --> 00:53:34.719
the type of government action here is necessary to prevent
954
00:53:34.800 --> 00:53:38.159
this sort of wrong, this sort of harm. And so
955
00:53:38.559 --> 00:53:41.079
the First Amendment is reflecting this judgment that every American
956
00:53:41.400 --> 00:53:45.440
possesses the right to think and speak freely, including those
957
00:53:45.719 --> 00:53:48.639
in a marketplace, including those who are professionals, and sometimes
958
00:53:48.679 --> 00:53:51.559
we need professionals most to be able to express their
959
00:53:51.639 --> 00:53:54.199
views so that we can get more information out there
960
00:53:54.239 --> 00:53:57.159
that will be helpful, that will increase the patient autonomy
961
00:53:57.440 --> 00:53:59.840
and the ability of these clients to make their own
962
00:53:59.880 --> 00:54:03.119
decisions that are consistent with what they think is going
963
00:54:03.199 --> 00:54:06.079
to help them be able to have happy, fulfilling lives.
964
00:54:06.440 --> 00:54:08.639
And I think that's one reason why Justice Sodamara and
965
00:54:08.760 --> 00:54:11.800
Justice Kagan joined on, which shows that this isn't just
966
00:54:11.880 --> 00:54:14.840
an ideological opinion. It's an intempt to make sure that
967
00:54:15.639 --> 00:54:18.280
when government does these sorts of things, whether motivated while
968
00:54:18.400 --> 00:54:21.840
or not, there's a real justification for what government is doing.
969
00:54:22.440 --> 00:54:25.239
And the last thing I'll point out is what I
970
00:54:25.320 --> 00:54:29.199
began with the majority opinion still leaves lots of room
971
00:54:29.440 --> 00:54:31.679
for governments to regulate in lots of ways. If there
972
00:54:31.840 --> 00:54:34.360
is evidence of real coercion that the miner is being
973
00:54:34.440 --> 00:54:36.519
forced to engage in therapy the miner doesn't want to.
974
00:54:37.119 --> 00:54:39.960
That's a reason why a state could regulate. If there's
975
00:54:40.199 --> 00:54:43.199
you know, it's aversive sort of techniques or other problematic
976
00:54:43.320 --> 00:54:46.719
conversion therapy that's happening, those laws are still on the books.
977
00:54:46.840 --> 00:54:49.559
The majority's ruling doesn't invalidate those, but it is saying
978
00:54:50.119 --> 00:54:52.880
when you're just trying to skew the marketplace of ideas
979
00:54:53.079 --> 00:54:58.159
and say only this perspective receives protection, and this perspective doesn't.
980
00:54:58.199 --> 00:55:01.199
The government's just picking winners and lose on important issues
981
00:55:01.239 --> 00:55:04.639
where we need more good thinking, more professional speech than
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the First Amendment is going to subject that to the
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most exacting scrutiny.
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Excellent, We'll invite Libby back on. Thank you to both
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of you for your insights, and again on short notice.
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We only had forty eight hours to sit with us
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opinion and had a pretty significant day of arguments yesterday
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at the Court in the interim, so appreciate your weighing
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in here. Thanks to the Federalist Society for hosting this conversation,
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and thank you Libby for making this possible.
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Wonderful. Well, I will echo all of that.
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Thank you all three for joining us today, for sharing
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your expertise and insights insights into this very important topic
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in casey, thank you for moderating. For audiences interested in
995
00:55:50.559 --> 00:55:52.400
learning more about all of our programming here at the
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00:55:52.400 --> 00:55:55.920
Federalist Society, please visit our website at fedsock dot org,
997
00:55:56.119 --> 00:55:57.920
or feel free to send us your feedback. We always
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00:55:57.960 --> 00:56:01.719
love to hear it at fedsock Forum at fedsoc dot org.
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And with that we are Jered.
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Thank you so much, Thank you for listening to this
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00:56:06.639 --> 00:56:09.840
episode of fedsoc Forums, a podcast of the Federal Societies
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00:56:09.880 --> 00:56:13.360
Practice Groups. For more information about the Federal Society, the
1003
00:56:13.440 --> 00:56:16.440
practice groups, and to become a Federal Society member, please
1004
00:56:16.519 --> 00:56:18.920
visit our website at fedsoc dot org.