AN ATTACK ON FREE SPEECH: When Government Keeps Teens from Seeing the Therapist.

The bans on talk therapy have consequences for the freedoms of speech and religion of all Americans. The Ninth Circuit Court of Appeals was only able to uphold this ban in California by defining one-on-one counseling as “conduct” rather than “speech.” The court held that talk-only sexual re-orientation therapy is more like administering electroshock treatments than communicating a message.

Paul Sherman and Robert McNamara, who represent the Institute for Justice, warn that if “speech” can be relabeled “conduct” in this way, then governments can begin regulating teachers who engage in the “conduct” of instructing, actors who engage in the “conduct” of entertaining, and consultants who engage in the “conduct” of strategizing. “Whatever one’s view of the merits or evils of ‘reparative’ talk therapy,” McNamara and Sherman write, “it consists entirely of spoken communication,” and this should bring it within the scope of First Amendment protection. The Ninth Circuit’s ruling represents a radical break from the American tradition of protecting unpopular speech that offends the sensibilities of a powerful interest group.