This article was originally published by Wanjiru Njoya at the Mises Institute.
Supreme Court rulings are significant not only for their decision on who wins, but also for their reasoning. A victory for common sense may sometimes be pyrrhic if it benefits the party that wins the dispute but relies on reasoning that erodes individual liberty in the longer term.
In that context, while the outcome in the recent case of Chiles v. Salazar, Executive Director of the Colorado Department of Regulatory Agencies (decided March 31, 2026), was welcomed, the emphasis it placed on “viewpoint discrimination” is unfortunate. It is one more step down the road to conceptualizing free speech as an application of the non-discrimination principle, rather than as an emanation of individual liberty.
The majority of the court in Chiles ruled that therapists should be permitted to conduct “sexual orientation change efforts.” Because the case was brought under the First Amendment, the reasoning was that restricting this form of talk therapy amounts to “discrimination on the basis of viewpoint.” This framing reflects the trend of subsuming all jurisprudence within egalitarian principles of non-discrimination—in this case, the principle being that all licensed therapists have an equal right to practice their chosen form of talk therapy. Forbidding one form of talk therapy discriminates against the therapists who wish to choose that form.
Conceptualizing free speech as an equal right to express one’s views is a stark departure from the libertarian view of free speech as an emanation of self-ownership and property rights.
In this case, a Colorado therapist, Kaley Chiles, successfully argued that Colorado law banning her preferred form of treatment violated her right to free speech. Colorado’s defense, which ultimately failed, was that the case did not involve the regulation of speech but only the regulation of forms of treatment. The state tried, in vain, to frame the case as one that merely involves licensing the practice of medicine.
Therapists should, of course, be free to exercise their professional judgment. Most human activity involves speech in one form or another, so in that sense, political disputes could be said to be “free speech” disputes. A dispute over gender ideology—in this case, whether a boy who feels he is a girl should really just be talked out of it—was, therefore, framed as a dispute about free speech.
But, if every political and ideological dispute is framed as a First Amendment dispute over viewpoint discrimination, the substance of the dispute itself—in this case, the gender ideology dispute—is sidelined while the courts debate whether the complainant has been discriminated against. The First Amendment then functions as yet another “protection from discrimination” platform. Free speech risks being collapsed into the non-discrimination principle.
The Supreme Court in Chiles held that the First Amendment prohibits states from “regulating speech based on viewpoint,” or from regulating “communicative content.” This was described as “content-based restriction.” The First Amendment was held to protect the right of citizens to decide “how best to speak.” The court followed the reasoning in Rosenberger v. University of Virginia (2015), which held that,
When the government seeks not just to restrict speech based on its subject matter, but also seeks to dictate what particular “opinion or perspective” individuals may express on that subject, “the violation of the First Amendment is all the more blatant.”
This seems to imply that, while regulating the content of speech is a violation of the First Amendment, doing so in a discriminatory manner is an “all the more blatant” violation. The court said:
Colorado’s law does not just regulate the content of Ms. Chiles’s speech. It goes a step further, prescribing what views she may or may not express. (emphasis added)
By this reasoning, the notion of “discrimination” is elevated as the overriding principle—silencing people is wrong, but viewpoint discrimination is worse. The Court described viewpoint discrimination as an “egregious” and “most blatant” violation of the First Amendment.
The Supreme Court in Chiles also cited the previous case of Iancu v. Brunetti (2019), which held that “the government cannot discriminate based on viewpoint.” In earlier cases, the courts had also held that it may be permissible to bar “fighting words,” but such words cannot be barred “based on viewpoint,” that is, in a discriminatory manner.
The principle being emphasized in these cases is that the government cannot discriminate in regulating speech content. Yet, the First Amendment is not, on its face, about prohibiting discrimination. It prohibits the abridgment of free speech. The problem is that the two foundational principles—liberty and equality—are now deemed to be synonymous, or at least interchangeable. It is deemed less significant that speech was restricted, and more significant that the restrictions went “a step further” to restrict speech in a discriminatory manner.
The champions of equal opportunity would argue that this is good because we should not have a situation where those with favored views are free to express them, while those with disfavored views do not have an equal opportunity to do the same. This notion of “non-discrimination in the expression of viewpoints” is then read into the First Amendment, gradually turning it from a principle of liberty into a principle of “non-discriminatory regulation” of speech.
Thus, in Chiles, the Supreme Court emphasized that protecting all speech equally is key: “The Constitution does not protect the right of some to speak freely; it protects the right of all.”
Justices Kagan and Sotomayor—the liberals on the bench—wrote a separate opinion which went even further, stating that “because viewpoint-based laws always raise that specter [of official suppression of ideas], they are the most suspect of all speech regulations” (emphasis added). They added that,
Once again, because the State has suppressed one side of a debate, while aiding the other, the constitutional issue is straightforward.
It would, however, be less so if the law under review was content based but viewpoint neutral.
The key issue, as they see it, is that the state has favored some citizens while discriminating against others. The implication is that it would be less egregious if the state silenced everyone equally, because there would be no viewpoint discrimination. This irony is inherent in the comparative framework of the non-discrimination principle. For example, when employers were forbidden by “equal pay” laws from paying men higher wages than women, they corrected that by docking the men’s pay. All is equal, all is well. The fact that this was achieved by essentially punishing one group is deemed immaterial.
Categorizing different forms of First Amendment violations as to which are worse than others partly reflects the sliding scale of “heightened scrutiny.” This ranges from cases where the free speech restriction is not too serious—silencing speech in a viewpoint-neutral manner—to a higher level of scrutiny where the restriction is considered egregious because it is viewpoint-discriminatory. Kagan and Sotomayor said,
We apply our most demanding standard when there is any “realistic possibility that official suppression of ideas is afoot: – when, that is, a (merely) content-based law may reasonably be thought to pose the dangers that viewpoint-based laws always do… But when that is not the case – when a law, though based on content, raises no real concern that the government is censoring disfavored ideas – then we have not infrequently “relaxed our guard.”
But why should judges “relax their guard” when the state silences everyone in a viewpoint-neutral way? Surely government censorship is always objectionable, regardless of whether it discriminates against a particular viewpoint.
Even worse, Kagan and Sotomayor justified their categorization of violations by reference to the fear of “driving certain ideas or viewpoints from the marketplace.” They have been discriminated against, and they have been excluded from the marketplace. It goes against their precious principles of diversity and inclusiveness, their schoolmarmish desire to make sure everyone’s ideas are welcome and everyone feels equally heard.
This theme appears in many different areas of law, including criminal law, where there is a growing view that discriminating against others is worse than “ordinary” crimes—murder is bad, but murdering someone based on his race or religion is worse. That is the rationale behind “hate crimes.”
Paradoxically, the more the law devolves into double standards—where victims of discrimination get special protection, and everyone else can go fly a kite—the more concerted effort courts take to frame free speech in the language of non-discrimination. It is a timely reminder of the dangers of deviating from individual liberty and the right to self-ownership as the conceptual foundation of free speech.
In the libertarian ethical system, there is no non-discrimination principle because people are at liberty to discriminate in any manner they deem appropriate. As the economist Walter Williams often said, discriminating simply means choosing. Further, in a Rothbardian system, the dispute in Chiles would not have arisen in the first place because nobody would need a license from the state to offer “talk therapy” to boys who believe they are girls.
Read the full article here
