The Line Between Conduct and Speech, Between Treatment and Non

On Tuesday, the Court heard oral argument in Chiles v. Salazar . This case considers the constitutionality of Colorado's ban on conversion therapy.

As a general rule, the First Amendment protects speech, but not conduct. It is true that some conduct, like flag-burning, has speech-like properties, so is protected by the First Amendment. It is also true that some speech incidental to conduct is not fully protected by the First Amendment. The doctrine here is complex.

During argument, several Justices asked how to draw the line between "treatment" and "non-treatment." This questions seemed to presume that treatment would not be protected by the First Amendment, while non-treatment (that is speech) was protected by the First Amendment.

Colorado argues that therapy that consists entirely of