by Declan Alvidrez*

Professional conduct often uses or relies on speech, which is why courts may assess government regulations targeting such conduct under the First Amendment’s broad protections. Attacks on restrictions of professional speech—speech by a professional to a client in the course of providing professional services—have challenged courts to analyze the boundaries of First Amendment protections in relation to states’ power to regulate licensed professions. In so doing, courts have struggled with whether to treat professional speech as a distinct category under the First Amendment and how to analyze regulations of professional conduct when the regulated conduct relies on speech. These doctrinal issues are especially salient in constitutional challenges to states’ prohibitions on conversion therapy, because banning this professional conduct necessarily limits the speech associated with its talk therapy method. Nonetheless, this Contribution argues that such prohibitions only warrant assessment under a lower level of constitutional scrutiny because they only incidentally burden speech, and the speech that is burdened is not of the kind that First Amendment jurisprudence is most concerned with protecting.

Many in the United States earn their living as licensed professionals and are in turn subject to “a generally applicable licensing and regulatory regime” provided for by the state in which they practice.1 A license assures clients of a professional’s competency in their relevant field and in their provision of services.2 States commonly maintain licensing boards and enact laws regulating professional conduct, potentially burdening professionals’ communications with clients, a form of professional speech.3 As such, licensing regulations may draw constitutional scrutiny under the First Amendment’s protection of speech.4 Under the First Amendment, the “government [generally] has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”5 Since the First Amendment protects speech and expression rather than conduct, it “does not prevent restrictions directed at . . . conduct from imposing incidental burdens on speech.”6 Accordingly, courts face two analytical difficulties when examining regulations of professional speech under the First Amendment: first, determining whether the fact that the regulated speech is made by a licensed professional impacts the level of constitutional scrutiny applied; and second, distinguishing between regulations directed at professional conduct and regulations directed at the content of the professional’s speech.

The difficulty in analyzing the propriety of professional speech regulations is prominent in the discussion of conversion talk therapy, or “efforts to change someone’s sexual orientation[,] gender identity,” or gender expression primarily through verbal communications with a patient.7 Conversion talk therapy is a method of therapy offered by licensed therapists and psychologists, subjecting it to regulatory oversight. As talk therapy necessarily requires speech, licensed professionals seeking to provide conversion talk therapy have challenged general prohibitions of conversion therapy––which implicitly prohibit conversion talk therapy––on First Amendment free speech grounds. This Contribution argues that a state regulation prohibiting licensed professionals from providing conversion therapy8 regulates conduct and only incidentally burdens speech. Therefore, such prohibitions warrant review under a lower level of scrutiny9 that is more deferential to the government than otherwise required under the First Amendment, ultimately making courts more likely to uphold such statutes.

The driving force behind First Amendment jurisprudence is a democratic ideal of fostering diversity of thought and protecting against regulations that coerce orthodoxy.10 Regulating speech based on the content it espouses runs the risk of suppressing valuable discourse in pursuit of addressing a narrower concern.11 Accordingly, “[t]he First Amendment requires heightened scrutiny [by courts] whenever the government creates ‘a regulation of speech because of disagreement with the message it conveys,’” otherwise known as a content-based restriction.12 Given the foundational democratic principles behind courts’ aversion to content-based speech regulations, courts rarely sidestep heightened scrutiny13 when assessing such regulations, and do so only when justified by historical evidence.14

Regulations directed at what professionals say in the course of their work are considered content-based and thus generally trigger heightened scrutiny.15 Until National Institute of Family and Life Advocates v. Becerra (“NIFLA”) in 2018, the Supreme Court had not explicitly addressed whether courts should treat professional speech as a categorical exception to the standard First Amendment analysis for content-based government action and employ more lenient scrutiny.16 In NIFLA, the Court considered licensed medical professionals’ First Amendment challenge to a regulatory requirement that certain medical facilities provide notice of contraceptive and abortion options to their patients.17 In holding that the requirement impermissibly compelled speech18 from professionals, the Court signaled apprehension to categorically exempt content-based regulations of professional speech from heightened scrutiny.19 The Court justified its hesitation by noting the dearth of precedential evidence to support such a weighty exception.20

In demarcating separate categories of speech that warrant little to no First Amendment protection, the Supreme Court has largely distinguished on the basis of the content espoused.21 For example, the Court has justified qualifying categories of speech, like obscenity and defamation, as “unprotected speech,” on the basis that the content of such speech has minimal social value.22 Such speech is generally not entitled to constitutional protection, providing the government with more leeway to regulate this content without receiving demanding scrutiny from courts.23 Not only do these separate categories constitute exceptions to the prevailing judicial bias against content-based regulations, they inherently accept some risk of suppressing ideas by imposing a categorical exception rather than the case-by-case analysis that courts otherwise employ when assessing regulations of speech. As a result, the Supreme Court has approached establishing new categories of unprotected speech with appropriate skepticism,24 requiring “persuasive evidence that a novel restriction on content is part of a long (if heretofore unrecognized) tradition of proscription” to do so.25

The NIFLA Court noted that the limited historical recognition of states’ power to regulate licensed professions was outweighed by the risk of states using professional regulatory regimes to suppress certain viewpoints and coerce political consensus.26 In light of this tension, the Court ultimately found insufficient historical evidence to justify categorically exempting professional speech from the typical analysis applied to content-based restrictions—heightened scrutiny.27 Instead, NIFLA identified limited exceptions in which regulations restricting professional speech may receive lower constitutional scrutiny,28 including when such regulations (i) target “professional conduct” and (ii) only “incidentally involve speech”—excluding from consideration whether the regulated conduct inherently relies on speech.29 Consistent with the Court’s historical recognition of states’ powers to regulate licensed professionals, this two-pronged exception minimizes the risk of abridging First Amendment rights by limiting lesser scrutiny to narrow instances in which regulations of professional conduct only incidentally burden speech.30 Regulations generally prohibiting professionals from providing conversion therapy—and therefore implicitly prohibiting conversion talk therapy—satisfy this two-part test because they target conduct––the medical treatment of conversion therapy––and only incidentally burden the speech required for this particular professional conduct. Accordingly, such prohibitions should receive a lower level of First Amendment scrutiny than is otherwise afforded to content-based regulations.

A court applying the NIFLA Court’s two-pronged test must first determine if the statute in question targets conduct. The Court in NIFLA established that––in the medical context––a regulation targets conduct and not speech when it is directed at or closely related to a medical procedure or treatment.31 As an example, the NIFLA Court cited to the statute at issue in Planned Parenthood of Southeastern Pennsylvania v. Casey, which required physicians to obtain informed consent from a patient before providing an abortion.32 The Court characterized that statute as directed at conduct—the medical procedure of abortion—thus only incidentally regulating speech “as part of the practice of medicine, subject to reasonable licensing and regulation by the State.”33 The Court relied on this reasoning when it examined the challenged regulation in NIFLA that required certain licensed medical facilities to notify all patients of available contraceptive and abortion options.34 The Court found that the notice requirement was distinct from the regulation challenged in Casey because the NIFLA notification was “not tied to a procedure at all” and “applie[d] to all interactions between a covered facility and its clients, regardless of whether a medical procedure [was] ever sought, offered, or performed.”35 Thus, the Court concluded that “[t]he licensed notice regulate[d] speech as speech” and not as a part of conduct, and therefore did not warrant a lower level of constitutional review.36

Unlike the notice requirement challenged in NIFLA, general prohibitions of conversion therapy are specifically tied to a medical treatment, much like the regulation at issue in Casey. The text of general prohibitions of conversion therapy clearly demonstrate an intention to target conduct as opposed to speech.37 Take, for example, the Colorado Minor Conversion Therapy Law’s (“MCTL”) prohibition of conversion therapy, which restricts “engag[ing] in any of the following activities and practices . . . [including] . . . [o]rdering or performing any service or treatment that is contrary to the generally accepted standards of the person’s practice and is without clinical justification . . . .”38 The use of the words “activities” and “practices” necessarily connotes that the prohibition of conversion therapy targets a particular action: the provision of the general treatment itself.

Further, the statutory context of many prohibitions on conversion therapy strengthens the conclusion that such prohibitions regulate medical conduct, not speech. For one, the placement of a prohibition within a state’s regulatory framework can provide evidence of the intention of the regulation. The MCTL, for example, is housed within Colorado’s general statutory regulation of “Health-Care Professions and Occupations” (“HCPO”).39 Statutes within the HCPO are passed pursuant to states’ power to regulate the medical conduct of professionals.40 Statues within regulatory sections like Colorado’s HCPO establish standards for appropriate medical conduct across a wide variety of fields, lending credence to the conclusion that general prohibitions of conversion therapy should be understood as targeting medical conduct.41 This context demonstrates that regulations like the MCTL are aimed at conduct and not speech, satisfying the first prong of NIFLA’s exception to heightened scrutiny.

The preceding statutory analysis indicates that general conversion therapy prohibitions focus on conduct, suggesting there may be only incidental involvement of speech. However, when applied specifically to conversion talk therapy, the prohibited conduct relies on speech. Therefore, opponents of general conversion therapy prohibitions may argue that conversion talk therapy’s reliance on speech means that these prohibitions do not just incidentally involve speech, they directly regulate it under the first prong of NIFLA’s exception to heightened scrutiny.42 Critics might suggest that such a regulation would fail to satisfy the NIFLA exception and trigger heightened scrutiny.43 This argument found favor with the Eleventh Circuit in Otto v. City of Boca Raton, which mischaracterized regulations of conversion talk therapy as just “relabeling controversial speech as conduct.”44 This kind of reasoning improperly sidesteps NIFLA’s guidance for the first prong of its exception to heightened scrutiny, and misunderstands when a regulation “incidentally” affects speech under the NIFLA exception’s second prong.45

Reasoning like that employed by the Otto court end-runs NIFLA’s two-pronged exception by ignoring whether the relevant regulation is related to a medical treatment or procedure, thereby skipping the necessary inquiry of whether the regulation targets conduct. Instead, the Otto court committed the very “relabeling” error it used to justify its own reasoning by placing dispositive weight on the mere presence of speech in the medical treatment, relabeling the conduct––conversion therapy—as speech. But merely communicating information through words does not automatically entitle such communication to heightened First Amendment protection,46 as evidenced by the fact that the Supreme Court has previously validated professional regulations involving speech despite First Amendment concerns.47 Even when such speech is arguably the primary means for carrying out a professional activity, the activity is not magically insulated from state regulation as though it were speech occurring outside of one’s professional capacity.48

Consistent with the Court’s treatment of other professional regulations, a general prohibition on conversion therapy is a valid restriction of professional conduct. Conversion therapy is meant to coerce a specific sexual orientation and poses a risk of harm that is generally disapproved of by the medical community;49 in that sense, it constitutes harmful conduct. Conversion therapy does not shed its status as a medical treatment when “implemented through speech rather than through scalpel.”50 A government regulation generally prohibiting the licensed provision of conversion therapy must be understood as regulation targeting conduct, not speech, satisfying the first NIFLA prong for receiving a lower level of constitutional review.

Since general prohibitions of conversion therapy target conduct, lower constitutional scrutiny is appropriate if NIFLA’s second prong is also satisfied. Prohibitions of conversion therapy only incidentally impact the speech implicit to providing conversion talk therapy because the application of such prohibitions does not rely on the presence of speech.51 For example, Colorado’s MCTL broadly prohibits conversion therapy as a treatment and defines it without any reference to communication.52 The MCTL could be applied to any number of conversion therapy practices which do not implicate the First Amendment. Therefore, it is not the presence of speech that prohibits conversion talk therapy but the medical conduct of treating someone with the intent to coercively change their gender or sexual identity. Accordingly, the MCTL only incidentally burdens speech, satisfying the second NIFLA prong and completing NIFLA’s two-pronged exception. Courts are therefore compelled to apply a lower level of scrutiny when reviewing the constitutionality of the MCTL and similar statutes under the First Amendment.

As speech is only incidentally impacted by prohibitions against conversion therapy, any remaining constitutional concerns are alleviated by the fact that the affected speech is not of the kind which the First Amendment is meant to protect. The core of the First Amendment is “to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.”53 Accordingly, the Supreme Court has taken a strong stance against the government prescribing or coercing public opinion through restrictions on the content of speech, taking particular care to protect expressive political, religious, or artistic speech.54 The communications regulated by conversion therapy bans are different from those at the core of First Amendment protections. The speech which occurs during conversion talk therapy is not expressive as it does not share one’s views or opinions on conversion therapy; instead, it merely progresses through the steps of a medical treatment. Thus, this speech is not of particular constitutional import and does not warrant heightened scrutiny.55

The Ninth Circuit’s decision in Conant v. Walters further illustrates the difference between expressive speech and the speech impacted by conversion therapy bans, supporting the application of NIFLA’s exception to conversion talk therapy.56 In Conant, the court struck down a federal statute permitting doctors’ licenses to be revoked if they recommended marijuana to a patient.57 Conant distinguished between “prohibiting doctors from treating patients with marijuana—which the government could do—from prohibiting doctors from simply recommending marijuana.”58 In other words, Conant differentiated doctors’ professional speech used to provide a treatment from doctors sharing their personal views on alternative treatments that patients could receive elsewhere.59 As in Conant, regulations prohibiting conversion therapy do not prevent a medical professional from recommending any form of therapy or discussing their own thoughts on it. Therefore, professionals’ expressive speech remains protected and First Amendment concerns raised by such bans are quelled, if not altogether eliminated.

While it is true that sharing one’s own views is at the core of the First Amendment’s protections,60 conversion therapy bans do not seek to limit such expression in order to establish public consensus. Rather, these statutes seek to protect the public from a medical treatment that relevant professional associations have determined to be below the required standard of care.61 Thus, public policy instructs that the regulated communication should not receive heightened scrutiny as it is entirely distinct from the expressive speech that the First Amendment is meant to protect.

States historically have had the power to regulate the practice of medicine for the purpose of protecting their residents from professional wrongdoing and incompetence.62 Though certain medical practices, like conversion talk therapy, may involve or rely on speech, the First Amendment does not protect this speech through the application of heightened scrutiny because––consistent with NIFLA––general prohibitions of conversion therapy target conduct and only incidentally involve speech. Courts do not risk suppressing ideas or coercing orthodoxy by upholding prohibitions on conversion therapy that narrowly proscribe the treatment itself and do not concern one’s right to discuss expressive views of the treatment. Accordingly, the speech impacted by such bans does not inherently contain the type of content protected by the First Amendment. Even so, these prohibitions can only receive lower constitutional scrutiny after a court’s rigorous determination that the risk of suppressing valuable discourse is low. As lower constitutional scrutiny is not inherently toothless, courts assessing these bans will still consider whether the government’s interest in public safety is outweighed by significant First Amendment infringements. In so doing, courts will remain faithful to the Supreme Court’s careful reasoning in NIFLA, and to the valued principles of First Amendment jurisprudence while respecting states’ power to protect their residents.

* Declan Alvidrez is a J.D. Candidate (2026) at New York University School of Law. This Contribution is a commentary related to the question presented to the Supreme Court in Chiles v. Salazar, No. 24-539 (2025): whether a law that censors certain conversations between counselors and their clients based on the viewpoints expressed regulates conduct or violates the Free Speech Clause of the First Amendment. This Contribution distills one side of the argument and the views expressed herein do not necessarily represent the author’s views.

1. Nat’l Inst. of Fam. and Life Advocates v. Becerra, 585 U.S. 755, 767 (2018) [“NIFLA”] (quoting Moore-King v. Cnty. of Chesterfield, 708 F.3d 560, 569 (4th Cir. 2013)).

2. See Tingley v. Ferguson, 47 F.4th 1055, 1082 (9th Cir. 2022) (noting that a state license is an “‘imprimatur of a certain level of competence”) (quoting Otto v. City of Boca Raton, 41 F.4th 1271, 1294 (11th Cir. 2022) [“Otto II”] (Rosenbaum, J., joined by Pryor, J., dissenting in the denial of rehearing en banc)).

3. See NIFLA, 585 U.S. at 767 (noting that professional speech has been defined as any speech by professionals based on their expert knowledge or made within the confines of their professional relationships).

4. See id. at 765–66 (noting that petitioners challenge regulations imposed on licensed professional practices for violations of First Amendment speech protections); cf. Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015) (noting that the First Amendment is “applicable to the States through the Fourteenth Amendment”).

5. Ashcroft v. ACLU, 535 U.S. 564, 573 (2002) (citing Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 65 (1983) (quoting Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 95 (1972))).

6. Sorrell v. IMS Health Inc., 564 U.S. 552, 567 (2011) (emphasis added).

7. See Christy Mallory et al., Conversion Therapy and LGBT Youth, The Williams Inst., 1–2 (Jun. 2019), https://williamsinstitute.law.ucla.edu/wp-content/uploads/Conversion-Therapy-Update-Jun-2019.pdf.; see also Psychotherapy, Am. Psych. Ass’n, https://dictionary.apa.org/psychotherapy (last visited Nov. 1, 2025).

8. It is important to distinguish general prohibitions on conversion therapy, which also implicitly prohibit conversion talk therapy (“general prohibitions”), from specific prohibitions of only conversion talk therapy. This Contribution will focus on the former category, though much of this Contribution’s analysis would be similar for the latter category.

9. See Scrutiny, Black’s Law Dictionary (12th ed. 2024) (“The judicial analysis of a statute or regulation under the Due Process Clauses of the Fifth and Fourteenth Amendments or under the Equal Protection Clause.”).

10. See W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 641–42 (1943).

11. See Denver Area Educ. Telecomms. Consortium, Inc. v. FCC, 518 U.S. 727, 805 (1996) (Kennedy, J., concurring in part and dissenting in part) (“Indecency often is inseparable from the ideas and viewpoints conveyed, or separable only with loss of truth or expressive power.”).

12. See Sorrell, 564 U.S. at 566 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)).

13. Heightened scrutiny is more difficult for the government to satisfy than a lower level of scrutiny because the former requires more serious government interests, and a closer tie between those interests and the government’s action. Compare, e.g., id. at 572 (“[T]he State must show at least that the statute directly advances a substantial governmental interest and that the measure is drawn to achieve that interest.”), with Free Speech Coal., Inc. v. Paxton, 606 U.S. 461, 471–72 (2025) (quoting FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993) (“Under [rational basis review], a law will be upheld ‘if there is any reasonably conceivable state of facts that could provide a rational basis’ for its enactment.”).

14. See NIFLA, 585 U.S. at 767 (finding that content-based restrictions are impermissible absent “persuasive evidence . . . of a long (if heretofore unrecognized) tradition” of permitting such a restriction) (quoting Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 792, (2011)).

15. See NIFLA, 585 U.S. at 755 (holding that outside two exceptions, all professional speech is subjected to heightened scrutiny).

16. See id. at 767–68 (noting that the Court has only considered narrower exceptions related to professional speech).

17. Id. at 760–65.

18. The Court has found no constitutional significance between compelled speech and compelled silence. See Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 796–97 (1988) (“[T]he First Amendment guarantees ‘freedom of speech,’ a term necessarily comprising the decision of both what to say and what not to say.”).

19. See NIFLA, 585 U.S. at 767.

20. See id. at 768 (“This Court’s precedents do not recognize such a tradition for a category called ‘professional speech.’”).

21. See R.A.V. v. St. Paul, 505 U.S. 377, 383 (1992) (“[T]hese [categories] of speech can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content (obscenity, defamation, etc.) . . . .”).

22. See Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942).

23. See R.A.V., 505 U.S. at 383–84.

24. See United States v. Alvarez, 567 U.S. 709, 722 (2012).

25. See id. (quoting Brown, 564 U.S. at 792).

26. See NIFLA, 585 U.S. at 771–73.

27. See id. at 768.

28. See id.

29. See id. at 769. Compare United States v. O’Brien, 391 U.S. 367, 382 (1968) (finding that O’Brien was permissibly convicted for the noncommunicative impact of his conduct alone), with Sorrell, 564 U.S. at 567 (finding that the Vermont law burdened the speaker based on content of speech rather than conduct).

30. See NIFLA, 585 U.S. at 769; see also O’Brien, 391 U.S. at 382 (distinguishing between regulating conduct, as such, from pretextually regulating conduct to suppress certain ideas).

31. See NIFLA, 585 U.S. at 770.

32. See id. (citing Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 881 (1992)).

33. NIFLA, 585 U.S. at 770 (quoting Casey, 505 U.S. at 881).

34. See NIFLA, 585 U.S. at 760–65.

35. Id. at 770.

36. See id.

37. See, e.g., Colo. Rev. Stat. § 12-245-224(1)(t)(III) (2024) (prohibiting licensed mental health professionals from engaging in conversion therapy with those under 18 years of age); Cal. Bus. & Prof. Code § 865.1 (West 2013) (same); Md. Code Ann., Health Occ. § 1-212.1 (West 2018) (same); Conn. Gen. Stat. Ann. § 19a-907a (West 2017) (same).

38. Colo. Rev. Stat. § 12-245-224(1)(t)(III).

39. See Colo. Rev. Stat. §§12-1-101–315-310.

40. See Dent v. West Virginia, 129 U.S. 114, 122–23 (1889) (noting that states’ power to protect general welfare includes regulating the medical profession).

41. See, e.g., Cal. Bus. & Prof. Code §§ 500–4999.129 (governing medical professions through licensing requirements and codes of conduct); Md. Code Ann., Health Occ. §§ 1-101– 21-502 (same); Conn. Gen. Stat. Ann. §§ 19a-1–19a-918 (same).

42. See, e.g., Brief for Petitioner at 33, Chiles v. Salazar, No. 24-539 (argued Oct. 10, 2025) (arguing that there is no conduct element to Chiles’ conversion talk therapy because “[s]peech is the only tool” she uses).

43. See NIFLA, 585 U.S. at 770, 773 (finding that the licensed notice requirement regulated speech, not conduct, bringing it outside of the exception to heightened scrutiny).

44. See Otto v. City of Boca Raton, 981 F.3d 854, 861 (11th Cir. 2020) [“Otto I”] (citing Wollschlaeger v. Governor, of Fla., 848 F.3d 1293, 1308 (11th Cir. 2017)).

45. See NIFLA, 585 U.S. at 769.

46. See United States v. Hansen, 599 U.S. 762, 783 (2023) (quoting Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 (1949)) (“[I]t has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.”).

47. See, e.g., Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 459–62, 468 (1978) (validating restriction on lawyers’ in person solicitation of clients and finding no violation of the First Amendment); Casey, 505 U.S. at 884 (validating an informed consent requirement for abortion procedures).

48. See Garcetti v. Ceballos, 547 U.S. 410, 422 (2006) (noting the fact that deputy district attorney’s job “sometimes required him to speak or write” did not protect him from discipline for professional communications).

49. See Am. Psych. Ass’n., Report of the Am. Psych. Ass’n Task Force on Appropriate Therapeutic Responses to Sexual Orientation 831, 121 (2009), https://www.apa.org/pi/lgbt/resources/therapeutic-response.pdf.

50. See Tingley, 47 F.4th at 1064.

51. See NIFLA, 585 U.S. at 782 (finding heightened scrutiny exception for regulating professional conduct that only incidentally regulates speech); see also O’Brien, 391 U.S. at 382.

52. See Colo. Rev. Stat. § 12-245-202(3.5)(a); see also Cal. Bus. & Prof. Code § 865.1; Md. Code Ann., Health Occ. § 1-212.1; Conn. Gen. Stat. Ann. § 19a-907a.

53. See McCullen v. Coakley, 573 U.S. 464, 476 (2014) (quoting FCC v. League of Women Voters, 468 U.S. 364, 377 (1984)).

54. See Barnette, 319 U.S. at 642 (“[N]o official . . . can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”).

55. See Chiles v. Salazar, 116 F.4th 1178, 1208–09 (10th Cir. 2024) (“Talk therapy is a treatment, not an informal conversation among friends.”).

56. See Conant v. Walters, 309 F.3d 629, 637–39 (9th Cir. 2002) (distinguishing restriction on treatment with marijuana from restriction on recommendation of marijuana to invalidate federal licensing statute).

57. See id. at 639.

58. See Tingley, 47 F.4th at 1072 (clarifying the court’s earlier analysis in Conant).

59. See Conant, 309 F.3d at 637–39; Tingley, 47 F.4th at 1072 (interpreting Conant to distinguish between permissible restrictions on treatment and impermissible restrictions on discussion and recommendation).

60. See Barnette, 319 U.S. at 642.

61. See Tingley, 47 F.4th at 1081 (crediting the American Psychological Association’s guidance that conversion therapy “should be discouraged”) (citing Lambert v. Yellowley, 272 U.S. 581, 591 (1926)).

62. See Dent, 129 U.S. at 122–23 (1889).