Chiles v. Salazar

It’s your therapist’s sacred First Amendment right to give you medically discredited advice. Thank you to our subscribers. 5-4 is presented by Prologue Projects. This episode was produced by Alli Rodgers. Leon Neyfakh provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations. Transcriptions of each episode are available at fivefourpod.com http://fivefourpod.com Follow the show at @fivefourpod on most platforms. On BlueSky, find Peter @notalawyer.bsky.social, Michael @fleerultra.bsky.social, and Rhiannon @aywarhiannon.bsky.social. Home Chef: homechef.com/FIVEFOUR Our Sponsors: * Check out Mint Mobile and use my code mintmobile.com/fivefour for a great deal: https://www.mintmobile.com * Check out Quince and use my code FIVEFOUR for a great deal: https://www.quince.com Advertising Inquiries: https://redcircle.com/brands

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:00Speaker 00

  We will hear argument first this morning in case 24539, Charles versus Salazar.

• 0:08Speaker 01

  Hey, everyone. This is Leon from Prologue Projects. On this week's episode of Five to Four, Peter, Rhiannon, and Michael are talking about Charles v. Salazar, a case that was decided just a few weeks ago in a ruling that challenges Colorado's 2019 law banning therapists from trying to talk gay, trans, and queer minors into becoming straight. As you'll hear, the case was brought by a therapist who had teamed up with a right-wing nonprofit to argue that the Colorado ban on conversion therapy infringed on her First Amendment rights. The central question in the case was whether or not a state can regulate the speech of a talk therapist. And in an 8-1 decision, the court ruled that the issue required so-called strict scrutiny, which means the case now goes back down to the lower court for an intensive review

• 0:53Speaker 01

  that presumes the law in question is unconstitutional and will likely lead to it being struck down. This is Five to Four, a podcast about how much the Supreme Court sucks.

• 1:08Peter Shamshiri?

  Welcome to Five to Four, where we dissect and analyze the Supreme Court cases that have sent our civil rights to the far side of the moon, like the Artemis spacecraft. I'm Peter. I'm here with Rhiannon.

• 1:19Speaker 03

  Hey, everybody.

• 1:20Peter Shamshiri?

  And Michael.

• 1:21Michael Liroff?

  Hi. I love spaceship. I do. I eat that up. I think it's so cool.

• 1:26Peter Shamshiri?

  It's cool. And I guess it's the Artemis 2, your stickler.

• 1:28Michael Liroff?

  Yes, the Artemis 2.

• 1:30Peter Shamshiri?

  We tried to grab on to the one bit of good news that has happened all year for the metaphor this week. It's been cool. I watched a news segment about how they can't get farts out of the space shuttle.

• 1:46Speaker 03

  There's no way.

• 1:47Peter Shamshiri?

  You can like, they can do like scrubbing technology, but like inevitably, space shuttles all become filled with farts.

• 1:53Michael Liroff?

  And they smell like farts, yeah.

• 1:55Peter Shamshiri?

  Yeah. And so they just, it's just like a, just a big, farty little spaceship.

• 1:59Speaker 03

  We can go to the far side of the moon, but we can't get farts out of the spaceship?

• 2:04Peter Shamshiri?

  Yeah.

• 2:05Michael Liroff?

  That's correct.

• 2:06Peter Shamshiri?

  I mean, that.

• 2:08Speaker 03

  Well, that just like ruins, you know, as a kid, I wanted to be an astronaut.

• 2:12Michael Liroff?

  You're like, no, not so much.

• 2:14Peter Shamshiri?

  Well, you have to, the key is to be the one with the worst farts. That way it's like kind of funny, right? That way it's something you're doing to everyone else.

• 2:21Speaker 03

  Right, that way you're bullying people.

• 2:23Michael Liroff?

  Yeah, that's right. So you, you assert your dominance in the, in the.

• 2:29Peter Shamshiri?

  Yeah. I want it to be one of those things where like, the president is interviewing you, right? And he's like, how's it going? And everyone's like, Peter's ruining it. Peter's ruining it with his terrible farts.

• 2:42Speaker 03

  There's a video going around of today of Pete Hegseth that just ripping farts at the podium at a press conference. It's like not real, but it's very funny. You wish it were real, you know?

• 2:53Peter Shamshiri?

  Yeah. Well, we, there's been, just to go on another fart related tangent.

• 3:01Peter Shamshiri?

  There, there have long been rumors that President Trump is sort of losing control of his faculties.

• 3:07Michael Liroff?

  He's shitting his pants.

• 3:09Speaker 03

  He just smells like shit constantly because he'd be shitting, dude. He'd be shitting in every room he's in.

• 3:17Peter Shamshiri?

  I just hope that's true.

• 3:17Michael Liroff?

  Oh, it's true in my heart, at the very least.

• 3:20Peter Shamshiri?

  There's always a tell all that comes out of every presidency, right? And I want the Trump one to focus primarily around the fact that he's shitting his pants all the time.

• 3:29Speaker 03

  This is not hard to believe. I believe it, straight up.

• 3:32Michael Liroff?

  There was a video a few weeks ago, maybe a cut, maybe a month ago, where he was talking, I think he was in the Oval Office. And you can hear what sounds like a very wet fart. And you can see someone behind him be like, huh? Make like a little face and look at him like, huh? And then the press conference ended like very abruptly after that.

• 3:53Peter Shamshiri?

  Right, right. I remember that.

• 3:55Michael Liroff?

  It's like, oh, he shat his pants.

• 3:57Peter Shamshiri?

  Our producer just wrote us a note, is there a gassy Supreme Court justice? Thank you, Ally, for trying to tie this into the Supreme Court.

• 4:05Speaker 03

  She said, bring it home, y'all. Bring it home.

• 4:07Michael Liroff?

  I think Clarence Thomas.

• 4:08Peter Shamshiri?

  Thanks for not just writing, move on, please. Please stop this. This has to stop.

• 4:15Peter Shamshiri?

  We don't have a Gassy Supreme Court Justice anymore. It used to be Breyer.

• 4:19Michael Liroff?

  It was Breyer. Breyer take a shit during oral argument.

• 4:23Peter Shamshiri?

  During Zoom oral argument, which is so cool, dude.

• 4:26Speaker 03

  During COVID, yeah.

• 4:27Peter Shamshiri?

  You gotta hand it to him for that one.

• 4:29Michael Liroff?

  Yeah.

• 4:30Peter Shamshiri?

  The absolute, the absolute audacity to be like, I'm gonna take a shit.

• 4:38Peter Shamshiri?

  All right. This week's case, folks. Childs v. Salazar. It's a case from just a couple of weeks ago about conversion therapy. Conversion therapy, of course, pseudoscientific therapy intended to convince a gay or transgender person, usually a child, that they are in fact not gay or transgender. Colorado has a law that prohibits licensed therapists from doing conversion therapy for all of the reasons that you might expect, right? Puts children in danger. It's not real science.

• 5:12Speaker 03

  Yeah.

• 5:12Peter Shamshiri?

  Made up bullshit, right? But an entrepreneurial homophobic therapist challenged the law, saying that it violated her First Amendment freedom of speech. She wanted to tell these kids, switch back, you know?

• 5:33Speaker 03

  And this is her right.

• 5:34Peter Shamshiri?

  Yeah. And the Supreme Court, in an eight to one decision.

• 5:38Michael Liroff?

  Eight to one.

• 5:39Peter Shamshiri?

  Says she's got a point.

• 5:41Speaker 03

  Yeah. Kaylee, Kaylee.

• 5:44Peter Shamshiri?

  Kaylee Childs.

• 5:45Speaker 03

  Kaylee Childs. Kaylee, Kaylee wants to be a therapist.

• 5:49Peter Shamshiri?

  Imagine having a therapist named Kaylee.

• 5:54Peter Shamshiri?

  I'm good, you know, I'll figure it out myself.

• 5:58Speaker 03

  I'm gonna go ahead and walk myself back from the ledge. Thank you so much. Um, yeah, yeah. All right, before we get into Kaylee, this fucking clown ass piece of shit asshole loser, let's talk about conversion therapy. I'm sure listeners know this, but like Peter said, conversion therapy is defined broadly as a group of so-called therapies, right? Uh, different methods of giving this kind of therapy, but it's a therapy that seeks to change an individual. Individuals' sexual orientation or gender expression. Like Peter said, conversion therapy, when it's used, is often used against, used to harm children. Right? Because it's usually family members, parents, guardians, who are trying to intervene on, you know, a child's expression of their sexual orientation. Right.

• 6:43Speaker 03

  Or their gender identity. Conversion therapy broadly known in the science, in the literature on therapy as harmful. This is dangerous to children. You know, overall bad. We'll talk about some stats and associated, you know, kind of like the research on conversion therapy in just a little bit. So Colorado, along with many other states in the past, I would say decade or so, but in Colorado's case, it was in 2019. The state banned conversion therapy for children. The act, quote, prohibits a licensed physician specializing in psychiatry or a licensed, certified or registered mental health care provider from engaging in conversion therapy with a patient under 18 years of age.

• 7:26Speaker 03

  The Colorado law defines conversion therapy, basically how I just did. Efforts to change an individual's sexual orientation, including efforts to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attraction or feelings towards individuals of the same sex. Colorado passes this law and it looks like the 23 other states and the District and the District of Columbia that have passed similar laws. It has this ban on conversion therapy for kids, but it also gives a religious exemption. There's a religious exemption in the law that says, yeah, mental health providers, licensed mental health providers can't do conversion therapy for kids, but not religious counselors.

• 8:11Speaker 03

  State of Colorado doesn't have anything to say about how a religious counselor might give their counseling. So Colorado passes this law and in comes Kaylee Childs, a licensed counselor in Colorado, and she's filing a lawsuit pre-enforcement. The law hasn't gone into effect and Kaylee Childs is already filing a lawsuit saying, wait. A minute. This is viewpoint discrimination. This is against my First Amendment right to give talk therapy with my own personal viewpoints without any hindrance from the state of Colorado. Now, why would Kaylee, why would Kaylee Childs have this lawsuit ready to go pre-enforcement,

• 8:54Speaker 03

  right? Well, just one step behind Kaylee Childs. Who's behind her? But the ADF, the Alliance Defending Freedom, that fucked up conservative legal organization that has astroturfed cases going up to the Supreme Court all over the country. But importantly, listeners will remember, the ADF is also the organization that engineered 303 Creative. The case about the supposed web designer who was asked to make a wedding website for a gay couple. And another Supreme Court case, Masterpiece Cake Shop, which was about a baker who was asked to make

• 9:39Speaker 03

  a cake for a gay couple. Now, not only has Alliance Defending Freedom astroturfed and basically, you know, Lego-built all three of these cases, along with many more, but just a note that this like homophobic, transphobic bullshit in terms of Supreme Court cases, specifically astroturfed by the ADF, those three also all came out of Colorado. Weird shit that the ADF is up to in that state. So let's talk a little bit about Kaylee Childs, this perfect little plaintiff that the ADF found and used to take this case all the way up to the Supreme Court to challenge conversion therapy bans for minors. This lady has probably never talked to a trans kid, right?

• 10:24Speaker 03

  Or a gay kid, for that matter. Her website about her counseling practice says that she gives therapy to patients that are 16 and older. So she doesn't even really do like kid therapy, right? Like, how often has this come up in her therapy, if at all? I actually really doubt it. She says in the case, in the briefing, that she's a practicing Christian who views her career as an outgrowth of her faith. She says she doesn't, quote, "try to help her patients change their attractions, behavior, or identity." She believes instead that her clients can accept the bodies that God has given them and find peace. Okay?

• 11:09Speaker 03

  So

• 11:10Peter Shamshiri?

  It's like, I'm not trying to change them, because I don't believe that what they have is real.

• 11:16Peter Shamshiri?

  I don't believe that being gay is real. I don't believe that being trans is real, so.

• 11:20Michael Liroff?

  I don't, I don't think that was in her, you know, her coursework. That doesn't, that doesn't strike me as

• 11:27Speaker 03

  I highly doubt it.

• 11:29Michael Liroff?

  Getting her

• 11:29Speaker 03

  I highly doubt it, but, but, so, yeah, whatever. Her website and, you know, her sort of like public pronouncements of throughout the case are, are, you know, all these Christian girl autumn quotes or whatever. But she also just wrote an op-ed for Fox News. Obviously, we know we're covering this case on this podcast. The monster wins. She fucking won, right? And right after the case comes down, she writes an op-ed for Fox News, folks, not only celebrating and praising the Supreme Court and saying, you know, this was the right decision and I won and this was my First Amendment right and blah, blah, blah, but says, quote, "This victory calls for further action. I plead with counselors to rethink gender ideology's claim

• 12:14Speaker 03

  that it's possible to be born in the wrong body and to recommit to protecting young people." She goes into supposed research that says that gender dysphoria is basically just a phase, just a passing thing that kids go through. And actually, gender-affirming care leads to children doing harmful drugs and getting surgeries that have no proven benefits. So this is who this woman is.

• 12:42Peter Shamshiri?

  Maybe I'm getting ahead of myself here. But I thought this is about her free speech.

• 12:46Speaker 03

  Right.

• 12:47Michael Liroff?

  Right.

• 12:47Peter Shamshiri?

  And all of a sudden, she's like, actually, the course of care that I'm recommending is the only responsible one.

• 12:53Speaker 03

  That's right.

• 12:53Michael Liroff?

  Right.

• 12:54Speaker 03

  Exactly, exactly. So this is who this person is, taking a case up to the Supreme Court, completely astroturfed by some of the worst actors in the legal system in this country, the alliance defending freedom, and it gets ping ponged up and down the appellate system until it lands here at the Supreme Court.

• 13:14Peter Shamshiri?

  All right. Let's talk about the law here. The fundamental legal question is about free speech, right? Therapists say things to their patients. So is the government allowed to regulate what they say? Or is that an unconstitutional violation of free speech or somewhere in between? There's really no question that this law regulates what a therapist can legally say. It is a restriction on their speech, right? But what kind of restriction is it?

• 13:44Michael Liroff?

  Right.

• 13:45Peter Shamshiri?

  The court scrutinizes certain kinds of restrictions more than others. Specifically, the big question is whether this qualifies as viewpoint discrimination. If a law treats different viewpoints differently, that is considered viewpoint discrimination and is presumptively unconstitutional. Neil Gorsuch writes the majority here. He says that this is viewpoint discrimination. The law forbids any therapy aimed at changing someone's sexuality or gender identity, but does not forbid affirming someone's sexuality or gender identity. That is viewpoint discrimination, and therefore it is presumptively unconstitutional, per Neil Gorsuch.

• 14:30Peter Shamshiri?

  I think at a glance, you might think that makes sense. The therapist is allowed to say one thing, but not another. Therefore, the law is discriminating based on viewpoint. The problem with that, and where this gets thorny, is that a therapist isn't really expressing viewpoints in the traditional sense, right? They are providing medical care.

• 14:52Speaker 03

  Yes.

• 14:53Peter Shamshiri?

  Therapy isn't really an expression of the therapist's beliefs. The therapist is obligated to provide counsel with the goal of improving the patient's condition. Right?

• 15:04Speaker 03

  Yes.

• 15:04Peter Shamshiri?

  So Gorsuch himself starts off this opinion by quoting the plaintiff, who says that she does not, quote, "impose her values or beliefs on her clients." When she says this, I feel like she is conceding the central point. She's saying, "Look, I'm just offering therapy. I'm not imposing my beliefs. But if you're not trying to impose your beliefs, if you're not offering up your beliefs, then you're admitting that it's not really a meaningful First Amendment issue." Right?

• 15:33Speaker 03

  Yeah. Yeah. Then it's not speech that's contemplated in the First Amendment to be protected from government intrusion.

• 15:40Peter Shamshiri?

  Right. You know, when a doctor suggests that you take a couple of Tylenol, they might be expressing their viewpoint, in a sense, right? But not in a way that implicates the First Amendment, right? They're not expressing a personal belief in the same way that someone who's holding up a protest sign is, or something like that, right?

• 16:01Peter Shamshiri?

  Talk therapy isn't exactly the same, but it's very similar in the sense that the therapist's goal is not to express their views, it's to help the patient, right?

• 16:08Michael Liroff?

  Right.

• 16:09Peter Shamshiri?

  So think about the Pandora's Box that this is opening up. States regulate the so-called "speech of medical professionals" in all sorts of ways. Justice Jackson brings up a couple of good examples in her dissent. "Many state laws prohibit doctors from encouraging suicide. They prohibit doctors from telling anorexic patients to eat less." These rules also discriminate based on viewpoint, right? If you believe the majority.

• 16:36Speaker 03

  Yeah.

• 16:36Michael Liroff?

  Right.

• 16:36Peter Shamshiri?

  The idea, to be a little technical, is that these laws are prohibiting substandard care.

• 16:43Speaker 03

  Yeah.

• 16:43Michael Liroff?

  Right.

• 16:44Peter Shamshiri?

  If that's all viewpoint discrimination, it makes it really difficult to prohibit substandard medical care, especially in the therapy context.

• 16:53Michael Liroff?

  Right.

• 16:55Peter Shamshiri?

  Gorsuch does not really have a good response to this. What he says is that this functionally creates a First Amendment free zone, where the state can just escape the First Amendment by labeling things substandard care. Right? And that's why he doesn't like this whole idea that like, the medical profession is sort of like outside of the protection of the First Amendment.

• 17:16Michael Liroff?

  Right.

• 17:17Peter Shamshiri?

  But I think that sort of dodges the issue, which is that if states are allowed to regulate medical care at all.

• 17:25Michael Liroff?

  Right.

• 17:25Peter Shamshiri?

  They need to be able to declare some care to be substandard. Right? If they can't do that, they can't really regulate medicine effectively.

• 17:33Speaker 03

  Any professional licensing, right? Like, we as lawyers, like, have ethical obligations, right? Like, certain, certain things that we can't say in court, right?

• 17:45Peter Shamshiri?

  Gotta be nice to the judge.

• 17:46Speaker 03

  That we can't say to clients, you know, all of these things.

• 17:50Michael Liroff?

  It's my First Amendment right to suborn perjury. Sorry.

• 17:53Speaker 03

  Right, right. There are standards of-

• 17:55Peter Shamshiri?

  I will say, you should be allowed to curse the judge off. And I don't, I don't want to get sidetracked here, but it's like, it's a First Amendment issue when this lady is trying to do weird abusive shit to children, but I can't tell a judge to fuck off when he's being rude?

• 18:12Speaker 03

  Yeah, yeah. No, it's fucked up.

• 18:15Michael Liroff?

  No, and I think like, what this really highlights, what's going on here, what they won't say, is that, at least for the six conservatives, is that they just disagree with what the medical consensus is.

• 18:26Peter Shamshiri?

  Right.

• 18:26Michael Liroff?

  Right? They disagree that trans identity is a real thing, that, that, that it's good and helpful to affirm trans and gay and queer identities. Right? They just disagree, and they don't like it. They don't like that they don't get a say. They don't get to put their finger on the scale here.

• 18:44Peter Shamshiri?

  Right.

• 18:45Michael Liroff?

  Because they're Christo fascist pricks.

• 18:48Peter Shamshiri?

  Now, there is one glaring example of the court's hypocrisy that, again, gets raised by the dissent, and it's in Planned Parenthood v. Casey, the case about abortion rights from the early 90s. That case held up informed consent laws. Informed consent laws are these laws that require doctors who are giving, providing an abortion, to basically recite to the person receiving the abortion, or planning to receive the abortion, the risks of the abortion, except not recite the actual risks as the doctor understands them, but as the, you know, as the state is mandating, right?

• 19:28Peter Shamshiri?

  Mandatory statement by the doctor when providing certain medical care. So, this gets, this seems like a pretty obvious contradiction. Why is this therapist not being allowed to do conversion therapy, a free speech issue, but the state can require doctors to read a statement about the risks of abortion, right?

• 19:49Michael Liroff?

  Right.

• 19:49Peter Shamshiri?

  Gorsuch's response to this is, it's a little bit technical. I'm just gonna explain it. I don't think it makes sense if you understand it. But he says, "Well, that's different because it's not just speech, it's incident to conduct." It's because, because the abortion is like a real, like a physical medical procedure, right? The speech is sort of like tied up with that in a way that makes it less of a speech issue. Incomprehensible. I can, I, there were several times where he was making his little arguments, and I was like, "What the fuck are you talking about? Like, you're just saying words, dude." This doesn't-

• 20:25Michael Liroff?

  Also, especially in the trans context, let me tell you where that speech sometimes leads, buddy.

• 20:31Peter Shamshiri?

  Right, right.

• 20:33Michael Liroff?

  It leads to conduct. It leads to lots of conduct.

• 20:36Peter Shamshiri?

  Usually in First Amendment jurisprudence, it's worse to make someone say something-

• 20:41Michael Liroff?

  Oh, for sure.

• 20:42Peter Shamshiri?

  -than it is to prevent them from saying something, right? But that doesn't get factored in here. The other lingering question, which- Listeners may have thought of by this point is whether this would make malpractice by therapists basically protected by the Constitution, right?

• 20:57Speaker 03

  Yep.

• 20:58Peter Shamshiri?

  Yeah. Because

• 20:59Speaker 03

  To receive substandard care

• 21:01Peter Shamshiri?

  Right.

• 21:01Speaker 03

  From a medical professional is now protected by the First Amendment.

• 21:07Peter Shamshiri?

  Right, and Gorsuch says that it wouldn't. His reasoning, again, is just nonsense. He says like, well, that's different because in a malpractice case, you have to prove damages, which quote, "provides breathing room for free speech." But with this law, you get fined just for speaking without anyone having to show damages. The implication here is that Colorado can't ban conversion therapy because it's protected by the First Amendment, but you could maybe sue if a therapist does it?

• 21:42Michael Liroff?

  This is bizarre. You have a First Amendment right to commit a tort, essentially? Like, that doesn't make any sense.

• 21:49Peter Shamshiri?

  I do not, I do not, I do not understand it. I, either speech is protected by the Constitution or it is not, right? It's just nonsensical to me. And I think what's happening is that when you try to apply the First Amendment to medical care like this, the whole framework for state regulation of medical care just starts falling apart and Gorsuch is just trying to like, hold it together with his hands and some duct tape and tell you that it's fine.

• 22:13Michael Liroff?

  Right.

• 22:14Speaker 03

  Yeah, I feel like what's at issue here, but like what nobody is really talking about, even if you disagree with, with the majority as we do, but there's a sort of tension between the state's power to regulate medical care and, and, uh, medical procedure and, and that kind of thing and the First Amendment, that like, this tension actually doesn't need to be there, right? Like, there's a sort of mass societal benefit to the state being able to regulate medical care in this way, which does mean restricting some forms of speech because that's better for everybody in society, right? But what you see here with like, overweighting or like, um, over emphasizing or, or boosting

• 22:56Speaker 03

  the importance of the First Amendment on these scales is that you see conservatives discount the collective benefit of the state's regulatory power, the collective benefit to society as a whole, and prioritize the right of a single individual over all of that, right? And that's what's at tension here, but like, isn't really discussed.

• 23:19Michael Liroff?

  Yeah.

• 23:19Peter Shamshiri?

  One last thing to point out here is that Gorsuch makes it clear that this only applies to talk therapy. It does not apply to any physical conversion therapy techniques, right? Things like shock therapy, right? Because those are conduct rather than speech.

• 23:35Speaker 03

  This is so bizarre.

• 23:36Peter Shamshiri?

  Now, obviously, this is good, right? Because at least some forms of conversion therapy are remaining restricted.

• 23:45Speaker 03

  Sure.

• 23:46Peter Shamshiri?

  But I don't know if this logic actually follows. Because if you're saying that a therapist providing care is expressive in the First Amendment context, I don't see how other forms of care aren't the same thing.

• 24:00Michael Liroff?

  Right.

• 24:00Peter Shamshiri?

  Right? Like, if I think as a doctor that a certain surgery would help you, isn't performing that surgery a way of expressing that viewpoint, right? Obviously, this is silly, but I think this is where the opinion should lead.

• 24:14Speaker 03

  Yeah.

• 24:14Peter Shamshiri?

  Right? If you're being intellectually honest about it, right? If what you're saying is that my medical opinion about what care you should receive is like a First Amendment issue.

• 24:25Michael Liroff?

  Right.

• 24:25Peter Shamshiri?

  Then I think it should carry over into physical care. But Gorsuch just says, no, that's different.

• 24:32Michael Liroff?

  Yeah, they can be very forgiving about what counts as expressive conduct in other scenarios, right? When it comes to religious liberty, it's like providing your employees insurance that covers birth control.

• 24:46Peter Shamshiri?

  Right.

• 24:46Michael Liroff?

  Is basically-

• 24:47Speaker 03

  Is making a website not conduct? Like, you know, like-

• 24:51Michael Liroff?

  Yeah, when they want to, they can be like, oh, yeah, if you squint and really-

• 24:55Peter Shamshiri?

  Yeah.

• 24:56Michael Liroff?

  Try to see it, you can, that's expressive. That's First Amendment expression. And other times, they're like, no, because they're unprincipled hacks, right? Like-

• 25:07Peter Shamshiri?

  Yeah. I do love the idea of like surgery as a First Amendment thing. It's like I, I have a constitutional right to do the surgery on you.

• 25:20Peter Shamshiri?

  And we were talking about this earlier, but this is funny. This case seems to provide doctors with like a First Amendment basis for providing you with medical care, but you don't actually have anything in the Bill of Rights that would allow you to refuse medical care, right? Because of what they've done to the 14th Amendment, where substantive due process is hollowed out, your right to like bodily autonomy doesn't really exist in the Constitution.

• 25:49Michael Liroff?

  Yeah.

• 25:49Peter Shamshiri?

  Right?

• 25:50Speaker 03

  Yeah.

• 25:51Peter Shamshiri?

  But doctors now have constitutional rights to fuck up your shit.

• 25:57Peter Shamshiri?

  The, the last thing we should clarify here is that this case does not technically strike this law down. What it says is that it is subject to strict scrutiny. It says this is viewpoint discrimination and a law that engages in viewpoint discrimination must be subject to the highest level of scrutiny. So it is presumptively unconstitutional, but they kicked it down to the lower court to make the final determination. So it probably will get struck down. I think it's as good as dead at this point, but technically they did not strike it down.

• 26:30Michael Liroff?

  Yeah.

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• 27:17Speaker 03

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• 28:15Speaker 03

  Moving on to the other opinions here, there's a concurrence. We'll talk about Jackson's really great dissent. Peter mentioned at the top, this is an eight to one decision, meaning two liberals, Elena Kagan and Sonia Sotomayor, joined the majority in the holding that this is unconstitutional viewpoint discrimination. And Kagan writes a concurrence that Sotomayor joins. This concurrence, it's very short. Most of the time, Kagan is talking about why she agrees that this is viewpoint discrimination and the court's holding is correct. And then says right at the end that she's writing

• 28:58Speaker 03

  separately to just make this point, to make a small point, which is, if this was a different law at issue in Colorado, then it would be a different case and it would be a different question that the Supreme Court doesn't need to get into today. She basically says, yes, this law is the state doing viewpoint discrimination and that is squarely, you know, a violation of the First Amendment. She says, it would be different, though, if the law were written as viewpoint neutral.

• 29:29Speaker 03

  That would be more complicated, she says. And, quote, "Full consideration of that question can wait for another day. We need not here decide how to assess viewpoint neutral laws." Amazing. Thanks, Elena. Thank you so mu- like-

• 29:44Peter Shamshiri?

  I think that she's trying to do a thing that's like, you could write one of these laws in a neutral way, right? Like, as a sort of message to the states, right? Like, maybe there's a way around this. But how do you do- how do you forbid substandard care?

• 29:59Michael Liroff?

  Right.

• 29:59Peter Shamshiri?

  In a neutral way?

• 30:00Speaker 03

  That the Supreme Court and you, Elena Kagan, are defining as the expression of a viewpoint.

• 30:07Michael Liroff?

  Right. The fundamental problem that the majority hates is that there's a lot of research and medical consensus that certain viewpoints are harmful to patients and certain viewpoints are helpful to patients. And that's it. That's just- that's all there is to it. And Kagan wants to, like, wish that away and pretend like we can get around that. But if you want to provide helpful care that's in line with the medicine, with the medical consensus and with the science, like, that's gonna be- that's gonna necessarily require a viewpoint, right? And if you want laws mandating that, those laws are gonna discriminate based on viewpoint. That's just the way it is. There's no way around that.

• 30:52Speaker 03

  Right. And it's this really fucked up, like, again, definition and confusion of what viewpoint and the expression of ideas and what expressive conduct is. You know, Kagan says, for example, "If the First Amendment prohibits anything, it is the official suppression of ideas." This isn't the expression of an idea. It's the service. It is the delivery of medical care, right? Like, she goes sort of like, high and mighty and hooty-toity, you know, real elevated language about viewpoint discrimination and the importance of protecting against, you know, the state doing viewpoint discrimination. She says, "A law drawing a line based on the ideology of the speaker,

• 31:34Speaker 03

  disadvantaging one view and advantaging another, skews the marketplace of ideas our society depends on to discover truth." Not everything is the marketplace of ideas.

• 31:46Peter Shamshiri?

  Also, sometimes the marketplace of ideas is in the past. And we made a purchase. We purchased the best one.

• 31:52Speaker 03

  You don't experiment on kids.

• 31:56Speaker 03

  In a medical context, in the marketplace of ideas. Right. We saw somebody say this online, and I think it's so on point, right? It is such a lawyer and judge brain thing to do, which is to just count all conduct as something that happens in the marketplace of ideas, right? In the civil discourse our society supposedly holds so dear, right? And, and this is just not the case. It's an appointment with a medical professional.

• 32:25Peter Shamshiri?

  Right, some fucking therapist telling a 14 year old they're not really gay. It's not the marketplace of ideas. That's a real thing that's actually happening.

• 32:32Speaker 03

  That's right.

• 32:33Michael Liroff?

  The whole point of licensing is that there are certain things we do not want to leave up to market mechanisms. There are certain things that are so dangerous or so high risk or require such, you know, baseline quality in order for like the social, social needs to be met, that we don't subject them to the market mechanism. We don't say, let the market sort out what, what helps and what hurts. And if a few kids commit suicide, then we just know, don't send your kid to the suicide doctor. Like, what the fuck? Like, what the fuck are you talking about?

• 33:10Speaker 03

  It's bizarre.

• 33:11Peter Shamshiri?

  Like, disadvantaging one view and advantaging another. Okay. We're not allowed to make decisions about what types of medical care work better than others?

• 33:20Michael Liroff?

  Yeah, when a doctor tells you not to smoke cigarettes.

• 33:23Peter Shamshiri?

  What are you talking about? This is like, I, I just don't understand this. And you could just see this immediately falling apart in any other context. When there's just some therapist who's like, jump off a cliff. Yeah, you're right. You're right, there's nothing to live for.

• 33:36Michael Liroff?

  Yeah.

• 33:36Peter Shamshiri?

  How do you prevent that without a law that's like, yeah, you can't encourage your patient to commit suicide, of course.

• 33:41Michael Liroff?

  Telling your bulimic patient, like, you're looking great. Whatever you're doing, keep doing it because, whoa.

• 33:46Peter Shamshiri?

  Right.

• 33:47Michael Liroff?

  Fire, right? Like.

• 33:49Peter Shamshiri?

  Right. It's just silly. And, uh, yeah, I do think. You know, we'll talk about the Jackson dissent in a minute. But I do think, you know, this is sort of part of our new segment called Moron Alert.

• 34:05Peter Shamshiri?

  Kagan and Sotomayor, perhaps this is a moron alert. What's going on here? What, what exactly is happening? Were you negotiating something here? The only thing I can think of, and Kagan does make this relatively express in her opinion, is that she's like, look, this is bad for our side now, but, but there are other laws where perhaps this would benefit the left, right? She doesn't say the left, but there are laws that restrict gender affirming care for trans kids, right?

• 34:35Michael Liroff?

  Right.

• 34:36Peter Shamshiri?

  They just challenged one last year in, in Tennessee, in Skremedy. And, you know, she's sort of saying, hey, under this precedent, maybe some of that stuff's unconstitutional, right? So maybe we can take advantage of this.

• 34:51Peter Shamshiri?

  Which I think in like a very theoretical way. Right. You could say is maybe true. Maybe you could go challenge SB 1 or whatever that Tennessee bill was and say, hey, we've got a free speech claim here. But a, a big hint that that wouldn't work is the fact that this exact court upheld that exact law last year, right?

• 35:15Peter Shamshiri?

  And even if they were going to be even handed, right? With their rulings about these laws, it still wouldn't make fucking sense. It still wouldn't make fucking sense that medical care is like a free speech issue.

• 35:28Michael Liroff?

  I think that's a good segue to Jackson's dissent because I think she's very sharp on this issue. She, she really highlights like the question. And, and so listener, you might be thinking that we've done a good job of explaining why the majority is so stupid here. But you don't really understand the paradigm that, that should be in place, right? And I think Jackson does a good job of this where she takes Casey, which we talked about, which was like that sort of statement that doctors have to give to someone who's, wants to have an abortion. And another law, a California law that, that. Wanted every clinic in the state to put up a sign saying that California will like pay

• 36:09Michael Liroff?

  for abortions for indigent people and that was struck down and and she says, well, what's the difference here? What's the difference between these two cases? And in Casey, what you're looking at is the provision of medical care. You're talking about a doctor in a patient alone in a room, talking about the patient's health, right? Yeah. In the clinic case, NIFLA is the name of the case. She says, you're talking about speech as speech, right? You're in a waiting room. You're not with a doctor. You might not even be there for an abortion or abortion related services. You might even be there for medical services. You might be there to to help your friend, right? You're you're bringing a friend in or something. And yet, you're receiving speech. You're receiving state mandated

• 36:53Michael Liroff?

  speech. So she says, that's a regulation of speech as speech. And that gets all the First Amendment scrutiny that we give to any, you know, forced speech or owner's regulation of speech, viewpoint discrimination. But on the other hand, when you are providing medical care, the state has broad police power, has always had broad police power to regulate medical care. But this goes back to before the country even fucking existed. Like they were there, the the police power of the state to regulate medical care predates the American Constitution. And sometimes that incidentally touches speech. Sometimes

• 37:36Michael Liroff?

  that gets to speech related activities because doctors talk to their fucking patients. Of course, it gets to speech. But that gets a much lower standard of scrutiny because it's nestled within this well established framework of regulating medicine and making sure physicians give adequate standard of care, right? Right. It's so simple. This is something like a first year law student should be able to grasp and like make this distinction very easily. I imagine all our lay listeners grasp it and are like, that makes sense. And of course, it makes sense because it's it's right. And the majority is stupid. And the concurrence is fucking stupid. Like Jackson's dissent is very long, probably much longer than it needs to be because it's very thorough.

• 38:19Michael Liroff?

  But it's like, really, there's not much more to it than that. There's not much more to than like, look. You can regulate medicine. You've always been able to regulate medicine. Sometimes that incidentally touches speech and that's not a complete free zone for the First Amendment, but it's a much lower level of scrutiny.

• 38:37Peter Shamshiri?

  Right, right.

• 38:38Michael Liroff?

  The end. Like, what are we doing here?

• 38:40Peter Shamshiri?

  Yeah.

• 38:40Michael Liroff?

  Exactly. And Jackson hints at this, but I don't think she articulates it as well as it should be articulated, which is that there are ways to engage in strictly protected First Amendment activity related to the provision of care here, right? Like, you could write an op-ed for Fox News, just for example, right? If you want to change public opinion about this, you can write an op-ed. If you want to change lawmakers' opinions, you can petition your representatives. If you want to change the standards that the AMA, the APA, or your local regulatory bodies promulgate for care, you can petition them. You can run your own study. You can put out research saying, hey, look, this is actually harmful.

• 39:24Michael Liroff?

  Those are protected activities. They're expressive activities. That's engaging in the marketplace of ideas. That's not giving medical care to an at-risk minor, right? Like, they're just not even in the same fucking universe. And it's offensive that eight Supreme Court justices are willing to pretend like it is.

• 39:44Speaker 03

  Yeah, and just to explain really quick, police power in this context refers to like, the state's regulatory power, the state's power to promote and protect people's safety, to promote the general welfare, right? So this is regulation.

• 39:59Peter Shamshiri?

  The general power of the state.

• 40:00Speaker 03

  That's right. Yeah, it doesn't mean, it doesn't mean specifically in this context, like, law enforcement.

• 40:05Michael Liroff?

  Right.

• 40:05Peter Shamshiri?

  Right. I'll also add, Kagan and Sotomayor didn't just concur. They signed on to the majority.

• 40:11Michael Liroff?

  Yes, exactly.

• 40:12Peter Shamshiri?

  Where Gorsuch is like, he's making like, Loose allegations that this is what censorious governments do. This is like, this is, you know,

• 40:20Michael Liroff?

  Right.

• 40:20Peter Shamshiri?

  This is, and that they are maintaining orthodoxy, right?

• 40:24Michael Liroff?

  Right.

• 40:24Peter Shamshiri?

  Which is, I feel like a word that every right-winger learned five years ago and has just never stopped using, like, orthodoxy. Ooh, there's an orthodoxy here. It's like, right, the, you talk, once again, it seems like every time you say orthodoxy, you're just talking about what I would describe as the prevailing medical consensus.

• 40:42Speaker 03

  Yeah.

• 40:43Michael Liroff?

  Right.

• 40:43Speaker 03

  Yeah.

• 40:43Michael Liroff?

  Right.

• 40:44Speaker 03

  Medical standards.

• 40:45Peter Shamshiri?

  Right.

• 40:46Michael Liroff?

  I think it's worth saying, like, since we, we did a moron alert for Kagan and Sotomayor, like,

• 40:51Speaker 03

  Yeah.

• 40:51Peter Shamshiri?

  What, what? Moron alert went up, yeah.

• 40:53Michael Liroff?

  Yeah. Like, what, what, what steps has Jackson taken here to avoid becoming a moron?

• 40:59Speaker 03

  Hmm.

• 41:01Michael Liroff?

  And I think, you know, there, there's sort of two realities, right? There, there's the, the reality of like, the legal fiction. There's the reality of that, like, you read in the briefs and, you know, you pretend prevails in court, like, stare decisis, controls, we, we follow our precedents, we use logic to derive rules from past rulings and apply them to new facts. And then there's fucking reality, right? Then there's the real world, where there is like, a Christian fascist right-wing movement seeking to impose, uh, broad control over not just the government, but the culture,

• 41:45Michael Liroff?

  over people's individual choices, their gender expressions, their lives, right? And at some point, you just have to choose which reality you're gonna live in. And Sotomayor and Kagan have chosen to live in this bullshit, fake reality. And, and Jackson clearly does not. She, she lives in the real world.

• 42:03Peter Shamshiri?

  Right.

• 42:04Speaker 03

  Yeah.

• 42:04Peter Shamshiri?

  Let's talk a bit about, like, the practical outcomes here. I think it's worth noting that this doesn't really apply to a ton of therapists. Uh, the reason being that most conversion therapy exists in a ministerial setting, not a licensed therapy setting, right?

• 42:20Michael Liroff?

  Right.

• 42:20Peter Shamshiri?

  And that's already protected by freedom of religion, right?

• 42:24Michael Liroff?

  Right.

• 42:24Peter Shamshiri?

  So, you know, 90-plus percent of parents who are trying to, uh, de-gayify their children, or whatever, are, uh, sending them to the minister and being like, hey, can you just, uh, engage in some classic? Pastoral bullying. Please abuse my child until he no longer likes Lady Gaga. That's, that's what they're doing.

• 42:48Peter Shamshiri?

  He loves it.

• 42:51Peter Shamshiri?

  That's, that's, that's such a dated reference. I'm sorry.

• 42:54Speaker 03

  I know.

• 42:55Peter Shamshiri?

  Whatever, whatever the gay kids are listening to now, you know? The Troye Sivan? What do we think? Is that right?

• 43:05Speaker 03

  No, I think that's even.

• 43:07Peter Shamshiri?

  You know what? Forget it.

• 43:13Peter Shamshiri?

  So the, the universe of therapists impacted by this relatively small, right?

• 43:19Speaker 03

  Yeah.

• 43:19Peter Shamshiri?

  There's not a ton of demand for this necessarily. And then you need like, like licensed therapists who actually want to do conversion therapy, which is not all licensed therapists, right?

• 43:30Michael Liroff?

  It's, it's a very left dominated field in my experience.

• 43:34Peter Shamshiri?

  Yeah. Well, it's like, as you're talking to people in order to help them.

• 43:39Michael Liroff?

  Yeah, exactly.

• 43:39Peter Shamshiri?

  Very left.

• 43:40Michael Liroff?

  There's like a baseline requirement of empathy, which is incompatible with the conservative worldview.

• 43:45Peter Shamshiri?

  Right.

• 43:45Michael Liroff?

  So.

• 43:46Peter Shamshiri?

  There's a tangential outcome here, which is that it seems like therapists can claim the first amendment mantle. And that means that therapy will be subjected to strict scrutiny. And what that really means in practice is that courts will be analyzing medical treatments. Right? Analyzing the efficacy of therapeutic treatments. So rather than, you know, sort of deferring to state laws, which themselves have avenues for input from different medical organizations, for example, from actual experts. We now have judges intervening to make the decisions about like what therapy survives strict scrutiny and what doesn't.

• 44:30Michael Liroff?

  Right.

• 44:31Peter Shamshiri?

  To me, that's just obscene. And that's not to defend, you know, I mean, Deferring to state laws has its own problem, right? Red state laws about therapy are not good. But what happens here is that you now have judges being the arbiter of how good these state laws are and what therapists can and cannot say, what qualifies as substandard care and what doesn't. Just a miserable outcome.

• 44:58Michael Liroff?

  Any judges listening, I'm sure there are so many. Let me give you a little tip. Strict scrutiny analysis. The state has a compelling interest in seeing that medical care is consistent with the prevailing medical consensus of proper care. This law is narrowly tailored to that by requiring the provision of care in accordance with the prevailing medical consensus on what is the minimum standard of care.

• 45:22Peter Shamshiri?

  Wow, he's cooking.

• 45:23Michael Liroff?

  There you go, boom. Boom, do it.

• 45:27Peter Shamshiri?

  Hear that, you fucking nerds?

• 45:32Speaker 03

  Colorado fought this case and a bunch of other states joined in too. They filed an amicus brief. These are states that have similar laws on the books as Colorado banning conversion therapy for minors. And in their amicus brief, they say like, this is within our traditional and historical and long respected regulatory power, right? They say in the brief, quote, prohibiting licensed healthcare professionals from providing conversion therapy, a quote unquote, treatment resoundingly found to not be an acceptable medical or professional practice because it is ineffective and harmful is consistent with this tradition and does not run afoul of the First Amendment, right?

• 46:14Speaker 03

  They say the state, we have this police power. We have the power to protect public health and welfare generally. This is just so squarely within what the state can regulate. It's, you dumb.

• 46:29Michael Liroff?

  Yeah.

• 46:31Michael Liroff?

  It's just, it's just, at a certain point, there's like nowhere else to go with it. It's so stupid. It's so obviously results driven. It's so embarrassing that Kagan and Sotomayor are signed on to this.

• 46:42Speaker 03

  One dissenter, one dissenter.

• 46:44Michael Liroff?

  There's just no, there's just nothing else to be said, like.

• 46:47Peter Shamshiri?

  I think it's worth talking a little bit about what the research says about conversion therapy.

• 46:53Michael Liroff?

  For sure.

• 46:54Peter Shamshiri?

  The Trevor Project has a good rundown. Quoting them, "Research shows that LGBTQ plus youth who experience conversion therapy are more than twice as likely to attempt suicide and more than 2.5 times as likely to report multiple suicide attempts in the past year." "The practices are also associated with an extensive list of long lasting social and emotional consequences, including depression, anxiety, suicidality, substance abuse, a range of post traumatic responses." I'm trailing off, there is more. Now, you know, I think most people listening know that or suspect that. They continue, "Every major medical and mental health association in the United States, including the American Psychiatric Association, the American Psychological Association, and the American Medical Association, has condemned these practices."

• 47:38Peter Shamshiri?

  I think most people would have suspected all of that. But the point is, if every prominent medical organization says that these practices do not work and are dangerous, right? If the data shows that, then, and you still can't call that substandard care, what the fuck are we doing?

• 47:57Michael Liroff?

  Right, right.

• 47:59Peter Shamshiri?

  Then the last thing I want to say is, I think that there's like, I think that this case is sort of weird because they already have a carve out.

• 48:09Michael Liroff?

  Right.

• 48:09Peter Shamshiri?

  Because churches can already do this, because ministers can already do this, right?

• 48:14Speaker 03

  Yes, there's a religious exemption in the law.

• 48:17Peter Shamshiri?

  Right. So it's like, what are they doing here?

• 48:21Speaker 03

  And All Kaylee Childs has to do is say this is religious counseling. In this session, I will be doing religious counseling and the patient know that, right? And still opt in and she would be fine.

• 48:32Peter Shamshiri?

  Right. So I was thinking about this because what much of the conservative legal movement has been building toward is almost like a parallel state, right? Where they are favored, right? But what I think they're going for here is really the replacement of the secular state, right? The, the existence of the secular state is offensive to them.

• 48:52Michael Liroff?

  Right.

• 48:52Peter Shamshiri?

  It's not enough that they have exemptions from the secular state, right? The secular state needs to be hacked at over and over again because they don't believe in it. They don't believe in a secular society. They believe in one where religion is dominant.

• 49:08Michael Liroff?

  And one specific religion, evangelical Christian.

• 49:11Speaker 03

  Yeah.

• 49:12Michael Liroff?

  Yeah.

• 49:13Peter Shamshiri?

  Right. And, and, you know, I don't, I don't want to get out of my skis with this particular case, uh, because it is, I think, relatively small stakes in practice by the standards of these types of cases, like, you know, compared to something like Spremetti last year, for example.

• 49:30Michael Liroff?

  Right.

• 49:30Peter Shamshiri?

  But you can see what they're going for here. You can see that they are not settling, right? They were, they're dedicating resources to just to cornering this tiny little slice of secular society.

• 49:45Michael Liroff?

  It's, it's not enough to have an exemption from the prevailing medical consensus. They need to be able to directly challenge the prevailing medical consensus and say, well, I don't believe that.

• 49:54Peter Shamshiri?

  They need to be able to snap their fingers and say, it's not real. There is no prevailing, like, consensus, right?

• 50:00Michael Liroff?

  Right.

• 50:00Peter Shamshiri?

  Everything is up for debate, right? And of course, of course, it never cuts in the other direction.

• 50:05Michael Liroff?

  Right.

• 50:06Peter Shamshiri?

  When, when it comes to what, uh, what a woman who wants an abortion needs to hear, there's no, there's no debate anymore, right?

• 50:14Michael Liroff?

  Right.

• 50:15Peter Shamshiri?

  They are looking to dominate civil society in every facet.

• 50:23Peter Shamshiri?

  Next week, Patreon episode, we're going to be talking about the birthright citizenship case, which looks like perhaps it'll be a win for the good guys. Uh, there was a very bizarre and chaotic oral argument that we're going to discuss in detail. There's media coverage. There's like a meta discussion. What this means is the Supreme Court.

• 50:49Speaker 03

  Iranian sleeper cells mentioned.

• 50:51Peter Shamshiri?

  Iranian sleeper cells mentioned. But you can't catch me, folks. You can't catch me. I'm too sleepy. I'm Iran's sleepy as hell, baby.

• 51:01Speaker 03

  And I got birthright citizenship, baby.

• 51:03Peter Shamshiri?

  I was born here. It's over for you hoes.

• 51:09Peter Shamshiri?

  Watch me glide through customs, bro. You can't do anything about it.

• 51:17Peter Shamshiri?

  Follow us on social media at 54pod. Subscribe to our Patreon, patreon.com/54pod, all spelled out, for access to premium and ad-free episodes, special events, our Slack, all sorts of shit. See you next week.

• 51:32Michael Liroff?

  Bye, everybody.

• 51:34Speaker 03

  Adios.

• 51:36Michael Liroff?

  Five to Four is presented by Prologue Projects. This episode was produced by Alison Rogers. Leon Nefok provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations.

• 52:00Speaker 05

  That's part of what they're testing about the Apollo, or sorry, about the Artemis spacecraft, is how much does it stink like farts?