Brown Jackson. (Photo credit: wikicommons/Fred Schilling and Jasmin Flores, Collection of the Supreme Court of the United States)
Last week’s U.S. Supreme Court decision striking down Colorado’s ban on conversion therapy for minors is, at one level, a familiar story: A majority elevating First Amendment protections where speech and professional conduct collide. But beneath the doctrine lies something more troubling — a pointed warning from the court’s lone dissenter, Justice Ketanji Brown Jackson, that deserves careful attention.
Conversion therapy refers to practices that attempt to change a young person’s sexual orientation or gender identity. Often presented as counseling, it can involve shame-based questioning, pressure to suppress identity and efforts to “correct” thoughts or behavior. Major medical and psychological associations have rejected it as ineffective and, in many cases, harmful — linking it to increased risks of depression, anxiety and suicide among minors. That is the concern Colorado sought to address.
The court’s overwhelming majority held that Colorado’s law impermissibly targeted speech based on viewpoint. That concern is not trivial. The First Amendment generally forbids governments from favoring one perspective over another. If therapists may affirm a patient’s identity, the argument goes, the state cannot categorically prohibit those who question or discourage it. That reasoning has a certain internal logic. Courts have long been wary of letting states regulate speech simply because it is disfavored. And there is a legitimate fear that once governments begin drawing lines based on viewpoint, those lines may shift.
But Jackson’s dissent reframes the issue: What happens when speech is not just expression, but treatment? In her view, the court risks ushering in “an era of unprofessional and unsafe medical care,” weakening the ability of states to regulate licensed professionals and protect patients from harm. That concern cuts to the core of the case.
For decades, the law has treated professional speech differently from ordinary speech. Doctors, lawyers and therapists operate under certain standards precisely because what they say can directly affect well-being. A physician cannot prescribe a useless treatment and claim First Amendment immunity. A financial adviser cannot promote fraud as protected speech. Licensure exists to ensure that professional advice meets minimum standards of safety and integrity.
Jackson’s warning is that the court has blurred that distinction — perhaps too far.
Colorado’s law was aimed not at suppressing belief, but at preventing licensed professionals from offering harmful practices as treatment. The majority sees viewpoint discrimination. Jackson sees the erosion of a state’s basic protective role.
Both concerns matter. But they are not equal. The First Amendment has never been absolute. It has always coexisted with the government’s obligation to prevent harm, particularly to vulnerable populations. The court’s task is to balance those principles, not allow one to eclipse the other.
That is what makes Jackson’s solitary dissent so striking. She is not simply disagreeing; she is warning that the court may have tipped the balance too far — away from patient protection and toward a more abstract conception of speech. “Because the majority plays with fire,” she wrote, “I fear that the people of this country will get burned.”
Perhaps the court is right that the Constitution demands this result. But if so, the implications should not be minimized. Jackson’s dissent reminds us that constitutional interpretation does not occur in a vacuum. It shapes real-world consequences — especially for those least able to protect themselves.
Jackson’s voice may have stood alone. It should not be ignored.
