"But whether or not something is protected by the First Amendment does not hinge on whether we decide to call it “speech” or “treatment.” It hinges on whether or not the government is regulating something that communicates a message. Brain surgery and electroshock therapy do not, but talk therapy — whatever else it does — clearly communicates a message. Accepting California’s approach would undermine free-speech protections entirely. After all, any kind of speech can be relabeled “conduct.” Professors engage in the conduct of “instructing,” political consultants in the conduct of “strategizing,” and stand-up comedians in the conduct of “inducing amusement.” Fortunately, the United States Supreme Court has made clear that governments cannot escape the First Amendment by playing this kind of labeling game. Three years ago, the court held that the First Amendment applied even to expert legal advice to terrorist groups. The federal government in that case made exactly the same argument that California was making here, that such advice was “conduct,” not speech. The Supreme Court rejected that argument, though it did find that the government’s interest in combating terrorism was strong enough to uphold the law under First Amendment scrutiny."
Posted on: Thu, 10 Oct 2013 11:28:50 +0000