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.

The same reasoning applies here. Talk therapy, like other advice, consists of communication, and communication gets First Amendment protection even when the government calls it conduct.

Importantly, the plaintiffs in the California case would not have automatically won their case had the Ninth Circuit held that the First Amendment applied. Instead, the government would then have had the burden of coming forward with actual evidence that the law addressed a real problem and limited speech no more than was necessary. That burden is serious, but it is not insurmountable. It simply means that courts take free speech very seriously, and government officials must present real evidence that their restrictions are necessary to fight a real danger.

It is possible, maybe even likely, that California will be able to meet this burden with regard to its reparative therapy law. But it was the Ninth Circuit’s responsibility to ensure that the state did so, and the court failed.

Now the Ninth Circuit has a chance to correct this error. The plaintiffs in these cases have asked the court to grant a rare “en banc” rehearing, before the entire court, to reverse the panel’s ruling. Our organization has filed a brief in support of this request. The Ninth Circuit should grant the review — not for the sake of the plaintiffs, but for the sake of the thousands of other people who speak for a living and whose rights also hang in the balance here.