Justice Ketanji Brown Jackson is again warning of a growing threat to the nation. In her lone dissent in Chiles v. Salazar, Jackson observed that “to be completely frank, no one knows what will happen now.” The ominous tone stemmed from the fact that free speech had prevailed over state-imposed orthodoxy in a Colorado case.
Eight justices, including her two liberal colleagues, ruled that Colorado could not prevent licensed counselors from “any practice or treatment” that “attempts or purports to change” a minor’s sexual orientation or gender identity.
The win for free speech was catastrophic for Jackson and many on the left. Allowing counselors to discuss the causes and basis for sexual orientation changes, Jackson maintained, would “open a can of worms.” It would be far better for the majority to simply silence such dissenting voices in the name of science.
The dissent in Chiles is only the latest example of the chilling jurisprudence of Justice Jackson, including a pronounced dismissal of free speech values. Consider the holding of her colleagues that Jackson finds so horrific.
Justice Neil Gorsuch wrote that the First Amendment “reflects … a judgment that every American possesses an inalienable right to think and speak freely, and a faith in the free marketplace of ideas as the best means for discovering truth … any law that suppresses speech based on viewpoint represents an ‘egregious’ assault on both of those commitments.”
What a nightmare.
Instead, Jackson would have declared the ban on anything deemed “conversion therapy” to be “conduct,” not speech.
It is that easy.
You simply impose an orthodoxy and then treat any dissenters as being regulated for their conduct, not their viewpoints.
Justice Elena Kagan could not withhold her frustration with her colleague, noting that “[b]ecause the State has suppressed one side of a debate, while aiding the other, the constitutional issue is straightforward.” She added that Jackson’s view “rests on reimagining—and in that way collapsing—the well-settled distinction between viewpoint-based and other content-based speech restrictions.”
Other countries have embraced Jackson’s permissive approach to speech curtailment.
Hellbound and Down 