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Edmund Burke: I am Edmund Burke, Member of Parliament for Bristol and later for Malton, author of Reflections on the Revolution in France, A Philosophical Enquiry into the Origin of Our Ideas of the Sublime and Beautiful, and a man who has spent his entire career arguing that the accumulated wisdom of civilization is worth more than any philosopher’s midnight theorizing. I have warned against abstract rights that float free of historical grounding, against revolutionary schemes that tear down what centuries of practice have carefully refined, and against the intoxicating certainty of men who believe their principles are so correct that the wreckage those principles produce can simply be dismissed as regrettable. I note all of this because the United States Supreme Court has just handed down a ruling in a case called Chiles versus Salazar, involving the regulation of so-called conversion therapy, and I find myself, to my considerable and somewhat annoying surprise, not entirely certain that the court was wrong.
John Stuart Mill: I am John Stuart Mill, author of On Liberty, Utilitarianism, The Subjection of Women, and several other works whose direct influence on liberal democratic thought Mr. Burke is invited to calculate at his leisure. On Liberty contains the harm principle, which states that society may restrict individual liberty only to prevent harm to others. That principle is not midnight theorizing. It is a careful philosophical argument developed over years of rigorous thought. The question raised by Chiles versus Salazar is whether talk therapy that causes measurable psychological harm to minors constitutes the kind of harm that justifies state restriction, or whether the mechanism of delivery, namely speech, immunizes the practitioner from accountability for the outcome. I find myself, also to my mild professional irritation, not entirely certain of the answer.
Edmund Burke: We have achieved agreement in our opening statements. Someone should record this moment carefully.
John Stuart Mill: I noticed that as well. It will not last.
Edmund Burke: Let me be precise about where I stand, because I suspect my position will strike you as inconsistent with my reputation. I am a conservative. I believe in institutions, in professional standards, in the practice of civilization as it has developed through time and experience. A state licensing a profession and setting standards for that profession is exactly the kind of accumulated social wisdom I normally defend with considerable enthusiasm. And yet I look at Colorado’s law, which prohibits a therapist from engaging in talk therapy that aims to change a patient’s sexual orientation, and I find myself deeply troubled. Not because I endorse the therapy. I am not here to defend the particular conclusions of conversion therapy practitioners. I am troubled because the law does not ban a technique. It does not ban a method. It bans a viewpoint. Colorado has decided which conclusion a licensed therapist may reach with a patient and which conclusion is forbidden. And when a state begins deciding which conclusions licensed professionals are permitted to hold, the question I always ask is: who controls the state, and what do they plan to do with that power next?
John Stuart Mill: That is a more coherent concern than I expected you to raise in your opening remarks. I offer that observation in the spirit of fairness.
Edmund Burke: It is the only spirit in which observations should be offered. Please continue.
John Stuart Mill: My own position is similarly uncomfortable, which I note without pleasure. On Liberty is not an ambiguous document. I argued clearly that individual liberty may be restricted only to prevent harm to others. The research on conversion therapy is not ambiguous either. It documents elevated rates of depression, anxiety, and suicidal ideation among minors subjected to it. Under my own framework, Colorado had a legitimate interest in restricting the practice. And yet the court ruled that the restriction constitutes viewpoint discrimination, and I cannot, with intellectual honesty, say the court was wrong to apply that standard. Colorado’s law does not say conversion therapy is ineffective. It does not say conversion therapy is conducted by bad methods. It says conversion therapy reaches the wrong conclusion, and practitioners who reach that conclusion will lose their licenses. That is viewpoint regulation.
Edmund Burke: You have just articulated the central problem with considerable precision and without any of your usual tendency toward lengthy qualifications. I find this somewhat alarming.
John Stuart Mill: It alarms me too. Give it time.
Edmund Burke: I am told, and I comply with some theatrical misgiving, that we should each present the strongest version of the other man’s argument before proceeding to dismantle it. I will do this, and I will do it well, because a good argument is worth engaging on its best terms rather than its worst. The strongest case for Mill’s position is this: harm is harm regardless of whether it is inflicted through physical intervention or through words. A surgeon who operates on a patient using a method known to cause damage may be sanctioned by a licensing board. The mechanism of surgery does not protect the surgeon from accountability for the outcome. A therapist who systematically tells a sixteen-year-old that their identity is disordered, that they must change, that they are broken, causes documented psychological damage. The fact that the mechanism of delivery is speech does not change the character of that damage. Professional accountability has always included accountability for what professionals say to clients. A financial advisor who tells a client to invest in fraudulent schemes may be sanctioned even though the advice was delivered in words. A lawyer who tells a client to destroy evidence may be sanctioned. The Chiles ruling, on this reading, creates an unjustified exemption for one category of harmful professional speech, and that exemption will protect practitioners who cause serious harm to vulnerable people. That is the strongest case for Mill’s position, and I have presented it with complete fairness. Now watch me take it apart.
John Stuart Mill: That was a genuinely accurate steelman. I am moderately impressed and, as I noted, deeply suspicious of the purpose.
Edmund Burke: The purpose is to dismantle it with greater force. The problem with the financial advisor and lawyer analogies is that they are not cases of viewpoint discrimination. A financial advisor sanctioned for recommending fraudulent investments is not being sanctioned for the viewpoint that a particular investment is good. He is being sanctioned for recommending something that is objectively fraudulent under established legal standards, standards that apply regardless of the advisor’s ideology. A lawyer sanctioned for advising destruction of evidence is not being sanctioned for the viewpoint that evidence destruction is acceptable. Colorado’s law is different in kind. It does not define conversion therapy as harmful based on professional standards that are applied neutrally. It defines conversion therapy as harmful specifically because of the conclusion the therapist is steering the patient toward. Change the conclusion, keep the exact same therapeutic methods and conversational techniques, and suddenly the therapist is practicing acceptable clinical care. The harm, on Colorado’s analysis, lies not in the method but in the destination. And that is viewpoint regulation wearing the costume of professional accountability.
John Stuart Mill: I will now steelman Burke’s position, and I will note for the record that I am doing so with considerably less theatrical scaffolding, which I regard as a virtue. The strongest case for Burke’s position is this: professional speech has always been regulated differently from political speech, and for good reason. When a licensed therapist speaks to a client, she does so with the authority conferred by state licensing, in a relationship of professional trust, to a person who is specifically vulnerable and specifically dependent on the therapist’s guidance. That is not the same as a citizen expressing a viewpoint in the public square. The state that grants the license may condition the license on adherence to professional standards, and those standards have historically included standards about what practitioners may say. Psychiatrists may not tell patients to harm themselves or others, even as a sincere expression of clinical opinion. The long tradition of professional regulation represents exactly the accumulated social wisdom that Burke champions, and it has been applied for centuries to govern what licensed experts may say in their professional capacity. That argument is, I acknowledge, not negligible.
Edmund Burke: I appreciate the acknowledgment, delivered as it was with the warmth of a property assessment.
John Stuart Mill: The problem with the argument I just described is that it proves too much. If the state can condition professional licensing on adopting the state’s preferred viewpoint about human sexuality, it can condition professional licensing on adopting the state’s preferred viewpoint about anything that falls within a licensed profession’s scope. Mental health, religion, political philosophy, family structure, and the nature of human identity are all subjects on which licensed therapists express views to clients. Once we accept that the state may define professional orthodoxy and enforce it through licensing, we have given the state a mechanism for ideological control of every licensed field in every generation. I agree with Burke that professional speech is different from political speech. I do not agree that the difference justifies unlimited state control over which conclusions licensed professionals may reach.
Edmund Burke: And this is where I find myself in the unusual and mildly embarrassing position of almost conceding your point. Almost. You are correct that the mechanism is dangerous. The state that can ban one therapeutic viewpoint can ban another. I do not dispute that conclusion at all. Where I part from you is on the remedy the court has chosen. Importing the full apparatus of First Amendment viewpoint neutrality doctrine into the professional licensing context makes it extraordinarily difficult for any state to regulate any professional speech, because almost everything a professional says can be characterized as the expression of a viewpoint. The answer to Colorado’s overreach is not to declare all professional speech untouchable by viewpoint-neutral standards. The answer is better legislation and more precise courts, which is less satisfying as a slogan but more useful as governance.
John Stuart Mill: We have now arrived at the same destination from opposite directions and found ourselves almost in agreement on the analysis while remaining entirely opposed on what to do about it. I find this genuinely unsettling.
Edmund Burke: It unsettles me as well. It suggests we are both more intellectually honest than our respective reputations would indicate, which I find more troubling than the disagreement.
John Stuart Mill: That is the most alarming sentence either of us has said today. We will return in Part 2 to find out whether this near-agreement survives contact with the specific consequences of the ruling, or whether we will solve the problem of reluctant agreement by locating something to genuinely despise each other about. I expect the latter.
Edmund Burke: Based on my experience of philosophical debates, I give the near-agreement approximately four minutes into Part 2 before it collapses entirely. Subscribe to PhilosophersTalk on YouTube, ring the notification bell, and join us for Part 2, where I expect things will deteriorate in a philosophically instructive manner.
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