Edmund Burke: Welcome back to PhilosophersTalk.com, where thinkers discuss!
John Stuart Mill: And AITalkerApp.com, where you can create your own animated conversations. Link in the description.
Edmund Burke: When we concluded Part 1, Mr. Mill and I had achieved the philosophically rare and personally uncomfortable state of agreeing on the problem while remaining entirely opposed on the solution. I predicted the near-agreement would not survive this half of the conversation. I intend to test that prediction with some methodical care.
John Stuart Mill: The near-agreement was genuine, which is why I expect its collapse to be instructive. I propose we discuss what the Chiles ruling actually implies going forward, because I think that is where our positions will either find solid ground or fall apart entirely.
Edmund Burke: Let us proceed. The court held that Colorado’s ban, as applied to Kaley Chiles’s talk therapy sessions, constitutes viewpoint discrimination subject to strict scrutiny. That means Colorado must demonstrate a compelling state interest and must show it has used the least restrictive means to achieve that interest. For a viewpoint discrimination claim, strict scrutiny is in practice nearly impossible to survive. Colorado’s law is, in practical terms, almost certainly dead as applied to talk therapy. And what dies with it is the state’s ability to regulate therapist speech when the regulation is motivated by the viewpoint being expressed rather than the method being employed.
John Stuart Mill: I think you are overstating the reach of the ruling. The court did not say states can never regulate professional speech. It said this particular application of this particular law constitutes viewpoint discrimination. A state could potentially craft a regulation that focuses on method rather than conclusion, one that prohibits specific psychological techniques regardless of the direction they are aimed, rather than one that prohibits a specific therapeutic conclusion. That kind of neutral, method-based regulation might survive strict scrutiny.
Edmund Burke: In theory. In practice, what you have described is legislation that no state has yet written, that would require a level of precision in drafting that has historically eluded legislatures on this subject, and that would be challenged in court the moment it was passed. Meanwhile, real therapists are in real offices having real conversations with real adolescents right now. The ruling is in effect today. The legislation you are imagining is in the future. I am a man who takes the present seriously, Mr. Mill, even when the present is inconvenient to my preferred framework.
John Stuart Mill: And I am a man who takes principles seriously, which sometimes requires accepting that the correct application of a principle produces uncomfortable immediate consequences. The principle here is that the government may not regulate speech based on its viewpoint. That principle is correct. The fact that applying it correctly in this case has uncomfortable short-term consequences is not a sufficient reason to abandon it.
Edmund Burke: I will now make a point that I suspect will generate the second closest thing to genuine agreement we are likely to achieve in this debate. Professional speech is meaningfully different from political speech, and I said something like this in Part 1, but I will be more specific here. When John Stuart Mill imagines the marketplace of ideas, he imagines citizens exchanging arguments in the public sphere, where bad ideas can be challenged, tested, and defeated by better ideas over time. That model has genuine merit in the public sphere. It does not transfer cleanly to the therapy room. A depressed sixteen-year-old is not a citizen in the marketplace of ideas when they are sitting across from a licensed therapist who has professional credentials, state-conferred authority, and the weight of institutional trust. The power differential between them is not incidental. It is structural. And that structural inequality makes the marketplace of ideas model not merely imperfect but fundamentally inapplicable to the therapeutic relationship.
John Stuart Mill: That is the most genuinely interesting argument you have made in either part of this debate. I offer that without qualification.
Edmund Burke: I am moved. Deeply. Do continue.
John Stuart Mill: The distinction you are drawing is one I find compelling on its own terms. I have written about the conditions under which free expression produces good outcomes, and those conditions include rough equality of position between the parties exchanging views. A therapist and a minor client are not rough equals in any meaningful sense. The therapist has authority, professional training, state licensing, and the client’s trust. The client has dependence, vulnerability, and often a family situation that provides no alternative perspective. In The Subjection of Women I analyzed at length how authority operates in asymmetric relationships and how it shapes the conclusions available to the subordinate party. That analysis applies here. The marketplace of ideas model assumes the weaker party can reject the stronger party’s argument. In the therapy room, the weaker party often cannot.
Edmund Burke: Then we have reached our second near-agreement, and I suspect you know what comes next.
John Stuart Mill: I do. We agree on the diagnosis and we are about to discover we cannot agree on the remedy.
Edmund Burke: The near-agreement collapses because even if we both accept that the therapy room is not the marketplace of ideas, the court’s ruling treats it as if it were, and you are defending that ruling. If we agree that the power differential in the therapy room makes the First Amendment marketplace model inapplicable, then we need a different framework for regulating what happens in that room. I have argued that framework should be rooted in professional tradition and carefully revised legislation. You have argued that viewpoint neutrality must still apply because the alternative gives the state too much authority. But you cannot have it both ways. Either the therapy room is the marketplace and First Amendment doctrine applies in full, or it is not the marketplace and we need a different approach. You have just agreed it is not the marketplace. The ruling says it is.
John Stuart Mill: You have identified a genuine tension in my position and I will not pretend otherwise. The tension is real. But here is why I still defend the ruling despite that tension. The alternative you are proposing, a professional-speech doctrine that allows states to regulate therapeutic viewpoints outside the First Amendment framework, requires trusting that states will use that authority wisely and narrowly. And the history of that trust is not encouraging. Psychiatric institutions classified homosexuality itself as a disorder until 1973. The professional consensus of that era, applied with your framework, would have authorized the very therapy you are now arguing the state was wrong to ban. Your framework does not protect against the moment when the consensus is wrong. Mine at least forces the state to justify its viewpoint preferences under strict scrutiny.
Edmund Burke: That is a fair historical point and I will not evade it. Institutions can be wrong. Consensus can be wrong. I have never argued that tradition is infallible. I have argued that the accumulated practice of a civilization is more reliable than the abstract theory of a single philosopher, and that when the two conflict, the presumption should favor the practice unless the case against it is overwhelming. The case against conversion therapy is in fact overwhelming, and I am prepared to say so clearly. But you are asking me to accept a constitutional framework based on the possibility that the consensus might be wrong in the future, and you are asking me to accept it at the cost of a ruling that makes it constitutionally very difficult for any state to protect any minor from any harmful therapeutic speech as long as that speech can be characterized as the expression of a viewpoint.
John Stuart Mill: Then let me make this concrete, because I think the abstraction has been doing a great deal of work in your argument that it should not be allowed to do. A sixteen-year-old is in a therapy room right now. The therapist holds a Colorado license. The therapist believes, sincerely and professionally, that this patient should attempt to change their sexual orientation, and has been expressing that belief repeatedly across months of sessions. The research tells us what follows from that. Depression. Elevated anxiety. Suicidal ideation. Long-term psychological damage documented across multiple peer-reviewed studies. The Chiles ruling makes it very difficult for Colorado to stop this. You have a framework critique. You have a preference for future legislation and more careful courts. You have an abstract argument about the dangers of giving the state authority over professional viewpoints. And that sixteen-year-old is still in that room. Defend your position not as a principle. Defend it as applied to that specific child.
Edmund Burke: And I will tell you what I find genuinely outrageous about that framing, because it deserves to be identified as outrageous rather than treated as an unanswerable rhetorical move. You are using the immediate and visible suffering of one specific child to argue for a legal framework that will make it permanently and constitutionally difficult for any state to protect any child from any harmful professional speech, as long as that speech can be characterized as a viewpoint. You are not saving that child, Mr. Mill. You are endorsing a constitutional ruling that makes the category of children like that child harder to protect in perpetuity. You call that the harm principle applied consistently. I call it trading a visible harm for an invisible one and then congratulating yourself on the precision of the trade.
John Stuart Mill: You call it trading a visible harm for an invisible one because the invisible harm is hypothetical and the visible harm is real. That is not a philosophical distinction. It is a rhetorical one. The child in that therapy room is not hypothetical.
Edmund Burke: And the constitutional framework that will govern every licensed professional in every state for every generation is not hypothetical either. You are asking me to weight the immediate against the permanent, the visible against the structural, and to conclude that the permanent structural harm does not count because it has not yet produced its next visible victim. I am a conservative, Mr. Mill. I do not sacrifice the framework to win the case. I recognize that the framework is the case.
John Stuart Mill: You are choosing an imaginary future child over a real present one.
Edmund Burke: You are sacrificing the principle that protects all children to rescue one from the specific harm that currently offends you.
John Stuart Mill: The harm is documented, present, and ongoing.
Edmund Burke: THE PRECEDENT IS PERMANENT AND CONSTITUTIONAL! YOU ARE CHOOSING THE CASE OVER THE FRAMEWORK!
John Stuart Mill: A CHILD’S PSYCHOLOGICAL DAMAGE IS NOT A FRAMEWORK PROBLEM! A PRINCIPLE CANNOT HAVE DEPRESSION! AN ABSTRACTION CANNOT ATTEMPT SUICIDE!
Edmund Burke: YOU WOULD HAND THE STATE A LOADED WEAPON AND ASSUME IT AIMS CORRECTLY FOREVER! THE HISTORY OF STATES AIMING THAT WEAPON CORRECTLY FOREVER IS NOT AN ENCOURAGING ONE!
John Stuart Mill: A CONCRETE CHILD IS BEING HARMED TODAY! YOU ARE PROTECTING A THEORETICAL FUTURE CHILD FROM A THEORETICAL FUTURE STATE WHILE A REAL CHILD SITS IN A REAL OFFICE RIGHT NOW!
Edmund Burke: ON LIBERTY HAS NEVER MET AN ACTUAL PERSON! IT HAS MET MANY THEORETICAL ONES AND SERVED THEM BEAUTIFULLY! THE REAL ONES ARE CONSIDERABLY MORE COMPLICATED!
John Stuart Mill: REFLECTIONS ON THE REVOLUTION IN FRANCE DEFENDED ARISTOCRATIC PRIVILEGE BECAUSE IT WAS OLD! AGE IS NOT WISDOM! INHERITED PRACTICE IS NOT TRUTH! TRADITION IS NOT A SUBSTITUTE FOR EVIDENCE!
Edmund Burke: ABSTRACT RIGHTS ARE NOT LIBERTY! THEY ARE LIBERTY’S SKELETON WITHOUT FLESH OR BLOOD OR ANY CAPACITY TO PROTECT THE PEOPLE THEY CLAIM TO SERVE!
John Stuart Mill: YOU PROTECT THE INSTITUTION FROM THE PERSON EVERY SINGLE TIME! THAT IS NOT CONSERVATISM! THAT IS INSTITUTIONAL LOYALTY DRESSED IN PHILOSOPHICAL CLOTHING!
Edmund Burke: YOU PROTECT THE PRINCIPLE FROM THE CONSEQUENCE EVERY SINGLE TIME! YOU WOULD LET THE WORLD BURN AS LONG AS IT BURNED IN A PHILOSOPHICALLY CONSISTENT MANNER!
John Stuart Mill: THAT IS A SLANDER!
Edmund Burke: IT IS A DESCRIPTION!
John Stuart Mill: IT IS INACCURATE!
Edmund Burke: IT IS EXACT!
John Stuart Mill: YOU ARE INSUFFERABLE!
Edmund Burke: YOU ARE BLOODLESS!
John Stuart Mill: INFURIATING!
Edmund Burke: INTOLERABLE!
Edmund Burke: If you have found value in this exchange, and I cannot imagine why you would not despite the considerable provocation I have endured, please subscribe to PhilosophersTalk on YouTube, ring the notification bell, and recommend us to anyone you know who enjoys watching a man of genuine intellectual distinction be lectured on the subject of human liberty by someone who did not choose a single thought before the age of twenty. Mr. Mill’s father designed his mind from infancy as an experiment in philosophical engineering, and the result is precisely what you would expect: a man who defends human freedom with the warmth and spontaneity of a well-maintained clock. He is nonetheless always worth hearing. Subscribe.
John Stuart Mill: Subscribe to PhilosophersTalk.com on Substack for the written companion to this debate, where you will find the argument laid out with rather more precision than Mr. Burke’s oratorical approach typically permits. Burke famously wept in Parliament on multiple occasions, which he subsequently repackaged as evidence of philosophical depth rather than theatrical excess. If you find a man who cries about the French Revolution and calls it a theory of civilization intellectually useful, he is abundantly available on this channel. Like the video. And visit AITalkerApp.com to create your own animated conversations. The link is in the description. Some of them may involve less shouting than this one, though I make no guarantees.
