Supreme Court Justice Ketanji Brown Jackson issued a dissenting opinion in Chiles v. Salazar on Tuesday, expressing concerns about a potential threat to the nation. Jackson stated, “to be completely frank, no one knows what will happen now,” following the Court’s ruling upholding free speech protections.

Free Speech Prevails in Colorado Case

Eight justices ruled that Colorado could not prohibit licensed counselors from offering any practice or treatment aimed at changing a minor’s sexual orientation or gender identity. This decision was a significant win for free speech advocates, but was viewed negatively by Jackson and others on the left.

Concerns Over “Opening a Can of Worms”

Jackson argued that allowing counselors to discuss the causes and basis for sexual orientation changes would “open a can of worms.” She suggested it would be preferable to silence dissenting voices in the name of scientific consensus. Justice Elena Kagan expressed frustration, noting the state suppressed one side of the debate while aiding the other, making the constitutional issue “straightforward.”

A Pattern of Dismissing Free Speech Values

This dissent is the latest example of what some observers describe as a pattern in Justice Jackson’s jurisprudence – a dismissal of free speech values. Justice Neil Gorsuch, writing for the majority, emphasized that the First Amendment protects “an inalienable right to think and speak freely” and champions a “free marketplace of ideas.”

Redefining Speech as Conduct

Jackson, however, would have classified the banned practices as “conduct,” not speech, allowing for regulation. This approach, critics argue, involves imposing an orthodoxy and treating dissent as a regulatory issue rather than a matter of viewpoint. Similar approaches to speech curtailment have been seen in other countries, such as Malta, where a man faced potential imprisonment for discussing his abandonment of homosexuality.

Echoes of Pandemic Censorship

The case also draws parallels to the censorship experienced during the COVID-19 pandemic, where dissenting scientific views were often suppressed. Dr. Jay Bhattacharya, a critic of pandemic policies, was targeted and labeled a conspiracy theorist, but was later vindicated by evidence. He recently received the 'Intellectual Freedom' award from the American Academy of Sciences and Letters and is now the 18th director of the National Institutes of Health.

Suppression of Early COVID-19 Theories

Early theories regarding the virus’s origin, including the possibility of a lab leak in Wuhan, were dismissed by media outlets like the Washington Post and New York Times. Federal agencies now support the lab leak theory as the most likely origin. Similarly, the efficacy of masks and natural immunity were initially questioned, but later recognized by the government.

Colorado’s History of Free Speech Challenges

Colorado has repeatedly attempted to restrict speech, including efforts to bar Donald Trump from the ballot and force creative professionals to participate in same-sex weddings against their religious objections. Each of these efforts ultimately failed before the Supreme Court. Despite these setbacks, the state continues to pursue policies that are hostile to free speech.

As Justice Jackson’s views gain prominence, concerns are rising about the potential for a more restrictive interpretation of the First Amendment, particularly if the Supreme Court is expanded with additional justices sharing her perspective. Jackson herself warned, “to be completely frank, we know exactly what will happen then.”