The Leading Edge: Gov’t Tells Counselors What (Not) to Say, Who’s Next?

The Story:  “Judge Upholds Ban on Gay Conversion Therapy,” by Katie Zezima writing for the Associated Press.

The Lead:

A federal judge on Friday upheld a New Jersey law barring therapists from trying to turn gay youth straight.

Judge Freda L. Wolfson said in the ruling that the law does not violate free speech or religious protection.

The law “on its face does not target speech, and “counseling” is not entitled to special constitutional protection merely because it is primarily carried out through talk therapy,” Wolfson wrote.

Why it Matters:  If a Federal judge can enforce a law that tells counselors what they can and cannot say to those voluntarily seeking counseling, who else might the government control the content of their speech?

In reviewing the news, we sometimes fall prey to providing stories that seem to scare.  When we do, we run the risk of becoming, “Chicken Little” warning of impending doom that is little more than an acorn falling from the sky.  That’s not my goal here (or with any column).  And, as a First Amendment attorney, I do think there is are times when the government is permitted to censor speech – but those times ought to be exceedingly few and far between.

The courts have often held that the private counseling sessions of counselor and counselee are private speech of the type that government really has no say in controlling.  That speech is very much akin to the conversations you, as parents, might have with your children as you tuck them in or walk by the way, etc.

In other words, when I say “private” speech, I mean speech that is between private actors as opposed to at least one of the parties being a government actor.  When government starts telling private individuals what they may and may not say to other private individuals, we have profound problems.  Think of other critically private speech that is potentially curtailed by such a ruling:

• Doctor-patient
• Pastor-penitent
• Parent-child
• Spouse-spouse
• Teacher-student

The list can go on and on.  Not only is speech behind a closed door between two private individuals called into question, the public speech of one toward many would also be implicated here.  The most obvious form of that private (that is, private actor) speech in public is that which is done from the pulpit each and every Sunday morning.

When you read stories about the government attempting to curtail a certain form of counseling to support the politically correct idea du jour, do not be distracted by the issue in question.  Consider the down-stream impact of a government that is permitted to censor someone’s speech because, at some point, a government that can censor someone else’s speech can one day censor mine.

Don’t be scared by that; be warned.  Think it through and act accordingly.