Do state professional licensing laws violate the First Amendment? Should a federal court apply a state law requiring an affidavit to file a medical malpractice claim? Can prison officials be sued personally for cutting an inmate’s hair?
The U.S. Supreme Court is scheduled to hear arguments in cases focusing on these and many other questions during its new term, which begins on October 6. At an event hosted by the Harvard Federalist Society last week, Antonin Scalia Professor of Law Stephen Sachs and Senior Attorney for the Institute of Justice Rob Johnson ’09 fielded questions from moderator Jeffrey Redfern ’12 about several high profile cases and the issues they present on appeal.
Redfern, who is also a senior attorney with the Institute of Justice, introduced Johnson and Sachs, who discussed the Court’s docket before each choosing a single case to review in-detail.
Chiles v. Salazar
Johnson focused his comments on Chiles v. Salazar, a case in which the justices are being asked to determine whether a Colorado state law banning ‘conversion therapy’ violates the First Amendment’s free speech protections.
The case was filed by Kaley Chiles, a licensed therapist with a master’s degree in clinical mental health, who provides talk therapy for clients seeking religiously informed guidance on sexuality and gender. Chiles argues that Colorado’s 2019 law banning conversion therapy has prevented her from counseling minors in ways that could be interpreted as prohibited by the law.
Johnson explained that, despite seeming like a classic “culture war” case, Chiles v. Salazar raises unresolved First Amendment questions that have emerged alongside the expansion of occupational licensing.
“To understand this case, you have to kind of step back and look at the growth of occupational licensing over the last 200 years,” said Johnson. “Over the last 30 years, licensing has grown from something where basically nobody had to have a license to do anything to the point where now one in four American workers require licenses in order to do their jobs. Not only has the number of occupations expanded, also the scope of occupations has expanded.”
According to Johnson, many occupational licensing requirements inherently conflict with the constitutionally protected speech rights of licensed individuals.
“For many of these people who have to be licensed, talking is what they do,” said Johnson. “Generally, you can’t require a license in order to talk and you can’t regulate what people are talking about. So, the question arises, does speech get less protection just because it is speech by somebody who is licensed? Does the government get extra leeway to regulate speech when it’s pursuant to a licensing law?”
Johnson pointed out that the Supreme Court addressed this issue in the 2018 case NIFLA v. Becerra, in which the justices declined to recognize a professional speech exception to the First Amendment, but acknowledged the government can regulate professional speech when it is “incidental to conduct.”
“The example that the Supreme Court gave of [speech incidental to conduct] is informed consent requirements in the context of medicine,” said Johnson. “So, if you require the doctor to get informed consent before a medical procedure, on some level, that is regulating speech. It’s speech, but it’s incidental to a restriction on conduct because the thing that the government is actually regulating is doing medical procedures without consent.”
According to Johnson, the central issue in Chiles has led to conflicting rulings from two different federal courts. The U.S. Court of Appeals for the 10th Circuit has ruled that therapy qualifies as speech incidental to conduct and is therefore not protected by the First Amendment. The 11th Circuit, on the other hand, ruled that therapy is protected speech.
Johnson also referenced several pending cases that may be influenced by the outcome of Chiles. In one, he said, a veterinarian who answers questions from abroad is challenging a Texas law prohibiting veterinarians from giving advice without examining the animal in person. In another, a nonprofit that trains non-lawyers to represent people in routine debt collection actions is challenging enforcement by the New York Bar for practicing law without a license.
“So, my point here is, this is a case that seems like it’s all about cultural war issues,” said Johnson. “But there are a lot of other cases that aren’t, but also turn on the same issue, for instance, the future of licensing the legal profession.”
The Supreme Court is scheduled to hear oral arguments for Chiles v. Salazar on October 7.
Berk v. Choy
Sachs focused his remarks on Berk v. Choy, a case that asks whether a federal court must apply a state law’s additional requirements for filing a medical malpractice suit. While federal laws typically supersede state laws, federal courts sometimes hear state-law claims, such as when their authority over a case is based on ‘diversity jurisdiction’— i.e., the parties are citizens of different states.
In Berk v. Choy, the plaintiff filed a medical malpractice claim in Delaware federal court. Under Delaware law, such claims must include an expert affidavit confirming that there are reasonable grounds to find malpractice. Federal law has no such additional requirement.
This conflict between federal and state laws potentially invokes precedent from the landmark 1938 ruling Erie Railroad Co. v. Tompkins, which governs how federal courts apply state law. According to Sachs, the issue in Berk is a textbook example of the inadequacy of the Erie doctrine to provide a practical framework for resolving conflict-of-laws questions.
“The rule is, if there is a provision of the Federal Rules of Civil Procedure authorized by Congress as a ‘rule of practice and procedure’ that does not abridge, enlarge, or modify any substantive right, then you apply it, because it’s federal law and federal trumps state,” said Sachs, who has argued that the Court’s ruling in Erie should be overturned.
“If it is not covered by a rule of federal procedure, then it is governed by doctrines that courts have vaguely derived from the case known as Erie Railroad Co. v. Tompkins (may its name be blotted from the earth),” he said.
A key difficulty, Sachs explained, is that state laws rarely specify whether a rule is procedural or substantive.
Sachs said, “99% of medical malpractice claims in Delaware are run through Delaware courts. So, they don’t care whether [the affidavit rule] is a substantive rule or an evidence rule or a procedural rule, just a rule that determines how the case will go in Delaware. In the federal courts, you have to peel apart substance and procedure, so it matters what box you put it in. Whereas Delaware didn’t care when they were passing the statute.”
The question in Berk v. Choy is complicated even further by uncertainty over Rule 11(a) of the Federal Rules of Civil Procedure, which says, in part: “Unless a rule or statute specifically states otherwise, a pleading need not be verified or accompanied by an affidavit.”
“Under Rule 11, this new argument that came up in the Court, it says that normally you don’t need to attach an affidavit for your complaint unless a rule or statute provides other rules,” said Sachs. “So, folks will say, ‘Well, this is a statute — a statute from Delaware.’ But the petitioner will say, ‘No, that meant federal rule or federal statute.’”
The Supreme Court is scheduled to hear oral arguments for Berk v. Choy on October 6.
Future cases to watch
In addition to Chiles and Berk, Redfern, Johnson, and Sachs also discussed several other potentially impactful cases on the Supreme Court’s docket.
In Oliver v. City of Brandon, the Court will decide whether a street preacher’s lawsuit challenging a local ordinance restricting religious practices was improperly dismissed. The Fifth Circuit ruled the preacher could not bring suit because he had already been cited and paid his ticket, effectively pleading guilty.
According to Sachs, the Court’s 1994 ruling in Heck v. Humphrey bars convicts from bringing federal civil rights claims for damages if their prevailing in the suit would imply the conviction was invalid. Accordingly, to sue, the precedent dictates that potential plaintiffs must get their prior conviction thrown out through some form of post-conviction relief.
Sachs, however, questioned the logic of applying the post-conviction relief requirement to a situation where the plaintiff paid a fine from a ticket.
“What are the mechanisms by which he could get his conviction clear? What is it that the state courts want him to do that he’s not doing?” he asked.
“Suppose he did it again and got arrested again, would the Supreme Court say, ‘Sorry, you’re estopped. You don’t get to raise your constitutional defense in prosecution number two?’” said Sachs. “I’m not sure why he would need to attack the prior conviction before he can try to get some future relief.”
In Louisiana v. Callais, a group of white voters is challenging a Louisiana congressional map that created two majority Black districts. The plaintiffs argue that the map was an unconstitutional racial gerrymander because race was the predominant factor in drawing the lines.
Louisiana concedes that race was the predominant factor, but argues the map was redrawn based on the outcome of an earlier lawsuit, Robinson v. Ardoin, brought by Black voters on Voting Rights Act grounds. In Robinson, a federal district court ordered Louisiana to create a second majority Black district and the Fifth Circuit later affirmed on appeal.
The Supreme Court heard arguments on Louisiana v. Callais in its previous term, but a majority of justices elected to rehear the case this fall.
“Sometimes, it’s something very controversial and high-profile, and things have been going on behind the scenes, and they just want to have another crack at it or frame the issues differently,” said Renfern of the Court’s decision to give the case a second hearing. “Sometimes, it’s a little bit more of a housekeeping thing because they just can’t seem to put together five votes for one rationale.”
In Landor v. Louisiana Department of Corrections, the petitioner is a prisoner who was restrained and shaved in 2020 after growing out his hair for nearly two decades pursuant to his Rastafarian religious faith. With support from the HLS Religious Freedom Clinic, the plaintiff’s appeal has proceeded to the Supreme Court, which will decide whether the relevant statutes provide a cause of action for damages against the officials in their individual capacities.
According to Johnson, the wrinkle is that the law prohibiting the alleged conduct — the Religious Freedom Restoration Act, or “RFRA” — and the law authorizing damages against officials in their individual capacity — the Religious Land Use and Institutionalized Persons Act, or “RLUIPA” — were passed by Congress under different authorities.
“RFRA is an ‘enforcing the provisions of the 14th Amendment’ Act,” said Johnson, “Whereas RLUIPA is a Spending Clause enactment. So, the interesting question lurking in the background is, ‘Can Congress, under the Spending Clause, impose damages on state officials?’ I think they probably can, but it becomes an interesting question.”
In First Choice Women’s Resource Centers, Inc. v. Platkin, the Court will decide whether a pro-life pregnancy center can challenge a subpoena seeking the names of its donors and staff. The pregnancy center initially attempted to challenge the subpoena in federal court, but the Third Circuit Court of Appeals rejected their lawsuit ruling the challenge was not yet ripe, i.e. the harm to the plaintiff had yet to materialize.
According to Johnson, “They ruled it wasn’t ripe because [the plaintiff] could still litigate the issue in state court and there were negotiations ongoing about whether they should settle this before it went to court … the problem with that conclusion is that you can’t litigate it until the harm has already happened.”
“The pregnancy center is basically coming into court and saying, ‘Look, people are not donating to us because they are worried that they are going to have their information disclosed,’” he said. “There are donors who actually submit affidavits saying, ‘I would have been a lot less likely to have donated if I had known that this would happen.’”
Set to begin on October 6, the Supreme Court’s 2025-2026 docket includes arguments on several other notable cases, including: Learning Resources, Inc. v. Trump, Trump v. Slaughter, West Virginia v. B.P.J., and Little v. Hecox.