I break down the legal layers, privilege, and free speech controversies swirling around Colorado’s statute.

Welcome back to Lawyer Talk, off the record and on the air. I'm Steve Palmer, and today, I'm taking you on a deeper dive into Chiles v Salazar —a Supreme Court case that’s got Colorado’s ban on conversion therapy in the spotlight and raises big questions around the First Amendment.

Brett from Circle 270 Media, our producer, threw out a great follow-up:

Does privilege come into play in therapy sessions affected by these laws?

I’ll be unpacking whether those counselor-patient conversations are really privileged, how privilege impacts legal investigations, and why the core issue isn’t privilege itself, but the government's push to regulate speech.

3 Key Takeaways:

• Privilege Doesn’t Override Constitutional Issues: Whether a conversation is privileged or not, the legal challenge is about the government restricting speech—constitutionally protected or not, privilege isn’t the deciding factor. (Speaker A at 02:05)
• Privileged Communication Isn’t Absolute: Privilege can be waived by the client; if the patient shares what was said in therapy, privilege may no longer apply and authorities could use that information. (Speaker A at 03:16)
• Enforcement Hurdles: Privilege makes investigation tougher (since conversations are confidential), but state agencies may look to marketing materials, interviews, or other disclosures to identify violations or trigger probes. (Speaker A at 04:06)

Submit your questions to www.lawyertalkpodcast.com.

Recorded at Channel 511.

Stephen E. Palmer, Esq. has been practicing criminal defense almost exclusively since 1995. He has represented people in federal, state, and local courts in Ohio and elsewhere.

Though he focuses on all areas of criminal defense, he particularly enjoys complex cases in state and federal courts.

He has unique experience handling and assembling top defense teams of attorneys and experts in cases involving allegations of child abuse (false sexual allegations, false physical abuse allegations), complex scientific cases involving allegations of DUI and vehicular homicide cases with blood alcohol tests, and any other criminal cases that demand jury trial experience.

Steve has unique experience handling numerous high publicity cases that have garnered national attention.

For more information about Steve and his law firm, visit Palmer Legal Defense.

Copyright 2026 Stephen E. Palmer - Attorney At Law

Mentioned in this episode:

Circle 270 Media Podcast Consultants

Circle 270 Media® is a podcast consulting firm based in Columbus, Ohio, specializing in helping businesses develop, launch, and optimize podcasts as part of their marketing strategy. The firm emphasizes the importance of storytelling through podcasting to differentiate businesses and engage with their audiences effectively. www.circle270media.com

All right, folks, Lawyer Talk podcast off the record, on the air. Back with a Circle 270 media follow up question to our discussion about the latest supreme court case, Salazar vs. Chiles.

And Brett had a good question. And for those who don't know, Brett asked these questions from Circle 270 Media.

He's our producer and we talk about this stuff and then he always has these follow up questions. I think, you know, crap, I should have just talked about that. But, but I didn't think about it. But he did, so now we're going to talk about it.

In Chiles vs Salazar, we discussed Colorado's law banning, quote, conversion therapy, which included under their law a provision that says counselors can't engage in any sort of talk therapy. I'm summarizing.

But any sort of talk therapy that is designed to talk or provide, we'll just say talk therapy to, to dissuade somebody from changing genders or changing their sexual preferences. And child says, look, that's unconstitutional. You can't apply that to me because I'm engaged in First Amendment conduct. I'm engaged in speech.

And what else would be speech or what else would be protected under the First Amendment other than speech? And I talked about the breakdown of how the Constitution views this stuff and how, what's the standard review, et cetera.

But Brett followed up and said, look, what about privilege? Isn't this privileged? Isn't somebody's therapy session with a patient privileged? And you know, is that what they're doing?

Is that why it's wrong or right? And I didn't think about it from that angle, but it's a good question. And the answer is it doesn't really matter.

But I want to break it down a little bit.

For instance, if I have a communication with a client and the things we discuss, assuming nobody else is in the room, or at least no other lawyers or part of my team are in the room, then that conversation is privileged. So I can say whatever I want, but it doesn't mean necessarily that the government can't outlaw what I'm saying. So.

Well, that's what the government tried to do. They tried to outlaw what I'm saying. But just because it's privileged isn't why it's a problem.

It's a problem because the government is outlawing what I'm saying. Whether it's privileged or not, it's irrelevant to the equation. Now you would ask then, is it privileged?

The answer is maybe because, look, if I tell a client, if I sit down and conspire with a client telling him how to go commit a crime. Look, dude, you're doing it all wrong. I've been a criminal defense lawyer for 31 years, and you're out there dealing drugs.

Let me tell you how to really do it. Let me tell you how to get away with it. Well, is that a privilege? Is that privilege legal advice? I would think not.

Basically, now I'm part of a criminal conspiracy, and I would think that that would not necessarily be privileged. But even if it is privileged, it is the clients to waive.

So in Colorado, for instance, if this therapist is engaged in talk therapy, saying, look, young man, you're not really a woman, or, look, young woman, you're not really a man, here's why. Here's the way. Whatever she was saying, I don't know, it doesn't really matter. Say the patient goes home and tells somebody.

Well, all right, she can tell somebody or he can tell somebody. And as soon as the cat's out of the bag, it's her privilege to wave. She can go tell whoever she wants.

And once she tells somebody, then now we have the privilege is irrelevant, because now the counselor's getting prosecuted. It's really more about how it gets discovered, I suppose, than whether it violates the law. That is the privilege.

So I guess it adds an interesting layer to the problem, because the law is prohibiting things that are discussions in speech that would otherwise be privileged. So you would have to ask, how would it ever come out? And, you know, Brett had another question, like, is it really the marketing then?

Because the counselor's probably got some bios and website and other things saying, hey, look, I specialize in these things. And among the things is helping kids identify their true gender in life, whatever it is.

That's going to at least raise eyebrows and draw Colorado's attention to this therapist and maybe trigger an investigation.

And then maybe they go interview patients and say, look, they being the Colorado authorities, and say, look, what does child talk to you about during these sessions? And if the patient says, none of your business, well, maybe it's dead on the wire or dead on arrival.

But if the patient says, well, look, we've been spent five sessions talking about my sexual preference and talking about whether I think I'm a man or I think I'm a woman. And now Colorado prosecutes.

So I think all the privilege does is get in the way of not getting the way, but maybe make it a little more difficult to investigate and prosecute. So I hope that answers Brett's question. I think it does if you've got another question or another follow up, let me know. I'll be happy to cover it.

Lawyer talk. Off the record, on the air, Breakdown style.