Playing A “Labeling Game”: Classifying Expression as Conduct as A Means of Circumventing First Amendment Analysis

Courts have long recognized that the First Amendment protects both certain classes of speech and certain forms of conduct. Recently, in the context of state regulations prohibiting a particular form of counseling, courts have considered whether mental health counseling in the form of talk therapy falls within the category of conduct protected under the First Amendment. This Note argues that labeling an activity that takes place by means of speech as conduct is improper and leads to the perverse result of avoiding First Amendment analysis. In doing so, this Note examines the protection of speech and conduct under the First Amendment, explores opposing outcomes reached by several courts in considering the protection of counseling communications, and ultimately concludes that courts should not engage in “labeling games” that permit regulations of expression to be upheld without ever being subjected to First Amendment analysis.