The Slow Creep of Language
The below is an excerpt from a presentation I presented in October 2025 at the Alliance for Therapeutic Choice annual conference.
The states tell us we can only practice certain speech if we have a license, then once we get the license, they tell us they can restrict our speech because we're licensed. They're talking out of both sides of their mouths. They move the goal posts. This isn't Soviet Russia where we have to look over our shoulders at any moment in case the KGB is listening and busts into the room, "Aha! Your words just switched from speech to conduct. We have you now." This is America, and we are Americans, yet these license schemes have turned us into people in an occupied state, constantly fearing political persecution.
A quick note about conduct. We cannot accept the language that the agents of these abusive government overreach. Black's Law Dictionary defines conduct as:
Therapy is speech. There are a slough of court cases that even conduct is considered free speech. One example, in the sState of California the central location for the pornography industry, and that is championed as free speech, despite everything involved is conduct according to Black's Law Dictionary, not speech. But sitting down in your office having a conversation is considered conduct, not speech? The state is trying to have it both ways. Furthermore, if you want to argue that the Flash Technique for example, is conduct, there's nothing illegal about tapping your own leg or guiding your client to tap his or her own leg. Even if tapping one's leg falls under Black's Law Dictionary definition of conduct, tapping one's leg is not illicit conduct, and it still does not give the government the justification for regulating it. The government must satisfy certain criteria for regulating anything. The government doesn't have rights, it has privileges, privileges that are granted by We the People. It doesn't even have many duties. It has no duty to protect you from violent aggressors, it has no duty to protect the public from harms that are purely hypothetical regarding counseling.
Many counselors have errantly followed the lower Federal courts and have taken to using the term "conduct" to describe the practice of counseling altogether. By ceding this linguistic ground, they permit the courts to redefine our rights in such a way as to limit them, similarly to what the Obama administration did by attempting to reduce the 1st Amendment protection of "freedom of religion" to mean "freedom to worship". The lower courts, particularly the 9th Circuit Court of Appeals, is trying to play the same trick by redefining speech as conduct to get it outside the 1st Amendment protections so they can regulate it.
We must not follow their attempts to corrupt the language. Language is everything, and if we use their words, we cede their point and give up our rights, and that's not good for us or our clients.
