Fear or Injury: Chiles v. Salazar and the Misapplication of the “Case or Controversy” Clause
Published November 1, 2025 By Elisee Kouaho
When Kaley Chiles, a licensed Colorado counselor, filed a pre-enforcement lawsuit challenging the state’s ban on conversion therapy for minors, she claimed that the law violated her First Amendment rights (1). Chiles argues that the ban interferes with her ability to provide complete counseling services by forcing her to avoid certain religiously informed discussions (1). She adds that because her services are entirely verbal, not physical, her sessions are not conduct like a medical procedure that the state can regulate, and notes that the First Amendment protects professionals in private conversations with clients about personal decisions and well-being (1).
However, the injury she argues is speculative; there has been no enforcement action, fine, or threat to her license. Allowing cases to move forward without proof of harm pulls the courts into disputes they are not meant to resolve, which ties directly into Article III of the Constitution, which limits judicial power to “cases” and “controversies.”
The standing doctrine, rooted in the Constitution’s Article III “case or controversy” clause, ensures that the judiciary intervenes only when the plaintiff presents a tangible harm that can be tied to the defendant’s actions: The Court holds that a plaintiff must prove at an “irreducible minimum,” that: “(1) he/she has suffered a distinct and palpable injury as a result of the putatively illegal conduct of the defendant; (2) the injury is fairly traceable to the challenged conduct; and (3) it is likely to be redressed if the requested relief is granted (Valley Forge Christian College v. Americans United, 454 U.S. 464, 472 (1982)).”(4) These procedural rules exist to prevent courts from getting involved in broad public issues that affect everyone and are not tied to a specific, personal grievance (4).
By concluding that "…Ms. Chiles has shown an injury in fact for the purpose of demonstrating Article III standing," (2) the Tenth Circuit Court of Appeals misapplied the requirements of the clause and weakened its protections by allowing speculative fear as enough to grant standing.
To reach this conclusion, the court relied on two key points: The Tenth Circuit began by noting that "standing in the First Amendment context is assessed with some leniency, thereby 'facilitating pre-enforcement suits' like the one brought by Ms. Chiles.” (2) Here, the court suggests that in First Amendment cases, the fear of harm is sometimes enough to relax procedural standards, such as proving harm (2). This leniency misapplies Article III because it allows plaintiffs to establish standing based on fears rather than injury. The court then relied on Colorado’s silence by emphasizing that the state’s “refusal to explicitly disavow enforcement” carried “heavy weight” in proving Chiles faced a credible threat (2). In other words, the court viewed Colorado’s failure to clarify that it would not punish violators of the conversion therapy ban as proof that discussing the practice with clients puts Chiles at risk. Colorado countered this conclusion, arguing that without any history of enforcement or threats, silence alone should not establish standing (2).
The court’s reasoning falls short because the standing doctrine requires that plaintiffs prove real and immediate consequences (4), and this requirement cannot be substituted with silence. When applying these guidelines, the judges relied on potential risks and the state’s silence to grant standing, thus lowering the requirements for demonstrating harm and weakening the consistent application of Article III’s standards.
This inconsistent interpretation of the article’s requirements becomes most apparent when compared to the Supreme Court’s handling of Murthy v. Missouri (2024), which stands as a model of the procedural restraint the Tenth Circuit failed to follow. In 2022, Missouri, Louisiana, and five other plaintiffs accused several Executive Branch officials of violating the First Amendment by pressuring social media companies, such as Facebook and Twitter, to remove or suppress content related to COVID-19 vaccines and the Presidential and midterm elections (3). This accusation stemmed from regular meetings and public calls from federal entities, including the CDC, White House, and the Surgeon General, that encouraged social media platforms to take stronger action against misinformation (3). The plaintiffs argued that these actions were government censorship, discouraging people from sharing controversial views online and leading to self-censorship out of fear of government punishment, known as the chilling effect.³
Instead of ruling on the First Amendment issue, the Supreme Court reversed the Fifth Circuit’s judgment in favor of the plaintiffs and dismissed the case on procedural grounds, finding that because the plaintiffs could not prove harm “fairly traceable” to the government’s actions, they had no standing (3). The Court explained that the content moderation decisions were made independently by the platforms, and further clarified that any future harm was speculative since contact between the federal entities and social media companies had "considerably subsided” when the suit was filed, and actions against the entities would not affect how the platforms choose to operate (3).
This decision upheld Article III’s “case or controversy” clause by determining that the plaintiffs’ alleged injuries were too speculative and failed the redressability requirement, since stopping the government’s actions would offer no relief because an injury did not exist (4). By requiring actual harm, the Court focused on procedure and distinguished between political disagreements and legal disputes, thus reinforcing the standing doctrine and keeping courts from being drawn into every political argument, and limiting the cases they hear.
Just as the federal government’s pressure on social media companies to remove or limit posts in Murthy v. Missouri wasn't enough to establish standing, the supposed harm in Chiles v. Salazar falls short for the same reason. In Chiles’s case, the court treated her fear of enforcement as enough to grant standing, even though both claims were based on an alleged chilling effect. Allowing a plaintiff to establish standing based on fear of future enforcement lets them create their own harm from subjective concerns instead of actual, concrete injury. This approach ignores the “case or controversy” requirement of Article III, which demands a proved palpable injury that is fairly traceable to the defendant and likely to be redressed by a favorable decision (4). By accepting hypothetical fear in Chiles’ case, in contrast to the Supreme Court’s rejection of similar claims in Murthy v. Missouri, the Tenth Circuit overlooked the clause’s components, weakening the consistency of Article III protections.
Pre-enforcement suits like Chiles v. Salazar allow courts to weigh in on state policies before any enforcement occurs, which exposes them to accusations of political influence instead of guidance by legal limits. However, if granted, this legally flawed case may have a silver lining, as it could set an important precedent that would empower medical professionals to challenge laws under the protection of free speech, including the heavily politicized and often restrictive abortion regulations.
Courts exist to resolve real legal conflicts, not hypothetical ones. In Chiles v. Salazar, the Court misapplied the doctrine because her case does not meet the tangible harm requirement for standing. Allowing such leniency for subjective claims like the chilling effect in free-speech cases creates a double standard for standing. This approach blurs the line between legal harm and political disagreement, thus undermining the consistent application of Article III and allows procedural grounds to become subjective.
V. Carter and Olivia Hussey, "Chiles v. Salazar," LII Supreme Court Bulletin, Cornell Law School, https://www.law.cornell.edu/supct/cert/24-539
Chiles v. Salazar, No. 22-1445 (10th Cir. 2024), https://cases.justia.com/federal/appellate-courts/ca10/22-1445/22-1445-2024-09-12.pdf?ts=172 6162352
Murthy v. Missouri, 602 U.S. ___ (U.S. Supreme Court 2024), https://www.supremecourt.gov/opinions/23pdf/23-411_3dq3.pdf
U.S. Department of Justice, “Civil Resource Manual 35: Standing to Sue,” Justice Manual Archive, https://www.justice.gov/archives/jm/civil-resource-manual-35-standing-sue