Is Speech Speech?: Analyzing the Speech as Conduct Exception after NIFLA

In National Institute of Family & Life Advocates v. Becerra, the Supreme Court held that there was no First Amendment exception for professional speech, but noted there remained an exception for speech incidental to professional conduct. The United States Court of Appeals for the Eleventh Circuit and the United States Court of Appeals for the Ninth Circuit are split on the nature of this exemption, namely, whether it includes legislation banning conversion therapy for minors when said therapy consists of only speech. This split highlights a deeper divide: whether speech, in and of itself, can be considered conduct and thereby exempted from First Amendment protection. This thesis will argue that speech, even in the professional context, should still be analyzed as speech for the purposes of the First Amendment.