Brian Tingley is a licensed marriage and family counselor who helps clients with various issues, including sexuality and gender identity. A practicing Christian, Tingley grounds human identity in God's design rather than a person's feelings or wishes. Many of his clients agree and seek his counsel precisely because they want to align their identity with their faith. But Washington censors Tingley from speaking with clients in that way. Its Counseling Censorship Law prohibits any conversations that might encourage "change [of] an individual's sexual orientation or gender identity," while allowing conversations that "support … identity exploration" and "do not seek to change sexual orientation or gender identity." Wash. Rev. Code § 18.130.020(4).

The Ninth Circuit allowed the state to censor Tingley's conversations with clients, holding that the Law prohibits Tingley's conduct, not speech. In so doing, the court split with the Third and Eleventh Circuits, which do not treat counseling—i.e., mere talking—as conduct, and exacerbated a larger split over professional speech regulation. The court also rejected Tingley's free-exercise claim even though the Law's burden falls predominantly on those who seek and provide counseling for religious reasons. The questions presented are:

1. Whether a law that censors conversations between counselors and clients as "unprofessional conduct" violates the Free Speech Clause.

2. Whether a law that primarily burdens religious speech is neutral and generally applicable, and if so, whether the Court should overrule Employment Division v. Smith, 494 U.S. 872 (1990).

Whether a law that censors conversations between counselors and clients as 'unprofessional conduct' violates the Free Speech Clause