In Reed v. Town of Gilbert, this court held that laws that "defin[e] regulated speech by particular subject matter" are "obvious[ly]" content-based and "subject to strict scrutiny." 576 U.S. 155, 163–164 (2015). In City of Austin v. Reagan National Advertising of Austin, LLC, this Court reaffirmed that rule, but clarified that a "content-agnostic on-/off-premises distinction" regulates based on location and "does not, on its face, single out specific subject matter for differential treatment." 596 U.S. 61, 76 (2022) (cleaned up). The Second and Third Circuits have since held that City of Austin provides government with broad latitude to regulate speech according to its content, while the Ninth Circuit has held that City of Austin applies only to content-neutral, location-based distinctions.

1. The first question presented is whether a New York law requiring speakers to obtain a license before offering talk therapy pertaining to "disabilit[ies], problem[s], or disorder[s] of behavior, character, development, emotion, personality or relationships," N.Y. Educ. Law § 8402(1), is content-based.

This Court has repeatedly held that under First Amendment intermediate scrutiny, the government has the burden to "demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree." Greater New Orleans Broad. Ass'n, Inc. v. United States, 527 U.S. 173, 188 (1999). The Second, Fourth, and Seventh Circuits have held, however, that the government can prevail at the motion to dismiss stage by relying on reasonable speculation or legislative history. The Third and Sixth Circuits have held that the government has an evidentiary burden that it cannot carry on a motion to dismiss.

2. The second question presented is whether the government can defeat a First Amendment challenge to a licensing scheme for talk therapists at the motion-to-dismiss stage by relying on legislative history and "reasonable" speculation that contradicts the allegations in the complaint.

Whether a New York law requiring speakers to obtain a license before offering talk therapy pertaining to 'disabilit[ies], problem[s], or disorder[s] of behavior, character, development, emotion, personality or relationships' is content-based