June 26, 2018 5:30PM

A First Amendment Win in a Case That Was NOT about Abortion

In a decision that many First Amendment faithful might find too good to be true, in NIFLA v. Becerra, the Court delivered a solid victory for freedom of speech and against government agents who would force people to speak state-approved messages. Despite the hype to the contrary -- and activists from both sides on the courthouse steps -- this was NOT an abortion case.  The Court was able to separate the First Amendment principles at stake from that fraught subject.

Reiterating its previous rulings on similar provisions controlling speech based on its content, the Court held that any content-based speech regulation -- in this case a California law that compels delivery of particular scripts regarding the availability of abortion services (but that could equally be applied to speech about adoption and prenatal services) -- is presumptively unconstitutional. To regulate the content of speech, the government must show that it has the most important of reasons for regulating the speech in question, and that it is only prohibiting or mandating speech to the extent necessary to achieve that highly important and specific purpose. California failed to show that "compelling" interest, namely why it was necessary to single out pro-life pregnancy centers and conscript them into delivering the state’s message about low-cost abortion services.

Curiously, instead of showing why its law might be able to survive strict judicial scrutiny, California argued for an almost nonexistent level of scrutiny based on the clinic employees' status as “professionals.” It also argued that the script the pro-life centers were forced to recite conveyed merely "factual" information. Justice Clarence Thomas, in his majority opinion, explained that there is no separate category of “professional speech” that deserves lesser First Amendment protection -- and attempts by the U.S. Court of Appeals for the Ninth Circuit to create and enshrine such a category were misplaced and wrong.

As we argued in our brief, if government had a freer hand to commandeer “professional speech,” then a vast amount of speech could be compelled based on nothing more than an unsupported whim that the information might be "helpful" to those who hear it. Just like describing the California law as a regulation of “professional speech” couldn’t save it, neither could arguing that the disclosures were merely factual and uncontroversial, instituted to combat consumer misinformation. Even under that deferential standard, Justice Thomas wrote that compelled speech cannot be "unjustified or unduly burdensome." California offered nothing more than hypotheticals to justify the need for its law, but the font size and number of languages it requires are not just burdensome, but threaten to drown out any message the crisis-pregnancy centers may want to convey.

This was an absolute win for the First Amendment. Not only did the Court refuse to create a new category of speech and designate it to receive less than full constitutional protection, it also repudiated the idea that the deferential standard the Court established in Zauderer v. Office of Disciplinary Counsel (1985) -- to allow certain compulsions of purely factual information in a commercial context -- can save compelled disclosures that impose a burden on the speaker and are anything less than uncontroversial.