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  • Matt Nee

Defending Freedom of Speech by Kevin Diehl


This past summer the United States Supreme Court was in the news quite a lot, much more than it normally is. Early in the summer, the court released its decision in the widely anticipated Masterpiece Cakeshop v. Colorado Civil Rights Commission case (that I wrote about here). Then, the nation witnessed the spectacle of Justice Brett Kavanaugh’s confirmation hearings. For those old enough to remember the Justice Clarence Thomas confirmation saga, it was déjà vu all over again.

But in that crush of big news the court announced a decision in another important case – National Institute of Family and Life Advocates v. Becerra – that didn’t garner nearly as much attention. The case arose out of a challenge to a California law that required pro-life pregnancy care centers to provide free advertising for the abortion industry. Although abortion was at the core of the case, the legal battle actually hinged on a First Amendment, free speech argument.

In 2015, the California legislature passed a bill, AB 775, which was given the rather misleading name “the Reproductive FACT Act.” AB 775 was developed by, and had the support of, abortion groups such as NARAL and Planned Parenthood. Those groups proclaimed that the law’s intent was to help needy women get health-care information. The reality fell short of that mark.

With the law’s passage, non-profit, licensed medical centers that offer free, pro-life help to pregnant women were compelled to post “clear and conspicuous” signs or distribute forms explaining that the state of California provides free or low-cost abortion and contraception services.

The required message had to include a phone number to a county office that would refer women to Planned Parenthood and other abortion providers.

But that wasn’t all. The law also compelled unlicensed pregnancy centers – the types of places that provide needy pregnant women with material assistance such as diapers and blankets, but not medical services – to add large disclosures about their non-medical status in all advertisements. Failure to comply could lead to fines as high as $1,000 per violation.

The result of this law was that the staff and volunteers in nearly two hundred non-profit, pro-life pregnancy centers in California were forced to violate their consciences by promoting abortion.

David French, who writes for National Review, put it this way: “California is requiring pro-life professionals – people who’ve dedicated their lives to protecting the unborn by offering pregnant mothers alternatives to abortion – to advertise state-sponsored abortions. California is making this demand even though it has ample opportunity to advertise state services without forcing pro-life citizens to do so.”

French concluded that California, “rather than using its own voice…is co-opting the voices of its pro-life citizens, forcing them to join its pro-abortion crusade.”

After the law’s passage, the National Institute of Family and Life Advocates (NIFLA) filed a lawsuit in federal court challenging AB 775 on behalf of all the California pregnancy centers it represents.

The complaint stated that AB 775 “imposes government compelled speech upon the pregnancy centers due to their support for pregnant women, and in ways that undermine the centers’ messages. The Act is therefore unconstitutional under the First Amendment to the United States Constitution.”

But NIFLA lost at the Federal District Court. The District Court found that the Act was passed with the stated purpose of targeting pro-life crisis pregnancy centers, because they “aim to discourage and prevent women from seeking abortion,” and they (allegedly) “misinform women.”

After that loss, the Alliance Defending Freedom (ADF), which handled the case for NIFLA, took the case to the 9th Circuit Court of Appeals. Not surprisingly, things didn’t go any better with that court. The 9th Circuit affirmed the District Court’s ruling, and held that the FACT Act was, indeed, constitutional.

In reaching that conclusion, the 9th Circuit found a First Amendment exception for what it called “professional speech,” which the court defined as “speech that occurs between professionals and their clients in the context of their professional relationship.” In other words, the 9th Circuit determined that licensed professionals, speaking in the course of their professional relationship with a client, do not enjoy heightened constitutional protection and, therefore, the government can more easily regulate it.

(As an aside, if you believe that the idea of “judicial activism” is a specious concept designed to besmirch progressive thought, keep this in mind: the Supreme Court has never recognized “professional speech” as an exception to the highly scrutinized and rigorously protected constitutional right to free speech. It is not the end result that offends conservative thought; rather, it is the activist means of reaching that end that is so troubling.)

After the 9th Circuit issued its ruling, the case was accepted on appeal by the Supreme Court. By a five-to-four majority, the Supreme Court reversed the 9th Circuit and declared the FACT Act unconstitutional.

Clarence Thomas, who wrote the majority opinion, said that there is no such category in America as “professional speech.” To invent such a category, he said, would “give the States unfettered power to reduce a group’s First Amendment rights by simply imposing a licensing requirement.”

It’s noteworthy that no other health centers were subject to the law’s requirements – it was narrowly written to target only pro-life pregnancy centers. That’s a clear indication that the state wasn’t really concerned about making sure that women were aware of low-cost abortion options. Rather, the state of California had a clear bias against pro-life groups and in favor of the abortion industry.

Justice Anthony Kennedy – who rather famously retired shortly after this opinion was announced – voted with the majority and wrote a short concurring opinion. Kennedy said that the FACT Act served as an “example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression.” He added that “governments must not be allowed to force persons to express a message contrary to their deepest convictions.”

If you were wondering why the heavy artillery was deployed to prevent Brett Kavanaugh from taking the bench, look no further than the outcome of the two cases announced this summer – Masterpiece Cakeshop and Becerra. The forces arrayed against Kavanaugh meant to put an end to decisions such as these.

There was one sentence from Justice Thomas’s majority opinion that provided a forceful summary to the Becerra case. It’s one of those lines that will likely be quoted often and become a part of Justice Thomas’s legacy on the bench:

“The people lose when the government is the one deciding which ideas should prevail.”

by Kevin Diehl


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