This free speech case revolved around a California law and the question: Under what circumstances could state governments require certain types of speech from private entities?

The FACT Act requires clinics that primarily serve pregnant women to provide certain notices. Clinics that are licensed must notify women that California provides free or low-cost services, including abortions, and give them a phone number to call. … Unlicensed clinics must notify women that California has not licensed the clinics to provide medical services.

NIFLA, ET AL. v. BECERRA Syllabus

While the purpose the California legislature provided for this law was to insure state residents were properly informed, the question before the court was whether or not this burden on the free speech rights of crisis pregnancy centers was constitutional.

Court Opinion

There were two types of clinics targeted by this California law: Licensed and non-licensed.  Licensed clinics were required to notify women of the availability of state funded abortion options, in direct opposition to the clinic’s pro-life purpose.  Unlicensed clinics were required to notify women that the clinic was not licensed, a burden placed on no other type of non-licensed clinic.

The court found that the content based speech requirement for licensed clinics was unconstitutional because California could not show that it was “narrowly tailored to serve compelling state interests”.  The court found that since the law regulated the content of speech, then the ninth circuit court should have used “strict scrutiny”, the highest level of protection for individual rights.  Yet it did not.  The California law required licensed clinics to disclose information about state sponsored services about abortion.  While the law does allow for the requirement of “commercial speech” to include “purely factual and uncontroversial information about the terms under which . . . services will be available”, abortion is hardly a noncontroversial topic.  Nor was the required speech a regulation of professional conduct since it required speech, not simply actions.  The court found that the notice requirements for unlicensed clinics was unconstitutional since nobody could show any actual potential harm, only hypothetical harm.  The court also found that not only was the law not the least intrusive method of achieving the state’s stated goal of properly informing its residents, but that it was narrowly targeted to clinics providing family planning or pregnancy related services.  I would say the state went out of its way to target pro-life speech and require those licensed by the state to “market” their abortion services regardless of the conscience of those in the clinic.

Kennedy Concurrence

Kennedy’s concurrence, to which Justices Alito and Gorsuch signed on, focused on the viewpoint discrimination apparent in the California law.

It does appear that viewpoint discrimination is inherent in the design and structure of this Act. This law is a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression. For here the State requires primarily pro-life pregnancy centers to promote the State’s own preferred message advertising abortions. This compels individuals to contradict their most deeply held beliefs, beliefs grounded in basic philosophical, ethical, or religious precepts, or all of these.

And the history of the Act’s passage and its underinclusive application suggest a real possibility that these individuals were targeted because of their beliefs.

Kennedy Concurrence

As evidence of the blatant viewpoint discrimination of the legislature of the state of California, Kennedy offered this detail.

The California Legislature included in its official history the congratulatory statement that the Act was part of California’s legacy of “forward thinking.” App. 38–39. But it is not forward thinking to force individuals to “be an instrument for fostering public adherence to an ideological point of view [they] fin[d] unacceptable.”

Kennedy Concurrence

Dissent

Justice Breyer wrote a dissent joined by Justices Ginsburg, Sotomayor and  Kagan in which he stated he believes both parts of the law in question are constitutional.  According to Justice Breyer, since many “ordinary disclosure laws” would not pass the majority’s test in this case, the test must be wrong.  In fact, the justice’s dissent goes on for many pages describing instances where the courts have found medical disclosure laws constitutional.

Many ordinary disclosure laws would fall outside the majority’s exceptions for disclosures related to the professional’s own services or conduct. These include numerous commonly found disclosure requirements relating to the medical profession.

Breyer Dissent

Justice Breyer seemed to anchor his position on the fact that the court had in times past given deference to regulation of the speech of the medical profession.  Seeing the law as requiring “informed consent”, these Justices do not see the discrimination in requiring a pro-life clinic to advertise for abortion services while not requiring abortion clinics to advertise for pro-life centers.

My Conclusion

While I am pleased by the court’s findings, I find it quite disturbing that so many people charged with upholding the Constitution seem so blind to its most fundamental ideals.  From the legislature in California, to the federal judges, including the four supreme Court justices who dissented, it appears obvious that their own viewpoint took precedence over the plain text of the Constitution.

Congress shall make no law … abridging the freedom of speech

U.S. Constitution, Amendment 1

Article VI enshrines the Constitution as supreme over all the laws of the land, including state law.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; … shall be the supreme Law of the Land;

U.S. Constitution, Article VI, Paragraph 2

Put quite simply, the State of California should be ashamed of such blatant viewpoint discrimination and infringement of peoples’ freedom of speech.  (I include the people of California since they chose their legislators to represent them.)  And the federal judges who put viewpoint and precedent before the Constitution should also be ashamed.  While we’re at it, we should all be ashamed for electing men and women to represent us in Washington who will not do their duty to oversee and hold accountable the judicial branch of the federal government.

The Congress shall have Power … To constitute Tribunals inferior to the supreme Court;

U.S. Constitution, Article I, Section 8, Paragraph 9

The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour,

U.S. Constitution, Article III, Section 1

Perhaps, if we held our elected representatives accountable to their oaths to uphold the Constitution, we would have more judges focused on that document rather than their precedents.  Perhaps if we held our state elected officials accountable for their actions, they would not feel so emboldened as to congratulate themselves for abridging speech they do not like.  Perhaps we would then again live in the land of the free.  Then again, perhaps that is not what the citizens of California want?

Author: Paul Engel

Paul Engel founded The Constitution Study in 2014 with the goal of helping everyday Americans read and understand their Constitution. Author, blogger, podcaster and speaker, Paul writes and podcasts at http://constitutionstudy.com. You can also find his books at http://amazon.com/author/paulengel

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