Supreme Court Strikes Down CA Law Compelling Pro-Abortion Speech from Pro-Lifers

Today, the Supreme Court decided National Institute of Family and Life Associates (NIFLA) v. Becerra.  Justice Thomas wrote for the five-member majority concerning the two pro-abortion notices required of pro-life pregnancy center by the California law at issue (the FACT Act) (citations omitted):

The licensed notice is a content-based regulation of speech. By compelling individuals to speak a particular message, such notices “alte[r] the content of [their] speech.” . . . Although the licensed notice is content based, the Ninth Circuit did not apply strict scrutiny because it concluded that the notice regulates “professional speech.” Some Courts of Appeals have recognized “professional speech” as a separate category of speech that is subject to different rules. . . . But this Court has not recognized “professional speech” as a separate category of speech. Speech is not unprotected merely because it is uttered by “professionals.” . . . 

The dangers associated with content-based regulations of speech are also present in the context of professional speech. As with other kinds of speech, regulating the content of professionals’ speech “pose[s] the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information.” . . . “[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market,” and the people lose when the government is the one deciding which ideas should prevail. . . . 

In sum, neither California nor the Ninth Circuit has identified a persuasive reason for treating professional speech as a unique category that is exempt from ordinary First Amendment principles. We do not foreclose the possibility that some such reason exists. We need not do so because the licensed notice cannot survive even intermediate scrutiny. California asserts a single interest to justify the licensed notice: providing low-income women with information about state-sponsored services. Assuming that this is a substantial state interest, the licensed notice is not sufficiently drawn to achieve it. 

If California’s goal is to educate low-income women about the services it provides, then the licensed notice is “wildly under inclusive.” . . . Yet “[p]recision . . . must be the touchstone” when it comes to regulations of speech, which “so closely touc[h] our most precious freedoms.” . . . 

Turning to the other notice requirement: 

We need not decide what type of state interest is sufficient to sustain a disclosure requirement like the unlicensed notice. California has not demonstrated any justification for the unlicensed notice that is more than “purely hypothetical.” . . . 

Even if California had presented a nonhypothetical justification for the unlicensed notice, the FACT Act unduly burdens protected speech. The unlicensed notice imposes a government-scripted, speaker-based disclosure requirement that is wholly disconnected from California’s informational interest. . . . And it covers a curiously narrow subset of speakers. . . . This Court’s precedents are deeply skeptical of laws that “distinguis[h] among different speakers, allowing speech by some but not others.” Speaker-based laws run the risk that “the State has left unburdened those speakers whose messages are in accord with its own views.” 

The majority did not reach the plaintiffs' viewpoint discrimination claim (see footnote 2 on page 6).  Justice Kennedy, joined by Chief Justice Roberts and Justices Alito and Gorsuch, agreed that the Court was correct not to reach the viewpoint discrimination question but concurred to note that the "apparent viewpoint discrimination here is a matter of serious constitutional concern":  

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. . . . 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. . . . 

Governments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief. This law imperils those liberties. 

While liberals will use any means to attempt to force people to support their policy agenda, the First Amendment stands against government efforts to force people to speak contrary to their personal views just as it stands against restricting people from speaking.  Today the Supreme Court once again relied on the First Amendment to vindicate the rights of the people against government oppression. 

The Supreme Court also upheld President Trump's so-called "travel ban" today in Trump v. Hawaii.  

The Court's last decision day for this term is tomorrow.  The decision in Janus v. AFSCME (concerning compelled union dues for government employees) is expected, and if any justices are retiring, it will likely be announced tomorrow.  Follow the RNLA on Twitter for news tomorrow morning.