Law & the Courts

The Dangerous Supreme Court Case Nobody Is Talking About

(Photo: Nick Cannella/Dreamstime)
NIFLA v. Becerra has huge implications for free speech, religious freedom, and the pro-life cause.

Late yesterday afternoon, I filed an amicus brief in one of the most dangerous free-speech cases in a generation. For the second time this term, the Supreme Court is considering whether the government can compel Americans to express or support ideas they find repugnant. The first case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, was the talk of the nation. This case, National Institute of Family and Life Advocates (NIFLA) v. Becerra, has almost entirely escaped public attention.

That’s a mistake. If anything, the violation of the First Amendment in the NIFLA case is more egregious, and the implications potentially more far-reaching. As readers almost certainly recall, the issue in Masterpiece Cakeshop was whether the state of Colorado could compel a Christian baker to design a cake for a gay wedding. One of the state’s principal arguments against the baker’s First Amendment claim was that designing a custom cake wasn’t an expressive act, so forcing him to design a cake wasn’t compelled speech.

The NIFLA case, however, is unquestionably about compelled speech. The state of California has enacted a law, the so-called FACT Act, that requires pro-life crisis-pregnancy centers to prominently place a notice informing clients that California offers low-cost and even free abortions to women who qualify and providing them a phone number that grants quick access to abortion clinics.

In other words, 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. The state can rent billboard space on the very streets where crisis-pregnancy centers are located. It can hand out leaflets on the sidewalk. It can advertise on television and the radio. It can advertise on the Internet or social media. But rather than using its own voice, it is co-opting the voices of its pro-life citizens, forcing them to join its pro-abortion crusade.

And the Ninth Circuit Court of Appeals held that the FACT Act is constitutional. To validate California’s oppressive act, its decision carved out a dangerous First Amendment exception for what it deemed “professional speech” — “speech that occurs between professionals and their clients in the context of their professional relationship” — and ruled that the state had much greater leeway in regulating, for example, doctor/patient communication.

There are circumstances where such regulation is appropriate. Doctors typically must explain the risks of medical procedures, for example, and a patient must give “informed consent” before being subjected to any course of treatment. But there is a vast, yawning gulf between “informed consent” and a requirement that a pro-life professionals advertise the very procedure they’re trying to persuade people to avoid. There’s nothing uniquely “professional” about the state’s mandated advertisement. It’s simply the state’s speech forced into a private professional setting. If the Ninth Circuit’s reasoning holds, professionals who’ve dedicated their lives to particular religious, cultural, or political causes could see their offices commandeered by the state for alternative expression, their messages undermined by state-mandated “disclosures.”

There are few actions more antithetical to freedom than forcing a citizen to advance a cause he despises.

NIFLA should win its case 9–0. After all, the Supreme Court has already ruled that the state can’t force citizens to transform their private property into a “billboard” for the state’s “ideological message.” The case was Wooley v. Maynard, and the issue was whether citizens of New Hampshire could be required to drive with license plates sporting the state’s motto, “Live free or die.” The Court defined the issue as “whether the State may constitutionally require an individual to participate in the dissemination of an ideological message by displaying it on his private property in a manner and for the express purpose that it be observed and read by the public.”

The answer? A resounding no. The Court ruled that the First Amendment “protects the right of individuals to hold a point of view different from the majority and to refuse to foster, in the way New Hampshire commands, an idea they find morally objectionable.” As I wrote in my amicus brief, California’s actions are worse than New Hampshire’s:

Pro-life professionals, as part of their daily lives, are forced not only to be messengers for an ideological point of view (that it is appropriate for the state to provide abortion access) but even to abet a course of action (calling the listed phone number) that can culminate in the death of an unborn child — the very thing that pro-life pregnancy centers exist to prevent.

I filed the brief on behalf of 41 family-policy councils — institutions comprising professionals who’ve dedicated themselves to the pro-life cause. Many of them labor to change hearts and minds in states where their views are distinctly unpopular, and could easily be censored by the government if NIFLA loses. States like California have lost respect for what the Supreme Court called in Maynard the “individual freedom of the mind.” In these states, there is no higher law than progressive cultural orthodoxy and even dissenting citizens can be conscripted into the ideological crusade.

In recent months, much of the professional commentariat has declared that America is flirting with authoritarianism. I agree with the diagnosis but disagree as to the cause. Donald Trump hasn’t done anything remotely as authoritarian as forcing dissenting citizens to advance his agenda. But that’s what progressive politicians are attempting to do in California and Colorado. There are few actions more antithetical to freedom than forcing a citizen to advance a cause he despises. The First Amendment has stood as a firewall against state efforts to compel speech until now. Will it hold still?


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