Bench Memos

Law & the Courts

Today’s Decision in NIFLA v. Becerra

In an important win for free-speech rights, the Supreme Court ruled today, by a 5-4 vote, that two provisions of California law that were enacted to regulate crisis pregnancy centers violate the First Amendment. Justice Thomas wrote the excellent majority opinion in NIFLA v. Becerra and was joined by the Chief Justice, Justice Kennedy, Justice Alito, and Justice Gorsuch. Justice Kennedy wrote a robust concurring opinion, joined by the Chief, Alito, and Gorsuch. Justice Breyer wrote the dissent, joined by his three liberal colleagues.

Some background:

The so-called Licensed Notice provision requires state-licensed medical facilities that provide pregnancy-related services to disseminate this message to their clients:

California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women. To determine whether you qualify, contact the county social services office at [insert the telephone number].

Under the Unlicensed Notice provision, a facility that is not licensed by the state (and has no licensed medical provider supervising its operations) and that provides pregnancy-related services must post at its entrance, in its client waiting area, and in all of its advertising materials this statement:

This facility is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services.

Here is a quick summary of Justice Thomas’s majority opinion:

1. (a) The Licensed Notice is a content-based regulation of speech and is therefore subject to strict scrutiny.

(b) The Ninth Circuit was wrong to apply lesser scrutiny on the ground that the notice regulates “professional speech” (speech by individuals who provided personalized services and are subject to a licensing or regulatory regime). There is no separate First Amendment category of “professional speech.”

In the two circumstances in which the Court has afforded less protection for professional speech, neither turned on the fact that professionals were speaking. One involved laws that require professionals to disclose factual, noncontroversial information in their commercial speech (Zauderer). The other allows states to regulate professional conduct, even if the conduct incidentally involves speech. Neither applies here. (Slip op. at 9-11.)

(c) The Licensed Notice cannot survive even intermediate scrutiny, much less the strict scrutiny that properly applies. California’s asserted interest—providing low-income women with information about state-sponsored services—is wildly underinclusive. (Slip op. at 14-16.)

2. Whatever the standard that applies to the Unlicensed Notice, California has the burden to prove that it is neither unjustified nor unduly burdensome. It has not met its burden. The Unlicensed Notice imposes a government-scripted, speaker-based disclosure that is wholly disconnected from California’s informational interest.

3.The plaintiffs “are likely to succeed on the merits of their claim” that the provisions violate the First Amendment.

Note that Justice Thomas uses the “likely to succeed” phrase because the case arose in the context of the denial of a preliminary injunction. His opinion in fact sets forth the conclusion that the provisions flat-out violate the First Amendment, so the remand should be for the purpose of entering a preliminary injunction in favor of NIFLA.

Justice Kennedy’s brief concurrence “join[s] the Court’s opinion in all respects” and adds a powerful statement about the viewpoint discrimination that “does appear” to be “inherent in the design and structure” of the provisions:

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.

The California Legislature included in its official history the congratulatory statement that the Act was part of California’s legacy of “forward thinking.” 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.” Wooley v. Maynard, 430 U. S. 705, 715 (1977). It is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders then knew it; to confirm that history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech; and to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for the generations to come. 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.

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

Most Popular

Politics & Policy

Rod Rosenstein’s Resistance

Rod Rosenstein is even a weasel when repudiating his weasel moves. Here (with my italics) is the deputy attorney general’s non-denial denial of a New York Times report Friday that he brainstormed about ousting President Trump in May 2017: The New York Times’s story is inaccurate and factually incorrect. . . ... Read More
Politics & Policy

Fight for Kavanaugh 

The cynics — or, perhaps more precisely, the realists — believed that the Democrats were playing for time in the hopes of finding another accusation against Brett Kavanaugh. The cynics were right. The New Yorker stooped to publish a shoddy story alleging that Kavanaugh exposed himself to a woman while he ... Read More
White House

Trump Stands By ‘Fantastic’ Kavanaugh

President Trump was supportive of his nominee to the Supreme Court during a radio interview set to be broadcast on Monday morning, in which he characterized Brett Kavanaugh as a “fantastic, fantastic man” and called into question allegations of sexual assault. In the interview — recorded on Sunday, ... Read More