After successfully urging the United States Supreme Court to review a decision of the California-based U.S. Court of Appeals, Ninth Circuit, Keiter Appellate Law filed a brief with the United States Supreme Court on behalf of California pregnancy centers. The Supreme Court agreed with the arguments presented and reversed the Ninth Circuit Court of Appeal’s decision. NIFLA v. Beccera, 138 S.Ct. 2361 (2018).
Compelled Expression of the State’s Message
The Supreme Court appeal concerned the First Amendment issue of compelled speech. The centers worked to persuade pregnant women to deliver rather than abort their children, and assisted their childbirth efforts. California enacted a law forcing the centers to work against their very purpose by advertising – in up to 13 languages – how these women could get an abortion subsidized by the state. The state analogized this to law requiring businesses to describe the products or services they offer, like having food producers disclose the ingredients of their products, or how many calories they contain, so consumers would know what they were getting.
But the “disclosure” was for a service the pregnancy centers did not provide, and wished to discourage, so the law did not resemble a rule requiring McDonald’s to inform customers that a Bacon Smokehouse Burger has 840 calories. Rather, the law resembled one forcing a vegan who had opened a restaurant to persuade diners to abstain from eating meat to post on her door directions to the nearest McDonald’s – with coupons. Even the most devoted carnivore could perceive the violation of personal conscience.
Keiter Appellate Law noted in its Supreme Court brief that the First Amendment protects the right not to speak even more the right to speak. West Virginia State Board of Educ. v. Barnette, 319 U.S. 624, 633 (1943). Barnette famously protected a student’s right not to salute the flag, and the Supreme Court followed it in Wooley v. Maynard, 430 U.S. 705 (1977), which held New Hampshire could not compel a driver to display a license plate proclaiming the state motto, “Live Free or Die” against his conscience.
Justice Anthony Kennedy’s NIFLA concurrence thus cited the same page from Wooley that Keiter Appellate Law cited:
[I]t 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, 430 U.S. 705, 715] 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.
Keiter Appellate Law’s brief observed the free speech violation was even worse in NIFLA than Wooley. In Wooley, every New Hampshire driver received a license plate from the state, and thus knew the “Live Free or Die” message was the state’s, not Mr. Maynard’s. But because very few people were aware that California Health and Safety Code section 123472, subdivision (a)(1) prescribed the notice, many visitors ascribed the message to the centers themselves, and left with the “belief they were referred to an abortion provider” by them. The Scharpen Foundation, Inc. v. Harris, No. RIC1514022 (Cal. Super.Ct. Oct. 30, 2017) 11.
The Ninth Circuit Court of Appeals decision had found there was no improper viewpoint discrimination, because the law applied “to all clinics, regardless of their stance on abortion or contraception.” NIFLA v. Harris, 839 U.S. 823, 836 (9th Cir. 2016) (Harris). But the universal application of the flag-salute law did not save it in Barnette, and the universal application of the license plate requirement did not save it in Wooley. Viewpoint discrimination concerns what is said, not just who says it. It would be as if the state could justify demanding all drivers display a license plate affirming “President Donald Trump is Making America Great Again,” on the ground that the rule applied to everyone, Republicans, Democrats, and Independents alike, “regardless of their stance” on the president.
Inconsistently, the Ninth Circuit Court of Appeals had itself struck down a law that similarly imposed viewpoint-discrimination in the medical context. The Court of Appeals found unconstitutional a law barring doctors from recommending medicinal marijuana to their patients, even though the law applied to all doctors, regardless of their stance on marijuana. Conant v. Walters, 309 F.3d 629 (9th Cir. 2002). Conant emphasized “Being a member of a regulated profession does not . . . result in a surrender of First Amendment rights.” Id. at 637. But when the subject was not marijuana but abortion, the Ninth Circuit was less protective of professionals’ freedom of speech: “a licensed professional does not enjoy the full protection of the First Amendment . . . .within the practice of the profession.” Harris, 839 F.3d at 839.
In any event, the Supreme Court rejected the Ninth Circuit Court of Appeal’s justification that the obligation to advertise the availability of state-funded abortions applied universally. The Supreme Court observed there were nearly 1,000 comparable clinics in the state, but most of those clinics are excluded from the requirement. Such “[u]nder inclusiveness raises serious doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint.” NIFLA, 138 S.Ct. at 2375-76, italics added.
The Chilling Effect on the Centers’ Own Speech
Keiter Appellate Law actually added an additional line of argument, which neither the petitioner nor 29 of the 30 amicus curaie briefs (including that of 144 Members of Congress) included. Keiter Appellate Law contended the law not only compelled the centers to express the contrary state message, but also chilled the centers’ capacity to express their own view, citing Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 256, and Arizona Free Enterprise Club’s Freedom PAC v. Bennett, 564 U.S. 721 (2011). In its defense of the law, the California Attorney General specifically addressed these cases in an (ultimately unsuccessful) attempt to refute their application to this case.
Miami Herald concerned a Florida law requiring newspapers that criticized a political candidate to give the candidate a “right of reply” on the newspaper’s own pages. There were many parallels with the challenged California law, as to how, where, and why to present the compelled message.
Just like the Florida law, which mandated the newspaper display the reply “in as conspicuous a place and in the same kind of type” as the newspaper’s own speech, California demanded where and with what size font the centers present the state message – in up to 13 languages. Just as the newspaper itself was the most effective medium for rebuttal, California asserted that compelling speech from the centers was the “most effective way” to communicate its message. And just as Florida justified its requirement as promoting “an electorate informed about the issues,” so to did California justify its law as necessary “to ensure that women are able to receive . . . information about [family planning] services.”
But the value of an informed electorate did not justify abridging a speaker’s own expression, just as the state could not abridge a party’s freedom to control its expression for the sake of efficiency. See NIFLA, 138 S.Ct. at 2376, citing Arizona Free Enterprise, 564 U.S. 721, 747. Miami Herald observed that forcing the newspaper to communicate the opposing message left the paper with less page space and money with which to present “other material the newspaper may have preferred to print.” It thus not only forced to paper to express a contrary view but restricted the paper from expressing its own.
The United States Supreme Court in Miami Herald found the Florida law not only made it harder for papers to express their position but also deterred them from doing so. The law compelled a reply only when a newspaper published the initial criticism, so papers could avoid the forced message by avoiding the criticism in the first place. “Government-enforced right of access inescapably ‘dampens the vigor and limits of the variety of public debate.’ ” Miami Herald, 418 U.S. at 257, quoting N.Y. Times v. Sullivan, 376 U.S. 254, 179 (1964). Similarly, pro-life individuals could avoid having to advertise and facilitate abortion, but only if they censored their own advocacy.
The United State Supreme Court in NIFLA recognized how Miami Herald, 418 U.S. 241, 256,applied to the case, and cited it in its second paragraph of analysis: “By compelling individuals to speak a particular message, such notices “alte[r] the content of [their] speech.” NIFLA, 138 S.Ct at 2371. And the Court concluded with reference to the Miami Herald principle: the law “imposes an unduly burdensome disclosure requirement that will chill their protected speech.” Id. at 2378.
The Dissent and the Limits of Compelled Disclosure
Four justices dissented in NIFLA. Justice Breyer’s dissent cited the Supreme Court’s decision in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), which upheld state law requiring doctors to describe to patients the risks of abortion before performing one. For the most part, the citation is inapt. The law often requires doctors to describe the operations they perform and medicine they prescribe (and their side effects) – just as the law directs food producers to disclose their ingredients. Therefore, doctors could be ordered to provide “truthful, non misleading information about the nature of the procedure, the attendant health risks and those of childbirth, and the ‘probable gestational age’ of the fetus.” Casey, 505 U.S. at 882 (emphasis added). Such medical information could help produce an “informed consent.” The California law differed from “informed consent” laws because the pregnancy centers were not performing abortions, and the compelled disclosure did not concern medical issues but the legal availability and financial affordability of abortions.
Justice Breyer’s strongest point was that Casey permitted a state to compel doctors to describe not just the medical details of the procedure but also information about adoption (and child support). “[A] Constitution that allows States to insist that medical providers tell women about the possibility of adoption should also allow States similarly to insist that medical providers tell women about the possibility of abortion.” NIFLA, 138 S.Ct at 2388 (Breyer. J. dissenting.) But doctors routinely provide information about alternatives to a proposed medical procedure, which adoption is not. In fact, the Pennsylvania law approved in Casey expressly required informing patients about the physical risks of childbirth too. If it nevertheless appeared that the law discouraged abortion more than birth, “information relating to fetal development and the assistance available should she decide to carry the pregnancy to full term is a reasonable measure to ensure an informed choice,” and this is true “even when in so doing the State expresses a preference for childbirth over abortion. Casey, 505 U.S. at 883. The Constitution does not require complete neutrality by the state between childbirth and abortion. Maher v. Roe, 432 U.S. 464 [state could choose to defray poor women’s expenses incident to childbirth but not those incident to abortion].
Justice Breyer was on weaker ground in predicting the demise of myriad laws compelling speech to promote public health and safety, from informing parents about vaccinations and child seat belts to disclosing exit signs for fire safety. Justice Breyer himself recognized the distinction in a recent concurring opinion:
If, for example, a challenged government regulation negatively affects the processes through which political discourse or public opinion is formed or expressed (interests close to the First Amendment’s protective core), courts normally scrutinize that regulation with great care. . . . If, however, a challenged regulation simply requires a commercial speaker to disclose “purely factual and uncontroversial information,” courts will apply a more permissive standard of review.
Expressions Hair Design v. Schneiderman, 137 S.Ct. 1144, 1152 (2017) (Breyer, J. concurring).
Courts may thus strike down laws manipulating the abortion debate while preserving fire safety warnings.
Interestingly, and somewhat disturbingly, the justices’ positions on the case mostly tracked their substantive positions on abortion, even though the legal question concerned not abortion but speech. To be sure, there is some connection to the larger abortion question. Because it is easier for states to regulate conduct than speech, a decision deeming access to abortion so important as to justify forcing opponents to advertise abortions could even more easily justify forcing them to perform abortions.
But the case was really about the First Amendment. The constitutional question would have been the same if a state like Texas had created a law targeting all sporting goods shops that choose not to sell firearms, and ordered them to tell customers where they could buy them. One wonders whether each of the nine justices would have voted the same way as they did in NIFLA.