Free speech wins

In a much anticipated decision, NIFLA v. Becerra, the U.S. Supreme Court ruled 5-4 this morning against a California law that forced pro-life centers to advertise abortion services.

Justice Clarence Thomas, writing for the majority, wrote in the opinion, “The FACT Act unduly burdens free speech. ... It targets speakers, not speech, and imposes an unduly burdensome disclosure requirement that will chill [the petitioner’s] protected speech.”

The court remanded the case, sending it back to the lower court “for further proceedings consistent with this opinion.” Justices Roberts, Kennedy, Alito, and Gorsuch concurred. Justices Breyer, Ginsburg, Sotomayor, and Kagan were in dissent.

The case began in 2015 when the California Legislature passed the Reproductive FACT Act—FACT stands for freedom, accountability, comprehensive care, and transparency. The Act requires pro-life centers to advertise information about abortion options. They had to include phone numbers for county offices that refer women to Planned Parenthood or other abortion centers. The law also required unlicensed centers to post in 13 different languages disclaimers that their services did not include medical help.

On behalf of pro-life centers, the National Institute of Family and Life Advocates (NIFLA), sought to prevent the FACT Act from taking effect. A district court denied its motion and the 9th U.S. Circuit Court of Appeals agreed with the lower court. After NIFLA filed for certiorari, the Supreme Court took on the case in November 2017.

In the opinion, Thomas noted the heavy burden the FACT Act placed on pro-life messages. For example, a billboard simply stating “Choose Life” would have to be surrounded with a 29-word statement in 13 different languages, obscuring the billboard’s intended message.

“The licensed notice plainly ‘alters the content of petitioners’ speech,’” Thomas wrote, highlighting the contradiction of forcing pro-life organizations to advertise abortion.

The ruling is a win for pro-life organizations everywhere and may have implications for the protection of free speech beyond pro-life issues.

“Speech is not unprotected merely because it is uttered by ‘professionals,’” Thomas wrote, noting that “regulating the content of speech,” professional or not, “pose[s] the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information.”

Michael Farris, who argued the case before the high court, said, “The other side really went for astonishing limitations on all kinds of nonprofit organization speech, and it got slapped down.”

Farris, president and CEO of Alliance Defending Freedom, called the ruling “as broad a protection of free speech as you can get.”

Roland Warren, president and CEO of the pro-life organization CareNet, called the Reproductive FACT Act a way for the state to discriminate based on belief systems.

“Even in an age where more and more people are trying to compel, control, or silence speech, the Supreme Court upheld the idea that is central to our nation—that we need to be protecting free speech,” he said.

Warren is optimistic that this ruling, as well as the ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission, will set a precedent for upholding free speech. He pointed out that not every individual or organization has the resources to go through a costly and uncertain legal battle.

“We’re hopeful that lower courts will take guidance from the Supreme Court and smack down these issues much more quickly,” Warren said.

Other courts have struck down similar laws in Texas, Maryland, and New York City. Other cases are still pending over similar laws in Hawaii and Illinois, but this message from the highest court in the land places those laws on shaky ground.