American liberals love the First Amendment’s “freedom of speech” clause. They remember their brave forerunners—muckraking journalists, civil rights activists, religious and political dissidents—and venerate the constitutional right that enabled their eventual vindication. Yet it’s striking how often today’s most flagrant desecrations of free-speech rights are perpetrated not by right-wing rubes in Southern school districts but by highly educated and allegedly forward-thinking liberal elites.
Consider NIFLA v. Becerra, a case that came before the Supreme Court on March 20.
The National Institute of Family and Life Advocates (NIFLA), a pro-life group, brought the suit in response to a California law called the FACT Act. It requires pro-life pregnancy centers—organizations that exist to oppose and mitigate the effects of legalized abortion—to post notices that the state provides free and low-cost abortions. The notice reads as follows:
To any ordinary American, this is an instance of the state requiring citizens to make a political speech whose content they abominate. The Supreme Court has a long history of striking down laws that require objectionable speech. In Wooley v. Maynard (1977), for instance, the Court held that New Hampshire could not require drivers to display the state motto, “Live Free or Die,” and in Riley v. National Federation of the Blind (1988), the Court rejected a North Carolina law requiring fundraisers to relay specific information to potential donors.
FACT, the law now at issue, further requires the centers to declare to pregnant women that the center is not licensed by the state of California. This is yet more required speech and almost certainly unconstitutional according to past High Court decisions. But it’s also just nasty: The whole point of state licensing laws is to protect the public from negligent or fraudulent service providers. Does the state believe Californians need protection from crisis pregnancy centers?
Several of the Court’s liberal justices—Elena Kagan, Stephen Breyer, Sonia Sotomayor—seemed during oral arguments to take a skeptical view of the California position, and this suggests that the law will almost certainly be declared unconstitutional. But that doesn’t mean the issue is decided. What about state laws that require abortion providers to specify the health risks of abortion or explain alternatives to it? The Supreme Court’s 1992 decision Planned Parenthood v. Casey famously upheld these “informed consent” laws, but aren’t they the same as California’s law requiring pregnancy centers to explain alternatives to adoption—namely abortion?
The justices seemed to indicate the answer is “No,” but mainly because the California law was so manifestly written to target pro-life pregnancy centers. What if the law were more fairly written? The pro-life side will argue that the cases are completely different inasmuch as “informed consent” explanations take place before a serious medical procedure, and pregnancy centers don’t offer medical procedures. We agree, but the Court won’t answer that question in NIFLA v. Becerra.
The most extraordinary thing about NIFLA v. Becerra is the existence of the FACT Act in the first place. California lawmakers don’t like pro-life pregnancy centers and sought a way to punish them. Why? Because frightened women sometimes wander into these welcoming places mistakenly believing them to be abortion clinics. Some leave with a brighter outlook and a determination not to abort their unborn child. Liberal California lawmakers would rather that didn’t happen. Their remedy was to force pregnancy-center workers to parrot state-sponsored talking points about “free or low-cost” abortion.
If we could compel left-wing California lawmakers to recite their own follies, we’d be sorely tempted. But thank God for the First Amendment.
