Liberals love the First Amendment’s “freedom of speech” clause. They rightly remember their forerunners—liberal journalists, civil rights activists, religious and political dissidents—and venerate the constitutional right that eventually vindicated these brave citizens. 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, the case that came before the U.S. Supreme Court on Tuesday.
The National Institute of Family and Life Advocates, a pro-life group, brought the suit in response to a California law called the FACT Act. The state law 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 person, that’s an instance of the state requiring citizens to recite political speech whose content they abominate. But 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 specified factual information to potential donors.
Another part of the California law requires the pregnancy centers to declare to counselees that the center is not licensed by the state of California. That’s yet more required speech and almost certainly unconstitutional according to past high court decisions. It’s also just nasty: Is the point of state licensing laws to protect the public from a local crisis pregnancy center?
Several of the court’s liberal justices—Elena Kagan, Stephen Breyer, Sonia Sotomayor—seemed to take a skeptical view of the California position, which 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?
On Tuesday the justices seemed to indicate that the answer is “no,” but mainly because the California law is so manifestly written to target pro-life pregnancy centers. What if the law were more fairly written and applied? The pro-life side argues 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. Often they 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” abortions.
We’re sorely tempted to compel left-wing California lawmakers to recite their own follies. Thankfully the First Amendment doesn’t allow that.
