The Dangerous Supreme Court Case Nobody Is Talking About

supreme court justice judicialLate Tuesday afternoon, I filed an amicus brief in one of the most dangerous free-speech cases in a generation. For the second time this term, the Supreme Court is considering whether the government can compel Americans to express or support ideas they find repugnant. The first case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, was the talk of the nation. This case, National Institute of Family and Life Advocates (NIFLA) v. Becerra, has almost entirely escaped public attention.

That’s a mistake. If anything, the violation of the First Amendment in the NIFLA case is more egregious, and the implications potentially more far-reaching. As readers almost certainly recall, the issue in Masterpiece Cakeshop was whether the state of Colorado could compel a Christian baker to design a cake for a gay wedding. One of the state’s principal arguments against the baker’s First Amendment claim was that designing a custom cake wasn’t an expressive act, so forcing him to design a cake wasn’t compelled speech.

The NIFLA case, however, is unquestionably about compelled speech. The state of California has enacted a law, the so-called FACT Act, that requires pro-life crisis-pregnancy centers to prominently place a notice informing clients that California offers low-cost and even free abortions to women who qualify and providing them a phone number that grants quick access to abortion clinics.

In other words, California is requiring pro-life professionals — people who’ve dedicated their lives to protecting the unborn by offering pregnant mothers alternatives to abortion — to advertise state-sponsored abortions. California is making this demand even though it has ample opportunity to advertise state services without forcing pro-life citizens to do so. The state can rent billboard space on the very streets where crisis-pregnancy centers are located. It can hand out leaflets on the sidewalk. It can advertise on television and the radio. It can advertise on the Internet or social media. But rather than using its own voice, it is co-opting the voices of its pro-life citizens, forcing them to join its pro-abortion crusade.

And the Ninth Circuit Court of Appeals held that the FACT Act is constitutional. To validate California’s oppressive act, its decision carved out a dangerous First Amendment exception for what it deemed “professional speech” — “speech that occurs between professionals and their clients in the context of their professional relationship” — and ruled that the state had much greater leeway in regulating, for example, doctor/patient communication.

There are circumstances where such regulation is appropriate. Doctors typically must explain the risks of medical procedures, for example, and a patient must give “informed consent” before being subjected to any course of treatment. But there is a vast, yawning gulf between “informed consent” and a requirement that a pro-life professionals advertise the very procedure they’re trying to persuade people to avoid. There’s nothing uniquely “professional” about the state’s mandated advertisement. It’s simply the state’s speech forced into a private professional setting. If the Ninth Circuit’s reasoning holds, professionals who’ve dedicated their lives to particular religious, cultural, or political causes could see their offices commandeered by the state for alternative expression, their messages undermined by state-mandated “disclosures.”

NIFLA should win its case 9–0. After all, the Supreme Court has already ruled that the state can’t force citizens to transform their private property into a “billboard” for the state’s “ideological message.” The case was Wooley v. Maynard, and the issue was whether citizens of New Hampshire could be required to drive with license plates sporting the state’s motto, “Live free or die.” The Court defined the issue as “whether the State may constitutionally require an individual to participate in the dissemination of an ideological message by displaying it on his private property in a manner and for the express purpose that it be observed and read by the public.”

The answer? A resounding no. The Court ruled that the First Amendment “protects the right of individuals to hold a point of view different from the majority and to refuse to foster, in the way New Hampshire commands, an idea they find morally objectionable.” As I wrote in my amicus brief, California’s actions are worse than New Hampshire’s:

Pro-life professionals, as part of their daily lives, are forced not only to be messengers for an ideological point of view (that it is appropriate for the state to provide abortion access) but even to abet a course of action (calling the listed phone number) that can culminate in the death of an unborn child — the very thing that pro-life pregnancy centers exist to prevent.

I filed the brief on behalf of 41 family-policy councils — institutions comprising professionals who’ve dedicated themselves to the pro-life cause. Many of them labor to change hearts and minds in states where their views are distinctly unpopular, and could easily be censored by the government if NIFLA loses. States like California have lost respect for what the Supreme Court called in Maynard the “individual freedom of the mind.” In these states, there is no higher law than progressive cultural orthodoxy and even dissenting citizens can be conscripted into the ideological crusade.

In recent months, much of the professional commentariat has declared that America is flirting with authoritarianism. I agree with the diagnosis but disagree as to the cause. Donald Trump hasn’t done anything remotely as authoritarian as forcing dissenting citizens to advance his agenda. But that’s what progressive politicians are attempting to do in California and Colorado. There are few actions more antithetical to freedom than forcing a citizen to advance a cause he despises. The First Amendment has stood as a firewall against state efforts to compel speech until now. Will it hold still?


From - National Review - by David French

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2 years ago

California doing this & the court there upholding it is no suprise, but the they also require abortion doctors & clinics prominently display information & phone #s of right to life counseling? Just forcing the one side should have required the invalidation of the law. These judges would continually choose to violate their oath of office need to be removed!!!

2 years ago

This case is probably one of the most EASY to define/decide. I own a business (HR Administration). I can REFUSE to do business with ANYONE I WANT, AND FOR ANY REASON I CHOOSE TO GIVE (but don’t have to). PERIOD. Ever see those signs that say “We reserve the right to refuse or deny service.” So if you want a cake decorated, and your first choice of business said NO (FOR WHATEVER REASON), find another one. PERIOD.

John Ed
2 years ago

Infant sacrifice now state mandated. What happened to love?

2 years ago

My heart is heavy because of the extreme negativity that has my nation in a vise grip of death. Death for all that is right and moral, death for those who dare to voice their opposing opinions against all that the political correctness police are cramming down our throats, death to the very fabric of tears, sweat and bloodshed that our founding fathers bore to establish a nation of free and conscientious people who choose to worship the very God that looked favorably on our nation at its founding. Yes, I am heavy of heart because I know that once… Read more »

David Taylor
2 years ago

I can say one thing about California, they now have Al Gore. Maybe the part he is on will fall in the ocean. We can always hope.

Burton Pauly
2 years ago

NOONE SHOULD have to devalue their christian beliefs. And forced to serve anyone at any time if they don’t have the same ethics, or faith values..

2 years ago

A coupe years back when the Supreme Court legalized homosexual marriage Anthony Kennedy in his majority ruling gave lip service to people who objected to homosexuality on religious (i.e biblical) grounds. The four dissenting judges (Roberts, Alito, Scalia and Thomas all wrote dissents in which their chief concern was the right of people to not participate in certain activities (such as baking cakes) on religious grounds. Kennedy read their dissents and pooh poohed them. Now the disease has come home to roost. My main concern is Anthony Kennedy. Sotamayor is a “catholic” and Ginsberg is Jewish but that is irrelevent.… Read more »

Wayne Peterkin
2 years ago

My 10 year-old grandkids have more sense, are more rational, than the 9th Circuit has ever been. They make rulings based on their ideology rather than on law. Hopefully they will be overturned once again and the SCOTUS should spank the 9th severely.

2 years ago

If this thing would pass, wouldn’t it also mean that the pro abortion places would also have to put signs pointing out pro-life places?
What’s good for the goose, is also good for the gander!!!!!!

Katherine Teissere
2 years ago

So glad I no longer reside in the insane state of California.

2 years ago

There is a way around this sign, go ahead and display the sign with the print in the background and either a middle finger or the circle with a line through it in the foreground. Technically you would be following the mandate at the same time telling the lawmakers to piss off.

2 years ago

I have a question can the voters petition the state for a vote to ban abortion or to stop state and federal funds from being used

2 years ago

We can write to Senators and Congressmen, the President etc. But how do you protest the Courts? Scary! Please pray for the unborn babies, and their parents, and the USA. God please forgive us.

Anita Kulvinskas
2 years ago

Of course, the NInth District Court of Appeals upheld the FACT ACT. That is the presiding liberal judge Obama appointed, and also his golfing buddy in Hawaii. They are great friends. He appointed many judges around the country to uphold his laws and views, No surprise but it will be struck down in the Supreme Court.

Hal .
1 year ago

It is called ” asleep @ the wheel ” , the politician’s that are suppose to be against these type of practices , just sit tight , not say anything and let the ones for it succeed .

Carol E Wright
2 years ago

I agree with your arrival and freedom of speach. Plus I disagree that any state can willy nilly change our constitution. I was born in San Diego and it has become so much like Tiajuana Mexico I don’t want to even visit. However Oregon and Washington are just as rediculous. Carol Wright

Jack Haskins
2 years ago

although I am pro life in all cases except rape incest and saving the life of the mother, I have to take exception to the point of this article. I see little difference between a pro life clinic having to post the availability of state sponsored abortions and cigarette and alcohol manufacturers having to post the government warnings on their packaging that are required. In both cases, the provider is forced by the government to advertise the state sponsored objections to their products or services.

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