National Institute of Family and Life Advocates v. Becerra
138 S.Ct. 2361 (2018)
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Rule of Law:
Content-based laws compelling speech, including those directed at professionals, are presumptively unconstitutional and subject to strict scrutiny. The First Amendment does not recognize 'professional speech' as a distinct category of speech receiving less protection, and any compelled disclosures, even under a lesser standard, cannot be unjustified or unduly burdensome.
Facts:
- California enacted the Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act) to regulate 'crisis pregnancy centers.'
- Crisis pregnancy centers, including those represented by the petitioner NIFLA, are typically pro-life organizations that aim to discourage women from having abortions.
- The FACT Act imposed a 'licensed notice' requirement on licensed clinics that primarily serve pregnant women.
- This notice required the clinics to inform clients that California provides free or low-cost services, including contraception and abortion, and to provide a contact telephone number.
- The FACT Act also imposed an 'unlicensed notice' requirement on unlicensed centers providing certain pregnancy-related services.
- This notice required the unlicensed centers to state that they are not licensed as medical facilities by the State of California and have no licensed medical provider on staff.
- The petitioners objected to being compelled to deliver these messages, arguing they contradict their core pro-life beliefs and mission.
Procedural Posture:
- The National Institute of Family and Life Advocates (NIFLA) and two crisis pregnancy centers sued the Attorney General of California in the U.S. District Court.
- The plaintiffs alleged the FACT Act's notice requirements violated their First Amendment free speech rights and moved for a preliminary injunction.
- The District Court, a trial court, denied the motion for a preliminary injunction.
- The plaintiffs (appellants) appealed to the U.S. Court of Appeals for the Ninth Circuit, an intermediate appellate court.
- The Ninth Circuit affirmed the District Court's denial of the preliminary injunction, holding that the licensed notice was a regulation of 'professional speech' subject to lower scrutiny and that the unlicensed notice survived any level of scrutiny.
- The U.S. Supreme Court granted the petitioners' writ of certiorari.
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Issue:
Do the California FACT Act's notice requirements, which compel licensed crisis pregnancy centers to provide information about state-sponsored abortion services and unlicensed centers to state they are not licensed medical facilities, violate the First Amendment's free speech clause?
Opinions:
Majority - Justice Thomas
Yes, the California FACT Act's notice requirements likely violate the First Amendment. The licensed notice is a content-based regulation of speech that alters the speakers' message by compelling them to provide information about abortion, a service they oppose. The Court has never recognized 'professional speech' as a separate category receiving less First Amendment protection. The notice does not qualify for the lesser scrutiny of commercial speech disclosures under Zauderer because it concerns a controversial topic, not just factual and uncontroversial information about the speakers' own services. Even under intermediate scrutiny, the licensed notice fails because it is wildly underinclusive. The unlicensed notice is also unconstitutional because California failed to present evidence of a non-hypothetical harm it remedies, and the requirement is unduly burdensome, particularly in advertising where it would drown out the facility's own message.
Concurring - Justice Kennedy
Yes, the law violates the First Amendment. This case is a paradigmatic example of viewpoint discrimination. The FACT Act's design, structure, and underinclusive application suggest that the state targeted these pro-life centers because of their beliefs. The government is forcing individuals to be an instrument for fostering an ideological point of view they find unacceptable, compelling them to contradict their most deeply held beliefs. Governments must not be allowed to force persons to express a message contrary to their deepest convictions, as doing so imperils the freedoms of speech, thought, and belief.
Dissenting - Justice Breyer
No, the California FACT Act's notice requirements do not violate the First Amendment. The majority's broad approach to content-based speech threatens to invalidate a wide range of ordinary disclosure laws. The licensed notice is a reasonable regulation consistent with Planned Parenthood v. Casey, which allowed states to require doctors to inform patients about alternatives to abortion. If states can require information about adoption, they can also require information about abortion; the principle should be applied even-handedly. The unlicensed notice is a permissible and reasonable measure to prevent consumer deception by ensuring women know when they are not receiving care from licensed medical professionals. Any claims of the notice being unduly burdensome should be addressed in as-applied challenges, not a facial invalidation of the statute.
Analysis:
This decision significantly curtails the government's power to compel speech from professionals by rejecting the 'professional speech doctrine' that had been adopted by several circuit courts. It clarifies that speech by professionals is not a distinct, less-protected category, and content-based regulations targeting it are subject to the same high level of scrutiny as other speech. The ruling makes it substantially more difficult for states and local governments to regulate crisis pregnancy centers through mandated disclosures, especially those concerning abortion. It also reinforces that even under lower scrutiny, the government bears the burden of proving that compelled disclosures are justified and not unduly burdensome, thereby strengthening protections for private speakers against compelled government messaging.
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