Forced speech is not free speech

On Tuesday the U.S. Supreme Court will hear a case — NIFLA v. Becerra — that could answer the question of whether forcing speech on professionals is a violation of the free speech guaranteed by the First Amendment.

NIFLA is the National Institute of Family and Life Adcovocates, which gives legal advice to pro-life pregnancy centers, and Becerra is Xavier Becerra, the attorney general of California.

At issue is a California law, called the Reproductive FACT Act, that requires “crisis pregnancy centers” to post notices encouraging women to contact the state to receive information on free or low-cost abortions — forced speech.

According to a synopsis of the case posted the high court website: “The Act also burdens pro-life religious unlicensed centers’ speech by requiring them to place extensive disclaimers in large fonts and in as many as 13 languages in their ads, which significantly burdens their ability to advertise. But the Act exempts most other licensed medical and unlicensed non-medical facilities, such as abortion providers, hospitals, and other healthcare facilities, as well as federal health care providers. The Ninth Circuit candidly admits that it upheld the Act amidst a ‘circuit split’ with decisions by the Second and Fourth Circuits over how to scrutinize regulations of speech by medical professionals on controversial health issues. The ruling also conflicts with a recent decision by the Eleventh Circuit.”

The question before the court is: “Whether the Free Speech Clause or the Free Exercise Clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.”

In an amicus brief filed on behalf of the Cato Institute Ilya Shapiro argues that the law clearly is a free speech violation due to requiring certain content.

Shapiro writes, “The Act’s requirements are both facially content-based — because they compel speech — and discriminate based on view- point. Both aspects require strict scrutiny, which the disclosure requirements cannot survive because (1) ex- emptions to the disclosure requirements illustrate that they are underinclusive, and (2) any number of other methods for distributing the same information would not impose significant burdens on speech.”

Whatever one’s stance on the issue of abortion is irrelevant. This is clearly a free speech issue because it dictates the content of one’s speech, no matter the beliefs, knowledge and conscience of the speaker.

Shapiro reminds the court that it previously has rejected mandated recitation of selective facts, explaining, that “either form of compulsion burdens protected speech. Thus, we would not immunize a law requiring a speaker favoring a particular government project to state at the outset of every address the average cost overruns in similar projects, or a law requiring a speaker favoring an incumbent candidate to state during every solicitation that candidate’s recent travel budget.”

Shapiro then goes on to cite an example of the “truthful” speech that could be compelled if the California law is upheld:

Could a state have required physicians to tell any pregnant patient without health insurance who was contemplating an abortion that she should vote for Barack Obama in the 2012 presidential race if she was concerned about getting access to low-cost health insurance for herself and her unborn child through a state health-insurance exchange? This statement is truthful, non-misleading, and relevant to the patient’s medical decision.

If the state wishes to to convey its message about abortion availability it has numerous ways to do so without forcing certain people to be the conduit for it.



9 comments on “Forced speech is not free speech

  1. Anonymous says:

    How about forcing women to endure unnecessary ultrasounds and being forced to view the result?

    Does that violate the freedom to not be subjected to unwanted speech? More than 8 states require this now.

    “The bill requires a physician or qualified technician to perform the ultrasound and position the screen so the woman may view the images. The medical staff will be required to describe what the images show, including the size of the fetus and any organs or appendages visible.”

  2. Anonymous says:

    At least one other take exists on this.

    “It’s estimated that there are more than 2,700 fake women’s health centers — sometimes called crisis pregnancy centers — around the country. Fake women’s health centers are everywhere in the U.S. — more common than Target, Chipotle, or Papa Johns. These clinics may often look and describe themselves in ways that lead women to believe they are health-care facilities where the full range of contraceptive methods can be accessed.

    However, they are typically not staffed by medical professionals and offer false, incomplete, or inaccurate medical information and few if any clinical services. California’s law, the FACT Act, seeks to ensure that these fake clinics cannot deceive the public by providing transparency by requiring a notice informing the public that such a place is not a licensed medical facility nor is it supervised by licensed medical provider.”

  3. Steve says:

    If one place is required to display and advertise in a certain way, all places should be equally required to do so. Singling out one area of perspective for certain requirements is contrary to the principle of freedom of speech.

  4. Rincon says:

    Again, Steve’s right (you are taking all of the fun out of this, you know). However, this is not a freedom of speech issue. It’s perfectly reasonable to require women’s crisis pregnancy centers to advise women of all reasonable options, as decided by society just as MD’s are required to give patients all of their reasonable options for an illness. It is, however, a freedom of religion issue. Should a Bible thumper be required to advertise for abortions, against their ethical standards?

    My own answer is that although they should be required to advise of the option, they should be free to discourage it and to refer women elsewhere to find more information regarding abortion. They should not be free to misinform or deceive, even if only by effect without proof of intent. All other health care professionals have this same burden.

  5. Anonymous says:

    Isn’t a warning label, required by the FDA or other agencies “forced speech”?

    Since obviously the answer is yes, the question is what’s the purpose? Or for our “constitutionalists” where’s the authority?

    As we all know, the answer is The Commerce Clause allows Congress to regulate commerce which includes “crisis centers”.

    In the sense that commercial speech has never been afforded the same protection as other speech, and given the governments authority to make reasonable regulations on businesses that affect interstate commerce, “forcing” these places to include language that identifies these mostly non-medical facilities and their operators, to disclose that fact, and include information a person visiting those centers might have, is a reasonable regulation pursuant to their power to do so.

  6. Steve says:

    Since the labels are required everywhere equally, it is not forced speech. It is level and properly informative to all.

  7. Anonymous says:

    Forced Speech Thomas? May we be treated to a column anytime soon chastising the group that passed this?

    “The Arizona state House of Representatives passed a bill requiring women to provide the reason why they’re obtaining an abortion.

    The bill, passed on party lines Monday, would require women to fill out an extensive questionnaire about their reasons to obtain the abortion, HuffPost reported.

    Those questions include whether the woman is seeking an elective procedure for economic reasons or do not want a child, if the pregnancy could harm their health or the fetus’s health or if the pregnancy was the result of rape or incest.”

  8. Anonymous says:

    Apparently Thomas, in certain cases (read far right wing) forced speech is INDEED free speech:

    “The Supreme Court has declined to hear a challenge to a Kentucky law that obligates doctors to show and describe ultrasounds to women who seek abortions, even if patients object.

    The justices’ decision not to take up the case leaves intact a federal appeals court ruling that upheld the law against a First Amendment challenge that claimed the measure abridged doctors’ freedom of speech.

    The Kentucky Ultrasound Informed Consent Act requires physicians, prior to an abortion, to perform an ultrasound, describe and display its images to the patient, and make the fetal heartbeat audible.”

    I hope that this will warrant some caustic remarks in a long column. Really looking forward to it.

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