On Tuesday the U.S. Supreme Court heard arguments on the constitutionality of a California law requiring pro-life pregnancy clinics to inform women about the availability of state-sponosored abortions.
The lawyers were frequently interrupted by the justices asking pointed questions. One by Justice Samuel Alito was particularly concerning. He asked about California’s effort to create a new category of speech called professional speech, which would have lesser First Amendment protection than other speech:
I mean, this case is very important in itself, but adopting this new category of speech would have far-reaching consequences.
And I — I — I’d like you to explain why that is consistent with Stevens and other cases where the Court has recently said we are not going to recognize any new categories of unprotected speech and how you would define the boundaries of professional speech.
And there have been a lot of cases on — there have been some cases on this in the lower courts. But just to take a couple of examples: Journalists are professionals. So would they be subject to this standard? How about economists? How about climate scientists?
How about a fortune teller? The Fourth Circuit said that a fortune teller is a — is a professional. How about somebody who writes an advice column for parents?
I mean, wouldn’t we be getting into very dangerous territory if we do this?
The lawyer replied that the such laws would not not include economists or journalists, but would include doctors and lawyers and maybe accountants.
And why the distinction? The state is commandeering the free speech of pro-life pregnancy centers to convey its message, why not journalists?
Justice Neil Gorsuch offered this:
Well, if it’s the first kind of statute, then why shouldn’t this Court take cognizance of the state’s other available means to provide messages? If — if it’s about just ensuring that everyone has full information about their options, why should the state free-ride on a limited number of clinics to provide that information?”
Justice Anthony Kennedy asked whether a pro-life clinic that posts a billboard saying “Choose Life” would have to comply with the law. The answer was, yes. Actually 29 words in the same size font. It was not made clear whether that included posting the message in 13 languages.