Justices ask questions about California law requiring abortion information

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.

Would this billboard have to include a message on where to get an abortion under California law? Yes.


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.



Editorial: PERS should stop trying to hide public records

The Public Employees’ Retirement System should stop wasting taxpayer money and release the records of Nevada public employee retiree payments as the courts previously ordered them to do.
The Reno Gazette-Journal sued for these records in 2013 and won in the state Supreme Court, which found the records are clearly covered under the state public records law. The records were released, but the very next year PERS changed how their files are maintained in an obvious ruse to dodge the clear meaning of the court ruling. PERS now says their files do not contain names of retirees, but only Social Security numbers, which are confidential. They also say the law does not require them to create a new document from existing computer files, even though a past state Supreme Court in another case required just such a document creation.
Nevada Policy Research Institute sued PERS​ and the Supreme Court heard the case this past week.
​This past summer District Court Judge James Wilson spelled out clearly his rationale for requiring the records to be released: “Considering the purpose of the NPRA (Nevada Public Records Act), to foster democratic principles by providing member of the public with access to public books and records; the legislative mandate that courts construe the NPRA liberally to carry out this important purpose; the legislative mandate that any exemption, exception or balancing of interests which limits or restricts access to public books and records by members of the public must be construed narrowly; the lack of evidence that producing the requested information, retiree name, years of service credit, gross pension benefit amount, year of retirement, and last employer would require unreasonable demands or costs on PERS; the fact that PERS altered its procedure in providing information to its actuary to eliminate the names of retirees in part because of the Reno Newspapers decision, the court concludes that PERS does have a duty to create a document that contains the requested information.​”
​During this past week’s hearing Chief Justice Michael Douglas suggested that PERS had “gone out of its way to violate the spirit of the law.” Indeed it has.
All NPRI is seeking is ​ retiree name, payroll amount, date of retirement, years of service, last employer, retirement type, original retirement amount, and cost of living increases.
PERS argues there is some vague possibility of identity theft or fraud if this information is released, though the courts have ruled such supposition cannot outweigh the public’s right to know how their tax dollars are spent.
In fact, the Supreme Court has all ready addressed and adjudicated this in the Reno newspaper suit in 2013, saying, “Because PERS failed to present evidence to support its position that disclosure of the requested information would actually cause harm to retired employees or even increase the risk of harm, the record indicates that their concerns were merely hypothetical and speculative. Therefore, because the government’s interests in nondisclosure in this instance do not clearly outweigh the public’s presumed right to access, we conclude that the district court did not err in balancing the interests involved in favor of disclosure.”
NPRI’s attorney Joseph Becker argued in a brief filed with the court that the law “states that the purpose of PERS is to, ‘provide a reasonable base income to those whose earning capacity has been removed or substantially reduced,’ previously released records indicate that there are retirees in their 40’s collecting six figure disbursements from PERS while still earning income from other sources. … Only through the publication of name, pension payout and related data can the public better understand how the system works and the legislative purpose be effectuated. … Additionally, because lawmakers can directly profit from decisions they make pertaining to PERS, there is an overwhelming need for the public to have comprehensive access to this information.” Seems persuasive to us.
PERS should stop stalling and release the records.
A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

Newspaper re-earns an old nickname

Back in the day, when I was attending j-school in Fort Collins, the state’s dominant newspaper, The Denver Post, was still nicknamed the Bucket of Blood, though its use of screaming red headlines had faded a bit.

It has re-earned that nickname but for a different reason.

According to the Denver Business Journal, the Post is cutting its newsroom from 90 journalists to 60. The newsroom has been halved in just three years.

When the feisty Rocky Mountain News tabloid shuttered in 2009 the two Denver dailies had 450 journalists on their payrolls, the business newspaper says.

Denver City Councilman Kevin Flynn, former reporter at the Rocky, was quoted as saying, “It’s my understanding [The Denver Post’s] owners still make money in this town. A newspaper is supposed to be part of the civic conversation, and you can’t have a conversation if there’s no one there to engage from that side. … People rely on journalists to ferret out what’s going on in a community. We’ve already lost so much. … It’s obviously a race to the bottom, and that’s no good for Denver.”

Denver Post newsroom back in the day.

Case law did not create a public records balancing test for bureaucrats

The morning newspaper today began a series of articles marking Sunshine Week, which was created to shine a light on the need for governmental transparency.

That is a laudatory endeavor. The lede story quotes  attorney Maggie McLetchie, who has represented the paper in a number of lawsuits seeking public records, as saying, “We could file one of these lawsuits everyday (sic) … But, fundamentally, you shouldn’t have to pay a lawyer to get access to records of taxpayer-funded agencies. The whole point is that the government works for us, the people, and we should be able to evaluate the work of the government.”

Or as I wrote in this past week’s newspaper column: “The point is that for the public to be able to perform its democratic role in voting into or out of office the most suitable personages, they must be kept informed as to how well or ill the current office holders and their minions are doing their jobs.”

But today’s story contained a fundamental misstatement of case law.

It said the case of Donrey v. Bradshaw “allowed governments to withhold records not deemed confidential if officials decide secrecy is in the best interest of the public.”

No, as I wrote in 2013, Donrey v. Bradshaw was a victory for the media.

A Reno television station, which was then owned by the same company that owned the Las Vegas newspaper, requested a police investigative report on brothel owner Joe Conforte. The Reno city attorney had dismissed charges of contributing to the delinquency of a minor against Conforte even though police opposed the dismissal. Such reports are by law confidential.

The Nevada Supreme Court applied a balancing test and found that “weighing the absence of any privacy or law enforcement policy justifications for nondisclosure against the general policy in favor of open government” that the scales tipped in favor of release of the records.

But, ever since then local governments have been applying the balancing test to argue that records clearly public should be confidential, even though there is no specific law saying so. That argument has been used to deny access to everything from employee evaluations and salaries to cell phone records of county commissioners.

Judges, not  bureaucrats with vested interests, should be the only ones who may apply a balancing test to determine whether a record is open for inspection.

The case of Donrey v. Bradshaw did not allow government bureaucrats to do so. The courts or lawmakers should make this clear, though we suspect lawmakers would opt for less transparency.

Let the sun shine in.




About that blue wave out of Texas

A number of media outlets have been all aflutter over the increase in Democratic turnout in Tuesday’s primaries in Texas, using it to suggest a Democrat resurgence in the fall.

Newsweek, for example, led with the fact Democrat vote turnout was up “a massive 87 percent” compared to 2014.

It reminded me of growing up in a Texas during a time when everyone knew that if you wanted your vote to count you had to vote in the Democratic primary, because that was where all the races were decided. Of course, it is different now. In Texas one does not declare a political affiliation at the time of registration, but chooses on Election Day. According to Pew Research Center, 39 percent of Texans describe themselves as Republicans or leaning Republican, compared 40 percent who chose the Democrat label.

Near the end of the Newsweek account it did mention that 500,000 more Republicans voted than Democrats, without noting that the GOP vote was 50 percent higher — 1.5 million Republican votes compared to 1 million Democrat votes.

Nor did the magazine make note of the fact that in 2014 the Democratic primary turnout was a paltry 4.12 percent of all registered voters compared to 9.98 percent for Republicans. So doubling the turnout doesn’t mean much.

Daily Kos graphic

Gun-Free School Zone law was an unconstitutional overreach by Congress

Rand Paul (AP pix)

I thought Rand Paul was closing the barn door after the horse had left.

He has introduced a bill to repeal the Gun-Free School Zones Act of 1990, which made it a federal crime to possess a gun in a school zone, according to the Washington Examiner. But in 1995 the U.S. Supreme Court in U.S. v. Lopez declared that law unconstitutional, saying Congress did not have the power under the Commerce Clause to make such incredibly local laws.

But it turns out Attorney General Janet Reno got Congress to amend the law, adding the requirement that the gun had to have crossed a state line at some point — a meaningless add since nearly every gun has crossed a state line at some point and has nothing to do with regulating interstate commerce. But that was good enough for several federal appeals courts.

So, the repeal is apparently needed after all.