SCOTUS Review - Compelled Speech at Issue

In what is turning out to be a blockbuster term for the First Amendment (Janus v. AFSCME & Minnesota Voters Alliance v. Mansky) and redistricting cases (more generally), today the United States Supreme Court heard another highly controversial case involving compelled speech and the First Amendment: National Institute of Family and Life Advocates v. Becerra.

From Amy Howe at SCOTUS Blog:

The Supreme Court heard oral argument today in National Institute of Family and Life Advocates v. Becerra, a highly anticipated case that combines two often controversial topics: the First Amendment and abortion. The question before the justices today was whether a California law that directs “crisis pregnancy centers” to provide their patients with specific kinds of information – including, for some, the availability of low-cost or free abortions – violates the First Amendment’s free speech clause. After roughly an hour of oral argument, the law appeared to be in some jeopardy, not only among the court’s more conservative justices but also perhaps at least with Justice Elena Kagan, one of the more liberal justices. . . .

Overall, a majority of the justices seemed skeptical over the law and its impact on First Amendment rights. SCOTUS Blog continues:

Justice Samuel Alito...was concerned that the law unfairly singles out anti-abortion facilities like crisis pregnancy centers while providing exemptions for other kinds of health-care providers. “If you have a law that’s neutral on its face” but then contains “a lot of crazy exemptions,” he asked, “isn’t it possible to infer intentional discrimination?” After Joshua Klein, the deputy state solicitor general who argued for California, agreed that it was, Alito peppered him with questions about various exemptions in the California law and concluded that “when you put all this together, you get a very suspicious pattern.” 


Perhaps more crucially for the state, [Justice Elena] Kagan seemed to share some of Alito’s concern that, as she put it, California might have “gerrymandered” the law – that is, drawn it to target crisis pregnancy centers. If so, she declared, “that’s a serious issue.”. . . Klein tried to assure Kagan and Alito that the law also applies to a “significant” number of clinics that are not opposed to abortion, but Kagan nonetheless pressed him to explain why and how the state decided to create the exemptions [and the laws impetus].

Ms. Howe noted, Justice Neil Gorsuch astutely declared: “[I]t’s pretty unusual to force a private speaker to do that for you under the First Amendment.”

Even the current swing-vote, Justice Kennedy, seemed to question the soundness of this law, at issue. Ms. Howe notes:

Justice Anthony Kennedy also expressed doubts about the law. In one question that may prove to be pivotal in the case, he asked [Michael] Farris [attorney arguing on behalf of the centers] what would happen if an unlicensed clinic wanted to put up a billboard that said only, in large letters, “Choose Life.” Would that message trigger the law’s notice requirement? . . . Farris responded that the billboard would indeed have to disclose that the nonprofit does not provide medical services – a point with which Klein seemed to agree. . . Farris’ answer drew a sharp response from Kennedy. Requiring the inclusion of a 29-word notice on a billboard displaying a two-word message, Kennedy suggested, seems to impose an “undue burden” on the nonprofit’s speech “that should suffice to invalidate the statute."

Ms. Howe closed by noting:

By the time the oral argument ended this morning, California’s law seemed like it could be in real trouble. And although we normally think of the Roberts court as being closely divided on high-profile cases, today’s argument suggested that the ruling might not necessarily be a close one. The justices could ultimately decide to strike down part or all of [this California law]. . . .

We will keep you posted on major U.S. Supreme Court cases as arguments begin to wind-down and opinions are issued by the Court leading up to the close of this term.