The Supreme Court, “Professional Speech”, and the First Amendment

| July 17, 2018

On June 26, 2018, just two days before the end of its term, the United States Supreme Court announced its decision in National Institute of Family and Life Advocates v. Becerra. The case had been closely watched, because it would decide lingering questions about free speech in the context of the national debate over abortion.  The case concerned the California Reproductive Freedom, Accountability, Comprehensive Care and Transparency Act, known as the “FACT Act”.

The FACT Act regulated pro-life pregnancy centers (described by the Court as “largely Christian belief-based”), requiring them to provide women with certain notices.  Clinics that were licensed had to notify women that the State provides free or low cost services including abortion, and give them a telephone number to call.  Clinics that were not licensed had to notify women that they were not licensed to provide medical services.   Two pregnancy centers, one licensed and the other unlicensed, filed suit challenging the law as a violation of their First Amendment Right to Freedom of Speech.

The case was one of several similar actions in the courts, as various states and cities had passed comparable laws, including Baltimore City where our firm was representing the Greater Baltimore Center for Pregnancy Concerns in the United States District Court, the Fourth Circuit Court of Appeals, and in opposing the petition of Baltimore City to the United States Supreme Court.

What made the FACT Act case so emotionally charged was the clear animus of the California state government against these pro-life centers.  The legislative history of the Act has said: “Unfortunately … there are nearly 200 licensed and unlicensed crisis pregnancy centers in California.  These centers ‘aim to discourage and prevent women from seeking abortions.’”

The First Amendment protects freedom of speech.  This means both that the government cannot prevent citizens from saying what they want to; and cannot compel citizens to say what they don’t want to.  The question presented was whether the State could compel the pro-life centers to deliver to women that it served a message that abortions were available at little or no cost.

California sought to justify its law as a regulation of “professional speech.”  It argued that the government has the power to regulate speech by professionals when giving their expert knowledge and judgment, the way a doctor is required to get informed consent from a patient before an operation.

In a 5 – 4 decision, the Supreme Court rejected this argument and ruled that the FACT Act was an unconstitutional violation of the First Amendment.  Justice Thomas, writing for the majority, expressly stated that “this Court has not recognized ‘professional speech’ as a separate category of speech” that was open to government regulation.  The notices at issue had nothing to do with any medical procedures, but rather applied “to all interactions between a covered facility and its clients, regardless of whether a medical procedure is ever sought, offered, or performed.”

Justice Thomas completely rejected the notion that “professional speech” may be regulated by the government – arguing that “professional speech” instead is an area where the government has the least right to impose its views: “Doctors help patients make deeply personal decisions, and their candor is critical.”  If the government polices the personal decisions made in a professional environment, it could “fail to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.”

The Court saw great danger is allowing any government regulation of “professional speech”, noting that this would give the State “unfettered power to reduce a group’s First Amendment rights by simply imposing a licensing requirement.”  The State could then choose those groups where it could regulate their speech and thereby have a “powerful tool to impose invidious discrimination of disfavored subjects.”  In the view of the majority, that is exactly what was happening in California, to the “disfavored” pro-life message.  The Court noted that facilities that provided similar services, but were not pro-life, did not have to provide the same notices or make the same disclosures, showing that viewpoint discrimination.

The Court therefore found the California statute unconstitutional, as compelling speech by pro-life pregnancy centers: “It targets speakers … and imposes an unduly burdensome disclosure requirement that will chill their protected speech.”

As the nation now knows, this term was the last for Justice Anthony Kennedy.  Justice Kennedy’s opinions this term have had a particular force to them.  He has long been a champion of individual rights free from government interference, and especially from government using its power to infringe on constitutional liberties.  In this case, he wrote a short concurring opinion that would (it turned out) be the last opinion he ever authored.  In it, Justice Kennedy criticized of the California legislature and its efforts to restrict the message of pro-life centers.  He said that “viewpoint discrimination in inherent in the design and structure of this Act” and that the law is “a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression.”

“For here” wrote Justice Kennedy, “the State requires primarily pro-life pregnancy centers to promote the State’s own preferred message advertising abortions.  This compels individuals to contradict their most deeply held beliefs, beliefs grounded in the basic philosophical, ethical, or religious precepts, or all of these.”  He noted “a real possibility that these individuals were targeted because of their beliefs.”

Justice Kennedy noted that the California legislature had publicly congratulated itself on this legislation, in calling it the “FACT Act” and saying that the legislation “was part of California’s legacy of forward thinking.” He wrote: “But it is not forward thinking to force individuals to be an instrument for fostering public adherence to an ideological point of view they find unacceptable.  It is forward thinking to begin by reading the First Amendment as ratified in 1791 … as we seek to preserve and teach the necessity of freedom of speech for the generations to come.”

I was co-counsel for the Greater Baltimore Center for Pregnancy Concerns – and lead counsel for our firm – against a similar law passed by the Baltimore City Council. The United States District Court for the District of Maryland declared the Baltimore City law unconstitutional.  The City appealed and a unanimous Fourth Circuit opinion affirmed (you can read the opinion here).  The City sought review at the Supreme Court.  Two days after the Supreme Court issued its decision in National Institute of Family and Life Advocates v. Becerra, it refused Baltimore City’s petition, leaving the Center with a clear victory for the First Amendment.


Category: Law

About the Author ()

Email | Website | Peter J. Basile is a principal with the law firm of Ferguson, Schetelich & Ballew, P.A. He is a graduate of George Washington University School of Law, and has a diverse litigation practice throughout the Federal and State Courts of Maryland and the District of Columbia.