by Shane Vander Hart
The Supreme Court released two 5-to-4 decisions this week that have serious First Amendment implications. In both decisions, the Court ruled against government coercing speech.
In NIFLA v. Becerra, the Supreme Court reversed the Ninth Circuit Court of Appeals decision that California’s Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act was likely constitutional and remanded the case back to the Ninth Circuit for reconsideration.
This law passed by the California Legislature and signed into law by Governor Jerry Brown in 2015 was enacted to regulate crisis pregnancy centers, in particular, pro-life centers that offer pregnancy-related services.
The FACT Act required clinics that primarily serve pregnant women to post state-sanctioned notices. Clinics that were licensed by the state were required to notify women that California provides free or low-cost services, including abortion, and then give them a phone number they can call for more information.
Clinics that are unlicensed were required to notify women that California has not licensed the clinics to provide medical services.
Associate Justice Clarence Thomas wrote the majority opinion, and he notes that the mandated notice required by the state alters the speech of pro-life centers who post it.
The licensed notice is a content-based regulation of speech. By compelling individuals to speak a particular message, such notices “alte(r) the content of (their) speech,” he wrote.
He continued, “By requiring petitioners to inform women how they obtain state-subsidized abortions – at the same time petitioners try to dissuade women from choosing that option – the licensed notice plainly ‘alters the content’ of petitioners’ speech.”
He also dismissed the argument that California could expect this from pro-life centers because it consists of “professional speech.”
“Speech is not unprotected because it is uttered by ‘professionals.’ This Court has ‘been reluctant to mark off new categories of speech for diminished constitutional protection,’” Thomas wrote.
“And it has been especially reluctant to ‘exemp(t) a category of speech from the normal prohibition on content-based restrictions,’” he added.
He later argued that the “professional speech” rationale meant that if a state wanted to curtail a specific industry or group’s speech, then all they would have to do is require a professional license for their activity.
“States cannot choose the protection that speech receives under the First Amendment, as that would give them a powerful tool to impose ‘invidious discrimination of disfavored subjects,'” Thomas wrote.
Janus v. AFSCME was the second decision that dealt a blow against coerced speech. Mark Janus, a state employee in Illinois who was not a member of public sector union, challenged the involuntary “agency fees” he had to pay to the American Federation of State, County, and Municipal Employees (AFSCME), the union that represented his bargaining unit, for services he did not ask them to provide.
Janus objected to the involuntary fees on First Amendment grounds since he was being coerced by the state to fund a group that through campaign donations, endorsements, and lobbying, promoted speech and ideas with which he did not agree.
AFSCME argued they do not apply “agency fees” to political work, and when they enter collective bargaining, they speak on behalf of all employees, not just their members.
Money is fungible. When the “agency fees” collected covers the cost of collective bargaining, money initially budgeted for that can be spent elsewhere like, for example, lobbying efforts or campaign assistance for favored candidates.
Associate Justice Samuel Alito, who wrote the majority opinion in this case, concluded, “The First Amendment is violated when money is taken from non-consenting employees for a public-sector union; employees must choose to support the union before anything is taken from them.”
It has been an excellent week for the First Amendment.