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Pregnancy Centers Win Supreme Court Free Speech Case

Written by Noel Sterett on June 26, 2018 Category: Constitutional Law

Today, the U.S. Supreme Court upheld the free speech rights of pro-life pregnancy centers in NIFLA v. Becerra, a case involving California’s effort to force these centers to notify women of the availability of state subsidized abortion services. Having written an amicus brief in support of NIFLA on behalf of twenty-three Illinois pregnancy care centers that are subject to a similar law in Illinois, I have followed the case closely and had the privilege of attending the oral argument in March.

This morning’s decision, written by Justice Thomas for the majority, reaffirmed the bedrock First Amendment principles that restrict the government’s ability to regulate the content of a person’s speech and prohibit the government from compelling a person to promote a message with which they disagree.

Justice Kennedy wrote a separate concurrence, which was joined by Chief Justice Roberts, Justice Alito, and Justice Gorsuch, to reinforce the critical importance of protecting the freedom of speech from such laws. It is worth quoting at length:

“[I]t is not forward thinking to force individuals to ‘be an instrument for fostering public adherence to an ideological point of view [they] fin[d] unacceptable.’ It is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders then knew it; to confirm that history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech; and to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for the generations to come. Governments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief. [California’s] law imperils those liberties.”

In addition, the Supreme Court also refused to recognize a “professional speech” exception to the First Amendment, finding that “speech is not unprotected merely because it is uttered by “professionals.’”

In the end, the Court’s decision in NIFLA v. Becerra was a tremendous victory for the freedom of speech in America and a reminder of two things: 1) as Justice Gorsuch stated during oral argument, the Supreme Court “jealously” protects the freedom of speech, and 2) the issue of abortion will continue to divide this country as both sides seek to persuade hearts and minds. Thankfully, the Court’s decision today sends a strong message that the government does not have the authority to force one side of the public debate to promote the other’s views or interests.

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