The Volokh Conspiracy
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Today's decision in National Institute of Family & Life Advocates v. Becerra has lots of important implications for many First Amendment cases far outside its peculiar facts. I hope to think and write a lot more about this in the coming weeks and months; but for now I wanted to post something about one important aspect of the case, with an eye towards what it means for future courts, government officials, and litigants.
That aspect is the law of speech compulsions, and how it's connected to the law of speech restrictions. I am not here trying to critique or praise the Court, or to compare the majority and the dissents (especially given the length of the post as is); I just want to tentatively set forth where I think the law now stands following NIFLA, and what uncertainties it contains.
[1.] First, a quick summary of the laws involved in this case (all bolding below added by me, rather than occurring in any quoted sources):
[A.] California law required any licensed medical facilities that had the "primary purpose" or "providing family planning or pregnancy-related services" to disseminate (by posting, distributing in print, or providing digitally) a notice that said,
California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women. To determine whether you qualify, contact the county social services office at [insert the telephone number].
The rule covered facilities that did at least two of the following: (1) offering obstetric ultrasounds, obstetric sonograms, or prenatal care, (2) providing or counseling about contraception, (3) offering pregnancy testing or diagnosis, (4) advertising sonograms, pregnancy tests, or pregnancy options counseling, (5) offering abortion services, (6) or collecting health information from clients using staff or volunteers. And it exempted certain categories of clinics, such as those enrolled in a state program that required clinics to provide sterilization and emergency contraceptives.
[B.] California law also required certain facilities that were not licensed by the states to provide—both on-site and on all advertisements—a conspicous notice that said,
This facility is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services.
This requirement applied to facilities that engaged in at least two of items 1, 3, 4, and 6 above (basically offering ultrasounds, sonograms, prenatal care, pregnancy testing, and pregnancy options counseling, and collecting health information). California doesn't require licenses for engaging in such actions, but does require disclosure of the facility's unlicensed status.
[2.] So what should the law do about such compelled disclosures? One possible approach would be to say that they are just fine, or at least less suspect than speech restrictions, because they don't remove any speech from the marketplace of ideas: They only add more speech—and, to the extent that they might influence the debate in that marketplace, people could counteract that influence simply by adding still more speech of their own. Nothing in the law, for instance, bars licensed centers from posting their criticisms of abortion alongside the compelled notice that mentions free or low-cast abortions. Nothing bars unlicensed centers from explaining why their lack of a license (which they are compelled to disclose) is not a problem.
But that's not how the Court has dealt with such things in the past.
[A.] The Court's very first compelled speech case—West Va. Bd. of Ed. v. Barnette (1943), which held that schools may not compel children to say the Pledge of Allegiance and engage in a flag salute—suggested that speech compulsions "could be commanded only on even more immediate and urgent grounds" than speech restrictions. Likewise, Wooley v. Maynard (1977) held that people had a right to tape over the slogan "Live Free or Die" on their license plates, because
A system which secures the right to proselytize religious, political, and ideological causes must also guarantee the concomitant right to decline to foster such concepts. The right to speak and the right to refrain from speaking are complementary components of the broader concept of "individual freedom of mind."
[B.] The Court has also held the same as to compelled disclosure of facts, and not just compelled fostering of "ideological clauses." In Riley v. National Fed. of the Blind (1988), a law simply required professional fundraisers to "disclose to potential donors, before an appeal for funds, the percentage of charitable contributions collected during the previous 12 months that were actually turned over to charity." Yet the Court held that—even when it came to such factual disclosures—any "difference between compelled speech and compelled silence" "is without constitutional significance," "for the First Amendment guarantees 'freedom of speech,' a term necessarily comprising the decision of both what to say and what not to say."
The Court cited several cases that established "[t]he constitutional equivalence of compelled speech and compelled silence in the context of fully protected expression." ("[F]ully protected expression" here could be seen as carving out a separate approach for commercial advertising, which is less than fully protected, see below.) The Court referred to the individual "freedom of mind," but also noted that:
Mandating speech that a speaker would not otherwise make necessarily alters the content of the speech. We therefore consider the Act as a content-based regulation of speech.
Requiring someone to include something in his pitch (or, other cases have considered, in his newspaper or his parade) necessarily changes the target's overall speech. This particular rationale would not have applied, at least directly, to Barnette and Wooley, where the compelled Pledge and the compelled display of the motto did not (at least directly) "necessarily alter the content" of the child's or driver's broader speech; those cases rested solely on the "freedom of mind" rationale.
[3.] The NIFLA majority follows these precedents, and in particular Riley. Requiring licensed clinics to include certain messages on their property is presumptively unconstitutional, the Court holds, because
By compelling individuals to speak a particular message, such notices "alte[r] the content of [their] speech." Riley. Here, for example, licensed clinics must provide a government-drafted script about the availability of state-sponsored services, as well as contact information for how to obtain them. One of those services is abortion—the very practice that petitioners are devoted to opposing. By requiring petitioners to inform women how they can 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.
The Court discusses three exceptions to this protection against speech compulsions, two expressly and one implicitly:
[A.] The Court had upheld, in some of its commercial advertising cases (such as Zauderer v. Office of Disciplinary Counsel (1985)), compelled disclosures of "purely factual and uncontroversial information about the terms under which [the advertised] services will be available," so long as the disclosures are not "unjustified or unduly burdensome."
But, the Court holds in NIFLA, this exception doesn't authorize the licensed clinic disclosure requirement, because the compelled statement refers not to "services that licensed clinics provide," but rather to "state-sponsored services—including abortion, anything but an 'uncontroversial' topic."
And this exception doesn't authorize the unlicensed clinic disclosure requirement, because, even if this more relaxed Zauderer standard applies, the disclosure requirement is "unjustified" and "unduly burdensome." As to the "unjustified" prong, the Court concluded, "California points to nothing suggesting that pregnant women do not already know that the covered facilities are staffed by unlicensed medical professionals" (though the Court left open the possibility that "California will gather enough evidence in later stages of this litigation" supporting such a lack of knowledge). But in any event,
Even if California had presented a nonhypothetical justification for the unlicensed notice, the [California law] unduly burdens protected speech. The unlicensed notice imposes a government-scripted, speaker-based disclosure requirement that is wholly disconnected from California's informational interest. It requires covered facilities to post California's precise notice, no matter what the facilities say on site or in their advertisements.
And it covers a curiously narrow subset of speakers. While the licensed notice applies to facilities that provide "family planning" services and "contraception or contraceptive methods," the California Legislature dropped these triggering conditions for the unlicensed notice. The unlicensed notice applies only to facilities that primarily provide "pregnancy-related" services. Thus, a facility that advertises and provides pregnancy tests is covered by the unlicensed notice, but a facility across the street that advertises and provides nonprescription contraceptives is excluded—even though the latter is no less likely to make women think it is licensed. This Court's precedents are deeply skeptical of laws that "distinguis[h] among different speakers, allowing speech by some but not others." Speaker-based laws run the risk that "the State has left unburdened those speakers whose messages are in accord with its own views."
The application of the unlicensed notice to advertisements demonstrates just how burdensome it is. The notice applies to all "print and digital advertising materials" by an unlicensed covered facility. These materials must include a government-drafted statement that "[t]his facility is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services." An unlicensed facility must call attention to the notice, instead of its own message, by some method such as larger text or contrasting type or color. This scripted language must be posted in English and as many other languages as California chooses to require.
As California conceded at oral argument, a billboard for an unlicensed facility that says "Choose Life" would have to surround that two-word statement with a 29-word statement from the government, in as many as 13 different languages. In this way, the unlicensed notice drowns out the facility's own message [such as in Los Angeles County, where the 13-language requirement applies]. More likely, the "detail required" by the unlicensed notice "effectively rules out" the possibility of having such a billboard in the first place.
[B.] The Court has also "upheld regulations of professional conduct that incidentally burden speech," such as "[l]ongstanding torts for professional malpractice." Courts have long recognized that tort liability for speech is a form of speech regulation (see, e.g., New York Times v. Sullivan (1964)); but tort liability for bad professional advice would presumably remain constitutional.
Likewise, in Planned Parenthood v. Casey (1992), the Court upheld a requirement that doctors "inform their patients of 'the nature of the procedure, the health risks of the abortion and childbirth, and the 'probable gestational age of the unborn child,"" as well as "of the availability of printed materials from the State, which provided information about the child and various forms of assistance." But that, the Court today concluded, stemmed from the doctor's being about to "perform an operation" (an abortion), and "the requirement that a doctor obtain informed consent to perform an operation is 'firmly entrenched in American tort law.'" The link between the "conduct," in the form of a surgical procedure, and the compelled speech was close enough, the Court held, to make the compulsion merely a "regulation of professional conduct that incidentally burden[s] speech."
But this did not apply to the licensed notice, the Court held:
The licensed notice at issue here is not an informed consent requirement or any other regulation of professional conduct. The notice does not facilitate informed consent to a medical procedure. In fact, it is not tied to a procedure at all. It applies to all interactions between a covered facility and its clients, regardless of whether a medical procedure is ever sought, offered, or performed. If a covered facility does provide medical procedures, the notice provides no information about the risks or benefits of those procedures. Tellingly, many facilities that provide the exact same services as covered facilities—such as general practice clinics—are not required to provide the licensed notice. The licensed notice regulates speech as speech.
To be sure, as the dissent pointed out, people who go to pregnancy counseling centers are likely contemplating some future medical procedure, whether an ultrasound, an eventual delivery of a child, or an eventual abortion. But the particular speech compulsion here, the Court concluded, is not sufficiently closely tied to that procedure (the way the information about abortions and alternatives to abortion is tied to the procedure that the patient was about to get).
[C.] Finally, a speech compulsion, like a speech restriction, may be upheld if it passes so-called "strict scrutiny"—is "narrowly tailored" to a "compelling government interest" (terms of art that are themselves quite complicated). But the Court concludes that these compulsions don't pass either this test or even the more pro-government "intermediate scrutiny," for reasons that I hope to blog about later (because they have still broader implications, not just for speech compulsions but also for speech restrictions).
[4.] So far, then, we have what seems like very broad protection against speech compulsions, with only a few narrow exceptions. But what about the vast range of other information that people are required to convey?
[A.] To begin with, property owners routinely have to post a wide range of informational signs; Justice Breyer's dissent, for instance, points to laws "requiring signs by elevators showing stair locations" or "requiring property owners to inform tenants about garbage disposal procedures," two banal but typical examples. Will they be unconstitutional—or at least subjected to "strict scrutiny," a usually very hard to satisfy test—under the majority's approach, or for that matter under Justice Brennan's approach from Riley?
I think a Court might conclude that these are not presumptively unconstitutional speech compulsions, because they (1) are purely factual and thus don't implicate any individual "freedom of mind" as to "religious, political, and ideological causes (which distinguishes Barnette and Wooley), and (2) they don't "alter the content" of anyone's speech, because the property owner isn't really trying to engage in any coherent speech to patrons with which the signs would interfere (which distinguishes Riley and NIFLA). If you're trying to persuade someone not to get an abortion, but you have to display a sign during the same visit informing women how they can get abortions, that might be said to "alter the content" of the overall speech that your organization presents to clients. If you're running an apartment house and you have to tell tenants about garbage disposal, that probably doesn't alter the content of any speech you're presenting, chiefly because as a landlord (as opposed to a crisis pregnancy center) you're not really in the speaking business.
Still, this is a distinction that might require a good deal of analytical work in many cases. Among other things, consider that Rumsfeld v. FAIR (2006) held that universities could be required not just to allow military recruiters on campus, but also to circulate to students factual information about the visits, on the same terms as information about recruiters' visits. (The law in FAIR attached this as a condition to government funding, but the Court expressly held that the requirement would be constitutional even if it were imposed on all universities, regardless of their receipt of funding.)
The Court held there that the compulsion didn't interfere with the universities' speech, even though the universities were opposed to the recruiters' presence (because the military was at the time discriminating based on sexual orientation) and may well have been conveying that message to students. It may be that FAIR and NILFA can be reconciled (neither the majority nor the dissent mention FAIR), but there may be a good many cases in between, where the line will be hard to draw.
[B.] Likewise, people are routinely required to convey a vast range of information to the government. You have to file state and federal tax returns; you have to respond to census questions; you have to register for the draft when federal law so requires; some laws require you to report various crimes to the authorities; and the list could go on.
Some of these requirements, at the federal level, may correspond to specific constitutional grants of power (such as the Sixteenth Amendment for the income tax, the Census Clause, the power to raise armies, and so on). But of course the First Amendment usually limits the government's authority to act within its enumerated powers, whether it's the Commerce Clause or the taxation clauses or anything else. And even if there is a "compelling government interest" supporting such compulsions, First Amendment scrutiny would usually require a showing that the law is "narrowly tailored" to that interest; yet I doubt that the Court would apply this demanding requirement to every such compulsion.
Again, perhaps one can say that these purely factual compulsions don't really affect "freedom of mind," or "alter the content" of your speech to anyone, since they only require you to speak to the government (and don't even interfere with your other speech to the government). But here too the matter can get complicated, especially when some of the facts may be related to ideologically controversial matters.
[C.] Finally, professionals are often required to warn clients of particular dangers, even when the professional isn't going to be performing any physical procedure (such as an abortion). Those requirements might just be imposed by duties of "reasonable care," whether enforced by medical licensing boards or by judges and juries applying malpractice laws. But, as noted above, that too is a form of government-imposed and government-enforced speech restriction.
For instance, say that someone goes to the doctor to get advice on whether to, say, drink or smoke tobacco or smoke marijuana, or to a financial advisor to get advice on whether to invest in some particular asset. The majority specifically mentions that professional speech can be ideologically loaded (and seems to frown on recognizing any specific "professional-client speech" exception, though I hope to post more on that later):
[W]hen the government polices the content of professional speech, it can fail to "'preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.'" Professionals might have a host of good-faith disagreements, both with each other and with the government, on many topics in their respective fields. Doctors and nurses might disagree about the ethics of assisted suicide or the benefits of medical marijuana; lawyers and marriage counselors might disagree about the prudence of prenuptial agreements or the wisdom of divorce; bankers and accountants might disagree about the amount of money that should be devoted to savings or the benefits of tax reform.
Yet does this mean that it is presumptively unconstitutional for the government to require (again, whether by specific requirements or through general duties of reasonable care) that professionals warn people of the dangers of consuming certain substances, making certain legal decisions, or investing money in a certain way? Again, recall that many such cases do not involve any physical conduct on the part of the professional; the doctor, lawyer, or financial planner may just be giving advice, with all the future physical conduct to be done by the client, albeit based on that advice.
Will a court say, as some have said (in my view wrongly, see Part III.B.2 of this article), that professional counseling is itself a form of "conduct" rather than "speech," even though it consists entirely of speaking? If so, then why wasn't the advice given by the pregnancy centers equally regulable "conduct"? Is there some other rationale for compelling such speech? Or would a lot of such compelled disclosures be unconstitutional, at least unless the government can shown that a particular compulsion is "narrowly tailored" to a "compelling government interest"?
These questions were generally not created by the NIFLA decision itself. They've been around since Barnette, and certainly since Wooley and especially Riley. But NIFLA, with its broad reaffirmation of the right to be free from compelled speech—and its suggestion that there may not be a "professional-client speech" exception that could justify some such speech compulsion—seems likely to yield still more litigation about these matters.