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NIFLA v. Becerra and Speech Compulsions

Today's Supreme Court decision adds to the law -- and the uncertainty -- about when the First Amendment bans the government from requiring speech.

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.

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  • Jerry B.||

    Although I'm pro-choice, I think the Court got it right. This was basically a law requiring a pro-life organization to advertise the State's pro-choice services. If the State wants to advertise, it has the resources, and there are pro-choice organizations that will help it.

    A lot has been made of the pro-life clinics knowingly "lying" to their clients about the dangers of abortion or the time limits on abortion in California. It seems that if this was the case, lawsuits could be brought by those lied to, probably supported by pro-choice organizations. Going right to government coercion seems like a bad idea.

  • damikesc||

    My concern is that 4 justices were willing to go along with this. I have difficulty thinking of any justifiable requirement for speech. I don't even like the warnings on cigarettes.

  • nonzenze||

    My employer is required to have a poster on labor rights.

    This seems like a very minimal requirement as far as coerced speech, and it surely does not create any confusion that the "message" is spoken or even endorsed by the company.

    It also seems directly tied to a legitimate government interest.

    I don't know, I just can't spin it into an objectionable policy.

  • Martinned||

    On what basis would you imagine those lawsuits? Lying is not as such a tort. Fraud is, but I'm not sure that there's any attempt to obtain a person advantage here.

  • Jerry B.||

    I'm sure that the pro-life folks consider stopping an abortion to be to their personal advantage. Advantage isn't always money.

  • Brett Bellmore||

    But, is somebody else not going to Hell a legally relevant personal advantage? I have my doubts.

  • Jerry B.||

    How about a clinic or counselor who improves their position in a pro-life organization, or receives special recognition, by having a higher number of clients who decide not to have an abortion? Status is often an incentive.

  • letters2mary||

    Perhaps consumer protection statutes would serve as a theory supporting complaints for 'lies' during counseling. Unusual, but you never know.

  • bernard11||

    It's not "lying." It's lying.

  • OtisAH||

    There is no such thing as a "pro-choice service." What you're trying to describe are called "legal medical services and family-planning programs."

  • Jerry B.||

    Which in this case involves access to abortion. Seems that would qualify as pro-choice. Also, some pro-life clinics also provide "legal medical services and family-planning programs". They just don't provide the type of services you like.

  • OtisAH||

    No. "Pro-choice" is a belief in the rights of individuals to make their own medical decisions, which includes safe and legal abortion. "Abortion" is a medical procedure. And while you can argue over the semantics as to whether these clinics provide "family-planning programs," they do not provide medical services (though they often try to present themselves as if they do). Regardless, that's an irrelevant point to the non-existence of anything called "pro-choice services".

  • Jerry B.||

    Here's at least one medical service that provides abortions and considers themselves a pro-choice service. Maybe you should take up your semantics with them.

    Pro Choice Medical

  • OtisAH||

    Great. Congrats. You win.

  • Jerry B.||

    Then there's prolifemedcenter.com, that advertises any number of pregnancy-related medical services, but you are undoubtedly convinced they are lying.

  • Sarcastr0||

    Or maybe that your example doesn't really say anything about the larger pro-choice community's thoughts on the matter.

    Abortion isn't an issue I've gotten very personally involved in, so you may be right that there is a stark distinction between abortion-related services and associated advocacy versus other medical services.
    If I had to guess, I would expect there is regional variation depending on local culture and government.

    But your finding a particular website doesn't really prove that the philosophical distinction extends to defining what services you provide.

  • Jerry B.||

    Well, first off, not just websites but brick and mortar clinics that offer pregnancy-related medical services on both sides of the pro-choice/pro-life divide.

    As noted in my original post, I'm pro-choice, but I disagree with OtisAH's apparent view that only clinics that offer pro-choice options actually offer medical services. Anyone willing to do a web search will find plenty of pro-life (and pro-choice) clinics that provide pregnancy-related medical services. Just because someone does not like the pro-life clinics' viewpoint on abortion (a group that includes me, BTW) doesn't mean that they provide no medical services, just the ones they don't believe in.

  • Ramer||

    If the ultimate goal of the First Amendment is to protect freedom of thought, laws that compel speech should be subject to greater scrutiny than mere restrictions on speech because while speech can help you think through an idea, compelled speech can alter your beliefs. Just think about times you have tried to convince yourself of something -- you do this by repeating it over and over -- "I don't want that cookie ...."

    IF this is correct, the line between compelling the disclosure of pure factual information versus other compelled speech becomes highly relevant. Factual information is factual information -- compelling someone to disclose that information will not alter it.

    This is why your position on the cake baker and the distinction between compelling someone to bake a pre-designed cake versus a new creation makes some sense -- the act of following a pre-existing design does not intrude on one's belief in the same why it would if you were to compel someone to create something entirely new.

    Finally, compare Wooley to the Walker v. Sons of the Confederate -- compelled speech is unconstitutional but restrictions of speech are OK.

  • Rigelsen||

    This is why your position on the cake baker and the distinction between compelling someone to bake a pre-designed cake versus a new creation makes some sense -- the act of following a pre-existing design does not intrude on one's belief in the same why it would if you were to compel someone to create something entirely new.

    And yet the Supreme Court has ruled that school kids cannot be forced to recite the Pledge of Allegiance, which would seem to require speaking according to a pre-existing design. Well, and the same goes for the ruling under discussion here. Anyway, I'm not sure I understand why you say that following a pre-existing design could not intrude on one's beliefs. That statement seems at odds with the first paragraph in your comment.

  • Martinned||

    Was that a speech compulsion issue? It should be, but I thought that the pledge of allegiance was litigated under the establishment clause.

  • Ridgeway||

    I wonder if "uncontroversial information" is going to become the free speech analog to "ceremonial deism".

    I am having a hard time seeing how one square this decision with, for example, the NYC requirement that all restaurants publish the calorie counts and other nutritional information of all their dishes.

  • damikesc||

    I assume they could argue that basic information is different than what seems to be an implied message. Also, they aren't requiring, say, steak houses to host ads for veganism and the like.

    It's still a bad idea --- if you need a calorie count to realize McDonald's ain't healthy, you're beyond help.

  • Ridgeway||

    How about all the rules requiring employers to put up posters informing their employees of their legal rights against their employers, and how to file complaints?

    Or requiring casinos to mention gambling addiction hotlines in all their ads.

    Or Prop 65, which apparently requires everyone in California to advise everyone else that the State of California thinks everything causes cancer.

    And don't get me started on cigarettes...

  • tkamenick||

    Are the percentages based on RDAs "factual"? I would argue no, they are an opinion about how much of particular nutrients people _should_ eat.

  • Eidde||

    Do they have to give contact information for government-owned vegan cafeterias?

  • Eidde||

    "Welcome to Bill's BBQ. New York has public programs that provide immediate free or low-cost access to food, including vegan food, for eligible families. To determine whether you qualify, contact the county social services office at [insert the telephone number."

  • ||

    The distinction I would draw is that the NYC requirement is only that you disclose factual (but latent) information about your product/service, not disclose factual information about another product/service.

  • letters2mary||

    "I wonder if "uncontroversial information" is going to become the free speech analog to "ceremonial deism"."

    Interesting speculation. Time will tell.

  • Eidde||

    "...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.)"

    So the Supreme Court had a perfectly sound basis on which to uphold the law - if universities get federal aid they have to advertise the federal government's employment opportunities.

    But they had to uphold a hypothetical law applicable to universities which *didn't* get government funding.

    Is the conscription power so broad that you can conscript private civilian institutions into advertising military careers?

  • Joe_dallas||

    Rumsfeld v FAIR involved whether an organization could be compelled to perform and/or allow certain acts to be performed in exchange for money/grants. In order to receive this pool of grant money, then you must also allow X to be performed. It should have been treated as a basic contract law question.

  • nonzenze||

    You need to review the Unconstitutional Conditions Doctrine.

    The government has special burdens to meet when it gives out any kind of benefit (such as funds, but also permits, waivers from regulation and other tangible benefits) in exchange for agreeing to conditions that implicate constitutional rights.

    [ That's not to say it's never permitted, but it's not just a matter of "contract law" because the Court recognized that the government has a particular coercive power, especially regulatory. It would be an 'end run' around the Constitution if localities could enact strict regulations and then "contract" to waive those regulations in exchange for constitutional rights. ]

  • DjDiverDan||

    Just wondering whether, after the dissents from the two decisions today, the left is willing to give up on the canard that it is "liberal" in any meaningful sense? The four "liberal" Justices stand firmly in favor of government control of speech, and would willingly throw the First Amendment through a paper shredder for the sake of omposing its orthodoxy on abortion. Explain just how that equals "liberal".

  • Sarcastr0||

    Some can't find any joy even in victory.

    There were two legally cognizable rights in conflict here. Just because you don't like one of them doesn't mean you get to pretend everyone agrees with you.

  • Brett Bellmore||

    The left first started calling themselves "liberal" because it had a better reputation than "socialist". They won't give it up until it starts hurting them, and even then they're likely to find some other euphemism.

  • Martinned||

    You mean like those "conservatives" who call themselves conservative even though the only unifying principle behind their actions seems to be a passionate desire to burn it all down?

  • Sarcastr0||

    Except, Brett, that many liberals are very much not socialist.

    Just ask a socialist what they think of Hillary Clinton, for instance.

  • FlameCCT||

    More the Progressives than Socialists hid behind the label Liberal; mostly in the Democratic Party although many in the Republican Party too.

  • Stephen Lathrop||

    Seems like the concern California was trying to address is that "crisis pregnancy centers," run by anti-abortion activists, may trick themselves out as medically authoritative, to deceive pregnant women who want abortions. Then deliver incomplete, misleading, or fraudulent advocacy masquerading as medical advice.

    I want to hear from those who like this decision why that practice exactly, when it occurs, needs to be sheltered as protected 1A speech. Please explain in terms of the practice I describe, not in terms of slippery slopes or other imagined pitfalls regarding other situations in other contexts.

    Does speech freedom require that people who are not doctors nevertheless exercise a 1A-protected right to pose as doctors, however tacitly, and under a false light deliver speech which would be medical malpractice if a doctor did it?

  • Eidde||

    "I want to hear from those who like this decision why that practice exactly, when it occurs, needs to be sheltered as protected 1A speech."

    Very nice framing, but from looking at the decision, I don't see where it says there's a right to "deliver incomplete, misleading or fraudulent advocacy masquerading as medical advice" or "deliver speech which would be medical malpractice if a doctor did it"?

    California remains just as free to ban such behavior as it did before this decision. Indeed, if the practices you describe are so rampant, can you explain why the California authorities haven't already taken appropriate proceedings? Perhaps California officials are blinded by prolife bias and refuse to investigate wrongdoing by these clinics?

    Perhaps you could explain the meaning of the word "person" in the Fifth and Fourteenth Amendments.

  • Stephen Lathrop||

    So your less oppressive solution would be to put the people running the clinics under targeted surveillance? Maybe send in fake patients wearing wires?

    We're talking about a presumption of medical privacy, at least on the part of the patient. Can you suggest any way to breach that presumption which isn't more intrusive than the requirement for prominent and forthright disclosure about what is going on?

  • Eidde||

    Somehow, medical privacy gets breached very often in malpractice lawsuits - I imagine that a disgruntled woman who was "tricked into have a child against her will" could (after leaving her child with relatives) go to the police and complain that she was the victim of fraud. Then the cops can take it from there.

    Undercover surveillance of phony medical clinics is a very effective tactic, as Planned Parenthood learned to its cost.

  • bernard11||

    Nothing phony about Planned Parenthood clinics.

  • Brett Bellmore||

    "So your less oppressive solution would be to put the people running the clinics under targeted surveillance? Maybe send in fake patients wearing wires?"

    I would be utterly shocked if that weren't already going on.

  • The original jack burton||

    Why should we reply to a fantasy just because you "describe" it? Show where your concerns are actually happening and then we can discuss that.

  • Harvey Mosley||

    If that was the concern being addressed by the legislature (instead of forcing pro-life advocates to provide info about where to obtain abortion on demand) then the law could have simply required all anyone who provides any of those services to have one prominent sign in the office that said that there were no medical professionals present or supervising the provided services.

    And the practice you "exactly" describe can still be punished by the state. They just need to pass laws targeting the bad behavior instead of assuming that anyone who advocates against abortion is bad.

  • Stephen Lathrop||

    And then they need to police the bad behavior, in an ostensible medical setting, targeting anti-abortion activists. Can't see any problems there?

  • Eidde||

    "targeting anti-abortion activists"

    Which would be totally unprecedented.

  • Joe_dallas||

    " anti-abortion activists"

    That should read Anti - Murder Activists"

  • Sarcastr0||

    Joe, do you want to put women who get abortions to death?

  • Joe_dallas||

    Sarcastr0|6.27.18 @ 9:00AM|#

    Joe, do you want to put women who get abortions to death?

    Mr. S Castro - Your question is not relevant to whether an abortion is murder.

  • Sarcastr0||

    Why not? Isn't that the traditional punishment for murder?

    Beyond how self-righteously this assumes you know all the answers, 'abortion is murder' isn't even what most anti-abortion people actually believe beyond rhetorically. Because for the most part just go after the doctors, not the mothers.

    Not that they don't sincerely believe abortion is a moral horror, but they don't follow through as though and act like it's murder in anything but words.

  • Martinned||

    [sign saying that] there were no medical professionals present or supervising the provided services.

    What makes you think there aren't?

  • Rigelsen||

    Since you seem to be talking about fraud, are you under the impression that fraud is not already illegal?

  • Sarcastr0||

    There's no material gain, so it ain't fraud.

  • David Nieporent||

    1) Gain to the fraudster isn't an element of common law fraud; loss to the victim is.
    2) There are plenty of statutes that are violated if consumers are being deceived in this way, such as BCL § 17200.

  • Sarcastr0||

    Welp, I sit corrected.

  • Greg J||

    Seems like the concern California was trying to address is that "crisis pregnancy centers," run by anti-abortion activists, may trick themselves out as medically authoritative, to deceive pregnant women who want abortions.

    Women who want abortions go to Planned Parenthood, they don't go to a "Choose Life" crisis pregnancy center.

    So the concern is already shown to be groundless

    What is going on here is that Left is so afraid their arguments are worthless, that they feel the need to make everyone spout their BS, in the hope that they'll win from repetition what they they can't get with reason and logic

  • Martinned||

    Women who want abortions go to Planned Parenthood, they don't go to a "Choose Life" crisis pregnancy center.

    O, well, since you put it like that, I wonder what all the fuss is about. Why do women always have to keep complaining when everything is so simple?

  • David Nieporent||

    Seems like the concern California was trying to address is that "crisis pregnancy centers," run by anti-abortion activists, may trick themselves out as medically authoritative, to deceive pregnant women who want abortions. Then deliver incomplete, misleading, or fraudulent advocacy masquerading as medical advice.

    I want to hear from those who like this decision why that practice exactly, when it occurs, needs to be sheltered as protected 1A speech.

    I see Lathrop is back to making things up. This decision has nothing to do with the scenario you describe. This decision in no way brings fraud within the ambit of the first amendment. If your scenario were actually the concern California was trying to address, then they should have passed a very different law. This one was not remotely narrowly tailored to that situation. Forcing clinics to post an advertisement for government-funded abortions is not about banning fraudulent conduct.

  • Stephen Lathrop||

    For such cases as I described, the law is narrowly tailored to prevent damage consequent to fraud. That's way better than letting the damage happen, then prosecuting afterward, when there is no conceivable remedy for the patient. And not only is the law narrowly tailored, it also isn't burdensome—unless you assume being thwarted at fraud is burdensome. A pregnancy counselor withholding medically relevant information is attempting illegitimately to appropriate for herself agency which, as a matter of law, belongs only to the patient. Requiring signage to inform the patient of the extent of her agency takes nothing from the counselor that the counselor is entitled to have.

  • Jerry B.||

    Okay. So the California law is just an example of Pre-crime enforcement.

  • Stephen Lathrop||

    Yup, Jerry B. Pre-crime enforcement, just like a "Do Not Enter," sign, at the outlet end of a one-way street.

  • Jerry B.||

    Well, more like a "We're going to put a governor on your car so you can't go faster than we think necessary" law.

  • David Nieporent||

    You don't understand the term "narrowly tailored," which is a term of art in constitutional law.

  • Joe_dallas||

    A couple of points to rebut Lathrop
    1) It is highly implausible to believe that a pregant women is not aware of the availability of obtaining an abortion.
    2) It is highly implausible to believe that a pregant women would believe that a Pro-life center would offer abortions.
    3) The reason pregnant women show up at pro-life centers is either A) they dont want an abortion and need the help or B) They are having qualms about having an abortion and are seeking assistance in saving a life.

    California is compelling speech for the purpose of encouraging abortions.
    California is NOT compelling speech to provide additional or more complete and accurate medical information

  • Sarcastr0||

    Joe, you're citations to 'high implausibility' isn't very convincing. Such a qualitative argument is also wide open to objective-oriented analysis. Check Wikipedia, at the very least!

    As this SCOTUS case shows, you don't even need to make that argument. But pro-life's theme seems to be overdetermined arguments.

  • Joe_dallas||

    Sarcastr0|6.27.18 @ 9:50AM|#

    Joe, you're citations to 'high implausibility' isn't very convincing.

    Sar Castro - this is the year 2018 - it is highly implausible that a pregant woman would not be aware of the availabiltiy of obtaining an abortion. unless she has been living in an alternate reality.

  • Sarcastr0||

    You continue to argue from your own personal incredulity. Your experience and understanding is not everyone's.

    In fact, it's pretty clear what you believe is wrong based on both anecdotal reports and on crisis pregnancy centers' behavior.

    The founder of the Christian Action Council, Robert Pearson created a manual on "How to Start and Operate Your Own Pro-Life Outreach Crisis Pregnancy Center" which explicitly encourages CPC employees to deceive women about the nature of their organization as well as their medical information.

  • Joe_dallas||

    sa castro -

    This is the 21st century - not the 1700's or 1800's -

    Try to provide a coherent and reality based reason that women today would not know they can get an abortion.
    You cant make the argument that women live in a cave and are not smart enough to know about reality.

  • Stephen Lathrop||

    Joe, it's just a smidge more complicated.

    A key question is whether patients can discover that they can't get an abortion from this provider. If the anti-abortion Crisis Pregnancy Center has taken the precaution of locating near the address of a genuine abortion provider (a tactic advocated in CPC circles, says Wikipedia)—and if it tricks itself out to look all medical, and if it offers a sonogram, and never says, "We won't provide an abortion, or tell you where to get one"—it may take better radar than many patients have to dope out in time what game is being played. Remember, there is a ticking clock involved, and for some patients, that clock may be close to game over the moment they first walk through the door.

  • Stephen Lathrop||

    Joe, from Wikipedia:

    In particular, the advertising approach of the Pearson Foundation, which assists local groups establishing CPCs, has been criticized by some other pro-life groups, including Birthright International, another CPC operator.[51] The foundation recommends that a center seek out women who want abortions through "neutral" advertising, and refuse to answer questions that would reveal that they provide neither abortion services nor referrals to abortion services.[51] Pearson, identified by some as the founder of the first CPC, said that a woman "has no right to information" that will allow her to have an abortion.

    Check it out, there is much more in that vein. Even if you were right, if a woman comes to a CPC because she is worried, but possibly averse to abortion, you can't know for sure that her aversion isn't medical, or partly so—such as fear of complications or long-term harm to her health. There seems to be overwhelming evidence that many CPCs provide false medical information to leverage such fears.

    Nor do I suppose that a nearly-illiterate, pregnant 14-year-old is always as worldly, or as accurately informed, as you say.

  • Joe_dallas||

    lathrop " nearly-illiterate, pregnant 14-year-old "

    Seriously - how many illiterate 14 year old are there in the United States

  • FlameCCT||

    Yet the supposed, nearly-illiterate, pregnant 14-year-old already knows about access to abortion thru the school, in particular the school nurse and mandatory sex ed classes, as well as peers.

    I would note that you seem to be making an argument against States that deny parental access to the 14 year old's health records without said 14 year old's permission. As well as allowing said 14 year old to obtain a medical procedure, in particular an abortion, without parental consent.

  • David Nieporent||

    The foundation recommends that a center seek out women who want abortions through "neutral" advertising, and refuse to answer questions that would reveal that they provide neither abortion services nor referrals to abortion services

    That... doesn't sound very effective:

    "Can you schedule me for an abortion?"
    "No."
    "Well, do you offer abortions?"
    "I won't answer that question."
    "Can you tell me where I can go to get an abortion?"
    "Sorry; can't tell you that, either."

  • Sarcastr0||

    Come on, DMN, what they say isn't 'no' it's 'First, let me tell you about the consequences associated with abortion...'

    And then they start with the pseudoscientific BS.

    Being purposefully deceptive is their whole reason to exist. That is clear from their behavior, their guidebooks, their architecture, where they set up.

    That doesn't mean they don't have a right to be so, and I get why they feel justified. But I'm not a fan of the tactic.

  • Stephen Lathrop||

    The block quote is from Wikipedia, quoting one of the founders of the CPC movement. Could be he also invented some workarounds, distractions, and misdirections you haven't thought of yet. It has apparently proved effective for him.

  • creefer||

    Let the buyer beware. Providers of services generally do not intentionally point out other services not offered.

  • nonzenze||

    Please explain in terms of the practice I describe, not in terms of slippery slopes or other imagined pitfalls regarding other situations in other contexts.

    The terms of debate you request are apt for a policy discussion but are not at all appropriate for a legal one. The law is not made to apply individually to particular practices but has to be operationalized in terms that can be applied to all practices.

    In other words, whatever is decided here makes a general rule for other situations in other contexts and so the idea of deciding whether this speech is coerced (note: this is not about protection for speech, that's a different branch of 1A law) without considering those situations makes no sense.

    So it's perhaps a nice thought-experiment to consider how to decide this case if we agreed that it had no impact outside this case. But in the real world, the Court has to build an analytic framework, not least because it cannot sit and review each lower court case.

    Does speech freedom require that people who are not doctors nevertheless exercise a 1A-protected right to pose as doctors, however tacitly, and under a false light deliver speech which would be medical malpractice if a doctor did it?


    If that's what they did, then they should surely be prosecuted for that. Forcing them to put up a sign is seriously bad as a solution here because it does nothing to stop them from continuing such fraud.

  • letters2mary||

    The focus in NIFLA concerned the recognition (declined) of "professional" speech, as well as compelled speech. It has been suggested that what you describe could be addressed through already extant consumer protection laws or other existing avenues of redress. The potential for other means with which to approach the perception of phony medical care was used to underscore the idea that the California statute particularly singled out pregnancy clinics.

  • Dan Smith||

    Actually it's not even always true that the doctor is "about to "perform an operation" (an abortion). If the patient is taking the "abortion pill" (ie RU-486), then it is the patient who is about the perform the abortion on herself - there is no operation. In this case, the medical professional is in the same position as the financial advisor giving advice.

    Of course, we all know that there's no way the current Supreme Court will say that "informed consent" laws violate the first amendment for cases involving abortion pills.

  • JesseAz||

    In your world medication never has side effects. Please complain about the listing of side effects on those television commercials while you white Knight this.

  • Intelligent Mr Toad||

    Now we will use the precedent to overturn the forced-speech mandates on doctors in (some) red states. So far it's working perfectly. The right-to-lifers won't even be able to argue that they can impose medical-lie mandates because the doctors require state licenses so are different from ordinary non-licensed people, because, the law which SCOTUS has just overturned had mandates for clinics which hold medical licenses AND for clinics which don't. (The mandates were different mandates--clinics with medical licenses had to post info about state funding for abortions, and clinics with no license had to post the info that they didn't have licenses.)

  • Eidde||

    These red states would prefer to send these abortionists to prison for aborting babies, but the Supreme Court doesn't allow this.

    Instead, the prolifers have to craft abortion laws to fit the evolving, ever-changing specifications which the Supreme Court lays down to limit prolife legislation.

    The only censorship I'd want to impose on the abortionists is the same censorship which applies to all prisoners (mail, visitors, etc.), subject to judicial review if the prison authorities get overzealous in their censoring.

  • ||

    These blue states would prefer to send people to prison for owning guns, but the Supreme Court doesn't allow this.

    Instead, the antigunners have to draft gun laws to fit the evolving, ever-changing specifications which the Supreme Court lays down to limit antigun legislation.

  • Eidde||

    Are you drawing an equivalence between blue states violating the Second Amendment and red states violating the penumbras and emanations which make up the Roe precedent?

  • Absaroka||

    Sure. People who don't like either Roe or Heller should start the amendment process, not try and subvert them.

    And people that like Roe XOR Heller ought to consider why the people on the other side of the table ought to support the one they like, when they won't support the one they don't like.

  • Eidde||

    I don't see any moral equivalence here.

    The Second Amendment is part of the Constitution.

    Roe isn't. Its supporters keep changing their rationale because they realized the original rationale couldn't stand scrutiny.

  • Eidde||

    People who want a constitutional right to abortion are the ones who should start the constitutional amendment process - they simply found it more convenient to amend the Constitution under the guise of interpreting it.

    What the Supreme Court just said about Korematsu is true of Roe: it "was gravely wrong the day it was decided."

  • nonzenze||

    The enumeration of certain rights should not be construed to deny or disparage other rights.

  • Absaroka||

    Adam: There isn't a constitutional right to abortion! The supreme court made that up!

    Bob: The 2nd is all about an organized militia! The supreme court made an individual right up out of thin air!

    Well, Adam and Bob, here's the deal: ever since Marbury the supreme court gets to say what is and isn't part of the constitution, and people who disagree with a decision have to abide by it until they change the constitution (or get the court to reverse itself).

    It has to be that way, or the constitution would be meaningless. People are - surprise!! - going to disagree about what the constitution means. There has to be a way to define a common understanding; we can't just all interpret as we individually see fit. If you could, then what happens when the mayor of D.C. throws Dick Heller in jail because the mayor interprets the 2nd differently than Scalia? Is that an acceptable outcome?

    The notion of 'everyone else is bound by the interpretations I like but I'm not bound by the interpretations I don't like' is a violation of, inter alia, ye olde Golden Rule.

    "I don't see any moral equivalence here."

    Well, sure, *you* don't. But there are people who say 'I don't see the moral equivalence between a woman's most basic decisions about her body, and mass killer wannabees who want to own terrible weapons of war that only belong on the battlefield'. Should they accept Heller if they can't amend or overturn it?

  • Eidde||

    "Well, Adam and Bob, here's the deal: ever since Marbury the supreme court gets to say what is and isn't part of the constitution, and people who disagree with a decision have to abide by it until they change the constitution (or get the court to reverse itself).

    "It has to be that way, or the constitution would be meaningless."

    Read the "court of history" post and get back to me. The Supreme Court justices found certain policies constitutional (Sedition Act and Japanese exclusion), then Congress and the President later repented for adopting those policies and admitted they were unconstitutional. And they paid compensation to the victims.

    Then the Supreme Court said that the unconstitutionality of these laws had been established in the Court of History.

    You'd think the Supreme Court would be mad that Congress dared disagree with them - and even awarded compensation to victims, including refunding fines imposed under the Sedition Act. Refunding fines which, under your logic, we're supposed to accept as constitutional!

    Yet the Supremes knew their place, and they duly acknowledged that they had been wrong and Congress and the President were right to repudiate the Supremes' constitutional logic.

  • Eidde||

    The idea of judicial supremacy which you defend didn't come from Marbury, but from more dubious sources.

    First were the resolutions of the Federalist-dominated legislatures defending the Alien and Sedition Acts. These resolutions said that it was solely up to the federal courts to decide if these laws were constitutional.

    http://www.constitution.org/rf/vr_04.htm

    You are also following in the footsteps of Senator Stephen Douglas (D-Ill) in his debate with Abraham Lincoln, declaring that Supreme Court decisions are the law of the land:

    Douglas said that Lincoln "makes war on the decision of the Supreme Court, in the case known as the Dred Scott case. I wish to say to you, fellow-citizens, that I have no war to make on that decision, or any other ever rendered by the Supreme Court. I am content to take that decision as it stands delivered by the highest judicial tribunal on earth, a tribunal established by the Constitution of the United States for that purpose, and hence that decision becomes the law of the land, binding on you, on me, and on every other good citizen whether we like it or not. Hence I do not choose to go into an argument to prove, before this audience, whether or not Chief Justice Taney understood the law better than Abraham Lincoln."

    https://bit.ly/2yJ9t9D

  • Stephen Lathrop||

    People who don't like either Roe or Heller should start the amendment process, not try and subvert them. –Absaroka

    . . . ever since Marbury the supreme court gets to say what is and isn't part of the constitution, and people who disagree with a decision have to abide by it until they change the constitution (or get the court to reverse itself). –Absaroka

    So, which is it? Amend, or reverse? And why didn't pro-gun advocates pre-Heller have an obligation to amend?

  • Joe_dallas||

    Stephe Lathrop - "So, which is it? Amend, or reverse? And why didn't pro-gun advocates pre-Heller have an obligation to amend?"

    probably because "the right of the people to keep and bear arms, shall not be infringed" Is already in 2A where as the right to murder the unborn is not in the BoR.

  • Stephen Lathrop||

    Joe, when you say that, you contradict Absaroka number 2 above.

    I hope you can grasp that prior to Heller, the Court's repeated position was that the 2A was about militia service, not about self-defense. Under that reading, anyone who demands that would-be gun controllers need an amendment now, must concede that would-be self-defenders needed an amendment then. And they didn't get one. But lo and behold, the law changed anyway. That has to mean the gun controllers can get the law changed the same way the gun advocates did, and just as legitimately—or just as illegitimately, according to your taste.

  • Joe_dallas||

    Eidde|6.26.18 @ 8:59PM|#

    Are you drawing an equivalence between blue states violating the Second Amendment and red states violating the penumbras and emanations which make up the Roe precedent?

    Eddie - can you tell us what penubras and emanations make up the Roe precedent - Blackmun certainly didn't tell us in his opinion

  • ||

    Not at all. Roe, Grisold and Lawrence are all complete nonsense. But my point was to illustrate that the left doesn't want to acknowledge the right to keep and bear arms, so politicians in blue states keep passing new laws to see what courts will uphold. And liberal judges will uphold almost anything.

  • eyesay||

    That's right, Mr. Toad! Either the government can, or cannot, require service providers to say things the service providers don't want to say. If (A) the government can't require fake abortion places to state a government-mandated script that contradicts the knowledge and beliefs of fake abortion places, then (B) the government can't require real abortion places to state a government-mandated script that contradicts the knowledge and beliefs of real abortion places. We lost A today, and so the anti-choice side must have lost B at the same time.

  • Eidde||

    As I say, the only censorship I want to see of abortionists' speech is the normal censorship prisons impose on their inmates - subject to judicial review of course!

  • Rigelsen||

    Except since the pregnancy centers are not providing medical treatment (even the "procedures" being of a non-invasive informational sort), "informed consent" requirements are not implicated. This is certainly not true of actual abortion procedures. Thus, the forced-speech mandates you are talking about might pass muster as part of such an informed consent regime. It would seem to depend on the message in question.

  • Tatil Sever||

    The patient is trying to decide whether to go through a medical procedure and the provider that offers such a service needs to provide enough information, so the patient can make an informed choice. Fine, it makes sense, not just for abortion, but for pretty much every other treatment.

    However, the advocates against a treatment is trying to affect the exact same choice, whether it is about abortion, vaccination, surgery or chemo. The information they provide contributes to the same informed choice. If advocates against a treatment cannot be forced to cover the positives of a treatment they oppose, I don't see how doctors can be forced to cover the negatives.

  • BadLib||

    That was one of my first thoughts when I skimmed the decision.

    Similarly, had the Travel Ban decision come out different because of Trump's alleged "animus" towards Muslims, it seems that many gun control laws could fall on the same theory. If the politicians enacting them had expressed their opinion prior to Heller that the Second Amendment was a "collective right" or only applied to government regulated militias or criticized Heller or called for the Constitution to be amended to gut the Second Amendment post-Heller, such laws would have presumably have been unconstitutional as the motivation for them were likely to restrict Constitutionally protected behavior.

    All in all, seems like a pretty good day for progressives. They dodged a bullet on the Travel Ban and got precedence to get rid of some disclosures around abortions.

  • Martinned||

    Except anti-gun animus is not unconstitutional, but establishing a religion is.

  • ||

    Retarded post. Animus is never unconstitutional. The argument made with respect to the travel ban is that if your otherwise legitimate actions were motivated by illegitimate animus, then the law is unconstitutional.If your action with respect to gun laws is to harass gun owners, and not to reduce crime, then it is similarly unconstitutional.

  • FlameCCT||

    It is obvious you haven't read the SCOTUS ruling or are just passing along the latest Progressive propaganda. It actually discusses this very issue.

  • ThanksForTheFish||

    "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 "

    Someone needs to get an elevator company to take Dow stair signs in their corporate headquarters, and test that theory.

  • ThanksForTheFish||

    Down, not Dow

  • vrkboston||

    I have long wondered, based on the Court's handling of compelled speech, how so much of what the SEC requires companies to report (to the public, not just to the agency) that is not plausibly related to prevention of fraud, could possibly pass muster. A lot of the disclosures required in Regulation S-K, the basic framework for prospectuses and annual 10-K reports, has no bearing on its material impact on a company's financial position. So can a company now claim these disclosures are not narrowly tailored to a compelling government interest?

  • Dilan Esper||

    My modest proposal:

    California should allow any woman misled into believing that a crisis pregnancy center offered or counseled abortions may sue for 18 years of child rearing costs as damages.

    It regulates unprotected speech and would put these guys out of business.

  • FlameCCT||

    Does it hurt being this ignorant?
    Or is it just normal for a Progressive?

  • David Nieporent||

    That doesn't make any sense.

    If the woman is tricked into believing that a crisis pregnancy center offered abortions, isn't she going to figure out pretty quickly -- like, within a few minutes of walking in -- that they aren't offering her an abortion? And then she can walk out and go somewhere else? Seems her damages would be limited to gas, or bus fare, no?

  • Dilan Esper||

    It makes sense as a a way to put a bunch of evil people who lie to women out of business, now that the Supreme Court has held that forcing them to actually tell the truth (as the religion they purport to believe in already requires) is unconstitutional.

  • James Pollock||

    "It regulates unprotected speech and would put these guys out of business."

    and then, being out of business (and re-opened under a slightly different name at the same location with the same staff), the victims with no recourse because there's no one to collect from.

  • ReaderY||

    I find myself surprised at the outcome. I thought there would be justices who would vote to uphold some parts of the law and strike down others. I am surprised that 5 voted to strike down in toto and 4 to uphold in toto.

    I thought the requirement that unlicensed facilities would have to provide extensive statements in multiple languages with any advertisement or communication would have gotten more than 5 votes to strike down, since it would have the effect of drowning out the centers' own messages.

    At the same time, requiring a disclosure that they aren't licensed to provide medical services appeared neutral and consistent with other factual disclosures upheld by the courts and I thought a majority would vote to uphold it under more limited circumstances. I thought some justices might apply the overbreadth doctrine. But the opinion doesn't do so. It appears that any requirement to disclose the facility lacks a medical license under any circumstances, however limited, would be unconstitutional.

    The Court's attempt to distinguish medicine as sui generis strikes me as weak and lacking legitimate historical foundation. The historical and in my view legitimate course has been to set a general review standard and then conclude that regulation of medicine meets it. The court would have done better, for example, to argue that charitable retail advocacy activity isn't commercial speech and is subject to political rather than commercial speech standards.

  • Eidde||

    "weak and lacking legitimate historical foundation"

    But enough about Roe v. Wade.

  • David Nieporent||

    At the same time, requiring a disclosure that they aren't licensed to provide medical services appeared neutral and consistent with other factual disclosures upheld by the courts and I thought a majority would vote to uphold it under more limited circumstances. I thought some justices might apply the overbreadth doctrine. But the opinion doesn't do so. It appears that any requirement to disclose the facility lacks a medical license under any circumstances, however limited, would be unconstitutional.

    If the requirement had been that all unlicensed facilities in California provide that disclaimer, it likely would've fared better.¹ But the legislature targeted that requirement only at these types of clinics, leading to the conclusion that this was about going after pro-life folks rather than informing the public.

    ¹If the requirement were better drafted, as opposed to requiring the clinics to drown out their own message with overwhelming disclaimers.

  • James Pollock||

    " leading to the conclusion that this was about going after pro-life folks rather than informing the public."

    Well, you have to admit this conclusion depends on what your assumptions are over whether or not "pro-life folks" had a habit of providing misleading information or not.

    If you assume that they do, then requiring them to ALSO provide accurate information is about making sure that people are getting accurate information.

    While you're at it, they only make credit-card companies disclose costs of carrying a balance on their credit cards, instead of requiring ALL businesses to disclose costs of carrying a balance on revolving credit accounts.
    The reason they require that disclosure is that the banks were setting their procedures to extend payoff times, and thus, interest charges. Yes, people of normal intelligence should be able to figure out that not paying off balances costs more the longer you don't pay off... but the banks were being... what's the best word... let's say "sneaky" by setting minimum payments too low to reduce carried balances.

  • jdgalt1||

    I disagree with this decision.

    I don't believe that any fully informed woman ever seeks out a "pregnancy advice center" such as NIFLA. Rather, women go there because they want an abortion, but made the mistake of asking the wrong "friend" for a referral, and the "friend" turned out to be a busybody who opposes abortion. NIFLA's only real purpose is to give these women the runaround until it is too late for them to get one. Then they congratulate themselves on having saved a life at the expense of her freedom.

    In short, operations like NIFLA are a form of fraud, and they should not be allowed to exist.

  • Eidde||

    Even the state of California allowed prolife clinics to *exist.*

  • Eidde||

    I suppose California is afflicted with a prolife bias which blinds them to all the horrible stuff you're convinced goes on at these facilities?

  • David Nieporent||

    Your conspiracy theories unsupported by any evidence, but full of condescension towards women, do not abrogate the first amendment. This case was not about whether such clinics are "allowed to exist." It was about whether they had to advertise state-funded abortions to everyone.

    If California had passed a narrowly-tailored law saying that a medical professional who is asked by a patient about abortion must disclose to her that he/she does not offer them but that the state offers programs to help her obtain one, it might have been a different story.

  • Sarcastr0||

    I know people who volunteer at Crisis Pregnancy Centers, and the confusion is indeed something they count on. It's small-scale deceit in service of what they believe to be a large-scale wrong.

    They will dress like medical professionals even if they like work in retail in reality, for instance.

    I don't much like it morally, and it is arguably an undue burden on abortion, but it's also private action.

  • David Nieporent||

    I can believe someone would mistakenly walk into such a clinic. I can believe that the clinic might try to dissuade her from having an abortion. I can believe that the clinic might try to deceive her about the cost/benefit of abortion. (But that's not what this law addresses.) I can't believe that women do not know that abortion is an option. (Maybe an Amish woman who has had no access to the media her whole life?)

  • Dilan Esper||

    It isn't that they don't know abortion is an option. It's that they don't know that the clinic is full of liars in white medical coats who are attempting to run out the clock on their abortion rights.

  • David Nieporent||

    to run out the clock on their abortion rights.

    How exactly would that work? Do they hold her captive for several months?

    And, again, this law has nothing to do with fraud. There are laws against that already.

    Requiring one of these clinics to advertise that the state has programs to provide for abortions does not prevent either kidnapping or fraud.

  • James Pollock||

    "How exactly would that work? Do they hold her captive for several months?"

    No. They mislead and lie, stalling and/or telling them that it is already too late to obtain an abortion.

    "this law has nothing to do with fraud. There are laws against that already."

    Depends on how "fraud" is defined. Current definitions usually specify being untruthful and misleading to obtain money. Under that definition, then no, it probably isn't fraud. If you use a broader definition, that fraud is being untruthful and misleading to obtain something of value, then it is fraud. (because pro-lifers value preventing abortions).

    Requiring a pro-life clinic or center that correctly advertises itself as a prolife clinic or center to disclose that it won't refer anyone for an abortion doesn't do anything. The people who seek out such a center aren't looking for an abortion in the first place. But requiring one that wants to pretend that it does, or might, offer abortion services, falsely, to disclose the truth, does avoid misleading the center's clients who do, or might have, wanted abortion as an option.

  • Stephen Lathrop||

    David Nieporent, one way it would work very easily would be in any case where the woman first arrived almost past the deadline.

    Or, alternatively, the clinic gives a woman with a bit longer until her deadline a sonogram, and then lies about how advanced she is in her pregnancy, and suggests she has plenty of time to think it over.

    Requiring one of these clinics to advertise that the state has programs to provide for abortions does not prevent either kidnapping or fraud.

    Kidnapping is just your loopy hypothetical, not part of anyone's discussion. But fraud, defined broadly, will be prevented whenever the advertising connects, and sends an intended victim out the door.

  • James Pollock||

    "I can't believe that women do not know that abortion is an option."

    Knowing that abortion exists as a thing does not magically also confer a knowledge of when it is medically appropriate nor when it is, or might be, legally available and when it is, or might be, legally proscribed.

    The "assistance" offered at some centers includes misleading or outright false information about all of those topics. They stall and keep the woman from looking into an abortion until it is too late to get one, and count that as a "win".

  • Rev. Arthur L. Kirkland||

    I know people who volunteer at Crisis Pregnancy Centers, and the confusion is indeed something they count on. It's small-scale deceit in service of what they believe to be a large-scale wrong.

    They tend to be gullible yet arrogant yahoos who believe they are on a Mission From God (although without Elwood and Jake's charm) and that this mission excuses some white lies. They intend to mislead vulnerable women -- wearing scrubs, for example.

    Low-character, deluded goobers have rights, too, though.

  • TheAmazingEmu||

    The distinction from Casey is probably the biggest concern I have. It seems clear California was basically motivated by "if it's good for the goose, it's good for the gander." For the most part, I can accept the idea that the disclosure requirements in Casey relate to informed consent for a medical procedure, which make it distinct but they do come off as overbroad. In other words, maybe some of those disclosure requirements can be justified, but others come off as compelled speech.

  • CrispyBacon||

    What do you make of the critique that Thomas ignores originalism in this opinion?

  • Rev. Arthur L. Kirkland||

    Justice Thomas would run originalism through three woodchippers and an industrial blender to reach a backward, right-wing result.

  • Joe_dallas||

    Overlooked/ignored by the proponents of the law is that this is not only compelled speech - but is also compelled free advertising for abortion services - The abortion providers are the ones benefiting from this compelled speech / compelled free advertising.

  • James Pollock||

    Because young women who learn that abortions are available have no choice but to go get one?

  • James Pollock||

    Doesn't this legal reasoning upend pretty much the entirety of federal financial regulation?

  • James Pollock||

    I'm all for people who are pro-life being allowed to make their case directly to anyone who might be considering an abortion, who wants to hear about alternatives. That's a good thing.

    But not all of the folks who run this sort of operation are doing so in good faith. Their goal is to get ahold of people who don't know all their options, and mislead them and stall them until their range of possible options constricts to "carry the fetus to term". This approach offends me. If you have to lie about it, you're conceding that you don't have the better argument.

    They want a policy of "we won't refer you for abortion, ever, under any circumstances"... fine. But they should have to say so, so that the people who stay are making an informed choice.

    In my state, pharmacies have a notice that says that the pharmacy MAY be able to substitute a functionally-equivalent generic medication for brand-name prescriptions, but they won't unless the customer expressly asks for a cheaper generic. They also DO NOT have to tell you when you can buy your prescription at "full price" for cheaper than your insurance co-pay, which (surprise!) the insurance companies negotiate for pharmacists not to mention.

  • ReaderY||

    I think that, by neutral First Amendment principles, some of this law should have been upheld and some struck down. I therefore think that both sides allowed their feelings about the controversial issue of abortion to get in the way of a neutral first amendment analysis.

    As noted above, two examples strike me as particularly salient. A requirement to post disclosures in 13 languages when advertising any message at all clearly has the effect of drowning out the message, and I think the Court's liberal wing should have been willing to see that.

    At the same time, I think a simple factual disclosure requirement to clients on entry that the facility is not a licensed facility is also neutral and doesn't require communicating any ideological message, and the Court's conservative wing should have been willing to see that.

    I also think the Conservative wing had an obligation to show the State of California some deference, despite ideological and political disagreements. It is a court, not a legislature. I agree that the plaintiffs don't have to tell people how to get abortions. But I also think the state, based on long-standing disclosure law principles, has a right to get the clinics to tell prospective clients what it is they do do, so clients can decide early if this is what they want.

  • ReaderY||

    I also think there was nothing wrong with the California legislature singling out abortion from other health care services. Abortion is a duo genetics subject, with special issues that sometimes require stand-alone legislation to address. The fact that the justices didn't like the legislation's policy didn't make its enactment, and the decision to choose this subject for special legislative treatment, illegitimate

  • ReaderY||

    Sorry, somehow sui generis got changed by the browser to duo genetics.

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