In a resounding victory for freedom of speech, the U.S. Supreme Court ruled today that a California law forcing pregnancy resource centers to promote abortion is unconstitutional. However, the 5-4 ruling in NIFLA vs. Becerra is a chilling reminder of just how fragile our constitutional rights are at this point in our nation’s history.
Justices writing for the majority delivered a stinging rebuke to the California State Legislature for enacting the FACT Act, which required only pro-life pregnancy care centers to post a long statement, written by the government, in their facilities and in all advertising. Justice Clarence Thomas, who wrote the majority opinion, forcefully refuted the State’s contention that the Act was not a violation of the First Amendment because it fell under the category of “professional speech.” He wrote, “regulating the content of professionals’ speech ‘pose[s] the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information.’” He continued to say that governments have historically used this manipulation “to increase state power and suppress minorities.” At that point, Thomas cited several examples of this, including a reference to Nazi Germany.
Justice Thomas questioned the motives of the Government in applying the law to pro-life centers only. He held that the law threatened the “uninhibited marketplace of ideas in which truth will ultimately prevail,” saying that “professionals might have a host of good-faith disagreements” and “the people lose when the government is the one deciding which ideas should prevail.”
In a concurring opinion, Justice Anthony Kennedy, called the law “viewpoint discrimination” and said the Act “compels individuals to contradict their most deeply held beliefs.” He then challenged the statement made by the California Legislature that the FACT Act was part of the State’s legacy of “forward thinking.”
It is not forward thinking to force individuals to “be an instrument for fostering public adherence to an ideological point of view [they] fin[d] unacceptable.” Wooley v. Maynard, 430 U. S. 705, 715 (1977). It is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders then knew it; to confirm that history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech; and to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for the generations to come. Governments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief. This law imperils those liberties
Chief Justice Roberts and Justices Alito and Gorsuch joined Justice Kennedy in his concurring opinion.
NC Family signed on to a “friend-of-the-court” brief for this case in January, urging the U.S. Supreme Court to support the free speech rights of the pro-life pregnancy centers. The amicus brief was filed on behalf of 41 family policy organizations and was authored by David French, a former ADF attorney and current Senior Fellow at the National Review Institute.