Symposium: NIFLA v. Becerra — A Supreme housecleaning continues?

Mark L. Rienzi is a professor of law at The Catholic University of America, Columbus School of Law.

The First Amendment’s protections for minority speakers are most needed — and most in jeopardy — when the speech relates to deeply important and deeply controversial issues. When the speech in question matters most, the temptation toward government control is greatest. This is true both for the political branches the First Amendment is designed to restrain and, more dangerously, for the judges charged with its enforcement.

Thus it is no surprise that abortion-related speech cases like National Institute of Family and Life Advocates v. Becerra arrive on the Supreme Court’s docket from time to time. Too often, courts in such cases are either tempted or overwhelmed by the abortion-related aspects of a case and fail to apply straightforward First Amendment principles. That pattern is a danger to all speakers, as abortion-related First Amendment errors can distort the doctrine more broadly.

Recent history suggests that, unlike the lower courts, the justices in this case will see the First Amendment issues clearly, even though those issues relate to abortion. The Supreme Court is thus likely to reach the obvious conclusion that California cannot force pro-life pregnancy counselors to direct women to abortion providers. In the process, the court can and should continue its project of repairing First Amendment doctrine that has, over time, been warped by abortion-related speech cases.

Doctrinal distortions in abortion/speech cases

The justices are, of course, well aware that a sensitive issue like abortion can sometimes distort other areas of the law, including the First Amendment.  This case arrives as both sides of the abortion debate have tried to control the speech of their opponents. A Florida law seeks to require counselors and even clergy members who might advise a woman to have an abortion to obtain a special license from the government — a license that would not be required if the same advisor were to counsel against abortion.

A San Francisco law, on the other hand, creates special advertising restrictions that apply to speakers who counsel against abortion, but not to those who counsel for abortion. A Baltimore law forces pro-life pregnancy counselors — even when operating on church property — to post signs with the government’s chosen message about abortion; no similar requirement applies to counselors who are willing to refer for abortions.

As a matter of standard First Amendment doctrine, these should be easy cases. Such laws are classic examples of content and viewpoint discrimination, and they would only be sustainable if the relevant government body could satisfy strict scrutiny and prove that it has no less restrictive way to serve a compelling government interest.

But at times courts have warped First Amendment doctrine to allow a favored side of the abortion debate to control the speech of its adversaries. The U.S. Court of Appeals for the 9th Circuit in the San Francisco case (First Resort v. Herrera), for example, actually claimed that nonprofit pregnancy counselors — who do not charge their clients a penny — were somehow engaged in commercial speech, because the nonprofit separately engages in fund-raising. This standard would turn every nonprofit in the country into a commercial speaker and give the government enormous power to regulate the speech of every nonprofit, from the Sierra Club to the Catholic Church. The panel also found that singling out pro-life counselors was viewpoint-neutral, because speakers might have reasons for refusing to refer for abortion other than being pro-life.

Perhaps the most infamous example of a court allowing the abortion context to trump standard First Amendment analysis is the Supreme Court’s 2000 decision in Hill v. Colorado. There, the court badly distorted the content-neutrality inquiry by holding that a law that restricted “counseling, education, or protest” near the entrance to a health-care facility was content-neutral. Even though such a law is obviously content-based — its application depends directly on the content of someone’s speech — the court found it content-neutral because it was allegedly enacted, not because of disagreement with speech, but to protect “the right to be let alone” or a “right to privacy” on public sidewalks.

Justices Antonin Scalia and Clarence Thomas accused the majority of applying special rules because the case involved abortion, using an approach that is “in stark contradiction of the constitutional principles we apply in all other contexts.” The outrage was not limited to opponents of Roe v. Wade and Casey. Professor Laurence Tribe called Hill “slam-dunk simple and slam-dunk wrong.” Justice Anthony Kennedy (a member of the Casey plurality) said the analysis “contradict[ed] more than a half century of well-established First Amendment principles.” Hill became a widely cited precedent for nearly 15 years, used by many lower courts as the standard for content analysis.

McCullen and Reed: Recent efforts to repair the damage

Recently, the Supreme Court has begun taking steps to clean up the damage done to First Amendment doctrine by these types of cases. First, in 2014, the court decided McCullen v. Coakley, which involved a Massachusetts abortion-clinic buffer-zone law. For 13 years, the lower federal courts in McCullen and its predecessor cases had found the buffer-zone law constitutional because of Hill. But the justices unanimously reversed, finding that the state’s attempt to criminalize even peaceful speech on public sidewalks outside abortion clinics violated the First Amendment.

The McCullen court did not expressly overrule Hill, but it did restate the content-neutrality analysis in a way that was utterly irreconcilable with Hill: A law is content-based if enforcement authorities need to “examine the content of the message that is conveyed to determine whether a violation has occurred.” Further, concern about a listener’s reaction to speech — even if it “caused offense or made listeners uncomfortable” — is not neutral. Under that analysis, the law at issue in Hill is plainly content-based.

The day after deciding McCullen, the Supreme Court granted review in Reed v. Town of Gilbert. Although Reed did not directly concern abortion, it involved the 9th Circuit’s heavy reliance on Hill to find a restriction on the size and placement of signs to be content-neutral, even though application of the law depended entirely on the words placed on the sign. Reversing, and repeatedly relying on the dissenting opinions from Hill, the court made clear that a law is content-based if its application depends on the words spoken, and a benign purpose cannot save an otherwise content-based statute. And Reed emphasized that content-based laws must pass strict scrutiny to survive. Again, under this analysis, the law at issue in Hill is plainly content-based and unconstitutional.

The cleanup continues with NIFLA v. Becerra

NIFLA appears to be part of a similar doctrinal housecleaning for cases involving abortion-related speech restrictions. In this case, the 9th Circuit acknowledged that California’s regulation of pregnancy-related speech was content-based, but chose not to apply strict scrutiny, because the law regulated the speakers’ “professional speech.” Indeed, the appeals court openly acknowledged that it was deviating from Reed in applying only intermediate scrutiny. The court reasoned that strict scrutiny was only required if the law engaged in viewpoint discrimination and found that, although the law requires pro-life providers to provide information about where to obtain abortions, it was viewpoint-neutral.

That reasoning makes no sense, either on its face or in light of Reed and McCullen. California’s law is designed to target speakers who oppose abortion, and it forces them to provide messages that convey the government’s viewpoint, including directing clients where to call to get an abortion. If the law did not concern abortion, no court would have difficulty knowing that strict scrutiny applies.

NIFLA presents the court with intriguing possibilities for how broadly to approach cleaning up First Amendment doctrine. A narrow ruling would dispose of this case but provide little guidance for pregnancy-counseling-regulation cases pending in the lower courts. For example, the court could hold that because the 9th Circuit found the law is content-based, strict scrutiny is necessary, and could remand the case for that analysis.

Alternatively, the court may want to rule more broadly so as to standardize First Amendment doctrine in the pregnancy-center cases throughout the circuits. Such a ruling would require two additional components. First, the court would need to announce (yet again) its clear standard for determining whether a law is viewpoint-based. Some of the lower courts — chiefly the 9th Circuit in First Resort and the en banc U.S. Court of Appeals for the 4th Circuit in an earlier round of litigation in Greater Baltimore Pregnancy Center v. Mayor and City Counsel of Baltimore — have deviated from proper viewpoint analysis by allowing speculation about a speaker’s particular motives for speech to lead them to treat an obviously viewpoint-based government policy as viewpoint-neutral. Reed and McCullen corrected the lower courts’ Hill-inspired overemphasis on government motive; surely the court did not intend that new clarity to be replaced with judicial guesswork about a speaker’s individual motive for having spoken from a certain viewpoint.

Second, the court could clearly announce that the speech of nonprofit pregnancy counselors is not commercial speech. Again, the 9th and 4th Circuits have suggested otherwise. That approach cannot be reconciled with the court’s own commercial-speech cases. Because California has argued that the regulations in this case regulate commercial speech, the court would certainly have grounds to reach this issue.

Whether the justices will use this case quite so broadly is difficult to predict. If they choose not to, they should have one ready vehicle waiting for them by June (the certiorari petition in First Resort is due on February 1) and possibly others soon after. A narrower ruling in this case, followed closely by an additional correction in one of the other cases, would match the cleanup pattern set by McCullen and Reed.

However the court approaches the task, NIFLA is likely to be part of the court’s effort to ensure that the First Amendment protects speakers on all sides of important debates, and continues to apply even on the most sensitive and controversial issue of our time.