December 14, 2017

CUA Law professor Mark Rienzi published an article entitled "Symposium: NIFLA v. Becerra - A Supreme housecleaning continues?," on SCOTUSblog. See below.

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

From: SCOTUSblog
Date: Dec. 14, 2017
Author: Mark Rienzi

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.