Free Americans should not be compelled by the government to express something that conflicts with their beliefs.
That may sound obvious, but it’s an issue the Supreme Court must consider in National Institute of Life Advocates v. Becerra.
The state of California, by contrast, subsidizes abortions and disapproves of the pro-life message of pregnancy care centers. California’s solution to the message of obviously pro-life pregnancy care centers?
Simple — commandeer their voice to promote abortion instead. The First Amendment forbids this. But that didn’t stop California.
In 2015, the California legislature passed a law targeting the pro-life message of pregnancy care centers. The so-called “Reproductive FACT Act” requires pregnancy care centers providing licensed medical services to post prominent advertisements for state-subsidized abortion in their waiting rooms or directly to patients.
In other words, pro-life pregnancy care centers that provide medical services are required by California law to provide free advertising for their competition – the abortion industry.
Even non-medical pregnancy care centers — the ones focused on clothing, feeding, and diapering newborns—are compelled to convey the government’s message, or refrain from advertising.
Under the law, if an unlicensed pregnancy care center so much as runs a three-word ad saying, “Pregnant? Need help?” it must include a 29-word disclaimer emphasizing that it doesn’t provide medical services. This disclaimer must be in an equal font size as the rest of the ad, and depending on the county, it must be repeated in as many as 13 different languages.
When ad price depends on space and word count, any advertisement just became prohibitively expensive. And even if the pregnancy care center can afford it, the massive block of disclaimer text would easily overwhelm the actual message.
Rather than promote the abortions they exist to help women avoid, the centers sued.
In NIFLA v. Becerra, they challenge California’s ideological attack, arguing that forcing them to sabotage their own message violates the Constitution.
Under the First Amendment’s Free Speech Clause, compelled speech like this is just as impermissible as censored speech: the freedom to speak and to refrain from speaking are two sides of the same coin.
California claims that it can compel the speech of pregnancy care centers because they are engaged in commercial activity. Of course, there is an obvious problem: these nonprofit clinics provide all their services for free.
In reality it doesn’t matter whether the speech being required here is “commercial” or not Forcing pro-life pregnancy care centers to promote a message contrary to their viewpoint is a clear violation of the U.S. Constitution.
The First Amendment absolutely prohibits the government from regulating speech because it disapproves of the speaker’s message. This sort of attack on freedom of expression is known as viewpoint discrimination, and according the Supreme Court it is always unconstitutional, no matter what other purposes the regulation may serve.
Our firm, First Liberty Institute, filed a friend-of-the-court brief on behalf of twenty-three respected legal scholars from across the country, making the case that this is exactly what California has done. In fact, California has effectively admitted as much — the law’s sponsor explicitly pointed to pro-life clinics as the FACT Act’s target.
The U.S. Supreme Court may be forced to remind California that the First Amendment still applies to the state.
California must not be allowed to outsource its own promotion of abortion to clinics that dare to dissent.
Lea Patterson is judicial fellow and Joseph Bingham is counsel to First Liberty Institute, a nationwide religious liberty law firm dedicated to protecting religious liberty for all at FirstLiberty.org.