BLOGThink the Supreme Court Is Done with Free Speech Post-Masterpiece? Think Again.

By Jay Hobbs Posted on: | June 21, 2018

For anyone who wishes that the Supreme Court would have addressed the free speech question in its recent Masterpiece ruling, good news might be just around the corner.

A case that’s not drawing nearly as much attention as Masterpiece Cakeshop v. Colorado Civil Rights Commission—which put a Christian cake designer in the national spotlight for declining to create a wedding cake for a same-sex ceremony—figures to put free speech in the spotlight again when the Supreme Court hands down the remainder of its opinions this month.

That case, National Institute for Family and Life Advocates v. Becerra, asks the court to overturn a California law passed in 2015 that would force pro-life pregnancy centers and ultrasound-equipped pro-life medical clinics to post and distribute messages designed to steer women away from their free, locally funded services.

A law backed most vocally by abortion advocacy group NARAL Pro-Choice America, AB 775 (referred to by its authors as the “Reproductive FACT Act”) singles out pro-life pregnancy centers with two requirements—both of which the state threatens to enforce with crippling fines.

If a center provides free ultrasounds, it must post or distribute a government disclosure that not only tells clients the state offers taxpayer-funded abortions, but includes a phone number for where to get one.

If a pregnancy center does not receive a license from the state as a medical center, it would be required to include a disclaimer with up to 12 translations in all advertising, as well as in its waiting room, specifying that the center is not a medical facility.

On the ground, that requirement would turn a simple newspaper advertisement from “Pregnant? Call Pregnancy Help Center at 888-888-8888” into a large ad, with only one instance of the ad verbiage itself in English. That change, as an amicus brief filed by Heartbeat International cited, would balloon a 28-day run of the same ad from $299 to $9,058.

Nor was the significance of the state’s demands lost on the justices during the oral argument this March. Questioning Joshua Klein, the attorney arguing for California Attorney General Xavier Becerra, Justice Ruth Bader Ginsburg pointed out that such a requirement “can be very burdensome.”

That burden on free speech also caught the attention of Justices Neil Gorsuch and Samuel Alito, but it was Justice Anthony Kennedy who flushed out one of the more illuminating—and alarming—statements from Klein.

Bringing up the example of a simple billboard bearing the message “Choose Life,” Justice Kennedy asked Klein if the state’s disclaimer would be necessary. When Klein conceded that it would, Justice Kennedy followed up:

Justice Kennedy: “Do you agree that mandating speech that the speaker would not otherwise give—indeed, does not agree with—alters the content of the message?”

Joshua Klein: “Yes, it does, Your Honor.”

Earlier in the oral argument, Justice Kennedy—the swing vote in many cases involving the sanctity of life, the family, and religious liberty, and the author of the Supreme Court’s 7-2 opinion in Masterpiece—had said even the law’s translation requirement would be enough to strike down the law as an undue burden to free speech.

Indeed, when the high court first agreed to hear NIFLA’s petition last November, the justices made clear they were interested solely in the free speech ramifications of California’s law, turning down an accompanying request from NIFLA to review the law on grounds that it violates the First Amendment’s free-exercise guarantee.

That the justices decided not to hear the case on free-exercise grounds, even though pregnancy centers are almost entirely run by Catholic and evangelical Christians—and despite clear animosity from NARAL and the actual legislators who passed the bill—is a good sign the court is concerned about the law’s real-world effect on free speech.

Unlike Masterpiece, where the justices ruled that an unelected government commission had acted with “clear and impermissible hostility” toward Masterpiece Cakeshop owner Jack Phillips based on his religious views, the Supreme Court has little else to answer aside from the free-speech claims NIFLA brings to the fore.

It’s free speech or bust in NIFLA.

If the oral arguments are any indication, that’s great news not just for pro-life pregnancy centers and the women they serve. Hopefully, it will be a major free speech win for all Americans.

Jay Hobbs

Deputy Director of Media Communications

Jay Hobbs serves as Deputy Director of Media Communications at Alliance Defending Freedom.

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