Can the government force an organization to advertise for its competitors?
The Supreme Court says no.
The case, NIFLA v. Becerra, involved a California law that forced licensed pregnancy centers to advertise for state-funded abortion clinics. The law specified how large the sign had to be, and even dictated the words to be used. It required the sign to be placed inside the center, on its website, and in all advertising. It even required centers to provide the telephone number of state agencies that could connect women to abortion providers.
The effect of the law was essentially to crowd out the center’s own message.
The Court struck down the law as a violation of the First Amendment. In the majority opinion, Justice Clarence Thomas said, "California cannot co-opt the licensed facilities [pregnancy centers] to deliver its message for it."
Thomas was joined by the Court’s more conservative justices, John Roberts, Anthony Kennedy, Samuel Alito and Neil Gorsuch. Dissenting were liberal justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.
But the real bombshell was Justice Kennedy’s concurring opinion. He started by denouncing the law as “a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression. For here the State requires primarily pro-life pregnancy centers to promote the State’s own preferred message advertising abortions. This compels individuals to contradict their most deeply held beliefs.”
In fact, Kennedy added, “the history of the Act’s passage and its underinclusive application suggest a real possibility that these individuals were targeted because of their beliefs.”
Pregnancy centers offer practical help, social support, financial assistance, clothing, baby equipment, and child care for pregnant women and their children. People who favor abortion often say (as a friend of mine once did), “You pro-life people have no right to talk about abortion until you are willing to stand alongside pregnant women and give them support.” But that objection is badly out of date. In the United States there are roughly twice as many pro-life pregnancy centers as abortion clinics.
These centers are all or mostly operated by Christians. Secular people who claim to care about women are missing in action when it comes to giving practical help to women facing a difficult pregnancy. The California law was clearly an attempt by abortion clinics and their supporters to suppress the competition.
But the implications of this decision reach far beyond protecting pregnancy centers. It protects all Americans from being coerced into speaking a government-favored message.
In an ironic note, Kennedy chastised the California legislature by urging them to read the First Amendment: “The California Legislature included in its official history the congratulatory statement that the Act was part of California’s legacy of ‘forward thinking.’ But 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 the chagrin of liberal commentators, Kenney then lectured the California legislature on the history of compelled speech, urging them “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.”
I am reminded of Justice Jackson’s famous declaration: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”
The NIFLA ruling is a big win against compelled speech. It affirms that the government may not coerce individuals to promote a message with which they disagree.
Whether you oppose abortion or favor it, whether you are conservative or liberal, we should all be glad that the Supreme Court has taken a stand for freedom of speech.
Nancy Pearcey is author of "Love Thy Body: Answering Hard Questions about Life and Sexuality." An editor at large of the Pearcey Report, she is also is professor and scholar in residence at Houston Baptist University.