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Friday, August 3, 2018

Notable 2018 Supreme Court Decisions: Compelled Speech

Can the government force private organization to express messages they disagree with?

The issue of compelled speech and viewpoint discrimination was reviewed by the Supreme Court in National Institute of Family and Life Advocates (NIFLA) v. Becerra. The Court ruled that the government cannot force private organizations to express messages that they disagree with.

National Institute of Family and Life Advocates (NIFLA) is a religious, pro-life organization that provides pregnancy related services in the State of California. Per California Reproductive Freedom statue, certain clinics that provide family planning services to pregnant women must notify them of free or low-cost abortion services. If the clinic is unlicensed as a medical facility, it must notify the women of that as well.

But NIFLA sought to enjoin the enforcement of this statute, based on a First Amendment challenge, arguing that it violated their free speech and free exercise rights. The injunction was denied by both district and appellate courts.

The Supreme Court reversed lower courts decisions. It found that the two notice requirements were content-based regulation of speech, that likely violated the First Amendment. The religious center was forced to inform women of abortion, a practice they were devoted to opposing. This was a clear instance of a government compelled speech.

The four-justice concurrence expressed an additional concern that the law raised issues of viewpoint discrimination, because the California statue appeared to be written to target only anti-abortion clinics. The court raised questions of a “serious threat” of a government trying to impose its own viewpoint.

The Court also declined to create a lesser standard of scrutiny for “professional speech,” noting that lawyers, doctors and other professionals are fully protected in their speech rights outside of contexts of advertising and speech incidental to professional conduct.

The Court reasoned that government’s interest in providing accurate information to women about availability of various family planning services can be met through other means – such as advertising.


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