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Supreme Court on Pro-Life Free Speech Case

June 27, 2018


Wall Street Journal Editorial,

One of the more compelling issues of our time is the assault on traditional free-speech protection in the U.S., a right currently under pressure on many university campuses. On Tuesday the Supreme Court issued an important decision, National Institute of Family and Life Advocates v. Becerra, reasserting the inviolability of those speech protections.

In this case the threat was from the state of California. Under California’s FACT Act, licensed clinics that offered pregnancy services as an alternative to abortion were required to notify clients that California provides free or low-cost abortions, and to provide a phone number for those providers.

Writing for the 5-4 majority, Justice Clarence Thomas says the law requires the services to advertise abortion, “the very practice that petitioners are devoted to opposing.” The California law, he writes, compelled the services to provide a “government-drafted script” and thus violates their First Amendment rights.

The Ninth Circuit Court of Appeals had upheld the law on grounds that normal free-speech protections didn’t apply because the statute regulated “professional speech.” Justice Thomas was unequivocal in stating that speech does not lose its protections “merely because it is uttered by ‘professionals.’”

It is also worth noting that something else was going on here beyond whether a state can dictate speech for professional service providers. The California licensing law was written so that it applies only to clinics that are opposed to abortion. In a stirring concurrence, Justice Anthony Kennedy makes clear what is at stake in laws such as California’s that single out ideas or speech with which it disagrees.

He says the law’s specific nature “suggests a real possibility that these individuals were targeted because of their beliefs.” He goes on to note, “The California Legislature included in its official history the congratulatory statement that the Act was part of California’s legacy of ‘forward thinking.’”

In reply, Justice Kennedy writes, “It is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders then knew it.” He concludes: “Freedom of speech secures freedom of thought and belief. This law imperils those liberties.”

Strong stuff. Anyone aware today of the pressure being brought on disfavored speech or ideas, whether on campuses or in state legislatures, should welcome the Becerra ruling.

  
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