CommentaryAn inherent feature of democracy is majority rule. And with that, as you may recall from civics, comes the risk of tyranny of the majority—the danger that a controlling popular viewpoint will oppress opposing views in society.
Foreseeing this, the Framers set up a number of constitutional mechanisms to protect minority interests. Among these early institutional protections was the First Amendment’s guarantee of free speech. It was written in absolute terms, for tyranny by the majority manifests on a slippery slope. What may start as a well-meaning effort by officials wishing to limit certain harmful messages can morph into a dangerous form of social control where the state banishes certain beliefs and ideas. To prevent this insidious creep, the First Amendment assures that all ideas must be freely permitted without censorship or prejudice from the government.
But that didn’t stop the California Legislature in 2015 from imposing its pro-abortion passions on ideological opponents: pro-life, nonprofit pregnancy care centers. California did this by doing what the First Amendment says it cannot: by mandating that these pro-life groups speak messages to which they conscientiously object. Under penalty of crippling fines, the state attempted to, as Justice Clarence Thomas put it in his majority opinion in National Institute of Family and Life Advocates v. Becerra, “co-opt these facilities to deliver its message” promoting abortion.
Specifically, AB 775, titled the “Reproductive FACT Act,” required licensed pro-life pregnancy centers to make conspicuous written announcements—in specific words dictated by the state—telling women how to obtain low-cost abortions. The law also forced non-medical pregnancy care centers to place lengthy state-crafted disclaimers in all their advertisements, suggesting that the centers were unqualified to provide the free non-medical support services they offer.
Taken together, the act’s two operative provisions required these pro-life charities to affirmatively make negative implications about themselves and to point women to abortion, contradicting the very reason these centers exist. The centers’ volunteers and staff obviously bore deep moral objections to speaking either compelled message.
California was not subtle about the tyranny it was orchestrating. Legislators went on record stating that they were indeed intending to target pro-life pregnancy care centers, noting that these centers “unfortunately” exist throughout the state and encourage pregnant women to choose life for their babies. Legislators openly contrasted the centers’ pro-life message with California’s own “proud legacy” of liberal abortion laws.
The act itself contained a series of complicated exemptions, leaving the provisions compelling speech applicable exclusively to pro-life speakers at these pro-life nonprofits. In this way, an overbearing government gerrymandered the legislation to drown out a particular point of view it didn’t want its citizens to hear.
When pregnancy care centers challenged the law, California shied away from its bald targeting of pro-life views and claimed instead that it was mostly trying to get information out. The compelled speech was justified, the state argued because pregnant women in California need to know about where to get medical services. What the state couldn’t explain, though, is why it would commandeer only certain pro-life nonprofits to spread the abortion message. That’s a rather ineffective method for a public information campaign. And it reeks of viewpoint animus.
After the U.S. Court of Appeals for the 9th Circuit upheld the law in NIFLA, the U.S. Supreme Court saw the Reproductive FACT Act for what it was: a content-based speech regulation that “imposes a government-scripted, speaker-based disclosure requirement.” Because the act compelled speech, it forced speakers to alter the content of their speech. And absent sufficient justification, of which none was offered here by any stretch, content-based speech burdens cannot survive. It is a longstanding and simple constitutional rule, and the high court applied it straightforwardly to invalidate the act.
The beauty of the majority opinion in NIFLA is that it does not rest on the targeting of ideological opponents. Instead, it goes back to the broader principle that the mere possibility of silencing minority views is enough to prohibit speech regulations.
Compelled speech is anathema to the Free Speech Clause, and the analysis need not go further. Anything less than full and automatic protection of speech would give states “a powerful tool to impose invidious discrimination of disfavored subjects.” Thus, Justice Thomas, writing for the majority, put in contemporary terms the principle that the Founding Fathers declared long ago: “[T]he people lose when the government is the one deciding which ideas should prevail.” And whether or not such discrimination is afoot in any particular case is immaterial; even the remote prospect of interfering with freedom of thought and belief renders a speech regulation impermissible.
The four-justice concurrence, authored by Justice Anthony Kennedy, hit harder on the government’s motives, calling California to task for undisguised viewpoint discrimination. The burdensome speech regulations on pro-life speakers, Kennedy wrote, indicated that “these individuals were targeted because of their beliefs.” And, equally concerning, the means California used to advance its “preferred message advertising abortions” ran headlong into the Free Speech Clause. Summing up the grave constitutional problem, the concurring justices delivered a quote we will surely be seeing again in future free speech cases: “Governments must not be allowed to force persons to express a message contrary to their deepest convictions.”
At bottom, NIFLA v. Becerra illustrates why we need the First Amendment’s protections in our democratic republic if individual thought and ideas are to flourish. The danger of censorship by those in power is real. This case also demonstrates the importance of a judiciary firmly committed to upholding these fundamental free speech principles—regardless who is speaking. Free speech is either for everyone, in all seasons, or it is illusory.
Let’s hope that the Supreme Court’s clear message in NIFLA marks a resounding warning shot to lower courts and state legislatures inclined to use government power to control the marketplace of ideas. Even the chance that certain views may be suppressed is enough to invoke the corrective protection of an American bedrock, the First Amendment.
Denise Harle is legal counsel with Alliance Defending Freedom, which represents the National Institute of Family and Life Advocates.
Suggested citation: Denise Harle, NIFLA Decision Affirms First Amendment’s Purpose: Protect Minority Viewpoints, JURIST – Professional Commentary, Jul. 15, 2018, https://www.jurist.org/commentary/2018/07/harle-NIFLA-Decision-First-Amendment.
This article was prepared for publication by Krista Grobelny, a JURIST Section Editor. Please direct any questions or comments to him at commentary@jurist.org
