Supreme Court Ruling Strikes California ‘Forced Speech’ Law


The Supreme Court upheld the claims of National Institute of Family and Life Advocates (NIFLA) that a California law forcing them to display information about medical procedures violates their mission, and called the law “unjustified and unduly burdensome.” The ruling was welcomed by religious liberty advocates, many of whom had submitted briefs in support of NIFLA’s arguments.

The case revolved around the constitutionality of the state’s FACT (Freedom, Accountability, Comprehensive Care, and Transparency) Act, which requires health-care facilities, including private ones and those sponsored by religious organizations, to advertize that the services NIFLA objects to are available for free or at low cost. The law demands that programs be advertised either by handing out a printed notice in “14-point or larger type,” providing a digital notice at the time of arrival, or posting a notice in the waiting room — a sign that “must be at least 8.5 inches by 11 inches and written in 22-point or larger font.”

NIFLA, which operates centers for women in crisis, claimed that the law violated its rights to free speech and that the law was designed to target organizations such as theirs.

Five of the high court’s nine Justices agreed.

“California has offered no justification that the notice plausibly furthers. It targets speakers, not speech, and imposes an unduly burdensome disclosure requirement that will chill their protected speech,” wrote Justice Clarence Thomas, whose opinion was joined by Justices Anthony Kennedy, John Roberts, Samuel Alito and Neil Gorsuch.

Justice Thomas explained that California had failed to show a compelling interest in forcing groups to advertize its chosen message, as many options exist for the state to advertize it, including to “even post the information on public property” near the centers.

In a concurring brief, which was also joined by three other Justices, Justice Kennedy wrote a short and strongly worded statement “to underscore that the apparent viewpoint discrimination here is a matter of serious constitutional concern.”

Justice Kennedy took aim at language that was used by California’s legislature upon passing the FACT Act, calling it part of the state’s “legacy of forward thinking.”

“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; 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.”

Justice Stephen Breyer penned a dissenting opinion, joined by Justices Ruth Ginsberg, Elena Kagan and Sonia Sotomayor, pointing to state laws previously upheld by the court that require doctors to inform patients of certain information that could affect their decision to use or forgo medical options available to them.

“After all, the rule of law embodies evenhandedness, and ‘what is sauce for the goose is normally sauce for the gander,’” he wrote.

The Alliance Defending Freedom (ADF), which represented NIFLA, praised the ruling and the message it delivers.

“Tolerance and respect for good-faith differences of opinion are essential in a diverse society like ours,” said president, CEO and general counsel for ADF Michael Farris, who argued on behalf of NIFLA before the Supreme Court in March. “They enable us to coexist peacefully with one another. If we want to have freedom for ourselves, we have to extend it to others.”

When NIFLA originally voiced its objections to the FACT Act, it requested that California courts place an injunction halting enforcement of the law while their constitutional arguments were litigated. A lower court denied the request, and that ruling was later upheld by a Federal Court of Appeals. The Supreme Court’s decision grants the injunction and orders state courts to re-evaluate NIFLA’s claims in light of its decision and added that “petitioners are likely to succeed on the merits of their claim that the FACT Act violates the First Amendment.”

The state’s Attorney General Xavier Becerra called the ruling “unfortunate” and pledged to continue work to “ensure that Californians receive accurate information about their healthcare options.”

Several Orthodox Jewish groups had taken an interest in the case, saying that should the law be permitted to stand, it could lead to a “parade of horribles,” where government could force houses of worship and religious schools to advertize messages contrary to their beliefs. Some mentioned the possibility of forced labeling on kosher meat that identified shechitah as “cruel,” as has been suggested in several European countries.

Several community advocates harkened back to a 2012 New York City regulation requiring mohalim to ask parents to sign a consent form espousing the Department of Health’s view associating metzitzah b’peh with serious health risks, a position dismissed by leading medical experts and veteran mohalim.

Agudath Israel of America, which had joined a number of Christian groups in a brief in support of NIFLA, welcomed the high court’s ruling, calling it “a victory for religious freedom.”