California told pro-life pregnancy centers what to say, and the Court said no

Here is a test of your commitment to free speech. Suppose your state passes a law requiring a volunteer-run clinic, whose whole reason for existing is the belief that abortion is wrong, to post a sign advertising where to get one. Does your answer change if the clinic is run by people you disagree with? If the answer is yes, you do not believe in free speech. You believe in your side's speech.

The Supreme Court answered that question in 2018, five to four, and the answer was the right one. It is worth understanding why, because the principle protects everyone who has ever been told by a government what they must say.

The case in a sentence

National Institute of Family and Life Advocates v. Becerra was decided on June 26, 2018. The Court held that two notice requirements imposed on pregnancy centers by California's Reproductive FACT Act were likely unconstitutional because they compelled speech in violation of the First Amendment. Justice Clarence Thomas wrote the opinion of the Court.

Now the details.

What California required

California enacted the Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act, called the FACT Act, in 2015. It applied to what the statute called "covered facilities," meaning pregnancy centers, including many that are run by churches and volunteers and exist to encourage women to carry their pregnancies to term and to offer free supplies and counseling. The act imposed two different notice requirements.

The licensed notice. Centers that were licensed clinics, those offering medical services such as ultrasounds under a licensed provider, had to post or distribute a notice stating that California has public programs that provide immediate free or low-cost access to comprehensive family planning services, including all FDA-approved methods of contraception, prenatal care and abortion for eligible women. The notice had to include a phone number for the county social services office. In other words, a clinic that opposed abortion had to hand every client a notice about how to get one at public expense.

The unlicensed notice. Centers that were not licensed medical facilities had to state, on site and in all of their advertising, that the facility is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services. The on-site notice had to be at least 8.5 by 11 inches in 48-point type and in English and any other languages the state required, which in some counties meant as many as 13. In advertising, the disclosure had to match or exceed the size of the surrounding text, or otherwise draw attention. The burden fell hard on small centers, and a short advertisement could end up mostly disclaimer.

Consider who was exempt. Federal clinics and clinics enrolled in the state's Family PACT program were excluded from the licensed notice, and the Court called the exclusion "without explanation" and the Act "wildly underinclusive." Justice Breyer's dissent says those exempt facilities enroll patients in programs that include abortion. The law fell on the centers whose message California disliked far more than on others.

The question and the holding

The question was whether the FACT Act's notices violated the First Amendment's guarantee of freedom of speech, which the Fourteenth Amendment applies against the states. The Court said yes, at least as a likelihood of success on the merits, and sent the case back.

Why? The Court began with a principle. A law that compels a person to speak a particular message alters the content of that person's speech. That is a content-based regulation, which ordinarily draws demanding review. The Court did not decide which standard applied, because it held that the licensed notice likely fails even intermediate scrutiny. The licensed notice, Thomas wrote, was a content-based requirement that compelled these clinics to provide a government-drafted script about the availability of state-sponsored services, including abortion, the very practice the clinics were organized to oppose.

California had argued that the notice was regulation of "professional speech," speech by licensed professionals about their practice, and that professional speech receives a lower level of protection. Thomas's opinion rejected the theory. He wrote that the Court has not recognized "professional speech" as a separate category of speech subject to different rules, and he warned that the category invites states to decide which speech by doctors, lawyers and others is worth less protection. The opinion noted that the Court has applied lesser scrutiny in two circumstances, to laws requiring factual disclosures in commercial speech, and to regulations of professional conduct that incidentally burden speech. Neither fit.

On commercial disclosures, the Court said the licensed notice was not about the services the clinic itself provided. It was about state programs, and so it did not fit the line of cases allowing a state to require purely factual and uncontroversial information about a product or service. Abortion, the Court said, is anything but an uncontroversial topic. On regulation of professional conduct, the Court said the notice was not tied to any particular medical procedure. It applied to everyone who walked in, regardless of whether any procedure was offered.

The Court also dealt with Planned Parenthood v. Casey. Casey had upheld a requirement that doctors give a woman certain information before an abortion, as part of obtaining informed consent. Thomas said that holding concerned informed consent for a medical procedure, a requirement tied to the practice of medicine. The licensed notice did not accompany any procedure at all.

Then came the key point about alternatives. Even if California had a legitimate interest in informing women about its programs, Thomas wrote, the notice was not sufficiently drawn to serve it. The state, the Court said, could inform the women itself with a public-information campaign, and it could not co-opt the licensed facilities to deliver its message. If the government wants a message heard, the Court said, it can speak for itself.

On the unlicensed notice, the Court found it unjustified and unduly burdensome even under the lenient test for commercial disclosures, since California offered no justification beyond the purely hypothetical and the notice targeted speakers rather than speech.

Kennedy's concurrence

Justice Anthony Kennedy, joined by Chief Justice Roberts and Justices Alito and Gorsuch, wrote a short concurrence aimed at the viewpoint problem. He wrote that the Act is a paradigmatic example of the serious threat presented when the government seeks to impose its own message in place of individual speech, thought and expression. He also pointed to the law's legislative history, which suggested to him that the state had targeted a viewpoint, that the state sought to burden pregnancy centers that oppose abortion, while exempting others.

That is the heart of a viewpoint-discrimination claim. It is one thing for the state to regulate everyone. It is another to single out the speaker whose views the majority dislikes. Kennedy's point was that a state that exempts the clinics that agree with it, and burdens those that do not, has told us what the law is really for.

Breyer's dissent, stated fairly

Justice Stephen Breyer, joined by Justices Ginsburg, Sotomayor and Kagan, dissented, and his objection deserves a fair hearing, because it was not a trivial one.

Breyer's argument was that states have long regulated the speech of professionals, doctors and lawyers among them, and that the majority's approach would threaten a very large body of ordinary law. Doctors are routinely required to disclose risks to patients. Lawyers must tell clients about fees and conflicts. Many states require disclosure of information to people seeking certain services. If every disclosure rule is a content-based regulation subject to strict scrutiny, he warned, a vast range of ordinary health and safety regulation might fall.

He also argued that the notice was a modest disclosure of factual information, that the state had a legitimate interest in ensuring women knew about the services available, and that the information was true. He argued that Casey's treatment of informed-consent requirements supported giving legislatures room. In his view the majority was applying an unusually strict standard to a law that did no more than provide information.

I take the objection seriously, and the majority did too, which is why its opinion insisted on the limits of its holding. The Court did not say that every disclosure requirement is unconstitutional. It said that the licensed notice was not a purely factual disclosure about the clinic's own services, that it concerned a hotly disputed subject, and that it likely failed even intermediate scrutiny. A rule requiring a surgeon to disclose the risks of a procedure he is about to perform is a different animal from a rule requiring a clinic to advertise a service it considers morally wrong.

Why the principle protects every side

Now let me make the argument on principle, in numbered form.

1. The First Amendment protects the right not to speak as well as the right to speak. The Court said so in West Virginia State Board of Education v. Barnette in 1943, when it held that schoolchildren could not be compelled to salute the flag. Justice Jackson's opinion in that case said 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. That sentence is in the Court's blood. two schoolgirls, a flag salute and the 1943 ruling that protected conscience tells the story of that case.
2. Compelled speech is as dangerous as censorship. In Wooley v. Maynard (1977) the Court held that New Hampshire could not require drivers to display the state motto "Live Free or Die" on their license plates if they objected. If a state may force you to carry its slogan, it may force you to carry its argument.
3. The state has a megaphone of its own. Government has enormous power to communicate. It can run advertising campaigns, post notices on its own property, and fund its own services. If the state wants women to know about public programs, it can say so. It has no need to conscript the speech of private organizations that disagree.
4. The rule cuts in every direction. Imagine the same law reversed: a state requires every abortion provider to post a notice describing the state's alternatives to abortion and the availability of adoption services. A person who supports abortion rights would be the first to say the state cannot force the clinic to carry it. The principle that protects a pregnancy center protects a clinic with the opposite view. I would defend that clinic's right, and so should every conservative who values the principle more than the outcome.

The last point is the one that distinguishes a principle from a tactic. A speech rule that only protects one's friends is a favor. A speech rule that protects the people we disagree with is a right.

What followed

The Court's decision was a ruling at the preliminary stage: it held that the centers were likely to succeed on the merits and sent the case back to the lower courts. It did not close the book on all regulation of pregnancy centers. States remain free to enforce generally applicable laws against deceptive advertising and fraud, which apply to everyone, and which are a different thing from a law that singles out one set of speakers and forces them to carry a particular message.

The reasoning has had a long life. In 2023, in 303 Creative LLC v. Elenis, the Court held that Colorado could not compel a website designer to create expressive work that conveyed a message she disagreed with. The two cases rest on the same ground: government may not conscript private citizens to speak its preferred message. 303 Creative Was About Compelled Speech, Not a License to Refuse Customers takes up the later decision. The related debate over pronoun rules is covered in Speech, Pronouns and Compelled Words, Where the First Amendment Draws the Line.

A note on honesty

A conservative who wins a case like this should resist two temptations. The first is triumphalism, treating the decision as proof that the other side is the enemy of free speech. Plenty of people who oppose pregnancy centers on moral grounds have defended the principle in other contexts, and they deserve credit for it. The second is the temptation to forget the principle the next time the shoe is on the other foot. When a state tries to force a religious employer or a conservative professor or a small-town printer to carry a message, the rule must be the same. That is the test of whether we believe in the principle or only in the result.

The case in brief

1. California's FACT Act of 2015 forced licensed pregnancy centers to post a notice about state-funded abortion services, and forced unlicensed centers to disclose their license status in all advertising.
2. In NIFLA v. Becerra (2018) the Court held, five to four, that the licensed notice was a content-based compulsion that likely failed even intermediate scrutiny, since the state could speak for itself, and that the unlicensed notice was unduly burdensome.
3. Justice Thomas rejected "professional speech" as a separate category with lower protection, and Justice Kennedy's concurrence stressed that the law targeted one viewpoint.
4. Justice Breyer's dissent warned that the ruling could threaten ordinary disclosure rules, and the majority answered that the licensed notice was neither a factual disclosure about the clinic's own services nor tied to any procedure.
5. The protection against compelled speech is a rule for every side, from Barnette in 1943 to 303 Creative in 2023, and it is only worth having if we defend it for people we disagree with.

What you can do: read the First Amendment's speech clause, then look up one disclosure or notice requirement in your own state's law that applies to a business or nonprofit you know, and ask whether the state could convey the same information itself.