A decision by Justice Thomas is an example of “weaponizing” free speech to attack regulations.
With all the focus on Justice Anthony Kennedy’s retirement last week, it was easy to miss the court’s major decision on free speech and abortion that was announced the same day as the U.S. Supreme Court’s travel ban decision.
Yet this case, National Institutes of Family and Life Advocates v. Becerra, is one of the most important of the court’s past term. It foreshadows what the court’s conservative jurisprudence is going to be like, no matter who President Donald Trump nominates Monday for Kennedy’s seat.
Justice Clarence Thomas is on a libertarian mission to use the First Amendment to chip away at all kinds of ordinary legal regulations — and the other conservatives seem to be on board.
The case decided last week involved a California law called the Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act — the FACT Act, for short. The law was pretty clearly aimed at clinics in California that provide pregnancy-related medical and counseling services, but either don’t mention abortion as an option or else actively discourage it.
The FACT Act required all clinics that primarily serve pregnant women in California to post notices saying that the state provides free or low-cost services including abortions, and providing a phone number to call. Unlicensed clinics also had to post signs saying they were unlicensed to provide medical services.
Obviously, clinics that support or are neutral on abortion rights wouldn’t object to the signs. The legal challenge came from anti-abortion organizations like NIFLA.
The California law is significant because it stands in for the kind of legislation that progressive state legislatures are likely to pass if and when the right to choose symbolized by Roe v. Wade is either overturned or badly chipped away by a conservative Supreme Court. The FACT Act was designed as a pro-choice intervention in an ongoing culture war about abortion rights. As conservative states enact more restrictive, pro-life legislation, liberal states are going to pass their own laws attempting to facilitate abortion for those who need it.
The Surpreme Court’s decision was — surprise — 5-4, with Thomas writing the majority opinion and Justice Stephen Breyer the dissent. The court struck down the FACT Act as violating the free speech rights of pro-life clinics.
What’s most striking is the near-absolutist conception of the First Amendment that Thomas used to reach that conclusion — and how it changed existing law.
Thomas began by reaffirming and relying on a 2015 opinion that he wrote called Reed v. Town of Gilbert — the most important free-speech decision you’ve probably never heard of. Gilbert, Arizona, had a sign code with different rules for ideological signs, political signs or directional signs. In the Reed case, the court said that any law regulating speech on the basis of content must be subject to the highest degree of judicial scrutiny, known as strict scrutiny. Because almost no law ever survives strict scrutiny, that means the court can strike down essentially every law that classifies speech by what it says.
From there it was only a small step for Thomas to say that the FACT Act was content-based, because it required signs with a certain message. He concluded that the law must be struck down.
The major problem with this argument is that the Supreme Court has in the past upheld regulations directed toward professionals like lawyers and doctors that affected their speech. The courts have also upheld normal disclosure requirements passed by states that cover the whole gamut from medical information to exit signs and garbage disposal information. Those disclosures are all now potentially subject to legal challenge, as Breyer pointed out in his dissent.
Thomas’s opinion dismissed the very idea that there could be a category of “professional speech” that the government may regulate. He insisted that reduced standards of judicial review only applied to commercial speech and to professional conduct that only incidentally involves speech.
The trouble with Thomas’s distinction is that it’s hard to distinguish the signs required by the FACT Act from the law upheld by the Supreme Court in the 1992 case of Planned Parenthood v. Casey, according to which doctors performing abortions had to inform women of the nature and risks of the procedure and the probable gestational age of the fetus. Both laws required disclosures connected to abortion procedures. (Thomas said that the Casey disclosures involved informed consent, whereas the FACT Act disclosures did not.)
But what’s most striking about Thomas’s opinion is that he chose not to decide the case on grounds that would not have changed the law.
Thomas could have held that the FACT Act amounted to discrimination on the basis of viewpoint, effectively favoring pro-choice over pro-life speech. In a separate concurrence, Kennedy, joined by all the other conservatives, wrote that the viewpoint discrimination issue was “a matter of serious constitutional concern.” Such an opinion would not have significantly changed the existing First Amendment landscape — and there were obviously enough votes for it.
Thomas, however, wanted to go further, potentially undercutting many different types of progressive disclosure legislation.
This is a prime example of what Justice Elena Kagan, dissenting in the unions case also decided last week, called “weaponizing” the First Amendment. Thomas is after more than just the protection of pro-life organizations. He’s interested in using free speech to chip away at the modern, progressive regulatory state.
Liberals and progressives are going to need answers to this line of attack — and it isn’t going to be easy. Free speech is a deeply important value.
At the same time, the law regulates a vast array of human conduct that is performed partly or completely through speech. That conduct includes discrimination, crime and professional services. If Thomas gets his way, we will enter a libertarian era in which free speech is used to undercut the basic regulatory protections that we have long enjoyed. Welcome to the future.
~Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University.