“Forcing a pro-life group to advertise for abortion has to be unconstitutional.” That’s the beginning (emphasis added) of the opening brief in NIFLA v. Becerra, now pending in the U.S. Supreme Court. Thirty strong amicus briefs have been filed—by the U.S. Conference of Catholic Bishops and the Christian Legal Society, by 144 members of Congress, the attorneys general of 21 states, and pregnancy centers nationwide. But that first statement sums them up. If the Free Speech Clause of the First Amendment has any meaning, it means this.
NIFLA is one of a flurry of cases involving crisis pregnancy centers. (See “Crisis Pregnancy Centers in Crisis.”) Abortion-rights activists have prompted states and cities to force centers to post signs on their waiting-room walls. The California statute at issue in NIFLA requires signs declaring:
This law compels pro-life groups to violate their deepest beliefs and to advertise the thing they exist to oppose. It’s a textbook example of several paradigms that offend the First Amendment: It compels speech. It discriminates among viewpoints. It deliberately burdens a viewpoint which is disliked by people in power.
Compelled speech long has been a particular focus of the First Amendment. During World War II, at a time of national peril, the Supreme Court held that children could not be compelled to recite the Pledge of Allegiance. The Court stated:
Wooley v. Maynard (1977) held that New Hampshire could not compel a driver to display the state motto (“Live Free or Die”) on his license plate. It held that the state could not compel a citizen to use his private property as a “billboard” displaying an ideological message.
NIFLA v. Becerra fits this paradigm. The California law conscripts pro-lifers’ walls as billboards to advertise abortion. The First Amendment and the Fourteenth Amendment forbid this, unless California has a compelling interest that cannot be otherwise served.
California claims that it has such an interest. It argues that many low-income women are unaware of its public programs to provide free abortions. It argues that publicizing those programs is so important that it justifies conscripting pro-lifers’ walls.
California’s argument is rebutted in the amicus brief of 21 states (Texas, Alabama, Arkansas, Georgia, Idaho, Kansas, Louisiana, Michigan, Missouri, Montana, Nebraska, Nevada, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, West Virginia, Wisconsin, and Kentucky). They argue that California has ample means to publicize its programs, without compelling private speech. In a devastating passage, they point out:
California, however, has made only minimal efforts to publicize its free-abortion program. State and county websites speak euphemistically of “family planning” rather than even mentioning “abortion.” A judge assessing the websites held:
California’s argument for conscripting pro-lifers’ wall space, thus, is pretextual: The state saw no urgency to advertise abortions. It sought to make pro-life groups do the advertising simply because it disapproves of their viewpoint and their mission.
That sort of gambit is a perennial temptation for people in power. Governments always feel an itch to suppress dissenting points of view. The whole object of the First Amendment’s Free Speech Clause is to restrain them.
NIFLA v. Becerra will be argued before the Supreme Court on March 20th. The 30 amicus briefs attest that this will be a fateful day. The Free Speech Clause hangs in the balance.
Forcing advocates on one side of an issue to advertise for their opponents has to be unconstitutional. Everyone understands that this is of the essence of free speech. But the impulse to maximize abortion rights is so powerful it puts all competing principles in peril.
The California legislature gave in to that impulse. The U.S. Court of Appeals for the Ninth Circuit then gave way to it in the NIFLA litigation, upholding California’s law. Now we await the Supreme Court’s ruling. We soon will see if abortion rights trump all competing values, or if the right not to act as a billboard for government messages is still preserved by the Free Speech Clause.
