Terry McLaughlin: A threat to one person’s free speech is a threat to all
July 4, 2018
In a 5-4 decision on June 26, the United States Supreme Court overturned California's speech regulations on pro-life pregnancy care centers (NIFLA v. Becerra), ruling that they could not be compelled to provide information about and promotion of government–funded abortions.
This long journey from Sacramento to the U.S. Supreme Court began Jan. 1, 2016 when Gov. Jerry Brown signed into law Assembly Bill 775, the Reproductive FACT (Freedom, Accountability, Comprehensive Care and Transparency) Act. The bill compelled Pro-Life pregnancy clinics to violate their conscience by requiring that they prominently post a notice informing clients that California offers low-cost and even free abortions to women who qualify, and providing a phone number that grants quick access to abortion clinics.
The passage of the bill required that pro-life professionals and clinic volunteers who have dedicated their lives to protecting the unborn by offering expectant mothers support and alternatives to abortion, advertise state-sponsored abortions.
This, despite the fact California has ample opportunity to advertise any state services it wishes without forcing pro-life citizens to do so. The state can rent billboards, they can hand out or mail leaflets, they can advertise on television, radio or social media — all without co-opting the voices of its pro-life citizens.
“Governments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief.”
— Justice Anthony Kennedy
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There are few actions more antithetical of freedom than forcing a citizen to advance a cause they find in violation of their conscience.
The legislation triggered lawsuits almost immediately after it was passed, and the National Institute of Family and Life Advocates, on behalf of several California pro-life centers, sought a preliminary injunction to prohibit enforcement of the bill, claiming it violated their First Amendment rights to free speech and the free exercise of religion. The Ninth Circuit Court of Appeals rejected both arguments and upheld the law, and on Nov. 13, 2017 the Supreme Court agreed to review the free speech argument. Oral arguments officially began March 20, 2018.
Thomas Glessner, founder and president of the family and life advocates, said AB 775 "allows a multimillion dollar abortion industry to bully small nonprofits", and argued that the core of this case is about compelled speech, more than about the specific issue of abortion.
"Can the government impose and compel a faith-based ministry to proclaim a message they are fundamentally opposed to with the risk of being fined or shut down?" he asked.
In an earlier case, Wooley v. Maynard, the issue was whether citizens of New Hampshire could be required to drive with license plates sporting the state's motto, "Live Free or Die." The Supreme Court ruled the state cannot force citizens to transform their private property into a "billboard" for the state's "ideological message," stating the First Amendment "protects the right of individuals to hold a point of view different from the majority and to refuse to foster … an idea they find morally objectionable."
Attorney David French, in filing an amicus brief in the California case, wrote that California's actions were more egregious than New Hampshire's: "Pro-life professionals, as part of their daily lives, are forced not only to be messengers for an ideological point of view (that it is appropriate for the state to provide abortion access), but even to abet a course of action (calling the listed phone number) that can culminate in the death of an unborn child — the very thing that pro-life pregnancy centers exist to prevent."
Many employees, professionals, and volunteers in these clinics are drawn to this work precisely because of the nature of their faith, and Justice Anthony Kennedy (no pro-life champion himself) wrote a compelling concurrence with last week's decision, admonishing California lawmakers for targeting these specific clinics "because of their beliefs."
Justice Kennedy stated "The California Legislature included in its official history the congratulatory statement that the Act was part of California's legacy of 'forward thinking.' But it is not forward thinking to force individuals to 'be an instrument for fostering public adherence to an ideological point of view they find unacceptable.' 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. Governments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief. This law imperils those liberties."
What is troubling about last week's Supreme Court decision is that four of the nine judges believe that a privately funded, nonprofit health center can be compelled to advertise and promote a procedure that is directly opposed to their mission and the very reason for their existence. Thomas Glessner, of the family and life advoccates, rightfully expressed that "tolerance and respect for good-faith differences of opinion are essential in a diverse society like ours. They enable us to coexist peacefully with one another. If we want to have freedom for ourselves, we have to extend it to others."
A threat to one person's free speech rights is a threat to all persons' free speech rights, and this June's Supreme Court decision is a welcomed victory reaffirming the First Amendment rights of each and every citizen.
Terry McLaughlin, who lives in Nevada City, writes a twice monthly column for The Union. Write to her at firstname.lastname@example.org.