NIFLA v. Becerra: free speech or pro-life
A whole lotta law news today, isn’t there?
In another SCOTUS decision, the Court ruled in NIFLA v. Becerra that a California law requiring crisis pregnancy centers (pregnancy counseling clinics usually run by pro-life Christians) to post notices 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” was an unconstitutional violation of free speech. The vote was the familiar 5-4 and once again came down to the swing vote of Kennedy siding with the conservative wing, and all the liberal justices dissenting.
Headlines in the MSM dealing with the decision tend to emphasize that this is a win for pro-life clinics (see this, for example), whereas conservative media seems to have more of a focus on the free speech aspects (an example is this). The former is a political emphasis, whereas the latter is a constitutional and legal one.
Here’s the legal reasoning of the majority:
Though the law related specifically to abortion, free speech was the fundamental issue at stake. This being so, the vote should not have been a narrow one. Alas, four of the Court’s justices were so hell-bent on promoting the manufactured right to abortion that they were prepared to jettison a real, preeminent, foundational liberty.
Justice Clarence Thomas’s majority opinion cast the case more clearly, noting that there exists no such category in America as “professional speech” and concluding that to invent one would “give the States unfettered power to reduce a group’s First Amendment rights by simply imposing a licensing requirement.” In a short concurrence, Justice Kennedy dispensed with the idea that the First Amendment is outmoded. The viewpoint discrimination inherent in the FACT Act was “a matter of serious constitutional concern,” Kennedy concluded, and the law served as “a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression.”…
As Justice Thomas noted, the state government could very easily have accomplished its supposed purpose — ensuring that California women are aware of the low-cost abortion program — without needlessly conscripting pro-life centers into its effort. “[California] could inform the women itself with a public-information campaign,” Thomas observed. “California could even post the information on public property near crisis pregnancy centers. . . . Either way, California cannot co-opt the licensed facilities to deliver its message for it.”
Instead, the state intentionally targeted pro-life health centers and insisted that they violate their beliefs by facilitating a procedure they believe to be immoral. No other health centers were subject to the law’s requirements — which, we rather suspect, was the point.
The is the correct decision, and it protected free speech far more than it affected abortion rights one way or the other. It’s also another decision that almost certainly would have gone the opposite way had Garland been appointed to the Court instead of Gorsuch. On such a narrow thread our liberties depend.
I feel completely vindicated in my vote for Trump, especially with regard to his proposed list of judicial nominees that he made public while running. That list was the biggest difference between Hillary Clinton and Trump. One could be assured that Clinton’s appointments would further erode the structure of our Republic as outlined by the Constitution. We have been long-time supporters to the clinic that initiated this action. The clinic had been visited by an undercover officer by directive of our Democrat city attorney. When found to be in violation of the law 2 Democrats had authored, signed by Gov. Jerry Brown, the clinic was ordered to appear in court the next day and either start providing the literature promoting abortion (in 11 languages) or be shut down. Lots of prayer later, I’m happy to say I feel hope.
Interesting how recent SCOTUS decisions end in a 5-4 split with the same 5 parties on one side and the same 4 on the other. This hints to me that SCOTUS decisions are based more on personal opinion than on constitutional law.
The Supreme Court was instituted to protect the natural rights of the minority. If every SCOTUS decision merely reflects the will of the majority or the will of the party in power, then its purpose has been corrupted.
If this trend continues, we might as well do away The Supreme Court and hold a direct popular vote on every controversial issue.
“The Supreme Court was instituted to protect the natural rights of the minority.” Doug Purdie
No it wasn’t. It was to protect the Republic as detailed in the Constitution.
Babies, 1. Abortionists, 0.
Unfortunately, the fetuses, offspring, conventionally known as babies, that are deemed unworthy can still be legally aborted at Planned Parenthood et al under the Twilight Amendment. This is a win for human rights in that people will not be compelled to endorse elective abortion rites, the wicked solution, the final solution. Selective-child, one-child with minority advocacy, is still symbolic of social progress. Recycled-child, cannibalized-child at Planned Parenthood and other corporations, is still a for-profit business model.
Well, at least normal people will not be coerced to adopt the twilight faith and defer to the Pro-Choice Cult. The Choice is two choices too late. Also, the collateral damage from establishment of a quasi-religious/moral/legal philosophy that is selective, opportunistic, and politically congruent, is not contained to the immediate victims processed under a layer of privacy in the abortion chambers.
This is a great decision!
I didn’t vote for Trump but continue to be pleased with his actions. Another one or two USSC justices like Gorsuch would be especially welcome.
If the court strikes down the government employee union cabal it will be a sweet, sweet June.
A good piece by David French — “In Defense of Free Speech, Justice Thomas Wielded the Scalpel, but Justice Kennedy Brought the Hammer”:
What is the quotation from? Link? (No doubt the attribution is in plain sight and I’m missing it because of my vision problems — cataracts, glaucoma, etc.)
That you have 4 justices on the court ready to allow the government to force anyone to make speech they disagree with is shocking to me. Using the minority’s opinion, a government could force you put decals on your car supporting all sorts of things with which you disagree.
This decision should have been 9-0.
And here’s the huge asymmetry — when conservative Free Speech is protected, this also protects pro-abortion, anti-American, anti-Trump, pro-socialism, and all other free speech by all Dems.
When Democrat disapproved speech is outlawed, and the outlawing is enforced and supported, the Dem PC-bullies shut down speech, selectively.
That is against the idea of equal rights, with the law applying equally to all.
Hot Air has a post up now stating that the movie Gosnell will be released in 750 venues in October. The post also has an episode of the Mark Steyn show with the book’s authors from last year. What the authors make clear is that no one (bureaucracy or press) was willing to cover the story. They also make it clear how America’s abortion laws are very different from Europe’s early abortion laws and how ignorant Americans are of this difference.
Even supporters of early abortion rights should be appalled at the feminists and Dems who don’t condemn killing full-term babies. It’s a shame Gosnell was not distributed to the Irish, who might have questioned Hillary about it on her visit there last week. I hope someone sends tickets to the movie to Pelosi voters right right before the election.
How can anyone criticize the court for not wanting to force people to advertise for uncontrolled abortion clinics. When any abortion at any time in any facility is deemed to be the highest right of women, we are truly giving in to the tyrants.
Watch the Steyn show at Hot Air.
But you must know that the “patriarchy” is behind all the evils that beset humanity. It’s one of those penumbra effects.
As others have stated:
Elections have consequences.
And now the Janus decision is published: Another 5-4 decision in conservatives’ favor.
Say what one wants about Mitch McConnell (and I have a great many problems with him), but in retrospect keeping a SCOTUS seat open for the likes of Neil Gorsuch was the most important thing he’s ever done in his career as Majority Leader, and perhaps the most important thing he’s ever done in his entire senate career.
Black Pigeon Speaks explains:
ONLY Patriarchy Builds Nations * / & other UNCOMFORTABLE TRUTHS
https://www.youtube.com/watch?time_continue=19&v=hN1GwOLgjVs
bonus video if you order now!
What They’re NOT Telling You About the Migrant Crisis
https://www.youtube.com/watch?time_continue=1&v=UPheeIUVtPo
T:
I’ve been thinking of McConnell lately, and I agree.
I don’t think the right has given him enough credit for that.
Justice Kennedy to resign! During Trump’s term!
Our salvation is at hand.
The rule of law may return despite fat wise Latinas.
Expat: the Gosnell producers, two women, needed and got financial support, from small people like me, to keep the movie alive. Its coming release is great news. Thanks.
Ruling that compelled speech is not free speech. Seems so obvious to me.
“Justice Kennedy to resign! During Trump’s term! Our salvation is at hand.” [Cicero @2:24 pm]
I think both the left and the right are about to make too much of the Kennedy retirement.
Gorsuch taking Scalia’s seat prevented a proponent of a “living constitution” from influencing decisions. Net change from Scalia’s presence = 0.
Kennedy was a swing vote. Many of his decisions were with the conservative majority, but not all of his decisions. To replace him with someone like a Gorsuch will direct the court toward originalist interpretations, but it will not have the extreme effect of Trump’s next supreme court pick if, in fact, he gets a third opportunity in his term(s?) as president.
“I’ve been thinking of McConnell lately, and I agree. I don’t think the right has given him enough credit for that.” [Neo @ 2:23 pm]
The evil that men do lives after them; the good is oft interred with their bones.
Yancey Ward Says:
June 27th, 2018 at 1:47 am
That you have 4 justices on the court ready to allow the government to force anyone to make speech they disagree with is shocking to me. …This decision should have been 9-0.
* * *
Agreed.
The government can only compel you to DO things you disagree with.
Although not in an unlimited number of situations, thank goodness; just most of them.
Ann Says:
June 26th, 2018 at 11:26 pm
A good piece by David French — “In Defense of Free Speech, Justice Thomas Wielded the Scalpel, but Justice Kennedy Brought the Hammer”:
* * *
It is indeed a good post, and I am spring-boarding off of it to bring up a consideration that ties together facially-disparate cases. I’m not sure what it all means, if anything; I just thought it was interesting.
Links and quotes “below the fold.”
Masterpiece Cake Shop – decided in the baker’s favor.
“In essence, Phillips won because the oxymoronic Colorado Civil Rights Commission was mean to him. ” (McCarthey).
Not, he argues, a verdict in favor of free speech / religion at all.
NIFLA – decided in the pregnancy center’s favor.
“a short and brutal concurrence to specifically chastise California for its apparent viewpoint discrimination and to express concern that pro-life citizens were specifically and intentionally “targeted” because of their beliefs.”
(French, paraphrasing Justice Kennedy).
Not an unalloyed victory for free speech (or rather, defeat for burdened speech).
In essence, the majority in both decisions took into account the verbally expressed motivations and ideology of the losers.
But then, this case turns on the majority’s rejection of the argument that Trump’s campaign rhetoric “tainted” the restriction order:
Trump’s Travel restrictions (third iteration) upheld.
“The entry suspension is an act that is well within executive authority and could have been taken by any other President—the only question is evaluating the actions of this particular President in promulgating an otherwise valid Proclamation.”
(Neo, quoting the decision).
I suppose I would argue that they are different because in the first two, the expressed hostility and bias was on the part of government agencies which are presumed to be (and should be) ideologically neutral in applying the law. The third case involves, well, campaign rhetoric by a person without any existing governmental power.
And of course, that pesky fact that the travel restrictions were not any kind of a “Muslim ban” as featured in the rhetoric.
Just throwing it out there.
(stick in the “http://www.” in front of each URL)
nationalreview.com/2018/06/masterpiece-cakeshop-setback-liberty/
nationalreview.com/corner/in-defense-of-free-speech-justice-thomas-wielded-the-scalpel-but-justice-kennedy-brought-the-hammer/
neoneocon.com/2018/06/26/scotus-upholds-trumps-revised-travel-order/#comment-2390499
Here is another case decided against coerced speech (which I think is not quite the same as supporting freedom of speech):
https://www.nationalreview.com/2018/06/janus-decision-supreme-court-win-freedom/
“The case addresses an individual’s constitutional protection from coerced speech. It doesn’t deny unions the right to organize, recruit, bargain, strike, or collect dues from willing members. What it does deny is the unions’ right to force individuals who are opposed to their positions and policies to pay into union coffers.”
Annnd – I see that David French agrees with me, although he doesn’t make a connection to the Trump Travel case.
https://www.nationalreview.com/2018/06/janus-case-free-speech-wins-supreme-court-again/
“In Janus v. AFSCME, the court struck a strong blow against government-compelled speech for the third time this term.
Perhaps the worst government affront to the rights of conscience, far worse than mere censorship, is compelled speech, the practice of forcing Americans to fund or express ideas they find abhorrent. It’s one thing to tell a man or woman that they can’t speak. It’s another thing entirely to compel them to use their voice, their artistic talents, or their pocketbook in support of a cultural, political, or religious enterprise with which they disagree.
Yet that’s exactly what the state of Colorado tried to do in punishing Christian baker Jack Phillips for refusing to use his artistic talents in the service of a gay-marriage ceremony. That’s exactly what the state of California tried to do in legally mandating that pro-life pregnancy centers advertise for free abortions. And that’s exactly what the state of Illinois tried to do in requiring non-union public employees to fund union activities.
…
Illinois required these employees to pay a so-called agency fee that funded (among other things) collective bargaining, lobbying, social activities, membership meetings, and litigation.
Many of those items directly impact key and contentious elements of public policy, matters of public concern. And public employees themselves have widely divergent opinions. Yet they were all forced to fund the same point of view.
…
How does the media tend to cover these cases? By all-too-often downplaying the law and hyping up the political confrontation. So, in each case, the conflict wasn’t framed as “state power versus individual liberty” but rather as “gays versus Christians,” “abortion rights versus the pro-life movement,” or “labor unions versus conservatives.” But this is not how free-speech jurisprudence works. The political identity of the litigants should be completely irrelevant to the outcome. By vindicating individual liberty and protecting citizens from compelled speech, the Court created precedents that every citizen can use — in the appropriate context — regardless of partisan affiliation.
Do progressives really want red states to be able to compel their speech, to treat their professionals as second-class citizens, or to force their progressive friends to subsidize powerful, private conservative entities?
…
If you’ve followed Justice Kennedy’s career, you’ll note a recurring theme: He hates bullies and loathes intolerance. Much of his jurisprudence on gay rights was plainly motivated by his desire to protect a vulnerable population from what he perceived to be a discriminatory and bigoted majority. And now he’s protecting different vulnerable populations from different bullies.
The results are clear. Government activists, if you try to force a man to violate his conscience to advance your ideology, the Supreme Court has a message for you: You’re going to lose.”
AesopFan,
Thanks for the last two post. I find them spot on.