NIFLA v. Becerra: Can a State Regulate Professional Speech? [SCOTUSbrief]
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NIFLA v. Becerra: Can a State Regulate Professional Speech? [SCOTUSbrief]


The petitioners in this case are pro-life
pregnancy centers, and the respondents are state officials of the state of California. Legally an issue in this case is the ability
of the state to regulate professional speech or conduct and whether or not they may essentially
compel a message that is contrary to the beliefs of the speakers. In 2015, California enacted the Reproductive
FACT Act. The FACT Act imposes two disclosure requirements
on pregnancy centers in California. Crisis pregnancy centers are organized
with the purpose of giving aid to pregnant mothers in the hopes that they will choose
life for their unborn child. Some of the crisis pregnancy centers are licensed
medical facilities, and they provide sonograms and ultrasounds, prenatal services. The unlicensed centers tend to provide more
parenting counseling, assistance for raising a child, diapers, clothing, that type of support. The FACT Act requires unlicensed crisis pregnancy
centers to display in minimum 48 point font a statement that they are not licensed by
the state of California. That’s despite the fact that they do not style
themselves as or claim to be medical facilities and they do not provide medical services. For licensed centers, centers must inform
clients that the state offers low-cost or free abortion or contraception. They must also provide information to clients
for how to access those services. Professional and commercial speech are two
ideas that have come up in the course of the NIFLA litigation. Professional speech is an idea or a doctrine
that some lower courts have adopted that says that when speech is made in the course of a professional
relationship, the state has a greater interest and greater leniency in regulating that speech. Commercial speech is typically defined as
speech that proposes some sort of commercial transaction. The text of the first amendment does not contain
any instructions for different types of speech to be evaluated in different ways. NIFLA contends that these services are provided
pro bono and that the professional speech doctrine, having never been adopted by the
Supreme Court, just has no place in the examination of these issues. The state of California, on the other hand,
asserts that commercial speech and professional speech doctrines should apply because the
centers are providing some sort of professional services, and while the exchanges are pro
bono, they are still commercial in nature because they take someone out of the marketplace
who may go to another location to receive services. The best argument on behalf of NIFLA is that
because of the purpose for which they are organized, which is to advance life and to
discuss a pro-life position, their speech receives full First Amendment protections. And as fully protected speech, any restriction
or compulsion should be examined under strict scrutiny. Applying strict scrutiny, petitioners argue,
that the state has failed to show a compelling reason why the FACT Act should force pregnancy
resource centers to promote abortion and abortion services. The best argument for the state of California
would be that despite the fact that there’s no actual commercial transaction being proposed,
it could be regulated without having to survive even intermediate or heightened form of scrutiny
because it is mere regulation of commercial speech or of professional conduct. The court of appeals concluded that the FACT
Act was a legitimate regulation of professional speech. The court believed that the state had shown
an important government interest in informing women of the availability of state-funded
abortion and contraception services and believed that the FACT Act’s disclosure requirements
only informed women of these services, as opposed to encouraging their views. The Court’s decision has broader implications
and could outline the boundaries in which a government could require disclaimers that
undermine the relationship of the non-profit with the people that they’re trying to serve. If a state government can compel disclosure
of a specified message, then state governments could compel almost any business or speaker
to provide information about their services simply because of a generalized, vague concern
about potentially misleading information or a lack of information.

9 Comments

  • David Parsons

    I don't believe a weird they say its up to you to make your own choice don't let theses clowns tell you different the lower courts are just a kangaroo court they have no athority over a living humen being its a made frrom fictional entity's thats it a government and states are fictions the agency's don't have any athority over you don't listen to them you are the boss over your live estate remember THAT folks.when you signature anything put with out prejudice on everything it protects you from the fictional entity's they say is you but they don't and won't come with a claime on that and iam talking about the birth certificate they say is you and its a corperations name they made not your mother its just a scam to make you believe you owe a debt to the federal government we don't owe them nothing they owe us we are the sacred party creditors they are the debtors its all about contract laws dont fall for there Bullshit lies God Bless and always question them to find there lies don't fall to being the slaves they come in all colers

  • Dwayne White

    Hold on. Your basic argument is that the state is hindering your freedom of speech by informing the people of their rights? Seriously?! Are you people completely stupid?! People have the right to an abortion, and you have the right to try and talk them out of it. Therefore, your freedom of speech has not been hindered. Furthermore, I don't think you realize how dangerous of a precedent you're trying to set here is. Imagine if a cops no longer had to recite Miranda warnings because it is the government telling them what they have to say.

  • Me Name

    It used to be a debate between the pro-life vs pro-choice sides, but the 1 party dictatorship state of Ca has with this dictate turned it to a debate between the pro-life side vs the pro-death state of Ca side & their brainwashed supporters. And I'm telling you this as someone who had an abortion myself & was always pro-choice, but due to their actions & behavior the last few years they've converted from pro-choice firmly to PRO-DEATH. I can't support that

  • Sheba Metaluna

    This Add is disgusting, people should always be informed. They should have as much information as possible, especially when dealing with pregnancy. This isn't even a big deal, just put the sign up and don't pose as something you are not.

  • Michael Shoots

    The problem is that some of these unlicensed centers are intentionally misleading people, and that should be illegal.

    Here is a video by Vice titled "The Fake Abortion Clinics Of America: Misconception":
    https://www.youtube.com/watch?v=g-ex4Q-z-is

  • TYLER GALICA

    Same thing is going on in Masterpiece v Colorado. After looking at wooley v Maynard it will amaze me if the state wins either case.

  • Annie Mo

    How can people take away freedom of speech by telling them you have to say/promote something you don’t want to promote…. Ridiculous

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