New York Times

The Abortion Case That's Really About the First Amendment

March 20, 2018

by Adam Liptak

The United States Supreme Court is scheduled to hear arguments Tuesday in a case that pits abortion-rights advocates against religious groups dedicated to steering women away from abortion — including, some say, by outright deception.

But that is not why the case is important.

To be sure, National Institute of Family and Life Advocates v. Becerra has all the hallmarks of a classic culture-war throwdown. The case centers on California’s attempt to force so-called crisis pregnancy centers, which exist primarily to dissuade women from having abortions, to display prominent advertisements detailing the availability of state-funded abortions.

As The Times’ Adam Liptak put it, succinctly: “The centers say the law violates their right to free speech by forcing them to convey messages at odds with their beliefs. The law’s defenders say the notices combat incomplete or misleading information provided by the clinics.”

In certain ways, the case has played out just as one might have expected: The Conference of Catholic Bishops has lined up on one side and Planned Parenthood on the other. Most people’s opinions on abortion rights and their opinions on the correct outcome in this case are probably pretty closely linked.

But that link shouldn’t be inevitable. We filed a brief in this case supporting the First Amendment rights of crisis pregnancy centers, even though we also personally support abortion rights (our firm shares our view of the First Amendment, though it takes no position on abortion).

We filed our brief because focusing on the abortion debate means missing out on the fact that a decision siding with the State of California could upend decades of First Amendment doctrine and threaten everything from the right to have conversations in a doctor’s office to the right to use math to criticize government officials. (Really.) That’s because the Becerra case raises one of the most important unanswered questions in First Amendment law: Do speakers check their First Amendment rights at the office door?

The question of how the First Amendment interacts with the government’s power to regulate the practice of an occupation has bedeviled courts for decades. But a growing number of courts — including the United States Court of Appeals for the Ninth Circuit, which upheld California’s law — have held that many restrictions on occupational speech are governed by what they call the professional speech doctrine, a rule that says professionals like doctors are entitled to less First Amendment protection than ordinary citizens because of the reliance clients place on their expertise. Applying that rule to the California case could give government officials broad authority to compel or prohibit speech by crisis-pregnancy centers.

That idea may seem appealing to readers whose sympathies lie with California in this case, but it is nonetheless a recipe for widespread, ideologically motivated censorship. And that is not speculation; it is how this rule has played out. When government officials are given the power to regulate speech they deem professional, they abuse it — immediately and with unseemly zeal.

Sometimes, government officials use their newfound powers to silence speech they find politically uncongenial. For example, after the American Medical Association adopted a policy urging doctors to discuss gun ownership with their patients — either to talk to them about gun safety or, perhaps, to dissuade them from owning guns at all — the Florida Legislature, spurred by gun-rights advocates, rushed to prohibit doctors from doing so. In court, Florida defended the law as a regulation of unprotected “professional speech.” It took five years of litigation, in the face of repeated court rulings upholding the ban, before the law was finally struck down in 2017 by the United States Court of Appeals for the 11th Circuit.

Other times, officials simply try to silence speech that is embarrassing. When an Oregon man named Mats Järlström, who we have represented, wrote to his state engineering board to complain that traffic engineers had made mistakes in how they calculated the timing of red-light cameras, the board fined him $500 for doing the underlying math without an engineering license. (As it happens, the physics professor who initially came up with the formula for timing red-light cameras thought that our client was probably right, but that made no difference to state officials.)

And these threats to free speech extend far beyond traditional professions like doctors or engineers. Regulators have invoked the idea of professional speech to crack down on everything from everyday advice about healthy eating to private citizens’ testimony at public city-council hearings. One court even held the professional-speech doctrine applies to fortune tellers; in another case, city attorneys said it should apply to tour guides telling ghost stories. It turns out that there really is no such thing as just a little bit of censorship.

As this case moves from oral arguments to a published opinion, the court will undoubtedly be deciding between groups supporting and opposing abortion rights. But it will also have to decide whether or not to grant government officials sweeping powers to regulate speech they find obnoxious on the grounds that the speaker is a professional. Americans have strongly held and widely divergent opinions on the first issue. But if we are to preserve our ability to openly and honestly debate abortion rights — or any issue — we should all stand united on the second one.