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Law School Case Brief

Nat'l Inst. of Family & Life Advocates v. Becerra - 138 S. Ct. 2361 (2018)


The Supreme Court of the United States has not recognized professional speech as a separate category of speech. Speech is not unprotected merely because it is uttered by professionals. The Court has been reluctant to mark off new categories of speech for diminished constitutional protection. And it has been especially reluctant to exempt a category of speech from the normal prohibition on content-based restrictions. The Court's precedents do not permit governments to impose content-based restrictions on speech without persuasive evidence of a long (if heretofore unrecognized) tradition to that effect. The Court's precedents do not recognize such a tradition for a category called professional speech. The Court has afforded less protection for professional speech in two circumstances—neither of which turn on the fact that professionals are speaking. First, the Court's precedents have applied more deferential review to some laws that require professionals to disclose factual, noncontroversial information in their commercial speech. Second, under the Court's precedents, States may regulate professional conduct, even though that conduct incidentally involves speech. 


The California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act) was enacted to regulate crisis pregnancy centers, which were pro-life centers that offered pregnancy-related services. The FACT Act required clinics that primarily served pregnant women to provide certain notices. Clinics that were licensed must notify women that California provided free or low-cost services, including abortions, and gave them a phone number to call. Its stated purpose was to make sure that state residents knew their rights and what health care services were available to them. Unlicensed clinics were required to notify women that California had not licensed the clinics to provide medical services. Its stated purpose was to ensure that pregnant women knew when they are receiving health care from licensed professionals. Petitioners, two crisis pregnancy centers, one licensed and one unlicensed, and an organization of crisis pregnancy centers, filed suit in federal district court. They alleged that both the licensed and the unlicensed notices abridged the freedom of speech protected by the First Amendment. The district court denied their motion for a preliminary injunction, and the United States Court of Appeals for the Ninth Circuit affirmed.


Were the licensed and unlicensed notices required under the FACT Act violative of the freedom of speech protected by the First Amendment?




The Supreme Court of the United States held that licensed notice violated the First Amendment. According to the Court, the requirement was underinclusive in relation to the stated goal of the FACT Act. Furthermore, the FACT Act's requirement that unlicensed covered facilities give notice of their unlicensed status was unjustified and unduly burdensome, even if subject to deferential review. The Court ruled that even if California had offered more than a hypothetical justification for the notice, the FACT Act unduly burdened protected speech by imposing a government-scripted, speaker-based disclosure requirement that was wholly disconnected from California’s informational interest.

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