The First Amendment, applicable to the States through the Fourteenth Amendment, prohibits laws that abridge the freedom of speech. When enforcing this prohibition, the U.S. Supreme Court's precedents distinguish between content-based and content-neutral regulations of speech. Content-based regulations target speech based on its communicative content and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.
The California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act) was enacted to regulate crisis pregnancy centers—pro-life centers that offer pregnancy-related services. The FACT Act required clinics that primarily serve pregnant women to provide certain notices. Clinics that were licensed must notify women that California provided free or low-cost services, including abortions, and give them a phone number to call. Its stated purpose was to make sure that state residents know their rights and what health care services were available to them. Unlicensed clinics must notify women that California has not licensed the clinics to provide medical services. Its stated purpose is to ensure that pregnant women know when they are receiving health care from licensed professionals. Petitioners, National Institute of Family and Life Advocates and DBA NIFLA, one licensed and one unlicensed pregnancy-centers, and an organization of crisis pregnancy centers, filed suit. They alleged that both the licensed and the unlicensed notices abridge the freedom of speech protected by the First Amendment. The District Court denied their motion for a preliminary injunction, and the Ninth Circuit affirmed. Holding that petitioners could not show a likelihood of success on the merits, the court concluded that the licensed notice survived a lower level of scrutiny applicable to regulations of “professional speech,” and that the unlicensed notice satisfied any level of scrutiny.
Did the licensed and unlicensed notices, which were required under the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act), abridge the freedom of speech protected by the First Amendment?
The Court held that the licensed requirement was under-inclusive in relation to the stated goal of the FACT Act, and thus, petitioners who sought to enjoin enforcement of the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act) were likely to succeed on the merits of their First Amendment challenge to the requirement that licensed covered facilities give notice regarding publicly provided family planning services. Moreover, the Court ruled that 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. According to the Court, 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.