December 14, 2017

Mark Rienzi, professor, law, published on National Institute for Family and Life Advocates v. Becerra in SCOTUSblog.

The First Amendment’s protections for minority speakers are most needed — and most in jeopardy — when the speech relates to deeply important and deeply controversial issues. When the speech in question matters most, the temptation toward government control is greatest. This is true both for the political branches the First Amendment is designed to restrain and, more dangerously, for the judges charged with its enforcement.

Thus it is no surprise that abortion-related speech cases like National Institute of Family and Life Advocates v. Becerra arrive on the Supreme Court’s docket from time to time. Too often, courts in such cases are either tempted or overwhelmed by the abortion-related aspects of a case and fail to apply straightforward First Amendment principles. That pattern is a danger to all speakers, as abortion-related First Amendment errors can distort the doctrine more broadly. 

Recent history suggests that, unlike the lower courts, the justices in this case will see the First Amendment issues clearly, even though those issues relate to abortion. The Supreme Court is thus likely to reach the obvious conclusion that California cannot force pro-life pregnancy counselors to direct women to abortion providers. In the process, the court can and should continue its project of repairing First Amendment doctrine that has, over time, been warped by abortion-related speech cases. ...

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