The First Amendment v. reproductive rights: Crisis pregnancy centers, commercial speech, and marketplaces of misinformation

ABSTRACT

This essay responds to the holding in National Institute of Family and Life Advocates (NIFLA) v. Becerra (2018), arguing that the signal contribution of the majority opinion is its attempt to move commercial speech further into the absolute realm of protected public discourse. In finding the California FACT Act to be unconstitutional, the 5–4 majority uses a fractured commercial speech standard to define NIFLA’s marketplace communications as protected ideological speech. In so doing, Justice Thomas, author of the majority opinion, considers only the state’s speech – its compelled disclosures – and does not assess the rhetorical properties of NIFLA’s commercial communications. But the majority concludes nevertheless that NIFLA’s speech is impervious to publicly interested legislation, despite well-documented evidence of misleading and harmful advertising. Ultimately, it is argued that the question of whether NIFLA’s right to free speech has been violated cannot be squarely addressed if the speech with which the state’s disclosures dialogue remains nebulous. NIFLA seems to undermine the longstanding conception of commercial speech as a form that legitimates both the interests of speakers and the informational interests of publics, with the latter sustained when necessary by governmental initiatives that enable informed choice-making by regulating deceptive information in commercial marketplaces.

KEYWORDS:

• First amendment
• commercial speech
• compelled speech
• crisis pregnancy centers
• reproductive rights

NIFLA v. Becerra as a problematic commercial speech case

In February of 2018, 51 reproductive rights and social justice organizations delivered a brief to the United States Supreme Court in support of the state of California. The question then before the Court in National Institute of Family and Life Advocates (NIFLA) v. Becerra ¹ was whether California’s Reproductive FACT Act (an acronym for Freedom, Accountability, Comprehensive Care, and Transparency) violated NIFLA’s First Amendment right to freedom of speech. The authors, all major advocacy organizations, drew from the legislative history of the FACT Act to document real harms caused by NIFLA’s crisis pregnancy centers (CPCs).

Encompassing more than 1,400 pro-life centers in the United States, ² NIFLA’s CPCs can be either medically licensed or medically unlicensed institutions. Both have been criticized for decades and subjected to several state-level investigations for “misrepresenting themselves as abortion clinics and engaging in deceptive advertising.” ³ The FACT Act, as noted by the brief of the 51, was intended to address “the public health concerns posed by these centers’ [CPCs] dishonest practices.” ⁴ Moreover, the FACT Act claims that NIFLA’s clinics use intentionally deceptive advertising and counseling practices that can confuse and intimidate, preventing women from being fully informed while making difficult and time-sensitive decisions about their healthcare. ⁵ Both types of clinics can receive federal and state funding, and in their advertising suggest “explicitly, implicitly, or by omission,” that they offer the full-range of reproductive services. ⁶

Women and their families have been misled and harmed by such tactics. Medically unlicensed staff have misread ultrasounds, convincing patients their pregnancies have moved beyond the first trimester, too far to consider an abortion. ⁷ Other women, after taking time off work to seek medical attention, have unknowingly entered CPCs expecting full-medical services. After enduring lengthy intake processes and viewing “graphic and inaccurate videos about abortion,” they were told such services were not available. ⁸ Some have endured serious physical harm. One woman’s ectopic pregnancy ruptured, requiring surgical removal of a fallopian tube after receiving an ultrasound at a CPC that did not see it. She was told only that she was not pregnant. ⁹ Yet another was advised by CPC staff that she was due a month earlier than she really was because of an inaccurate reading of an ultrasound. With such time-sensitive and ultimately inaccurate information at hand, this patient delayed making an appointment with an obstetrician because she could not afford to miss work or disclose her pregnancy. By the time she was able to consult with a doctor an incompetent cervix was discovered that ultimately resulted in premature labor and still birth. ¹⁰

In response to the deceptive nature of NIFLA’s advertising for its medical products and services and to the harms caused by this commercial speech, the FACT Act compels specific disclosures from CPCs. Writing for the 5–4 majority in NIFLA v. Becerra, Justice Thomas concludes that the state’s speech likely violates NIFLA’s First Amendment right to freedom of speech. The Act’s compelled disclosures for both types of crisis pregnancy centers within NIFLA’s purview – medically licensed and unlicensed – register as unconstitutional impediments to NIFLA’s ideological and fully protected speech.

The licensed notice, by the majority’s reasoning, compels NIFLA to alter the content of its speech. It mandates notifying potential clients, once inside a facility in either print or digital form or by way of conspicuous public notice, of the availability of publicly subsidized abortion services, ¹¹ “the very practice that petitioners are devoted to opposing.” ¹² Since the state’s speech articulates the word abortion, and abortion is “anything but an ‘uncontroversial’ topic” ¹³ in public discourse, the FACT Act cannot, by the majority’s rationale, be treated deferentially. In other words, the constitutionality of the FACT Act cannot be assessed by rational basis review, the most lenient standard as established by Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio. ¹⁴ To make this move, the majority’s reasoning relies on a largely unused ¹⁵ prong of the Zauderer test, which in recent years has limited such disclosures to “purely factual and uncontroversial information,” ¹⁶ with the controversiality aspect as the primary heuristic. The majority’s use of this rationale goes against established interpretations of Zauderer that expanded its scope to protect the informational interests of consumers from deception when encountering misleading or false commercial speech. ¹⁷

When Zauderer came before the Supreme Court in 1985, commercial speech had finally attained doctrinal coherence. But it had taken some time: nearly 50 years since the Federal Trade Commission began regulating advertising, ¹⁸ over 40 years since the Supreme Court’s first commercial speech case, ¹⁹ and nearly a decade since the Court granted it partial protection from regulation under the First Amendment. ²⁰ Five years before Zauderer, Central Hudson v. Public Service Commission of New York ²¹ set out a four-pronged test that capably balanced the informational interests of consumers with the speech rights of commercial actors with the right of government to reasonably regulate false and misleading commercial communications. ²² This history conceives of commercial speech as a form inherently different from protected public discourse. Commercial speech, as defined by Robert Post, and as used in this essay,

… consists of communication about commercial matters that conveys information necessary for public decision making, but that does not itself form part of public discourse. Commercial speech differs from public discourse because it is constitutionally valued merely for the information it disseminates, rather than for being itself a valuable way of participating in democratic self-determination. ²³

In recent years, as scholars have noted the increasing obsolescence of the Central Hudson test, ²⁴ this definition of commercial speech has once again become blurry. As a consequence of the holdings in several recent cases, ²⁵ Martin Redish and Kyle Voils argue that Central Hudson’s protocol for assessing the viability of regulations of commercial speech has all but disintegrated. ²⁶ In its place, the judicial disposition has evolved to consider truthful commercial speech as fully protected, equivalent to strictly protected or “unquestionably shielded” forms of speech and expression. ²⁷

Over the course of its history, false commercial speech has been excluded from the First Amendment’s protection, even as false and misleading political speech has remained fundamentally protected. ²⁸ The courts have long considered commercial speech’s distinctive rhetorical properties as the reasons it can be subjected to regulation: its factually hardy nature enables it to sustain a coherent message when faced with pressure from regulations, the information it provides can be vital to both public and private decision making, and false commercial speech can engender greater harm. ²⁹ Nevertheless, with the erosion of Central Hudson’s efficacy and with the ascendency of Zauderer, a next step in the evolution of commercial speech doctrine is to consider it an equivalently protected form, whether it communicates truth, half-truths, or outright falsities.

Currently, Zauderer is fractured standard. Some lower courts argue it should only be applied to disclosures that attempt to prevent consumer deception. ³⁰ Others that its purpose is to enable disclosures that fill-out information environments for consumers by ensuring accurate and non-misleading information. ³¹ The majority in NIFLA eschews both approaches to substantiate its review of the FACT Act with the strictest scrutiny.

Justice Thomas deploys Zauderer’s purely factual and uncontroversial information test to conclude that the FACT Act’s disclosures do not satisfy its deferential standard. Justice Thomas exploits the fractured nature of Zauderer to argue that it does not apply and to move around the consideration of NIFLA’s speech as commercial. The majority’s analysis does not therefore consider NIFLA’s advertising. The commercial speech with which the state’s mandated disclosures dialogue does not figure into the majority’s review of the Fact Act’s constitutionality. Thomas does not acknowledge, for example, that NIFLA uses phrases such as “abortion options” in its advertising, ³² which can be misleading, deceptive, and harmful.

Even so, the majority concludes that the compelled disclosure for unlicensed CPCs “is unjustified and unduly burdensome under Zauderer.” ³³ This notice states that a given clinic is not licensed as a medical facility and does not have a licensed medical provider on site. ³⁴ It must be disseminated to clients on site and “in any print and digital advertising materials including Internet Web sites.” ³⁵ Thomas concludes that the state does not demonstrate that the harms this disclosure might remedy are “potentially real not purely hypothetical.” ³⁶ Nor does it prove this notice is “no broader than reasonably necessary.” ³⁷ In sum, according to the Court’s majority, the FACT Act is a content-based regulation, which mandates speech a speaker would not have otherwise uttered. It therefore does not survive any level of scrutiny and does not demonstrate the state’s interest as compelling. ³⁸

While Zauderer has been applied problematically outside of compelled commercial speech contexts, ³⁹ the majority uses it to define speech it does not analyze as something other than commercial speech. In NIFLA, Justice Thomas wields Zauderer’s purely factual and uncontroversial test as a weapon against reproductive rights, which enables the majority to avoid categorizing NIFLA’s advertising for its reproductive products and services as commercial speech. This strategy registers not just the convoluted state of commercial speech doctrine, but given the holding in NIFLA, it invites consideration of commercial speech’s doctrinal integrity.

This essay argues that the signal contribution of the majority opinion is its attempt to move commercial speech further into the realm of protected public discourse. While legal scholars have yet to consider fully this dimension, this essay’s rhetorical method ⁴⁰ problematizes the majority’s dispassionate and instrumental approach. With the major problems of the majority’s reasoning established above, the following sections explore them in more detail with a humanistic focus on social justice implications. The next section argues that the majority does not adequately comprehend the speech at issue because it does not analyze the rhetorical properties of NIFLA’s speech within the social context of marketplaces for reproductive goods and services. Then, through a close critical reading of the arguments forwarded by the majority and by NIFLA itself, the essay deepens its central claim that NIFLA’s communications are fundamentally commercial in nature. Finally, a deeper contextual reading is layered in through historical comparison that further complicates the majority’s avoidance of the commercial speech question. Ultimately, it is argued that NIFLA v. Becerra is a commercial speech case whose holding does not convincingly expand the purview of protected speech to include misleading commercial speech.

NIFLA’s speech, compelled speech, and the idea of a coherent speech product

The majority’s singular focus on the state’s speech in its assessment of the unconstitutional impingement to NIFLA’s speech invites critical questions about the rhetorical interplay between the state’s compelled disclosures and NIFLA’s speech. Justice Thomas’ reasoning moves around the context of marketplace communications for reproductive services and products in which NIFLA solicits and persuades potential clients. This speech-protective ruling privileges the rights of the speaker over the informational interests of those to whom the speech at hand is persuasively directed. The majority does not therefore consider the contexts and modalities in which NIFLA’s speech carries out its rhetorical work.

NIFLA deploys a sophisticated, expansive, and multi-layered informational apparatus involving traditional marketing and advertising outreach and an array of online information management, interception, and dissemination techniques. ⁴¹ Within a marketplace context of reproductive, family planning, and abortion services, NIFLA’s persuasive methods include commonplace advertising and mass media campaigns by way of public transportation, newspapers, and billboards. ⁴² It also has a multi-faceted Internet presence involving a wide span of networks of websites and the use of sophisticated marketing methods such as “search engine optimization and high-tech internet advertising to redirect women searching online for abortion services to local PCs.” ⁴³ Additionally, on-site branding at CPCs comprises architectural facades and “language, fonts, and colors” that mimic abortion-granting clinics, like Planned Parenthood, often located in close proximity to many CPCs. ⁴⁴

These well-documented facts notwithstanding, the Court does not consider the speech at issue. A thorough review of NIFLA’s speech might necessitate defining it as commercial speech, comprising advertising delivered in an online modality or as multiple and shifting online modalities; or perhaps as a synthesis of online formats with more traditional forms of advertising and marketing and with various types of speech delivered on site at NIFLA’s pregnancy centers. However the contours of the NIFLA’s speech might reasonably be described, the question of the constitutionality of the FACT Act’s disclosures cannot be legitimately addressed if the speech to which they respond and with which they dialogue remains a nebulous thing.

Without considering any of these dimensions of NIFLA’s speech, the majority’s reasoning assumes a chilling effect on NIFLA’s ideology by the state’s compelled disclosures. If it had addressed NIFLA’s speech, the majority may have had to confront directly the commercial speech question and perhaps subject the FACT Act to lesser scrutiny. Instead, Justice Thomas and the majority, and Justice Kennedy in concurrence, defer to instrumental absolutist protections.

While Thomas does not reach the question of viewpoint discrimination to evaluate the FACT Act, ⁴⁵ his use of the fractured Zauderer standard accomplishes the same result by instantiating the highest level of scrutiny. Nevertheless, Justice Kennedy writes that “viewpoint discrimination is inherent in the design and structure of this Act,” implying that the majority did not need its strict protection to find this law unconstitutional. ⁴⁶ Kennedy inhabits an originalist position to chide the state of California for referring to its legacy of progressive thinking in reproductive rights in the legislative history of the FACT Act. For him, this instrumental reading of the First Amendment begins with its ratification in 1791. “It is forward thinking,” he writes in criticism of the state,

… to understand the history of authoritarian government as the Founders then knew it; to confirm that history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech ….Governments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secured freedom of thought and belief. This law imperils those liberties. ⁴⁷

Justice Thomas’ absolutist stance toward the speech question at hand, drawing from compelled speech and commercial speech doctrines, interlaces with Kennedy’s conventional absolutism. In past cases, Thomas has espoused absolutist positions in commercial speech cases, arguing decades ago that differentiating commercial speech from protected speech “is open to question.” ⁴⁸

Back in 1996, Justice Thomas wrote a concurring opinion in 44 Liquormart v. Rhode Island, a commercial speech case that garnered a unanimous vote amidst a Court with differing opinions. ⁴⁹ Thomas assumed a conventional definition of commercial speech as speech that does “no more than propose a commercial transaction.” ⁵⁰ He argued that the rhetorical properties that define it as something different – the truth it delivers is allegedly more verifiable, and, because it is motivated by economic self-interest, it is a hardier form that can sustain pressure from regulation ⁵¹ – do not provide “any basis for permitting government to keep citizens ignorant as a means of manipulating their choices in the commercial or political marketplace.” ⁵² Thomas saw no “philosophical or historical basis” to assert that commercial speech is of lower value than non-commercial speech. ⁵³ His disposition seen here from decades ago that governmental intervention distorts informational environments, ironically dovetails with his more recent stance to undermine the absolute protection for freedom of the press instantiated by New York Times v. Sullivan (1964). Arguing that this foundational case eschews constitutional interpretation for policy-driven jurisprudence and contravenes common-law precedents for libel claims, Thomas implies that NYT incentivizes the publication of falsehoods that can corrupt democratic deliberation. ⁵⁴ With his concerns for information environments characterized by efficiency ⁵⁵ and untainted by falsehoods and governmental intrusions, Justice Thomas has predictably criticized doctrine involving compelled disclosures. ⁵⁶

Given these lines of thinking, Justice Thomas’ analysis in NIFLA is expected. But several commentators raise questions about its critical posture, notably about what constitutes the speech itself under question. Eugene Volokh, for example, fleshes out the majority’s reasoning by offering definitions of the doctrine of compelled speech. It comprises two strands in his account. One “forbids speech compulsions that also restrict speech.” ⁵⁷ He uses the examples of a newspaper editor or a parade organizer being compelled by law to include information that they would not have otherwise and thus are unable to create the newspaper or parade they had intended. The second strand does not restrict speech like the first, but unduly intrudes on “the compelled person’s autonomy” with a “pure speech compulsion,” an utterance that requires the revelation of stand-alone facts. ⁵⁸

Presumably, Volokh intends the first category to refer to the ideological content of what he calls a “coherent speech product,” a totality made up of a unified aggregation of speakers or speech acts. He considers a coherent speech product to be something different from an array of unrelated speech acts, like “channels on a cable system,” each a separate speaker. ⁵⁹ The second category turns on the distinction between whether the pure speech compulsion is one that mandates speech a speaker would not have otherwise uttered or whether it compels the speaker “to host others’ speech.” ⁶⁰ Any compelled disclosure that mandates the inclusion of facts in an ideologically coherent speech product is generally unconstitutional, while pure speech compulsions that require the revelation of standalone facts “may well be largely permissible.” ⁶¹

Volokh situates the FACT Act’s disclosures within the first strand. He notes the broadening of the first strand’s central concept in the NIFLA holding beyond simple speech products found in previous cases, things such as newspapers, marches and parades, or even a fundraising pitch. ⁶² Referring only to the disclosure notice that applies to licensed clinics, which in turn implies exposure to the information environment once a woman has arrived at and has ventured inside a licensed CPC, Volokh writes that the majority considers NIFLA’s speech in this immediate context to be “a single unit of ‘speech.” ⁶³ In this instance, the government cannot add its voice to the speech product, because “content-based regulation of speech” for licensed clinics likely alters the content of NIFLA’s speech, an unconstitutional intrusion. ⁶⁴

Volokh’s reasoning, like Justice Thomas’, does not recognize the distinctiveness of the speech at hand in NIFLA in relation to prior cases. Considering two of Volokh’s primary examples, editorial newspaper content and a parade, each of these refers primarily to speech or expression with which governmental speech dialogues and not just to the state’s speech.

In the first, the Miami Herald ⁶⁵ in 1974 won its appeal when a unanimous Court struck down a Florida state statute requiring a newspaper to provide a political candidate equal space in the paper to reply to criticism and attacks. While noting the economically burdensome nature of the statute, that it could require a newspaper to bear extensive and unforeseen publishing costs, its violation of the First Amendment’s protection for freedom of the press was clear enough. Likening the law to a prior restraint, Chief Justice Burger’s majority opinion declaimed a government agency cannot compel editors or publishers to publish “that which ‘reason tells them should not be published.’” ⁶⁶ In a case resting on the very foundation of the First Amendment, whose purpose “was to protect the free discussion of governmental affairs,” the Court reasoned that the Florida statute works against society’s interest in the free-flow of information to the public. Its punitive penalties would motivate editors to avoid controversies, thereby dampening and limiting “the variety of public debate.” ⁶⁷

In the second, the South Boston Allied War Veteran’s Council won its appeal against the Irish-American Gay, Lesbian and Bisexual Group of Boston (GLIB). The latter argued that the Veteran’s group, which had refused GLIB a place in its St. Patrick’s Day parade, violated a Massachusetts state law prohibiting discrimination in public accommodations. ⁶⁸ A unanimous Court held that the public accommodations aspect of the state law did not itself violate the First or Fourteenth Amendments. Nor was it outside of a legislature’s reasonable purview to enforce. Nevertheless, in this case, GLIB’s argument declared “the sponsors’ speech itself to be the public accommodation.” ⁶⁹ The state law in question, like the one in Miami Herald, violated the Veteran Council’s right, as private speaker, to make a collective point of its own with the parade, a protected form of expression. ⁷⁰ Ultimately, the majority in Hurley concluded that a state may not “compel affirmance of a belief with which the speaker disagrees,” ⁷¹ except at times when it may “’prescribe what shall be orthodox in commercial advertising’ by requiring the dissemination of ‘purely factual and uncontroversial information.’” ⁷²

In his majority opinion in NIFLA, Justice Thomas cites these cases without discussion. But they both work against the majority’s fundamental assumptions. When comparing these two cases to NIFLA, one can see how unusual NIFLA appears. If the Miami Herald’s case does not exist without the newspaper itself, and the Veteran’s Council’s does not exist without its parade, might it stand to reason that NIFLA’s does not exist because its speech is not considered?

Justice Thomas assumes NIFLA’s pro-life advocacy is visible but does not engage NIFLA’s speech directly. NIFLA’s political ideology, as many commentators have documented, does not appear in its marketing and advertising, ⁷³ those communicative acts that likely draw a consumer to its reproductive products and services. Nor is it clear on site at CPCs, at least at first. Justice Thomas therefore attempts to create NIFLA’s coherent speech product by extrapolating NIFLA’s speech from the disclosure notices – the state’s speech. But the majority does not consider how the disclosures dialogue with NIFLA’s extensive advertising and marketing (either traditional and online), or with the information environment of a clinic itself, as presumably comprised by its architectural properties, the informational literature a client encounters on site, the spoken advice delivered by staff both medical and non-medical, and any type of video presentation. All of these things together might constitute a coherent speech product with which the disclosures dialogue. When considering that the social and transactional processes giving coherence to NIFLA’s otherwise disparate speech acts is the marketplace for reproductive goods and services, NIFLA’s speech can therefore be seen as fundamentally commercial in nature.

In their brief, the fifty-one reproductive rights and social justice organizations claim that “many PCs do not advertise or present themselves to the women who come through their doors as religious advocates,” but “present themselves as medical clinics, or centers providing what consumers would view as medical services.” ⁷⁴ This context – the reproductive products market context – needs to be considered in the evaluation of the FACT Act’s constitutionality, but it is not. By this argument, the communication context is germane to evaluating the constitutionality of such laws and to determine the level of scrutiny when considering them. Drawing from Riley, the brief for the 51 argues that the level of scrutiny to be applied to a compelled disclosure needs to be tied to “the nature of the speech taken as a whole and the effect of the compelled statement thereon.” ⁷⁵ Such arguments for the consideration of contextual approaches to the review of compelled disclosures, especially within the public health realm of reproductive services and medical services contexts generally, ⁷⁶ suggest that the question of the FACT Act’s constitutionality is not yet answerable. The majority does not assess NIFLA’s speech as a coherent speech product and therefore cannot determine whether and how it is impervious to publicly interested legislation.

A commercial speech question?

NIFLA argues that “The First Amendment does not permit California to manipulate the marketplace of ideas.” ⁷⁷ The FACT Act, by NIFLA’s account, disadvantages its communicative efficacy and distorts its voice when expressing its political views on a “debatable public question.” ⁷⁸ Laying claim to its free speech rights, NIFLA describes its rhetoric as “conversations about motherhood, childbirth, and abortion” that are “quintessentially ideological and fully protected.” ⁷⁹ Such speech is political and cannot therefore be categorized as commercial speech, and the state’s compelled disclosures infringe on the “individual frame of mind.” ⁸⁰ “This case,” NIFLA asserts, “does not involve commercial speech, informed consent, or any form of less protected speech.” ⁸¹ After all, NIFLA does not sell products, it points out, even if it also argues simultaneously that the California Law unconstitutionally taints its message in the marketplace of ideas.

NIFLA is certainly selling something, both medical products and services. If it were not, there would be no need for marketplaces to give form, context, and process to its persuasive appeals. Perhaps NIFLA’s reasoning implies a metaphorical deployment of the marketplace. As factually established, NIFLA offers pregnancy-related services, and it intentionally strives to compete with other providers in marketplaces for reproductive services, including abortion providers. Nevertheless, NIFLA puts forth a legal argument that reduces its marketplace orientation to simply an idea, one enabling communications that attempt at the level of ideology to solicit consent to a particular political orientation to motherhood. In response, NIFLA’s critics say that its pro-life/anti-abortion politics is delivered through the advertised promise of affordable or free reproductive services and from within a shroud that masks ideological intentions, the range of services offered, and the status of medical licenses and professional competencies. NIFLA says that consumerism is not part of its ideological matrix even if marketplace processes non-metaphorically enable the dissemination and subsequent deliberation of its products by potential clients.

NIFLA implies that it can utilize advertising and marketing communications of the sort used by consumer goods companies and by professional corporations when peddling products, services, and advice. But it also eschews accountability for any misperceptions by consumers or any harms caused by its products or services because they cannot be considered consumable goods. Rather, as NIFLA has successfully argued, its outreach is fundamentally political, setting aside the nature and veracity of its advertising. By NIFLA’s logic, caveat emptor ⁸² – buyer beware – becomes a just outcome in this deeply politicized public-health realm in which deceptive, incomplete, and misleading information can have destructive and far-reaching effects on lives and families. Meanwhile, caveat venditor – seller beware – holds sway for those hawking cheeseburgers or offering professional services through any of the marketplace modalities NIFLA also deploys.

The majority supports NIFLA’s reasoning, and thereby moves around the issue of categorizing NIFLA’s speech as anything other than speech protected by strict scrutiny. In its analysis of the disclosure notice for licensed CPCs, the majority further substantiates its claim about this notice being a content-based regulation by criticizing the Ninth Circuit’s situating of NIFLA’s speech as professional speech, which enables the application of lesser scrutiny. By Thomas’ reasoning, the Supreme Court has not recognized professional speech as a separate category of speech. But established precedents have afforded less protection to professional speech in two circumstances: when a law “requires professionals to disclose factual, noncontroversial information in their ‘commercial speech,’” … and when States “regulate professional conduct [that] incidentally involves speech.” ⁸³

While setting aside arguments that the First Amendment treats professional speech differently, ⁸⁴ Thomas deploys Zauderer to demonstrate that the licensed disclosure is undeserving of lenient scrutiny. This move forecloses assessment of NIFLA’s speech as commercial in nature even before the question can be asked. The controversial nature of the word “abortion” in the licensed disclosure – while indicating an optional reproductive medical service provided by the state and intended to remedy misleading advertising – violates Zauderer’s controversiality test on its face. The disclosure, quite simply, uses the word of a medical procedure that in other contexts invokes a controversial issue within public discourse. ⁸⁵ This broad reading of controversiality in NIFLA v. Becerra, notes Sarah C. Haan, registers a misguided application of Zauderer. ⁸⁶ One that works against fundamental First Amendment principles such as informed choice-making and political self-realization, which cannot be authentically pursued if information environments are impoverished, inefficient, and characterized by misinformation. Haan writes, “One could argue that controversial information should be the easiest to compel, not the most difficult – assuming speaker interests and the risk of speech chilling are the same.” ⁸⁷

With Zauderer rendered inapplicable and the commercial speech context sufficiently problematized, Thomas turns to the informed consent context. He argues that the state’s licensed notice does not regulate professional conduct in a manner that incidentally burdens speech, as precedent would suggest from restrictions on commerce or professionals. ⁸⁸ The licensed notice “regulates speech as speech.” ⁸⁹ It “ … does not facilitate informed consent to a medical procedure … .It applies to all interactions between a covered facility and its clients, regardless of whether a medical procedure is ever sought, offered, or performed.” ⁹⁰ Here Thomas cites Planned Parenthood v. Casey, which rejected a free-speech challenge to a Pennsylvania law requiring that doctors give women specific types of information as part of the informed consent process to obtain an abortion. He reasons that because Casey regulated speech as incidental to the practice of medicine, which is subjected to regulations and licensing by the state, the disclosures in NIFLA provide a stark and meaningful contrast. They do not involve informed consent or regulate the conduct of a professional. ⁹¹

Notable tensions exist between the ideological content of the disclosures in these two cases that cannot be easily cabined by doctrinal categorizing. Contradictions stand out in the Court’s application of compelled speech doctrine in NIFLA. ⁹² With the unconstitutional licensed disclosure, the state’s notice informs potential customers or patients of state-subsidized reproductive services, including abortion. The holding in Casey deemed constitutional a Pennsylvania state statute. It required doctors who performed abortions to obtain informed consent from a patient by orally informing her, at least 24 hours before, about the “nature of the proposed procedure or treatment and of those risks and alternatives to the procedure or treatment,” and “the probable gestational age of the unborn child at the time the abortion is to be performed.” ⁹³ Moreover, a doctor or a qualified professional to whom responsibility has been delegated must inform patient of state-sanctioned and printed materials. The state’s speech describes “the unborn child,” lists agencies offering alternative to abortion, and states that “medical assistance benefits may be available for prenatal care, childbirth and neonatal care.” ⁹⁴ This person must insure that “a copy of the printed materials has been provided to the woman if she chooses to view these materials,” and finally, that “the pregnant woman certifies in writing, prior to the abortion, that the information required … has been provided.” ⁹⁵ The state’s speech in Casey contrasts sharply with the licensed disclosure notice in NIFLA, which seems to be baldly informational and non-ideological in comparison. ⁹⁶

The majority in NIFLA uses Casey to cordon off conduct from speech. It therefore can avoid applying Casey’s lower standard of scrutiny and undue burden framework to physicians’ speech rights. ⁹⁷ Nevertheless, the American Medical Association (AMA) argues that the FACT Act does indeed survive strict scrutiny review. Justice Thomas claims that the licensed notice cannot survive “even intermediate scrutiny.” ⁹⁸ Such reasoning flies in the face of the AMA’s position, which argues that strict scrutiny should be applied when governmental entities attempt to legislate speech acts between physicians and patients. Such regulations can further the government’s political objectives “at the expense of unfettered communications between physicians and patients,” can interfere with a physician’s right to speak, and can obstruct the AMA’s self-regulatory efforts toward the ethics of medical practices. ⁹⁹

When addressing the licensed disclosure, the AMA argues that the FACT Act “passes muster” due to what it documents as unethical medical practice by licensed CPCs. It cites, for example, a publication – Letting the Light In: The True Value of Pregnancy Care Clinics. Guided by an ideological predisposition, this informational literature makes medically inconclusive connections between abortions and breast cancer, which “to a conflicted patient in examination room, are likely to prove misleading.” ¹⁰⁰ By the AMA’s reasoning such questionable medical conduct is tied directly to the information environment of a CPC, and the FACT Act does not engage, debate, or contradict claims made by NIFLA’s speech in any of its forms. It does not offer alternative information about the relationship between breast cancer and abortion as a medical procedure. Moreover, the Court has protected the constitutionality of government making its voice heard in abortion-related matters. Rust v. Sullivan questioned whether the First and Fifth Amendment rights of clients and healthcare providers were violated by Department of Health and Human Services regulations restricting Title X recipients from engaging in abortion-related activities. In a 5–4 decision, the Court answered no. Writing for the majority, Chief Justice Rehnquist, joined by justices Scalia, White, Kennedy, and Souter, wrote that the “government may make a value judgment favoring childbirth over abortion.” ¹⁰¹

Nevertheless, the majority does not consider such evidence and avoids considering NIFLA’s misleading speech by reasoning that the licensed notice is “’wildly under inclusive.’” ¹⁰² It applies just to clinics with family planning and reproductive services purviews and not to “other types of clinics that also serve low-income women and could educate them about the State’s services.” ¹⁰³

The AMA’s claims can be used to problematize the speech/conduct heuristic, which the NIFLA majority uses to focus on the disclosure itself as decontextualized state speech. In contrast, the AMA delivers arguments in favor of strictly reviewed governmental disclosures in medical contexts that can remedy unethical medical conduct in the form of misleading, incomplete, and inaccurate information. After all, physicians have First Amendment rights as speakers about the information they choose to disclose, in addition to their fiduciary obligations that are regulated by licensing statutes and professional standards. Patients and consumers also have First Amendment rights as listeners who may or may not choose to receive information offered. ¹⁰⁴

The majority doubles down on its speech-protective stance when turning to the unlicensed disclosure notice. Thomas again deploys Zauderer under the assumption that the decision of whether to apply its deferential standard is unnecessary. “The unlicensed notice,” Thomas concludes, “burdens protected speech.” ¹⁰⁵ One aspect of the argument here for the FACT ACT’s burdensome impact on NIFLA’s advertising does indeed have traction. The majority, as noted by Volokh, ¹⁰⁶ uses an outlier county, the one single county in the state, as an example of what NIFLA must do to satisfy the statute’s burdensome linguistic demographic requirement. A commercial speaker must attend to primary threshold languages by county, which might mean in this case, as conceded by the state during oral argument, that a billboard for an unlicensed facility that says “Choose Life” would also have to contain the state’s 29 word message and possibly in thirteen different languages. The state’s speech may drown out “the facility’s own message.” ¹⁰⁷ The majority of Californians would see six or more languages, while two-thirds would see three or more. ¹⁰⁸ By Thomas’ reasoning this issue settles the burdensome nature of the unlicensed disclosure. Moreover, since the state has not presented evidence that the harms it attempts to remedy with this disclosure are at least “potentially real not purely hypothetical,” ¹⁰⁹ its compelled speech is unjustified and unduly burdensome. It targets “speakers, not speech.” ¹¹⁰

A commercial speech test for commercial speech not considered

In sum, Justice Thomas and the majority rely primarily on Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio (1985) both to neutralize the question of whether commercial speech doctrine applies and to eliminate the possibility of deferential review of the FACT Act’s two disclosure notices. To demonstrate its content-based nature and therefore its unconstitutionality, Thomas argues that the CA law does not confine itself to “purely factual and uncontroversial information.” His use of the Zauderer standard turns on this phrase, ¹¹¹ and it is worth examining the fuller context of these words.

The holding of Zauderer, a case involving Zauderer’s advertisements for his legal services, came down ultimately as a 5–3 plurality, with Justices O’Connor, Rehnquist, and Burger dissenting. ¹¹² The majority affirmed the Court’s thinking on commercial speech at this moment to conclude that “The States and the Federal Government are free to prevent the dissemination of commercial speech that is false, deceptive, or misleading.” ¹¹³ An internal majority – a 6–2 consensus – substantiates this reasoning in the section of Zauderer from which Thomas draws in NIFLA. This section of the former sees the liberals, William Brennan and Thurgood Marshall, standing in opposition to the rest. Justices Stevens, Blackmun, and White joined Justices O’Connor, Rehnquist, and Burger to create this internal majority, to argue …

The state has attempted only to prescribe what shall be orthodox in commercial advertising, and its prescription has taken the form of a requirement that appellant include in his advertising purely factual and uncontroversial information about the terms under which his services will be available. Because the extension of First Amendment protection to commercial speech is justified principally by the value to consumers of the information such speech provides … appellant’s constitutionally protected interest in not providing any particular factual information in his advertising is minimal. Thus, in virtually all our commercial speech decisions to date, we have emphasized that, because disclosure requirements trench much more narrowly on an advertiser’s interests than do flat prohibitions on speech, ‘warning[s] or disclaimer[s] might be appropriately required … in order to dissipate the possibility of consumer confusion or deception.’ ¹¹⁴

The argument then qualifies these statements, noting that compelled disclosures may implicate an advertiser’s First Amendment rights, but they must be justified and unduly burdensome. This line of reasoning adequately protects an advertiser’s rights as long as “disclosure requirements are reasonably related to the State’s interest in preventing deception of consumers.” ¹¹⁵ Notably, by Zauderer, seemingly just the possibility of confusion or deception is enough to consider appropriately required disclosures. ¹¹⁶

But the majority eschews this aspect of Zauderer to exploit its ill-conceived controversiality test. This move, as has been shown, tacitly removes from consideration assessment about whether the coherent speech product at hand is commercial. Subsequently, NIFLA’s speech is also disqualified from the application of Central Hudson’s balancing test for commercial speech. ¹¹⁷ Zauderer gestures toward competing interests, with some courts using its “factual and uncontroversial requirement to strike down disclosures,” while others deploying its “commitment to the rights of consumers embodied in the expansion of Zauderer’s scope.” ¹¹⁸

For Justice Thomas the question of whether to apply the Zauderer standard is immaterial because the State’s disclosure requirements are unjustified and unduly burdensome. The state does not have evidence that the harms it attempts to remedy are manifest. Because the commercial speech question is not at hand, Thomas does not consider evidence that questions whether NIFLA’s speech, which clearly involves advertising and marketing, is misleading or whether harms caused to potential clients are at least potentially real.

While the legislative history of the FACT Act details harms caused and further evidence is delivered by the 51 social justice organizations, the majority in NIFLA turns a dispassionate eye to the well-documented and deceptive or misleading nature of NIFLA’s marketing and advertising. It also side-steps discussion of commercial speech doctrine. But it assumes NIFLA’s speech is ideological, a presumption about speech whose content remains unarticulated and whose ideological properties are only made visible by the counter-value speech articulated by the state. Nevertheless, the holding in NIFLA attempts to move commercial speech further into the absolute realm of protected public discourse.

A full circle irony becomes apparent here when considering that the context of abortion services advertising put the question of commercial speech’s constitutional value squarely before the Supreme Court in 1975. In Bigelow v. Virginia, Justice Blackmun – author of Roe v. Wade in 1973 – wrote for a 7–2 majority that decided a Virginia state law violated the First and Fourteenth Amendments by prohibiting a newspaper editor from running an advertisement referring women to clinics and hospitals for abortions in another state. ¹¹⁹ The subsequent decision in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council enabled the partial protection for advertising from government regulation under the First Amendment in 1976. ¹²⁰ In the latter, Justice Blackmun, speaking again for a 7–2 majority, reasoned that “Advertising however tasteless and excessive it may seem is nonetheless dissemination of information …, ” and “ … .It is a matter of public interest that those decisions … be intelligent and well-informed. To this end, the free flow of commercial information is indispensable.” ¹²¹

Blackmun’s reasoning drew from the history of commercial speech within administrative and constitutional law. The former emanates from the Federal Trade Commission’s enabling legislation as revised in 1938 by the Wheeler-Lea Act, allowing it to regulate deceptive acts and practices in commerce – advertising and marketing – without first having to prove damages to consumers. ¹²² The latter derives from free speech absolutism conceived in New York Times v. Sullivan and from the ideas of Alexander Meiklejohn. ¹²³ Blackmun concludes that the “consumer’s interest in the free flow of commercial information … may be as keen, if not keener, than his interest in the day’s most urgent political debate.” ¹²⁴

These two cases moved commercial speech, traditionally an unprotected form, at least somewhat significantly into the First Amendment’s constitutional purview. From an historical vantage point, the contours of commercial speech doctrine become visible in NIFLA only because of the distinctive contextual elements at play and not because of the majority’s argumentative focal points. The majority defers to unstated political speech in its analysis to give short shrift to the fiduciary responsibilities of organizations falsely advertising medical goods and services in marketplaces for family planning and reproductive products. In so doing, it ignores reproductive rights in favor of abstract protections for unstated ideological speech apparently embedded within advertising that it sees as non-commercial.

The majority’s reasoning extends the reasoning that led the Burger Court to partially protect commercial speech in 1975/1976 for the first time. But it accomplishes the opposite of what the Burger Court intended. It is no historical accident that the same contextual circumstances seen in NIFLA enabled protection for commercial speech in two cases decided in close proximity decades ago. ¹²⁵ Whereas Bigelow v. Virginia ¹²⁶ and Virginia State of Board of Pharmacy clarified information in marketplaces for reproductive services, making them fuller and more robust to enable responsible choice-making, the decision in NIFLA impoverishes these same marketplaces. The former held that access to accurate and non-misleading information in marketplaces for reproductive products and services was a constitutional right. The majority’s argument in NIFLA effectively neutralizes such protection even as it too expands First Amendment protections for these same marketplaces. The holding therefore undermines the longstanding conception of commercial speech as a form that legitimates both the interests of speakers and the informational interests of publics, and which enables government initiatives to regulate false, misleading, and deceptive information in marketplaces for reproductive goods and services. In so doing, NIFLA subsumes a woman’s right to accurate information when considering reproductive choices within a fundamentalist free-speech jurisprudence. The majority’s reasoning may portend a dystopic future for reproductive rights.

Acknowledgments

The author would like to thank Amy Chmielewski for her willingness to listen and to discuss this essay as it evolved.

Correction Statement

This article has been republished with minor changes. These changes do not impact the academic content of the article.

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Notes

1. National Institute of Family and Life Advocates v. Becerra, 138S. Ct. 2361 (2018), (hereinafter NIFLA). Xavier Becerra currently serves as the Attorney General for the State of California.

2. NIFLA. “About NIFLA.” See also Brief of 51 Reproductive Rights, Civil Rights, and Social Justice Organizations as Amici Curiae in Support of Respondents at 1–2, NIFLA v. Becerra, 138S. Ct. 2361 (2018) (No. 16–1140) (hereinafter, “Brief of 51”) at 5–6.

3. Keighley, “Can You Handle the Truth,” 596, who documents state-level investigations into deceptive advertising practices by centers like NIFLA’s, drawing from media sources and from case law. See also, Brief of 51 at 1–2; Brief for the State Respondents, at 51, 58, NIFLA v. Becerra, 138S. Ct. 2361 (2018) (No. 16–1140); Howell, “How Crisis Pregnancy Centers Endanger the Health and Rights of Women of Color” (arguing that the false advertising methods used by CPCs have a disproportionate impact on women of color); Bryant & Swartz, “Why Crisis Pregnancy Centers are Legal but Unethical” (arguing that CPCs use hidden religious ideology and deceptive practices to prevent women seeking care from receiving accurate and full information about their reproductive options); Chemerinsky, “Symposium: Ensuring Accurate Information for Patients Does not Violate the First Amendment.” See also Ahmed, “Informed Decision Making and Abortion: Crisis Pregnancy Centers, Informed Consent, and the First Amendment,” 53, (documenting that such centers “often mislead clients into believing that they may receive an abortion at the facility”) (citing Am. Public Health Ass’n, Regulating Disclosure of Services and Sponsorship of Crisis Pregnancy Centers, APHA (November 1, 2011), https://www.apha.org/policies-and-advocacy/public-health-policy-statements/policy-database/2014/07/22/08/33/regulating-disclosure-of-services-and-sponsorship-of-crisis-pregnancy-centers; and United States House of Representatives Committee on Government Reform, “False and Misleading Health Information Provided by Federally Funded Pregnancy Resource Centers.”

4.. Brief of 51, 1–2.

5. Ibid., 2.

6. Ibid., 9.

7. Ibid., 16.

8. Ibid., 3, 19.

9. Ibid., 22–3.

10. Ibid., 25.

11. California Health & Safety Code § 123472(a) (2015), which states, “A licensed covered facility shall disseminate to clients on site the following notice in English and in the primary threshold languages for Medi-Cal beneficiaries as determined by the State Department of Health Care Services for the county in which the facility is located. (1) The notice shall state: ‘California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women. To determine whether you qualify, contact the county social services office at [insert the telephone number].’”

12. NIFLA, 138S. Ct. at 2371 (citing Riley v. Nat’l Fed. of the Blind of N.C., 487U.S. 795 (1988)).

13. Ibid., 2372.

14. Ibid., (citing Zauderer v. Off. of Disciplinary Counsel, 471U.S. 626, 651 (1985)).

15. See “Repackaging Zauderer,” at 986; and Keighley, “Can You Handle the Truth,” on Zauderer’s problematic controversiality test.

16. NIFLA at 2372.

17. “Repackaging Zauderer,” 986, 979.

18. Queen, “Democracy for a Consumer Society,” 70–95.

19. Valentine v. Chrestensen, 316U.S. 52 (1942).

20. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 525U.S. 748 (1976).

21. Central Hudson v. Public Service Commission of New York, 447U.S. 557 (1980). On Central Hudson’s four-part test, generally seen as instantiating intermediate scrutiny, see Central Hudson, at 557, 563–6 (1980) (articulating the four-pronged test).

22. Writing for an 8–1 majority, Justice Powell summarized Central Hudson’s four-part heuristic: “In commercial speech cases, then, a four-part analysis has developed. At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interests is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive that is necessary to serve that interest.” Central Hudson v. Public Service Commission of New York, 447U.S. 566 (1980).

23. Post, 4.

24. For example, see Smith, “Ending the Confusion over Commercial Speech” (who argues for a reengagement with Central Hudson’s balancing of consumer interests with commercial speakers); Redish and Voils, 785; and also Cavanaugh and Varma, 103, who write that since Central Hudson, “two trends in commercial speech jurisprudence have emerged – the blurring of the line between commercial and non-commercial speech and an increased protection granted to commercial speech.” See also, Redish, “Compelled Commercial Speech,” 1749, 1758–9 (on the evolution of more demanding levels of protection for commercial speech and the diminishing use of Central Hudson’s intermediate scrutiny test).

25. Redish and Voils, 776–768, who discuss, City of Cincinnati v. Discovery Network, Inc., 507U.S. 410 (1993), 44 Liquormart Inc. v. Rhode Island, 517U.S. 484 (1996), and Sorrell v. IMS Health Inc., 564U.S. 552 (2011).

26. Redish and Voils, 776.

27. For use of the phrase “unquestionably shielded,” see Justice Souter’s unanimous majority opinion in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515U.S. 557, 569 (1995). Souter writes about forms of speech and expression, like Nazis displaying swastikas while marching in uniform through the town of Skokie, whose narrow and “succinctly articulable message is not a condition of constitutional protection … would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll.” Ibid., 569.

28. See Redish and Voils, 785. They note that the categorical exclusion of First Amendment protection for false commercial speech has remained steadfast over the history of commercial speech doctrine because of the significant harm such speech can cause, even while false or misleading political speech remains protected. This is what distinguishes commercial speech fundamentally from protected discourse. Nevertheless, they write, “in recent years the Court appears to have adopted the principle that, contrary to statements in its decisions in the early years of the commercial speech doctrine, in the broad scheme of the First Amendment truthful commercial speech is deemed to have value equivalent to that of noncommercial speech,” 766. Moreover, they argue that Central Hudson – which established a four-pronged test to assess the viability of regulations of commercial speech, and which assumes all commercial speech, “regardless of context, is afforded less First Amendment protection than non-commercial speech” – has all but disintegrated. In its place has evolved the disposition to consider commercial speech as a fully protected form that “may sometimes be subjected to more severe restrictions because of its unique harms,” 776. They cite City of Cincinnati v. Discovery Network, Inc., 507U.S. 410 (1993), 44 Liquormart Inc. v. Rhode Island, 517U.S. 484 (1996), and Sorrell v. IMS Health Inc., 564U.S. 552 (2011). Taken together these cases register clearly the Court’s adoption of the equivalency principle for truthful commercial speech. But the equivalency principle also applies commensurately, they claim, to false commercial speech under the same principle that gives constitutional value to false non-commercial speech. The issue is to distinguish between the two forms, commercial and non-commercial, by recognizing that the former brings with it harms that are “uniquely greater” than the latter and not because one form of speech or expression is of inherently greater constitutional value than the other. Redish and Voils, 768.

29. For excellent histories of commercial speech see Post, Kozinski and Banner, Redish and Voils, Smith, “Ending the Confusion,” Pridgen and Preston, Bailey and Pertschuk, and Cavanaugh and Varma.

30. Volokh, “Compelled Speech,” 392.

31. Ibid. See also, “Repackaging Zauderer,” 972, 974–5, 993.

32. See Rikelman, “Symposium: The First Amendment Cannot Justify Lying to Women.”

33. NIFLA, 138 S. Ct. at 2361, 2378.

34. California Health & Safety Code § 123472(b) (2015) (“An unlicensed covered facility shall disseminate to clients on site and in any print and digital advertising materials including Internet Web sites, the following notice in English and in the primary threshold languages for Medi-Cal beneficiaries as determined by the State Department of Health Care Services for the county in which the facility is located. (1) The notice shall state: ‘This facility is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services.’”).

35. See Cal. Health & Safety Code § 123472(b).

36. NIFLA, 138S. Ct. at 2377 (citing Ibanez v. Florida Dep’t of Bus. and Prof. Regulation, 512U.S. 136, 146 (1994)).

37. Ibid., (citing In re R.M.J., 455U.S. 191, 203 (1982)).

38. Ibid., (citing Reed v. Town of Gilbert, 135S. Ct. 2226 (2015)).

39. See Haan, who documents the application of Zauderer outside of commercial speech contexts.

40. The synthesis of rhetoric and law has a long history, as noted by Austin Sarat and Thomas R. Kearns in their edited collection of essays, The Rhetoric of Law. In their introduction, they quote James Boyd White from “Law as Rhetoric, Rhetoric as Law,” who writes, law as a kind of rhetoric is “ … the central art by which community and culture are established, maintained and transformed. So regarded, rhetoric is continuous with law, and like it, has justice as its ultimate aim.” White as quoted in Sarat and Kearns, 8. See also, Schuetz who takes a rhetorical-cultural approach to criticize the holding in Rust v. Sullivan.

41. Brief of 51, 2, 10–11; see NIFLA, 138S. Ct. at 2390 (Breyer, J., dissenting) (2018) (citing Reproductive FACT Act: Hearing on Assembly B. 775 before the Senate Health Committee, 2015 Cal. Leg. Sess.).

42. See note 3 above; see also Brief of 51, at 11; and NARAL, 2–4.

43. Brief of 51, 10. See also Brief for Amici Curiae Equal Rights Advocates, Planned Parenthood Affiliates of California, California Women Lawyers, Hadassah, and the Family Violence Appellate Project in Support of Respondents at 8–11.

44. NARAL, at 13. See also, Brief for the State Respondents, at 6–7; and Aziza Ahmed, “Informed Decision Making,” 51–52.

45. Referring to the “traditional First Amendment context of directly coercive government regulation of expression,” Martin Redish writes, “There can be no exceptions to the constitutional bar of viewpoint-based regulations – at least in the context of coercive regulations and prohibitions – because to permit one exception is effectively to permit all viewpoint-based regulations.” Redish, 67, 109–110.

46. NIFLA, 138S. Ct. at 2361, 2379 (Kennedy, J., concurring).

47. Ibid.

48. 44 Liquormart, Inc. v. Rhode Island, 517U.S. 484, 522–3 & n. 4 (1996) (Thomas, J., concurring). See also Sorrell at 572–6 (2011) (majority opinion by J. Kennedy), and Collins, 409, 453–4 (documenting Thomas’ voting record on commercial speech cases as near-absolutist up through 2012).

49. See Smith, “44 Liquormart,” 7, who notes that Justice Thomas, in this case, was the “strongest advocate of First Amendment parity for legal, non-misleading commercial speech.”

50. 44 Liquormart, 517U.S. at 518–9 (J. Thomas, concurring) (quoting Virginia Bd. of Pharm. v. Virginia Citizens Consumer Council, 748, 762. Virginia Board of Pharmacy in turn relied on Bigelow v. Virginia, 421U.S. 809 (1975). See also, Bolger v. Youngs Drug Prods., 463U.S. 60, 66 (1983) (positioning the distinction between commercial and non-commercial speech as a commonsense distinction on a case-by-case basis).

51. 44 Liquormart, 517U.S. at 520 (J. Thomas, concurring).

52. Ibid., 523n. 4 (discussing a Rhode Island state law that forbid the advertising of retail liquor prices).

53. Ibid., 522.

54. McKee v. Cosby, 2. (Thomas, J., concurring in denial of certiorari but writing that the Court should “reconsider the precedents that require” courts to apply different standards for speech constituting defamation to public figures and private figures). See also, Fein, “End the First Amendment,” (discussing Thomas’s opinion in McKee arguing that New York Times v. Sullivan has created a “perverse journalistic incentive for fake news”).

55. See Rubin v. Coors Brewing Co., 514U.S. 476, 481–2 (1995). (Thomas, J., majority opinion), (noting that commercial speech is protected by the First Amendment because of free flow of commercial information makes private decisions more efficient).

56. See Keighley, “Can You Handle the Truth,” 542n. 5 (citing Borgner v. Florida Bd. of Dentistry, 537U.S. 1080 (2002) (Thomas, J., dissenting from denial of certiorari)). Thomas writes that the Court’s decisions “have not presumptively endorsed government-scripted disclaimers or sufficiently clarified the nature and the quality of the evidence a State must present to show that the challenged legislation directly advances the governmental interest asserted,” 1082.

57. Volokh, “Compelled Speech,” 355, 358.

58. Ibid.

59. Ibid., 358, 363–5.

60. Ibid., 358.

61. Ibid.

62. Ibid., 361.

63. Ibid., 362–3.

64. NIFLA v. Becerra, 2361, 2371 (citing Riley v. Nat’l Fed. of the Blind, 487U.S. 781, 795 (1988)).

65. Miami Herald Publishing Co. v. Tornillo, 418U.S. 241 (1974).

66. Ibid., 254 (citing Associated Press v. United States, 326U.S. 1, 20 (1945)).

67. Ibid., 257, (citing New York Times v. Sullivan, 376U.S. 279).

68. Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. 515U.S. 557 (1995).

69. Ibid., 558.

70. Ibid., 559, (drawing from West Virginia Board of Education v. Barnette, 319U.S. 624, 632 (1943) the first compelled speech case, to document established precedents for the protection of expression and expressive acts beyond written or spoken words.)

71. Ibid., 573 (citing West Virginia Board of Education v. Barnette, 319U.S. 642 (1943).

72. Ibid., (citing Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471U.S. 626, 651 (1985).

73. See above, notes 3, 41, 42, 43, 44.

74. Brief of 51, at 31.

75. Ibid., 2 (citing Riley, 487U.S. 796).

76. Gaylord, 35, 35–6; Keighley, “Can You Handle the Truth,” 544.

77. Reply Brief for Petitioners, at 2.

78. Ibid., (citing Reed v. Town of Gilbert, 2218, 2238).

79. Reply Brief for Petitioners, at 9–10.

80. Ibid., 3 (citing West Virginia State Bd. of. Ed. v. Barnette, 319 U.S. 624 (1943)).

81. Ibid., 3.

82. The common law tradition of caveat emptor played a key role in the administrative state’s and the federal judiciary’s thinking about consumer protection regulation and about constitutional protection for commercial speech from 1938, when the Federal Trade Commission began to regulate advertising, through to 1975/1976 when the holdings in Bigelow v. Virginia and Virginia State Board of Pharmacy enabled First Amendment protection for commercial speech. See Queen, 77, for further historical background; see also, Pridgen and Preston, and Bailey and Pertschuk.

83. NIFLA, 2361, 2372 (citing Zauderer at 626, 651 (1985); Ohralik v. Ohio State Bar Association, 436U.S. 447, 456 (1978).

84. In contrast, see Haupt, “The Limits of Professional Speech,” 185, 190, who writes, “ … the First Amendment treats professional speech differently from other types of speech in at least four key realms: professional licensing, fiduciary duties, informed consent, and malpractice liability.” See also Haupt, “Professional Speech,” 1238 (summarizing professional speech’s doctrinal status).

85. On the evolution of Zauderer’s controversiality test, see Haan, 1, 37–38.

86. Ibid., 37–38, (“Courts have applied the controversial label to disclosures related to trade in a war zone, reproductive health services, radio frequency energy exposure from cell phones, allegations of labor law violations, and the health risks of cigarettes and sugar-sweetened beverages. It is precisely in debates on subjects like these that citizens need information – and where, if information is not available, they are likely to make choices that are self-defeating rather than self-actualizing.” (citations omitted)).

87. Ibid., 37–38.

88. NIFLA at 2361, 2373 (citing Sorrell at 552, 567 (2011) on incidental speech burdens directed a commerce or conduct), and Ohralik at 456 (arguing states regulate professional conduct and torts for professional malpractice).

89. Ibid., 2373.

90. Ibid.

91. Ibid.

92. See, e.g., Volokh, “Compelled Speech,” 356–7.

93. Planned Parenthood of Southeastern Pa. v. Casey, 505U.S. 833, 902–3 (1992).

94. Ibid.

95. Ibid.

96. See, Suter, 22, 24, who documents how lower courts have been at odds about the level of scrutiny to apply when evaluating informed consent statutes.

97. Keighley, “Physician Speech,” 2347, 2352 (concluding that “Casey condones state speech that advocates childbirth over abortion. Casey says nothing about whether physicians themselves can be forced to express the state’s ideological views”).

98. NIFLA, 2375.

99. Brief of American Medical Association, at 1.

100. Ibid., 14–16.

101. Rust v. Sullivan, 500U.S. 173, 174 (1991). See also Schuetz, 83, who writes that Rehnquist’s majority opinion “contended that the government’s viewpoint was as important as that of the individual and the government had a right to subsidize its preferred viewpoint.”

102. NIFLA, 2375 (quoting Brown v. Entertainment Merchants Ass’n, at 786, 802).

103. Ibid.

104. For further analysis of the rights of the listener, see Suter, 27–8, who writes that consumers’ or patients’ interests are implicated in this context because of their “common law and possibly constitutional interests in making informed medical decisions,” and that their informational interests are implicated whether governments restrict or compel speech in this public health realm. She cites the majority opinion in Sorrell – quoting from Bates v. State Bar of Ariz., 433U.S. 350 (1977) – which draws language from Virginia State Board of Pharmacy and Bigelow v. Virginia.

105. NIFLA, at 2377.

106. Volokh, “Statistics in NIFLA v. Becerra.”

107. Ibid.

108. Ibid., 69.

109. NIFLA, at 2377 (quoting Ibanez at 136, 146).

110. Ibid., 2378.

111. Ibid., 2372 (quoting Zauerer at 626, 651).

112. Justice Powell did not participate.

113. Zauderer, 471 U.S. at 638.

114. Ibid., 650 (internal citations omitted).

115. Ibid., 651.

116. Ibid.

117. On Central Hudson’s four-pronged test, generally seen as instantiating intermediate scrutiny, see Central Hudson, at 557, 563–6 (1980). See also, Redish, “Compelled Commercial Speech,” 1749, 1758–9 (on the evolution of more demanding levels of protection for commercial speech and the diminishing use of Central Hudson’s intermediate scrutiny test).

118. See “Repackaging Zauderer,” 972, 974–5, 993.

119. Bigelow, at 809. Blackmun writes, “The central assumption made by the Supreme Court of Virginia was that the First Amendment guarantee of speech and press are inapplicable to paid commercial advertisements. Our cases, however, clearly establish that speech is not stripped of First Amendment protection merely because it appears in that form.” Ibid. at 818 (citing Pittsburgh Press Co. v. Human Rel. Comm’n, 413U.S. 376, 384 (1973) and New York Times Co. v. Sullivan, 376U.S. 254, 266 (1964)). Per Blackmun’s majority opinion, “The advertisement published in appellant’s newspaper did more than simply propose a commercial transaction. It contained factual material of clear ‘public interest.’” Ibid. at 822.

120. Virginia State Board of Pharmacy, at 728.

121. Ibid., 748, 765.

122. See above 18.95.

123. Virginia State Board of Pharmacy, at 765 & n. 19 (citing Meiklejohn’s, Free Speech and Its Relation to Self-Government.

124. Ibid., 763.

125. Bigelow v. Virginia. 421U.S. 809 (1975); Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council. 425U.S. 748 (1976).

126. In an article that predates the holdings in Bigelow and Virginia State Board of Pharmacy, Goss criticizes state prohibitions on advertising for family planning and abortion referral services.