By: Christopher Eddy<\/p>\n\n\n\n
Introduction <\/strong><\/p>\n\n\n\n The Supreme Court\u2019s recent decision in National Institute of Family & Life Advocates v. Becerra<\/a><\/em> (\u201cNIFLA<\/em>\u201d) dealt with \u201cprofessional speech.\u201d Specifically, the Court decided if professional speech constituted a separate class of speech and was entitled to less protection under the First Amendment. The law at issue was California\u2019s FACT Act<\/a> which required crisis pregnancy centers (CPCs) to disclose certain information about state-funded abortion services. <\/p>\n\n\n\n If the CPCs were licensed medical providers, they were\nrequired to disclose that the state provided \u201cimmediate free or low-cost access\nto comprehensive family planning services . . . [including] abortion.\u201d If the\nCPC were not licensed by the State, they were required to disclose that they\nwere not licensed by the State and had no licensed medical provider among their\nstaff.<\/p>\n\n\n\n CPCs are a nationwide\nphenomenon<\/a> and almost universally oppose abortion. The FACT Act was\ndesigned to help avoid what the California legislature believed was a situation\nin which women did not know what kind of care they could expect at a CPC. This\nproblem, according to the Court, was purely hypothetical and not a real issue\nthat could be alleviated by the FACT Act\u2019s disclosure requirements. However,\nthis decision ignores much of the research<\/a>\nabout the deceptive tactics used by CPCs to lure women into their clinics and\nkeep them from abortion providers.<\/p>\n\n\n\n Case Review<\/strong><\/p>\n\n\n\n First Amendment law clearly forbids States from \u201cprescribe[ing]<\/a>\nwhat shall be orthodox in politics, nationalism, religion, or other matters of\nopinion.\u201d However, the State also clearly has a compelling interest in ensuring\nthat consumers have basic, factual information about professionals whose\nservices they are using. The Court recognized this interest in Zauderer<\/em>, but it seems to have been lost\nsomewhere in the NIFLA<\/em> decision.<\/p>\n\n\n\n Under Zauderer<\/a><\/em>,\nstates can \u201crequire professionals to disclose factual, noncontroversial\ninformation\u201d in their advertisements and marketing materials. If a state law\nfell within this definition then it would be subject to lesser scrutiny and the\nprofessional speech would not be entitled to as much First Amendment protection.\nHowever, the Court took this language and decided in NIFLA <\/em>that instead of \u201cnoncontroversial\u201d meaning \u201ctrue\u201d or \u201cnot\nmisleading\u201d it meant that the disclosures cannot pertain to a \u201ccontroversial\u201d\ntopic such as abortion. Such a reading of the Zauderer<\/a><\/em>\ntest represents a departure from its original purpose<\/a>\nto protect consumers from false information and is a potentially dangerous\nprecedent to set for future cases. The NIFLA<\/em>\nCourt uses this mischaracterization of the Zauderer<\/em>\ntest to justify its holding that the disclosure required of licensed clinics\ndoes not fall within one of the exceptions to professional speech protection. <\/p>\n\n\n\n The Court also makes a comparison to Planned Parenthood\nv. Casey<\/a><\/em> because both cases involve the disclosure of\ninformation regarding abortions. Although Justice Breyer\u2019s dissent points out\nmany similarities between the two laws, the majority opinion distinguishes Casey<\/em> on the grounds that it was about\ninformed consent and the law at issue in NIFLA<\/em>\nwas regulating \u201cspeech as speech.\u201d However, a close look at the two laws shows\nthat although the Casey law<\/a><\/em> was pro-life and the NIFLA law<\/a><\/em> pro-choice, they are very\nsimilar and Casey<\/em> should have been\npersuasive precedent.<\/p>\n\n\n\n Implications<\/strong><\/p>\n\n\n\n NIFLA<\/em> may\nnot be a landmark case that will be taught by constitutional law professors for\nyears to come, but it does bring up important questions about when professional\nspeech gets First Amendment protection. The FACT Act did not require CPCs to\nstate an opinion or condone California\u2019s state-funded abortion services. It did\nnot even require CPCs to make a statement that is controversial. All the FACT\nAct did was require CPCs to provide factual information that the state felt was\nimportant for CPC patients to have and that those patients were unlikely<\/a>\nto get without the disclosure requirement. <\/p>\n\n\n\n If a law regulating the disclosure of information\nabout the presence of abortion services can be invalidated, then how can a\nstate require disclosures of information on other \u201ccontroversial\u201d topics? Also,\nshould it be left to the Court to decide what constitutes a \u201ccontroversial\u201d\ntopic? If the FACT\nAct<\/a> pertained to something that was not abortion, then perhaps the\nCourt would not have departed from the original meaning of \u201cnoncontroversial\u201d\nin Zauderer<\/em> and upheld California\u2019s\ndisclosure requirement. <\/p>\n\n\n\n Putting aside any impact on abortion rights, the NIFLA<\/em> decision represents an important\ndeparture from previous professional speech doctrine. After NIFLA<\/em>, states will have to be more careful\nwhen they create disclosure requirements that the information to be provided\ndoes not touch on some topic of national controversy such as abortion.\nUnfortunately, because the Court did not decide the case on compelled speech\ngrounds, it is difficult to know if a law that did not state the exact language\nto be given to consumers would have passed constitutional muster. Regardless,\nthe Court\u2019s decision brings into question the true meaning of the\n\u201cnoncontroversial\u201d language from Zauderer<\/em>\nand muddies the water of the professional speech doctrine. <\/p>\n","protected":false},"excerpt":{"rendered":" By: Christopher Eddy Introduction The Supreme Court\u2019s recent decision in National Institute of Family & Life Advocates v. Becerra (\u201cNIFLA\u201d) dealt with \u201cprofessional speech.\u201d Specifically, the Court decided if professional speech constituted a separate class of speech and was entitled to less protection under the First Amendment. The law at issue was California\u2019s FACT Act …<\/a><\/p>\n","protected":false},"author":10,"featured_media":2435,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[6],"tags":[18,89,239,281],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts\/2434"}],"collection":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/users\/10"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/comments?post=2434"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/posts\/2434\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/media\/2435"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/media?parent=2434"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/categories?post=2434"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/firstamendmentlawreview\/wp-json\/wp\/v2\/tags?post=2434"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}