The Governor of California signed the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act) that requires licensed clinics that primarily serve pregnant women to notify women that they provide free or low-cost services and provide a phone number. Petitioners comprised of licensed pregnancy center, unlicensed pregnancy center and others filed a suit. They alleged that the notices abridge the freedom of speech protected by the First Amendment.
The First Amendment, applicable to the States through the Fourteenth Amendment, prohibits laws that abridge the freedom of speech.
Governments have “no power to restrict expression because of its message, its ideas, its subject matter, or its content.”
Content-based regulations are presumptively unconstitutional 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) requires licensed clinics that primarily serve pregnant women to notify women that they provide free or low-cost services and provide a phone number. The Act requires unlicensed clinics to notify women that California has not licensed them to provide medical services. However, the Act exempts clinics operated by the U.S and licensed primary care clinics enrolled in Medi-Cal and Family PACT from the notice requirements.
Can California’s FACT Act contain the notice requirements without violating the First Amendment?
No, because the licensed notice is a content-based regulation of speech and by compelling individuals to speak a particular message, such notices “alter the content of their speech.” For instance, licensed clinics must give a government-drafted script about the availability of state-sponsored services and a contact information. By demanding petitioners to notify women how they can obtain state-sponsored services such as abortions, the notice “alters the content” of petitioners‘ speech.
The marketplace for the services covered by the Act is promoted, not hindered, by providing information to patients that enable them to make fully informed medical decisions in respect to their pregnancies. Also, the Act is not overly burdensome. The Act requires disclosure in no more than two languages except in one county that requires 13 different languages. This fact, however, only shows a need for fewer languages, not invalidation of the statute.
Viewpoint discrimination is inherent in the design and structure of the FACT Act. The law poses a serious threat when government seeks to impose its own message in the place of individual speech or expression. Here, the Act requiring pregnancy centers to promote the State’s own preferred message, compels individuals to contradict their most deeply held beliefs.
California and the Ninth Circuit claimed that we should apply less than strict scrutiny test because the notice regulates “professional speech.” However, neither of them has established a legitimate reason for treating professional speech as a unique category that is exempt from ordinary First Amendment principles. Moreover, California has failed to demonstrate any justification for the unlicensed notice that is more than “purely hypothetical.” Even if we assume that California’s justification has merit, the Act unduly burdens protected speech. The notice imposes a government-scripted requirement that is wholly disconnected from the State’s informational interest.