Freedom for the speech we like

A common trope about judges (especially SCOTUS justices) in free speech cases is that they find the speech they like consitutionally protected and the speech they don't like unprotected. And it is then all-too-easy to align speech preferences with partisan preferences. This is plainly inaccurate in most cases (Justice Kennedy, for sure, and I believe Justice Kagan). And I like to hope (naively, perhaps) that other justices and judges are less crass than this. Of course, it is impossible to prove one way or another. Did Chief Justice Roberts or Justice Scalia vote as they did in United States v. Stevens because they genuinely believe in the First Amendment principles at issue or because the animal cruelty statute was broad enough to include hunting videos and Roberts and Scalia both like hunting?

Well, maybe we have an opportunity to see, in the controlled context of speech relating to abortion. On one side are laws in several states requiring women, prior to terminating a pregnancy, to undergo ultrasounds and to view and hear a doctor describe the ultrasound. On the other side are recent efforts (primarily local) to regulate "crisis pregnancy centers," centers (often religiously owned and operated) which purport to offer full services for pregnant women, but which in fact do not provide (or discuss) abortion or birth control or provide any other medical care; these efforts have primarily taken the form of local regulations requiring the centers to post in public in the building written disclaimers that they do not provide such medical services.

The core constitutional issue is basically the same: compelled expression. Ultrasound laws compel doctors to say certain things and pregnant women to listen to them, while the pregnancy-center regulations compel the centers to provide information about themselves (and, implicitly, about other available reprodcutive-health services) that they do not want to provide. In both situations, the information compelled is purely factual and not directly ideological (although perhaps ideologically motivated and having ideological consequences), apparently accurate, and relevant to a woman's decision in using those services. The purported goal on both sides is providing women with complete truthful information and thus complete medical services. The speech in both could be categorized as commercial speech--communication between medical or social service providers and clients in regulated professional industries. 

And yet . . . .

In January, the Fifth Circuit (in an opinion by Judge Edith Jones, a Bush II and Romney short-lister) upheld the Texas ultra-sound law. The court held that the law was not subject to strict scrutiny because the speech was not "ideological;" it was truthful, non-misleading, and relevant and part of a reasonable regulation of medical practice, subject only to the "undue burden" limitations of Casey. That the speech might result in women changing their minds about whether to terminate the pregnancy did not change the analysis. This was informed consent, a historic part of medical practice. And, as Judge Patrick Higginbotham said in a concurring opinion, "[s]peech incident to securing informed consent submits to the long history of this regulatory pattern."

On the other hand, last week the Fourth Circuit (in an opinion by Judge Niemeyer) struck down, on compelled-speech grounds, two ordinances requiring crisis pregnancy centers to provide disclaimers. The court rejected arguments that the ordinances should be treated as commercial speech, as speech of members of a regulated profession dealing, or as analogous to informed-consent disclaimers under Casey. The majority then held that the law failed strict scrutiny, because less-restrictive means (namely, government speech) were available. Judge King (the only Democratic appointee on the two panels) wrote an at-times intemperate dissent; he referred to a "kangaroo court" (mostly due to disagreement with how the district court had converted the City of Baltimore's 12(b)(6) to a motion for summary judgment, then denied it an opportunity for discovery--great civ pro hypo here). [Update: Jennifer Keighley at Balkinization has a take-down of the Fourth Circuit decision]

Both laws are supporting by an interest in getting information to women making medical decisions. The only difference is how abortion (or birth control, which the crisis pregnancy centers also don't want to talk about) is presented and how it may affect behavior. The ultrasound law will, it is hoped, make women less likely to go through with the procedure if they know all the medical details (whether through guilt or knowledge), although the Fifth Circuit said that did not make the compelled disclosures ideological. The disclaimer ordinances will, it is hoped, keep abortion (and birth control and other medical services) as an option for women by ensuring that they do not go somewhere for services that will leave them making decisions without a full understanding of their option.

My instinct is that both cases must be treated the same, although I have not thought enough about whether both should be valid or both should be invalid.  If anything, I wonder if the results should be flipped; the ultra-sound cases have both an unwilling speaker and an unwilling listener suffering First Amendment injury in an intimate conversation, making that more constitutionally troubling (but that is very tentative and I am trying to heed the advice Marty Redish once gave me--if you reach a constitutional result that lines up with your political preferences, redo your constitutional analysis). But the  inconsistency in this direction (from different courts, obviously) is incoherent. Unless it really is all about the judges' underlying views on abortion and thus on speech about or affecting abortion and the ability of women to choose.