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Thursday, July 05, 2012

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.

Posted by Howard Wasserman on July 5, 2012 at 10:01 AM | Permalink


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But aren't they "nudging" in both situations?

Posted by: Howard Wasserman | Jul 6, 2012 12:42:01 PM

Hill v. Colorado is a good litmus test for this. If you would have come out the other way had the protesters been strikers picketing a workplace, you should probably turn in your ACLU card.

Posted by: Brad | Jul 5, 2012 6:48:04 PM

Not to take too strong a position on this, but "both cases must be treated the same" only if you assume that the state cannot "nudge" women in a particular direction on whether to have an abortion (in First Amendment parlance, whether preventing abortion is a state interest). I think one plausible reading of Casey--and in particular Anthony Kennedy's reading of Casey--is that states can do precisely that. My reading of "undue burden" has always been that they can nudge, but cannot shove.

Posted by: TJ | Jul 5, 2012 3:18:43 PM

But if you set up an agency that provides services lawyers might typically do, but which does not require a law license, such as assisting in filling out immigration documents / SS documents / tax documents, should you be required to state the non-sequitur "I don't provide legal services?" I think that's a case of compelled speech that is impermissible under the 1A. Otherwise we could see grocery stores being required to put up signs "we don't provide nutritional advice" or your grandmother being required to disclaim her own home remedies.

The question, to my lights, is whether we're talking about regulation within a profession, actual professional conduct (legal referral / ultrasound law), with lower 1A scrutiny, or regulation of those not within a profession and not subject to those licensing restrictions (tax assistance groups / pregnancy counseling center).

And looking at it from the penalty side: non-compliance with legal disclaimers can lead to loss of license or criminal liability for practicing law without a license. And the same scheme could apply to these pregnancy centers. Either they jeopardize their license (which they don't have) or they are penalized for practicing medicine without a license or for fraud. That is, the speech restriction is related to the self-regulation of the practice area, and within the context of a practitioner-client relationship.

My main point is that while I understand that you might be right about the motivations in the judicial opinions, I feel I can see a quite strong distinction here for 1A purposes. Do I like it? No: I would much rather see indirect controls on otherwise protected speech, such as licensing schemes, be subject to the same scrutiny as for those same controls applied directly. But the conceptual distinction seems available.

Posted by: AndyK | Jul 5, 2012 1:33:09 PM

I think the backstop is, if not outright fraud, prevention of deception. And towards that end, regulated professions may be limited not in what they can say, but in what disclaimers they have to provide. So if you set up a legal referral agency (18004 PAIN or whatever it is called), you have to provide a disclaimer that you don't provide legal advice or representation. It seems to me the centers are similarly situated.

Posted by: Howard Wasserman | Jul 5, 2012 11:38:54 AM

Isn't there a very strong distinction between commercial speech and professional standards? The billboard issue involves regulating commercial speech of professionals (or non-professionals if you'd like): an attempt to GET a client.

The ultrasound laws involve medical best practices: compelled speech in the context of a preexisting face-to-face provider-client relationship.

So I can see a very strong distinction here. Doctors in the context of the doctor-patient relationship sign up to all sorts of regulations when maintaining a license: these regulations are a condition on practice, and sure they may be stupid or a product of cartel behavior, but they are conditional.

Doctors in advertising, however, have more freedom to advertise what services they do or don't offer, and the only backstop is fraud, right?

Posted by: AndyK | Jul 5, 2012 11:03:49 AM

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