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Monday, November 13, 2017

First Amendment Day at SCOTUS

SCOTUS granted cert in three First Amendment cases today. The big one is National Institute of Family and Life Advocates v. Becerra, a challenge to a California law requiring that crisis pregnancy centers provide notice that publicly funded family-planning services are available elsewhere and that unlicensed clinics are unlicensed; the Court took it as a compelled-speech case and a vehicle to resolve a circuit split over the standard for "professional speech" (the Ninth Circuit applied intermediate scrutiny, while the Fourth Circuit applied strict scrutiny in invalidating similar regulations in Maryland.

The political valance of the case is interesting, as Dahlia Lithwick argues. The plaintiff here is a crisis-pregnancy center, resisting regulations that, in the name of protecting women's health, require the clinics to disclose information about the limits of their services (not providing abortion or contraception) and directing patients elsewhere for those services. But if these regulations violate the First Amendment, so should regulations in many states requiring clinics to provide pre-abortion counseling or to provide arguably false medical information about links between abortion and breast cancer, suicide, and mental-health consequences, designed to dissuade women from going through with the procedure.

Incidentally, this case meets the procedural posture I was looking for: The trial court denied a preliminary injunction, the court of appeals affirmed, and SCOTUS granted cert (to reverse, if I had to predict).

Posted by Howard Wasserman on November 13, 2017 at 07:59 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink


I think Dorothy Nelson wrote a really careful opinion - in some places it was actually persuasive. Although something really tells me that the 9th circuit is going to get their derrieres reversed big time on this one. I really can't see how they can avoid being told that they were too dismissive of Reed's clear teaching that content based distinctions are presumptively unconstitutional.

Posted by: Sean | Nov 14, 2017 9:46:52 AM

It interests me that the cert petition in Becerra raised a free-exercise issue as well, and that the Court limited the question granted to compelled speech, when they didn't do the same thing in Masterpiece Cakeshop.

Posted by: Asher Steinberg | Nov 13, 2017 10:24:04 PM

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