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SCOTUS NIFLA v. Becerra decision is a win for free speech

SCOTUS NIFLA v. Becerra decision is a win for free speech

Protecting free speech

In another of today’s SCOTUS decisions, the Court ruled in NIFLA v. Becerra that a California law requiring crisis pregnancy centers (pregnancy counseling clinics usually run by pro-life Christians) to post notices that “California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women” was an unconstitutional violation of free speech.

The vote was the familiar 5-4 and once again came down to the swing vote of Kennedy siding with the conservative wing, and all the liberal justices dissenting.

Headlines in the MSM dealing with the decision tend to emphasize that this is a win for pro-life clinics (see this, for example), whereas conservative media seems to have more of a focus on the free speech aspects (an example is here). The former is a political emphasis, whereas the latter is a constitutional and legal one.

Here’s the legal reasoning of the majority:

Though the law related specifically to abortion, free speech was the fundamental issue at stake…

Justice Clarence Thomas’s majority opinion cast the case…clearly, noting that there exists no such category in America as “professional speech” and concluding that to invent one would “give the States unfettered power to reduce a group’s First Amendment rights by simply imposing a licensing requirement.” In a short concurrence, Justice Kennedy dispensed with the idea that the First Amendment is outmoded. The viewpoint discrimination inherent in the FACT Act was “a matter of serious constitutional concern,” Kennedy concluded, and the law served as “a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression.”…

As Justice Thomas noted, the state government could very easily have accomplished its supposed purpose — ensuring that California women are aware of the low-cost abortion program — without needlessly conscripting pro-life centers into its effort. “[California] could inform the women itself with a public-information campaign,” Thomas observed. “California could even post the information on public property near crisis pregnancy centers. . . . Either way, California cannot co-opt the licensed facilities to deliver its message for it.”

Instead, the state intentionally targeted pro-life health centers and insisted that they violate their beliefs by facilitating a procedure they believe to be immoral

The is the correct decision IMHO. It is also another decision that almost certainly would have gone the opposite way had Garland been appointed to the Court instead of Gorsuch. On such a narrow thread our liberties depend.

Full decision here:

National Institute of Family and Life Advocates, DBA Nifla, Et Al. v. Becerra, Attorney General of Californ… by Legal Insurrection on Scribd

[Neo-neocon is a writer with degrees in law and family therapy, who blogs at neo-neocon.]


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Justice Clarence Thomas’s majority opinion cast the case … clearly, noting that there exists no such category in America as “professional speech.”

And there’s no category in America as “hate speech” either.

    Milhouse in reply to fscarn. | June 26, 2018 at 11:19 pm

    True, and no US court has ever recognized such a category, nor has any legal expert ever claimed that such a category exists in current US law. Leaving legal ignoramuses aside, every reference I’ve seen to the concept in the USA has used it as a moral category, not a legal one.

      tphillip in reply to Milhouse. | June 27, 2018 at 6:28 am

      “every reference I’ve seen to the concept in the USA has used it as a moral category, not a legal one.”

      Interesting. Many “Human Rights” boards set up by various cities (Eg: New York City) specifically use the words “hate speech” when it comes to the definitions of infraction and the punishments served.

      I guess those fines and other punishments meted out are all moral and I can just ignore them since they’re not legal. That should hold up in court.

        Milhouse in reply to tphillip. | June 29, 2018 at 2:53 am

        What are you talking about? No “human rights board” anywhere in the US, including NYC, imposes any penalties for “hate speech”.

      ss396 in reply to Milhouse. | June 27, 2018 at 8:31 am

      Although “hate crimes” attract a higher penalty, imposed by the judge, than do the same crimes which do not carry the “hate” appellation.

        Milhouse in reply to ss396. | June 29, 2018 at 2:44 am

        Yes, motive has always been a legitimate factor in sentencing, and legislatures are completely within their rights to entrench such a requirement in law. If you commit a crime because you hate an entire group of whom your immediate victim was but one member, it is right and proper that your sentence be harsher than it would be if you did the same thing for some other motive. This has nothing to do with making hatred itself an offense.

As time marches on the “deus ex machina” case for D.Trump’s election is reaching the point of un-deniability.

Who wound up Kennedy to turn right lately? Never mind.

He rightly exposed the malignant truth behind these California marxists: “It does appear that viewpoint discrimination is inherent in the design and structure of this Act.”

Yes, indeed. Even lay people understand that obvious point, yet the fact this was a 5-4 split highlights just how unhinged & wicked the left side of scotus truly is.

When there’s never any doubt how 4 justices will vote, you don’t really have a deliberative body.