Content Regulation / Censorship
Loughran v. Century Newspapers Ltd
Closed Mixed Outcome
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The U.S. Supreme Court held that the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act was unconstitutional. The Act required centers providing pregnancy-related services to post notices informing patients if they were not licensed medical centers and to provide posted information about low cost state-sponsored medical services. The Supreme Court (by 5-4) held that these notices requirements were content-based regulations that violated the First Amendment by forcing reproductive healthcare facilities to provide a “government-scripted” message to patients. Justice Breyer, with Justice Ginsburg, Justice Sotomayor and Justice Kagan, wrote a dissenting opinion which would have held that both notice requirements were constitutional.
The California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (the Act) was enacted “to ensure that California residents make their personal reproductive health care decisions knowing their rights and the health care services available to them.” The Act was considered a consumer protection regulation, compelling healthcare facilities offering reproductive services to be transparent about their licensing and to post truthful and nonmisleading information about available services in the state.
The Act defined “licensed covered facilities” as having the “primary purpose of providing family planning or pregnancy related services” and required all such facilities to post the following notice: “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. To determine whether you qualify, contact the county social services office at [insert the telephone number].”
The Act defined “unlicensed covered facilities” as having the “primary purpose of providing pregnancy-related services” and required all such facilities to post the following notice: “This facility is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services”. The Act stipulated that this notice be displayed “conspicuously” onsite and be included in all advertising materials. The purpose of this notice requirement was “to ensure that pregnant women in California know when they are getting medical care from licensed professionals”.
The Act did exempt from the notice requirements several categories of clinics that would otherwise be classified as licensed covered facilities. These clinics included federally-operated clinics and “Medi-Cal clinics” (state-sponsored programs that provide free services for low-income women) that participate in the “Family Planning, Access, Care, and Treatment program (Family-PACT) which have to provide the full range of family planning services.
After the Act was enacted one licensed pregnancy center, one unlicensed pregnancy center and an organization composed of crisis pregnancy centers (defined in the majority judgment as “largely Christian belief-based) organizations that offer a limited range of free pregnancy options, counseling, and other services” [pp.1-2]) filed a suit alleging that the notice requirements abridged the First Amendment to the U.S. Constitution as well as their religious freedom. The District Court denied their motion for a preliminary injunction finding that the state had a compelling interest in ensuring patients understood whether they were receiving care by licensed professionals and what low cost care was provided by the state. The Court of Appeals for the Ninth Circuit affirm the lower court ruling on the grounds that the petitioners “could not show a likelihood of success on the merits” [p. 6]. The Ninth Circuit held that the licensed notice “survives the ‘lowest level of scrutiny’,” and that the unlicensed notice “satisfies any level of scrutiny” [p. 6].
The Supreme Court granted the petitioners’ application to review the Ninth Circuit’s decision.
Justice Thomas delivered the majority opinion of the Court and was joined by the Chief Justice Roberts, Justice Kennedy, Justice Alito and Justice Gorsuch.
The Court explained that the First Amendment – which is applicable to all States through the Fourteenth Amendment – “prohibits laws that abridge the freedom of speech” [p. 6]. The Court noted that its jurisprudence has distinguished between “content-based and content-neutral regulations of speech”, and identified the notice that licensed centers are obliged by the Act to display as content-based. The Court defined content-based regulations as those that “target speech based on its communicative content” which are presumptively unconstitutional and can only be justified if they are “narrowly tailored to serve a compelling state interest” [p. 6]. With reference to its decision in Police Dept. of Chicago v. Mosley 408 US 92, 95 (1972), the Court noted that this represents the fundamental principle that “governments have ‘no power to restrict expression because of its message, its ideas, its subject matter or its content’” [p. 7].
The Court referred to Riley v. National Federation of Blind of N.C. Inc U.S. 781, 795 (1988) and held that “[b]y compelling individuals to speak a particular message such notices ‘alte[r] the content of [their] speech” [p. 7]. The Court noted that the Act required licensed clinics to provide a “government-drafted script about the availability of state-sponsored services” which included abortion which the Court described as “the very practice that petitioners are devoted to opposing” [p. 7].
The Court disagreed with the Ninth Circuit’s characterization of the notice as “professional speech” which has been defined as “any speech by [individuals who provide personalized service to clients and who are subject to ‘a generally applicable licensing and regulatory regime’] that is based on [their] expert knowledge and judgment” [pp. 7-8]. Professional speech has been exempted from “the rule that content-based regulations of speech are subject to strict scrutiny” [p. 8]. As the lower courts had characterised the licensing notices as “professional speech” they had not applied a strict scrutiny to them.
Unlike the U.S. District Court and Ninth Circuit of Appeals, the Court refused to recognize “professional speech” as a separate category of speech on the grounds that speech should not be exempted from scrutiny merely because it was spoken by “professionals”. The Court stated that there are only two instances in which “professional speech” is subject to less than strict scrutiny: from Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio 471 U.S. 626, 651 (1985) “where a law requires professionals to disclose factual, noncontroversial information in their ‘commercial speech’”; and from Planned Parenthood of Southeastern Pa v. Casey 505 U.S. 833, 884 (1992) “where States regulate professional conduct that incidentally involves speech” [pp. 8-9]. On the grounds that “abortion, is anything but an ‘uncontroversial’ topic” the Court held that the Zauderer case was not applicable to the present matter [p. 9]. The Court also held that the Casey case did not apply because that case related to informed consent for an actual medical procedure whereas in the present case “the licensed notice is neither an informed-consent requirement nor any other regulation of professional conduct” [p. 11].
The Court emphasized that it has “long protected the First Amendment rights of professionals” [p. 11], and with reference to its decision in Sorell v. IMS Health Inc 564 U.S. (2011) “has stressed the danger of content-based regulations ‘in the fields of medicine and public health where information can save lives’” [p. 12]. It added, with reference to Turner Broadcasting Systems Inc v. FCC 512 U.S. that “regulating the content of professionals’ speech ‘pose[s] the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information’” [p. 11].
The Court found that the State of California had failed to present a compelling reason for “treating professional speech as a unique category that is exempt from ordinary First Amendment principles” [p. 14]. The Court noted that California’s justification for the licensed notice was to provide low-income women with information about the state-sponsored services, but the Court held that the licenced notice was “wildly underinclusive” as a method to achieve this goal [p. 15]. The Court noted that the Act only applied to centers that offer pregnancy-related services, not to community clinics and migrant health centers. In addition, the Court highlighted the explicit exemption of federal clinics and Family PACT centers from the notice requirement. The Court referred to the Brown v. Entertainment Merchants Assn. 564 U.S. case and commented that “[s]uch [u]nderinclusivity raises serious doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint’” [p. 15]. The Court also found the notice requirement unduly burdensome as it had to be posted in 13 different languages.
The Court noted that California could achieve its stated goal of informing low-income women of the services it provided in a manner that would not burden a speaker with “unwanted speech”, such as through a public service campaign [p. 16]. It added that “California cannot co-opt the licensed facilities to deliver its message for it” [p. 16].
In respect of the notice requirement for unlicensed clinics the Court held that California had not demonstrated that the notice would be justifiable and not unduly burdensome on the clinics [p. 17]. California had argued that the notice was to ensure that women were informed about the true nature of unlicensed pregnancy centers. In addition, the Court held that the Act “unduly burdens protected speech” by imposing a “government scripted” notice on a narrow subset of speakers [p. 18]. With reference to its decisions in Citizens United v. Federal Election Comm’n 558 U.S. 310, 340 (2010) and the Sorrell case the Court voiced concern that by distinguishing between the types of unlicensed service providers that were required to carry the notice the Act created speaker-based laws and that these types of laws “run the risk that ‘the State has left unburdened those speakers whose messages are in accord with their own’” [p. 19]. Accordingly, the Court held that the unlicensed notice requirements “targets speakers not speech, and imposes an unduly burdensome disclosure requirement that will chill their protected speech” [p. 20].
The Court reversed the Ninth Circuit decision, holding that the petitioners “are likely to succeed on the merits of their claim” and remanded the case for further proceedings [p. 20].
Justice Kennedy, with the Chief Justice Roberts, Justice Alito and Justice Gorsuch, wrote a concurring opinion which characterized the Act as “require[ing] primarily pro-life pregnancy centers to promote the State’s own preferred message advertising abortions” [p. 1]. With reference to Wooley v. Maynard 430 U.S. 705, 715 (1977) the judgment criticized the Californian legislature for declaring that the Act was “part of California’s legacy of ‘forward thinking’”, holding that “it is not forward thinking to force individuals to ‘be an instrument for fostering public adherence to an ideological point of view [they] fin[d] unacceptable’” [p. 2].
Justice Breyer, with Justice Ginsburg, Justice Sotomayor and Justice Kagan, wrote a dissenting opinion which would have held that both notice requirements were constitutional.
The dissenting judgment expressed concern over the approach taken by the majority in applying heightened scrutiny to the notices because they were characterized as content based. The judgment noted that “[v]irtually every disclosure law could be considered ‘content based’ for virtually every disclosure law requires individuals to ‘speak a certain message’” [p. 3]. The dissenting judgment noted that the test the majority applied “invites courts around the Nation to apply an unpredictable First Amendment to ordinary social and economic regulation, striking down disclosure laws judges may disfavor, while upholding others, all without grounding their decisions in reasoned principle” [p. 3-4]. The dissenting judgment stated that “[h]istorically, the Court has been wary of claims that regulation of business activity, particularly health-related activity violates the Constitution” [p.5] and noted that the Court has been “careful to defer to state legislative judgments concerning the medical profession” [p. 6].
The dissenting judgment examined the Court’s own jurisprudence on disclosure laws in respect of reproductive health and asks “[i]f a State can lawfully require a doctor to tell a woman seeking an abortion about adoption services, why should it not be able, as here, to require a medical counselor to tell a woman seeking prenatal care or other reproductive healthcare about childbirth and abortion services?” [pp. 11-12]. The judgment disagreed with the way in which the majority distinguished the Casey case from the present case, stating that “[t]he individuals here are all medical personnel engaging in activities that directly affect a woman’s health – not significantly different from the doctors at issue [in obtaining informed consent] in Casey” [p. 12]. The dissenting judgment expressed concern at the majority’s characterization of abortion as not a medical procedure, and noted that “[n]o one doubts that choosing an abortion is a medical procedure that involves certain health risks” [p. 14]
The dissenting judgment also disagreed with the majority’s finding that the Zauderer case was not applicable to the present case and noted that “[a] disclosure requirement does not prevent speakers ‘from conveying information to the public,’ but ‘only require[s] them to provide somewhat more information than they might otherwise be inclined to present’” [p. 15].
The dissenting judgment emphasized that “[t]he disclosure [in the required notices] includes information about resources available should a woman seek to continue her pregnancy or terminate it, and it expresses no official preference for one choice over the other” [p. 17]. It recognized the sensitive nature of abortion in the country, but stressed that “[t]hat is one reason why it is particularly important to interpret the First Amendment so that it applies evenhandedly as between those who disagree so strongly” [p. 18]. It added that, “a Constitution that allows States to insist that medical providers tell women about the possibility of adoption should also allow States similarly to insist that medical providers tell women about the possibility of abortion” [p. 18].
In respect of the notice requirement which required unlicensed centers to state that they were not licensed as medical facilities and did not have a licensed medical practitioner, the dissenting judgment noted that it was not unreasonable to seek to prevent delays caused by women entering these facilities thinking they would receive medical treatment.
The dissenting judgment also disagreed that the notice requirements were unduly burdensome, and noted that instead of invalidating the legislation on the grounds that it required the notice to be provided in several languages, the burden could be reduced simply by requiring fewer languages [p. 24].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
On one hand, this case can be seen as expanding expression because it refuses to recognize regulations on professional speech as subject to anything less than strict scrutiny (except for two narrow exceptions). However, the majority judgment appears to go against established Supreme Court jurisprudence and muddies the water in respect of how the First Amendment and regulation of professional speech interact. An analysis in the Harvard Law Review noted that with this ruling, “the Court narrowed its prior commercial speech decisions, widening the scope of the First Amendment protection in a way that could undercut a significant number of consumer protection laws.”
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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