WHAT IS A “NONCONTROVERSIAL” TOPIC AND WHY DOES IT MATTER TO PROFESSIONAL SPEECH?

By: Christopher Eddy

Introduction

The Supreme Court’s recent decision in National Institute of Family & Life Advocates v. Becerra (“NIFLA”) dealt with “professional speech.” Specifically, the Court decided if professional speech constituted a separate class of speech and was entitled to less protection under the First Amendment. The law at issue was California’s FACT Act which required crisis pregnancy centers (CPCs) to disclose certain information about state-funded abortion services.

If the CPCs were licensed medical providers, they were required to disclose that the state provided “immediate free or low-cost access to comprehensive family planning services . . . [including] abortion.” If the CPC were not licensed by the State, they were required to disclose that they were not licensed by the State and had no licensed medical provider among their staff.

CPCs are a nationwide phenomenon and almost universally oppose abortion. The FACT Act was designed to help avoid what the California legislature believed was a situation in which women did not know what kind of care they could expect at a CPC. This problem, according to the Court, was purely hypothetical and not a real issue that could be alleviated by the FACT Act’s disclosure requirements. However, this decision ignores much of the research about the deceptive tactics used by CPCs to lure women into their clinics and keep them from abortion providers.

Case Review

First Amendment law clearly forbids States from “prescribe[ing] what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” However, the State also clearly has a compelling interest in ensuring that consumers have basic, factual information about professionals whose services they are using. The Court recognized this interest in Zauderer, but it seems to have been lost somewhere in the NIFLA decision.

Under Zauderer, states can “require professionals to disclose factual, noncontroversial information” in their advertisements and marketing materials. If a state law fell within this definition then it would be subject to lesser scrutiny and the professional speech would not be entitled to as much First Amendment protection. However, the Court took this language and decided in NIFLA that instead of “noncontroversial” meaning “true” or “not misleading” it meant that the disclosures cannot pertain to a “controversial” topic such as abortion. Such a reading of the Zauderer test represents a departure from its original purpose to protect consumers from false information and is a potentially dangerous precedent to set for future cases. The NIFLA Court uses this mischaracterization of the Zauderer test to justify its holding that the disclosure required of licensed clinics does not fall within one of the exceptions to professional speech protection.

The Court also makes a comparison to Planned Parenthood v. Casey because both cases involve the disclosure of information regarding abortions. Although Justice Breyer’s dissent points out many similarities between the two laws, the majority opinion distinguishes Casey on the grounds that it was about informed consent and the law at issue in NIFLA was regulating “speech as speech.” However, a close look at the two laws shows that although the Casey law was pro-life and the NIFLA law pro-choice, they are very similar and Casey should have been persuasive precedent.

Implications

NIFLA may not be a landmark case that will be taught by constitutional law professors for years to come, but it does bring up important questions about when professional speech gets First Amendment protection. The FACT Act did not require CPCs to state an opinion or condone California’s state-funded abortion services. It did not even require CPCs to make a statement that is controversial. All the FACT Act did was require CPCs to provide factual information that the state felt was important for CPC patients to have and that those patients were unlikely to get without the disclosure requirement.

If a law regulating the disclosure of information about the presence of abortion services can be invalidated, then how can a state require disclosures of information on other “controversial” topics? Also, should it be left to the Court to decide what constitutes a “controversial” topic? If the FACT Act pertained to something that was not abortion, then perhaps the Court would not have departed from the original meaning of “noncontroversial” in Zauderer and upheld California’s disclosure requirement. 

Putting aside any impact on abortion rights, the NIFLA decision represents an important departure from previous professional speech doctrine. After NIFLA, states will have to be more careful when they create disclosure requirements that the information to be provided does not touch on some topic of national controversy such as abortion. Unfortunately, because the Court did not decide the case on compelled speech grounds, it is difficult to know if a law that did not state the exact language to be given to consumers would have passed constitutional muster. Regardless, the Court’s decision brings into question the true meaning of the “noncontroversial” language from Zauderer and muddies the water of the professional speech doctrine.

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