Facts
- California enacted the Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act), which imposed notice requirements on certain facilities that provide pregnancy-related services.
- The law drew a distinction between (1) “licensed” clinics and (2) “unlicensed” clinics that were not licensed by the state as medical facilities.
- For licensed clinics, the FACT Act required dissemination of a state-drafted notice informing patients that California provides free or low-cost family-planning services, including contraception, prenatal care, and abortion, and included a phone number to call for information.
- For unlicensed clinics, the FACT Act required a prewritten notice stating that the facility was not licensed by the state. The law also required the notice to appear in advertisements and in specified formats (including size and language requirements).
- The National Institute of Family and Life Advocates (NIFLA), a nonprofit association of crisis-pregnancy centers, and affiliated clinics challenged the law in federal court, alleging the required notices compelled speech in violation of the First Amendment.
- Plaintiffs sought a preliminary injunction to stop enforcement while the case proceeded.
- The district court denied preliminary relief, and the Ninth Circuit affirmed, applying intermediate scrutiny on the theory that the FACT Act regulated “professional speech,” a category the Ninth Circuit treated as eligible for reduced First Amendment protection.
- The Supreme Court granted certiorari to review the First Amendment standards and the constitutionality of both notice requirements.
Issues
- Whether the FACT Act’s licensed-clinic notice is a content-based compelled speech requirement that triggers strict scrutiny under the First Amendment.
- Whether the Ninth Circuit correctly applied a reduced-scrutiny “professional speech” doctrine to uphold the FACT Act’s compelled notices.
- Whether the licensed-clinic notice can be justified under any exception for compelled disclosures, including informed-consent rules or compelled commercial disclosures.
- Whether the unlicensed-clinic notice is constitutional as a compelled disclosure, or instead is unjustified and unduly burdensome in light of its mandated wording, placement, and formatting.
Decision
- The Supreme Court reversed and remanded, holding that NIFLA and the clinics were likely to succeed on their First Amendment claims and that the lower courts applied the wrong standards in denying preliminary injunctive relief.
- The Court held the licensed-clinic notice is a content-based regulation because it compels clinics to deliver a government-authored message about state services, including abortion; such content-based compelled speech is presumptively unconstitutional and generally requires strict scrutiny.
- The Court rejected the Ninth Circuit’s broad “professional speech” category as a basis for lowering First Amendment protection, recognizing only limited contexts in which regulation of professional activity may receive different treatment (such as regulation of professional conduct that incidentally affects speech, and certain factual commercial disclosures).
- Applying heightened scrutiny, the Court concluded California had not shown the licensed notice was narrowly tailored; the law was underinclusive and targeted a narrow set of speakers (clinics primarily serving pregnant women), rather than addressing the claimed informational interest more generally.
- The Court distinguished abortion informed-consent requirements (speech tied to a medical procedure) from the FACT Act’s licensed notice, which compelled clinics—many of which did not provide abortions—to convey information about state abortion access.
- The Court held the unlicensed-clinic notice also likely violated the First Amendment because, even assuming a more permissive compelled-disclosure framework could apply, the requirement was unjustified and unduly burdensome given the mandated statement and its stringent display rules that could crowd out the clinics’ own messages.
Legal Principles
- Content-based regulations of speech, including compelled speech requiring speakers to convey a specific government message, are presumptively unconstitutional and ordinarily subject to strict scrutiny.
- The First Amendment does not recognize a broad “professional speech” category that, by itself, reduces constitutional protection for speech by licensed speakers.
- States may regulate professional conduct even when that regulation incidentally affects speech, and they may require certain disclosures in limited settings (including some informed-consent disclosures tied to medical procedures).
- Under Zauderer-style principles, compelled commercial disclosures must generally be factual and noncontroversial and cannot be unjustified or unduly burdensome; disclosure mandates that dominate the speaker’s communication may fail even under more deferential review.
- A law that targets a narrow class of speakers, rather than addressing an asserted informational problem in a broader way, can weaken the state’s tailoring arguments under heightened scrutiny.
Conclusion
The Supreme Court held that California’s FACT Act notice requirements were likely unconstitutional because they compelled clinics to convey state-drafted messages based on the content of the clinics’ speech, and the Ninth Circuit improperly relied on a reduced-scrutiny “professional speech” doctrine; the Court reversed and remanded for further proceedings consistent with heightened First Amendment review.