Voiding California law upholds free speech
Californians of a liberal bent may not like it, but the U.S. Supreme Court this week struck an important blow for the constitutional right of free speech.
It overturned a California law requiring clinics offering non-abortion alternative treatment to pregnant women to post notices telling them about the availability of abortions.
“By compelling petitioners to speak a particular message, it alters the content of (their) speech” and thus violates a previously enunciated judicial principle, the majority opinion declared. “For example, one of the state-sponsored services that the licensed notice requires petitioners to advertise is abortion — the very practice that petitioners are devoted to opposing.”
Unfortunately, it will be seen by many only as a tactical victory for one side in the nation’s perpetual political debate over abortion. In fact, however, even those who earnestly believe in abortion rights should applaud the court’s 5-4 decision for upholding the right not to be compelled by law to convey certain messages.
The legal and moral correctness of the decision is easily illustrated by flipping the circumstances. What if California law required clinics performing abortions to advise their clients about other alternatives?
Pro-abortion rights advocates would be up in arms, rightfully so, about being compelled to say things they don’t believe. And one would hope that the equally noxious anti-abortion assaults on free speech in some other states will be overturned as well.
The ruling took a slap — not for the first time — at the California-centered 9th Circuit Court of Appeals, which is known for its expansive view of issues.
“Although the licensed notice is content-based,” it continued, “the 9th Circuit did not apply strict scrutiny because it concluded that the notice regulates ‘professional speech.’ But this court has never recognized ‘professional speech’ as a separate category of speech subject to different rules. Speech is not unprotected merely because it is uttered by professionals.”
That’s also an important point, because clearly the legislators and Gov. Jerry Brown, in enacting the law, painfully attempted to avoid the free speech issue by portraying it as just a consumer protection measure.
Hopefully, the ruling will deter California’s politicians from continuing to trample on constitutional rights in their self-righteous fervor to impose their versions of political correctness on the state’s residents.
By happenstance, the ruling came down as the Legislature considers still another foray into controlling what Californians may legally say. It’s a bill that would make California the first state in the country to outlaw the advertising and sale of sexual orientation change services — better known as “conversion therapy.”
As with the anti-abortion clinic law, Assembly Bill 2943 attempts to skirt the free speech issue by applying the ban only on services for which there is payment. But it could easily run afoul of this week’s declaration about professional speech being no more subject to censorship than non-commercial speech.
Once again, it will be seen as a battle over sexual orientation rights but is more accurately one about free speech and the right to advocate even beliefs that most of us would consider to be wrongheaded.
It’s easy to be for free speech when people are saying things with which you agree. The test comes when you dislike what is being advocated.
It’s a principle best expressed in this famous saying, generally attributed to British writer Evelyn Beatrice Hall in her biography of Voltaire: “I disapprove of what you say, but I will defend to the death your right to say it.”