The Supreme Court

The Washington Post - - FRONT PAGE - BY ROBERT BARNES robert.barnes@wash­post.com

said it will hear three cases rais­ing First Amend­ment con­cerns next year, in­clud­ing one on an­tiabor­tion coun­sel­ing in Cal­i­for­nia.

The Supreme Court said Mon­day that it would de­cide whether it vi­o­lates free speech guar­an­tees for Cal­i­for­nia to re­quire “cri­sis preg­nancy cen­ters,” which counsel against abor­tion, to tell pa­tients that the state of­fers con­tra­cep­tion ser­vices and abor­tion as­sis­tance.

The case is one of three rais­ing First Amend­ment con­cerns that the court an­nounced it will hear early next year. An­other in­volves a Min­nesota law that bans wear­ing po­lit­i­cal mes­sages at polling places. The third stems from the ar­rest of a man who spoke out against “cor­rup­tion” at a Florida city coun­cil meet­ing.

The Cal­i­for­nia case prom­ises to be a high-pro­file con­flict that raises im­por­tant free speech is­sues about when a state’s in­tent to reg­u­late the med­i­cal pro­fes­sion vi­o­lates con­sti­tu­tional pro­tec­tions.

“Cri­sis preg­nancy cen­ters” pro­vide ser­vices for preg­nant women and try to per­suade them not to end their preg­nan­cies. But some state leg­is­la­tures, in­clud­ing Cal­i­for­nia’s, have charged that they use de­cep­tive ad­ver­tis­ing and con­fuse and even in­tim­i­date women who think they are go­ing to re­ceive more neu­tral abor­tion coun­sel­ing. Cal­i­for­nia’s Re­pro­duc­tive FACT Act re­quires the cen­ters to dis­close whether they have med­i­cal per­son­nel on staff and to in­form women that the state of­fers sub­si­dized con­tra­cep­tives and abor­tion.

A panel of the U. S. Court of Ap­peals for the 9th Cir­cuit up­held the law, say­ing the state could reg­u­late pro­fes­sional speech and had a valid in­ter­est in safe­guard­ing pub­lic health. The re­quired sign did not en­cour­age abor­tion, the judges said, but merely in­formed pa­tients of avail­able state ser­vices.

But the cen­ters said they are tar­geted be­cause their mes­sage is un­pop­u­lar with the state’s lead­ers.

“The state, rather than us­ing count­less al­ter­na­tive ways to com­mu­ni­cate its mes­sage, in­clud­ing its own pow­er­ful voice, in­stead com­pels only li­censed fa­cil­i­ties that help women consider al­ter­na­tives to abor­tion to ex­press the gov­ern­ment’s mes­sage re­gard­ing how to ob­tain abor­tions paid for by the state,” says the pe­ti­tion filed by the National In­sti­tute of Fam­ily and Life Ad­vo­cates. The case is NIFLA v. Be­cerra. With the ac­cep­tance of the cases, the term will be heavy with First Amend­ment chal­lenges.

The court next month hears what could be the mar­quee case of the term, when it ex­am­ines whether a Colorado law that says a baker must make a wed­ding cake for a same-sex cou­ple vi­o­lates con­sti­tu­tional pro­tec­tions against com­pelled speech. The baker says cre­at­ing such a cake would be an en­dorse­ment of the mar­riage his re­li­gious be­liefs do not al­low.

The polling-place case the court ac­cepted Mon­day chal­lenges a Min­nesota law pro­hibit­ing vot­ers from wear­ing T-shirts or po­lit­i­cal badges, but­tons or other in­signia with overtly po­lit­i­cal mes­sages.

Vi­o­la­tors are asked to cover up or re­move the items, but elec­tions of­fi­cials are told not to bar them from vot­ing.

Andrew Cilek, ex­ec­u­tive di­rec­tor of the Min­nesota Vot­ers Al­liance, was de­layed from vot­ing in 2010 be­cause he wore to the polls a T-shirt with a tea party logo and a but­ton that said “Please I.D. Me.”

The U.S. Court of Ap­peals for the 8th Cir­cuit up­held the law, say­ing it was in­tended to main­tain “peace, or­der and deco­rum” at polling precincts. At least 10 other states have sim­i­lar laws.

“This is an en­cour­ag­ing day for the cause of free speech and free­dom of ex­pres­sion,” said Wen Fa, an at­tor­ney for the Pa­cific Le­gal Foun­da­tion, which is rep­re­sent­ing the vot­ers group.

“With this case, the Supreme Court has an op­por­tu­nity to strike a blow for core con­sti­tu­tional free­doms, by declar­ing that Min­nesota can’t turn polling places into First Amend­ment­free zones.”

The case is Min­nesota Vot­ers Al­liance v. Man­sky.

The Florida case means a return to the Supreme Court for Fane Loz­man, who pre­vi­ously won a land­mark rul­ing from the court that said his float­ing home was a house, not a ves­sel sub­ject to mar­itime seizure laws. This time, Loz­man is su­ing be­cause of his ar­rest at a 2006 Riviera Beach City Coun­cil meet­ing. He was never pros­e­cuted on charges of dis­rupt­ing the meet­ing, and he then sued the city, charg­ing that the ar­rest was re­tal­i­a­tion and vi­o­lated his free speech rights.

A jury and the U.S. Court of Ap­peals for the 11th Cir­cuit ruled against him. They said be­cause there was prob­a­ble cause for the ar­rest, he could not bring his suit.

Rep­re­sented by lawyers at the Stan­ford Supreme Court Lit­i­ga­tion Cen­ter, Loz­man says lower courts are di­vided on the is­sue of whether a find­ing of prob­a­ble cause is enough to de­feat a claim of re­tal­ia­tory ar­rest.

“Re­cent years have seen a fresh surge of civic en­gage­ment, much of it in­volv­ing crit­i­cism of the gov­ern­ment,” Loz­man said in his pe­ti­tion to the court. “Thus, the risks of re­tal­ia­tory ar­rests re­mains a press­ing con­cern.”

The city coun­cil says the de­ci­sion to ar­rest Loz­man was made by the po­lice of­fi­cer, even though a coun­cil mem­ber had warned Loz­man not to con­tinue his tirade against gov­ern­ment cor­rup­tion dur­ing the pub­lic com­ments por­tion of the meet­ing.

The case is Loz­man v. City of Riviera Beach.

The Cal­i­for­nia case raises im­por­tant free speech is­sues about when a state’s in­tent to reg­u­late the med­i­cal pro­fes­sion vi­o­lates con­sti­tu­tional pro­tec­tions.

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