On Tuesday, the Supreme Court held in a 5-4 decision that the state of California could not compel pro-life pregnancy centers to inform prospective patients about the availability of taxpayer-funded abortions. The Ninth Circuit Court of Appeals had upheld the law by stating that it only regulated “professional speech” — but as the Supreme Court noted, there is no Constitutional category of “professional speech” as distinguished from other speech. “Speech is not unprotected merely because it is uttered by ‘professionals,’” the Court held. Only speech restrictions that are non-content based — that is, that concern “factual, noncontroversial information” — are allowable under the First Amendment.
In his majority opinion, Justice Thomas took the Ninth Circuit to task for their obvious political bias. As Thomas pointed out, “The notice in no way relates to the services that licensed clinics provide. Instead, it requires these clinics to disclose information about state-sponsored services— including abortion, anything but an ‘uncontroversial’ topic.” Thomas concluded: “The licensed notice at issue here is not an informed consent requirement or any other regulation of professional conduct. The notice does not facilitate informed consent to a medical procedure. In fact, it is not tied to a procedure at all.”
Then Thomas launched into a diatribe over state manipulation of medical providers’ provision of information:
Throughout history, governments have “manipulat[ed] the content of doctor-patient discourse” to increase state power and suppress minorities. … Doctors and nurses might disagree about the ethics of assisted suicide or the benefits of medical marijuana; lawyers and marriage counselors might disagree about the prudence of prenuptial agreements or the wisdom of divorce; bankers and accountants might disagree about the amount of money that should be devoted to savings or the benefits of tax reform. “[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market,” Abrams v. United States, 250 U. S. 616, 630 (1919) (Holmes, J., dissenting), and the people lose when the government is the one deciding which ideas should prevail.
The fact that this case was decided only 5-4 bodes ill for the future of free speech under Court jurisprudence. This should have been an easy case. But the Left’s agenda is obvious: to label as much speech as possible “commercial,” and then to regulate it along content-based lines. By suggesting that everything we say in public life is related to commerce, the federal government can impose its own views on private citizens. And that’s the goal.
