In the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United States

NATIONAL INSTITUTE OF FAMILY ANDLIFE ADVOCATES, dba NIFLA, et al.,

Petitioners,v.

XAVIER BECERRA,Attorney General of California, et al.,

Respondents.

On Writ of Certiorari to the United StatesCourt of Appeals for the Ninth Circuit

BRIEF OF AMICI CURIAE 41 FAMILY POLICYORGANIZATIONS IN SUPPORT OF PETITIONERS

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

DAVID FRENCH

Counsel of RecordSenior FellowNATIONAL REVIEW INSTITUTE

19 West 44th StreetSuite 1701New York, New York 10036(931) 446-7752dfrench@nationalreview.com

Counsel for Amici Curiae

NO. 16-1140

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QUESTION PRESENTED

Whether the disclosures required by the CaliforniaReproductive FACT Act violate the protections set forthin the Free Speech Clause of the First Amendment,applicable to the States through the FourteenthAmendment.

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TABLE OF CONTENTS

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iii

INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

I. The State of California Is ConscriptingPro-Life Professionals Into its Pro-ChoiceCause. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

II. California Is Transforming Private Pro-LifeProperty Into Billboards for the Pro-ChoiceCause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

III. California’s Intolerance Threatens toExacerbate American Cultural Divide . . . . 14

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

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TABLE OF AUTHORITIES

CASES

Masterpiece Cakeshop v. Colorado Civil RightsCommission, (No. 16-11, Argued Dec. 5, 2017) . . . . . . . . 2, 6, 16

National Institutes of Family and Life Advocates v.Harris, 839 F.3d 823 (9th Cir. 2016) . . . . . . . . . . . . . . 3, 8

West Virginia State Board of Education v. Barnette,319 U.S. 624 (1943) . . . . . . . . . . . . . . . . . . 5, 6, 12

Wooley v. Maynard, 430 U.S. 705 (1977) . . . . . . . . . . . . . . . . . . passim

CONSTITUTION

U.S. Const. amend. I . . . . . . . . . . . . . . . . . . . . passim

OTHER AUTHORITIES

Assem. Comm. On Health, Analysis of AssemblyBill No. 775 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Assembly. Bill No. 775 Section 1(b) . . . . . . . . . . 3

Frederick Douglass, “A Plea For Freedom of Speechin Boston” (Dec. 9, 1860) . . . . . . . . . . . . . . . . . . 15

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INTEREST OF AMICI CURIAE1

The 41 family policy councils and policy allianceslisted below each work within their respective states topreserve religious liberty and rights of conscience fromstate overreach and government intrusion. They arenonprofits who advocate for free speech, religiousliberty, and the rights of the unborn. They pursue theirwork in court, before legislatures, in governor’smansions, and in the court of public opinion. They arevitally concerned that the decision of the court belowundermines a constitutional firewall against compelledspeech and will set a precedent permitting states tocoerce conformity even from those citizens who dissentfrom state-mandated orthodoxy on matters of “politics,nationalism, religion, or other matters of opinion.” Thecomplete list follows:

The Alaska Family Council, Center for ArizonaPolicy, Family Council of Arkansas, California FamilyCouncil, Capitol Resource Institute, Colorado FamilyAction, Family Institute of Connecticut, DelawareFamily Policy Council, Family Policy Alliance, FamilyPolicy Alliance of Georgia, Hawaii Family Forum,Family Policy Alliance of Idaho, The FAMiLY LEADERof Iowa, Family Policy Alliance of Kansas, The FamilyFoundation of Kentucky, Louisiana Family Forum,Christian Civic League of Maine, Massachusetts

1 Petitioners have submitted a blanket consent to the filing ofamicus briefs in this case. Amici have contacted and obtainedconsent to file this brief from counsel for Respondents. Amici statethat no counsel for a party authored this brief in whole or in part,and no person other than the amici or their counsel made anymonetary contribution intended to fund the preparation orsubmission of this brief.

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Family Institute, Michigan Family Forum, MinnesotaFamily Council, Montana Family Foundation,Nebraska Family Alliance, Nevada Family Alliance,Cornerstone Action of New Hampshire, New JerseyFamily Policy Council, Family Policy Alliance of NewMexico, New Yorkers for Constitutional Freedoms,North Carolina Family Policy Council, NC ValuesCoalition, Family Policy Alliance of North Dakota,Citizens for Community Values of Ohio, Family PolicyInstitute of Oklahoma, Pennsylvania Family Council,Palmetto Family Council of South Carolina, SouthDakota Family Heritage Alliance, Family ActionCouncil of Tennessee, Texas Values, The FamilyFoundation of Virginia, Family Policy Institute ofWashington, Family Policy Council of West Virginia,and Wisconsin Family Action.

SUMMARY OF ARGUMENT

For the second time in recent months this Court iscalled upon to consider and rule upon the mostegregious form of First Amendment violation — thedecision of the state to compel its citizens to express orsupport ideas they find repugnant.

In the first case, Masterpiece Cakeshop v. ColoradoCivil Rights Commission (No. 16-11, Argued Dec. 5,2017) the state at least offered the defense that customdesign of a wedding cake was not a form of expressionprotected by the First Amendment. In this case, nosuch defense is available. In this case, the state knowsfull well that it is compelling speech, and it knows fullwell that it is compelling speech on matters of deepmoral, religious, and political dispute.

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The state here compels pro-life crisis pregnancycenters to advertise the availability of free or low-costabortions. Given the belief of these pro-life citizens thatthe unborn child is a separate human life, equal invalue to any other living person, the state is requiringthese citizens to advertise the availability of free orlow-cost means of facilitating death.

These beliefs are the soul motivating the embodiedaction of pro-life pregnancy centers: their staff andvolunteers are moved by a desire to save the lives ofunborn children and help mothers choose to give birth.The State of California directly interferes with theirwork by forcing them to post messages actively opposedto their lifesaving efforts. It is hard to imagine agreater imposition on individual conscience. It is hardto imagine a more repugnant form of forced speech.

And what is the state interest so vital that itpermits California to conscript the private speech ofpro-life citizens? The state is claiming that it wants toprovide accurate information to young women. Womenare “unaware of the public programs available tothem,” declares California. National Institutes ofFamily and Life Advocates v. Harris, 839 F.3d 823, 829(9th Cir. 2016) (citing Assembly. Bill No. 775 Section1(b)). Yet the state has enormous resources available tocorrect this alleged information gap. It can distributeliterature, erect signs, run commercials, advertise onsocial media, and work with sympathetic communitygroups and activists to spread the word. Its own abilityto speak is bounded only by its creativity and itsfunding.

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But that’s not enough for the state. It specificallychose to target pro-life pregnancy centers. It chose touse their access to their clients to spread the state’smessage. Why? Because the state openly and obviouslydespises the pro-life pregnancy centers’ mission andpurpose. The legislature explicitly condemns theirefforts to “discourage and prevent women from seekingabortions.” Assem. Comm. On Health, Analysis ofAssembly Bill No. 775 at 3. It claims — withoutoffering any specific findings about petitioners in thiscase — that pregnancy centers “interfere with women’sability to be fully informed and exercise theirreproductive rights.” Id.

The court below justified its holding that the statecould indeed force crisis pregnancy centers to post anotice that California provides “immediate free or low-cost access” to abortion in part by describing the noticeas mere “professional speech,” as if speech byprofessionals on matters of public concern were entitledto less constitutional protection than speech by otherprivate citizens.

Yet California’s citizens, including professionalsoperating in their professional capacities, have aconstitutional right to discourage women from seekingabortions. They have a constitutional right to remainsilent about the availability of state-funded freeabortions. They have a constitutional right to make thecase for life, including by competently offering medicalservices that are designed not just to convey the truthabout the humanity of the unborn child but also to easethe concerns and burdens of the pregnant mother.

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The Ninth Circuit’s decision undermines two of theCourt’s most important precedents, West Virginia StateBoard of Education v. Barnette, 319 U.S. 624 (1943)and Wooley v. Maynard, 430 U.S. 705 (1977). IfCalifornia has its way, then a “fixed star in ourconstitutional constellation,” will be erased from ournation’s sky. Barnette, 319 U.S. at 642. No longer willit be the case that “no official, high or petty, canprescribe what shall be orthodox in politics,nationalism, religion, or other matters of opinion orforce citizens to confess by word or act their faiththerein.” Id.

If this court rules in favor of the respondents, it willsend a clear message that, contrary to its formerholding in Barnette, state governments may settle hotlydebated moral questions by legislative fiat, and maycompel dissenting citizens to speak in accordance withthe government’s preferences.

In forcing pro-life citizens to advertise for free orreduced-cost abortions, the state of California ismaking a demand every bit as intrusive as asking aJehovah’s Witness family to state that they intend to“live free or die.” In Maynard, the Court squarelyaddressed the question “of whether the State mayconstitutionally require an individual to participate inthe dissemination of an ideological message bydisplaying it on his private property in a manner andfor the express purpose that it be observed and read bythe public.” Maynard, 430 U.S. at 713. The court foundthat New Hampshire could not force citizens to turntheir private automobiles into a “mobile billboard” forits “ideological message.” Id. at 715.

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Here, the state attempts to transform pro-lifepregnancy centers into stationary billboards for a pro-abortion message. It commandeers pro-life citizens’platforms and resources to accomplish the state’s pro-choice purpose. It introduces its approval of abortioninto the pregnancy centers’ relationships with theirclients, including many clients who are themselvesmorally opposed to abortion.

During the Masterpiece Cakeshop oral argument,Justice Kennedy rightly noted that “tolerance isessential in a free society. And tolerance is mostmeaningful when it’s mutual.” Oral Arg. Tr. 62. Whereis the tolerance in California’s actions? The state scornsthe marketplace of ideas. It rejects the notion that thecure for speech that it deems bad is more speech orbetter speech. Instead, it seeks to coerce dissenters intospreading the state’s message and advancing thestate’s interests.

If anything, the law at issue here is more perniciousthan the laws at issue in Barnette and Maynard. Inthose cases, the state was not specifically targeting thespeech of Jehovah’s Witnesses. The law in this case isspecifically crafted to target pro-life citizens, as thelegislative record shows. This is not tolerance. It iscoercion, and it strikes at the heart of the FirstAmendment.

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ARGUMENT

I. The State of California Is Conscripting Pro-Life Professionals Into its Pro-ChoiceCause.

Let us be clear about California’s actions in thiscase. It is using its defense of one constitutional right— the Roe-created right to abort a child — as a pretextfor diminishing a second constitutional right, the FirstAmendment-protected freedom of speech. It has madethe ideological decision to facilitate abortions even tothe point of funding the procedure, and it is nowrequiring private citizens to communicate the state’sideological decision even when those citizens arestrongly and sincerely opposed.

Moreover, the grounds for forcing these pro-abortioncommunications are thin to the point of pretext,demonstrating both hostility to the pro-life messageand hostility to the pro-life messenger. As the NinthCircuit relates in the decision below, the law wasspecifically aimed at addressing the alleged sins of pro-life pregnancy centers, but the legislature’s indictment— especially when read in light of the statute at issue— is less than damning:

The Legislature also found that the ability ofCalifornia women to receive accurateinformation about their reproductive rights, andto exercise those rights, is hindered by theexistence of crisis pregnancy centers (CPCs).CPCs “pose as full-service women’s healthclinics, but aim to discourage and preventwomen from seeking abortions” in order to fulfilltheir goal of “interfer[ing] with women’s ability

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to be fully informed and exercise theirreproductive rights.” Assem. Comm. on Health,Analysis of Assembly Bill No. 775 at 3. TheLegislature found that CPCs, which includeunlicensed and licensed clinics, employ“intentionally deceptive advertising andcounseling practices [that] often confuse,misinform, and even intimidate women frommaking fully-informed, time-sensitive decisionsabout critical health care.” Id.

Harris, 839 F.3d at 829.

Notably, there is no claim that any person is forcedto enter a crisis pregnancy center. There is no claimthat crisis pregnancy centers block access toinformation available through countless alternativesources. Women can do research on the internet, theycan walk into other clinics, they can talk to friends andrelatives. They can see commercials on television, hearads on the radio, and talk to other mothers. Whilethere may be women who lack information, it is not forlack of access to information.

Moreover, if the state feels that existing informationchannels are inadequate, it can directly address thedeficiency through access to funds and communicationoutlets that dwarf the financial and media reach ofcrisis pregnancy centers. Instead, it has chosen totarget one of the few spaces in the Californiacommunity where the pro-life message is presented ina direct manner and in an undiluted form.

The state plainly does not like this pro-life message.It explicitly finds it “unfortunate[ ]” that thesepregnancy centers “aim to discourage and prevent

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women from seeking abortions.” JA 84-85. The state’ssweeping, undifferentiated animus is also obvious fromits remedy. The statute does not take aim at individualpro-life pregnancy centers for engaging in provenmisconduct. Instead, the state of California directs ashotgun blast at all pro-life pregnancy centers bydirecting them to advertise for free or low-costabortions.

In other words, every pro-life pregnancy center iscompelled to comply even if there is no proof that it hasever confused, misinformed, or intimidated a singleclient. Nor is the compelled speech an appropriateremedy for the alleged fraudulent behavior. Anadvertisement for low-cost abortion does nothing tocorrect the alleged “misimpressions” and “falseinformation” of the clinics. Rather, the problem itredresses is apparently the bare fact that too fewabortions are happening in the state of California.

In short, the state’s admitted goals and the pro-lifepregnancy centers’ essential mission are infundamental opposition. California is attempting tomake sure that each and every pregnant woman in thestate knows that they possess a right to an abortionand that the state will facilitate access to that right byproviding low-cost or no-cost abortions to those whoqualify. The pro-life pregnancy center is attempting toteach each client about the value of the human life inher womb and to persuade her to make the choice todeliver that child and either raise him herself or givehim up for adoption.

The few medical services provided at pro-lifepregnancy centers are provided for the purpose offacilitating the mission of the organization: pregnancy

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tests inform a woman that she is a mother; ultrasoundsprovide her with visible and audible proof of herunborn child’s existence, heartbeat, and humanity.These are the procedures offered in licensed clinics; andthey serve the goal of encouraging a pregnant womanto embrace their own motherhood and choose to protectthe precious life growing in her womb.

A pro-life pregnancy center is in many wayscomparable to a public interest law firm, where thefirm exists not merely to provide legal services but toadvance a specific organizational mission and purpose.These firms are of course required by law to representclients competently and professionally, but they are notfor that reason required, as a condition for doingbusiness, to advance any message inconsistent withtheir special organizational purposes.

The court below justified the state’s imposition ofspecial burdens on pro-life pregnancy centers byclassifying the speech of these unique pro-lifeorganizations as “professional speech” that enjoys farless stringent constitutional protection than otherforms of speech — even to the point of permitting thestate to compel speech contrary to the fundamentalpurpose of their professional activities.

The 9th Circuit, however, seems to confuse anyspeech uttered by a professional with “professionalspeech.” There is no medical expertise or professionaltraining required to post the state’s advertisement. Thefact that professionals work at crisis pregnancy centersdoes not mean that the state’s simple notice enjoys anyform of special status.

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But even if the notice is held to be “professionalspeech” because it takes place in the context of apotential professional relationship, it is extraordinarilydangerous to presume that such speech should receivea lower level of constitutional protection, especiallygiven the special status of professionals in publicdebate. In other words, professionals can and oftenshould serve as advocates, even while providingprofessional services.

A ruling that renders all speech that occurs in aprofessional context a less-protected form of quasi-commercial speech (even when, as in this case, nomoney changes hands) opens Pandora’s Box. Often themost effective advocates in the most contentious andconsequential public controversies are professionals.Lawyers represent their clients and make argumentsin the public square. Doctors and nurses present theirown arguments — and are countered by other medicalprofessionals who have reached different conclusions,often according to different value systems.

The so-called learned professions, acting in theirprofessional capacities, are among our most valuedparticipants in the marketplace of ideas. It is one thingto require professionals to exercise due care andcompetence in the provision of their services. It isanother thing entirely to draft them to advance theideological priorities of an activist state. By requiringpro-life professionals to advertise for free abortions, thestate uses its immense power to undermine the verypurpose of their professional work.

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II. California Is Transforming Private Pro-Life Property Into Billboards for the Pro-Choice Cause

While Barnette is perhaps the seminal compelledspeech case in Supreme Court history, Maynard shouldcontrol. In Maynard, as this Court no doubt recalls, theState of New Hampshire required its citizens to equipnoncommercial vehicles with license plates thatproclaimed the state motto, “Live Free or Die.”Jehovah’s Witness citizens George and MaxineMaynard understandably objected to the use of theirprivate property (in this case, their car) to advance amessage that directly contradicted their religiousbeliefs.

Maynard framed his objection simply. He declaredthat he “refuse[d] to be coerced by the State intoadvertising a slogan which [he found] morally,ethically, religiously and politically abhorrent.”Maynard, 430 U.S. at 713. It is against that backdropthat this Court framed the case as determining“whether the State may constitutionally require anindividual to participate in the dissemination of anideological message by displaying it on his privateproperty in a manner and for the express purpose thatit be observed and read by the public.” Id.

In its opinion, the Court noted that the FirstAmendment of course protects “both the right to speakfreely and the right to refrain from speaking at all.” Id.at 714. New Hampshire “force[d] an individual, as partof his daily life — indeed constantly while hisautomobile is in public view — to be an instrument forfostering public adherence to an ideological point ofview he finds unacceptable.” Id. at 715.

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In Maynard, just as in the present case, the state’spurpose and the citizen’s ideology were in directconflict. The state wanted to promote “history,individualism, and state pride.” Id. at 716. Thesecitizens, however, did not share those values — or, tothe extent they shared some of those values, they didnot prioritize them as the state wished.

Nothing prevented the state from broadcasting itsmotto far and wide. Nothing prevented NewHampshire from making its motto a default option onlicense plates, so that the vast majority of citizensmight serve as “mobile billboards” for its messagewithout a moment’s complaint. This Court ruled thatthe state could not, however, intrude upon what thisCourt called the “individual freedom of mind” toaccomplish its purposes. Id. at 714.

If anything, the state measure in this case is evenmore intrusive. Pro-life professionals, as part of theirdaily lives, are forced not only to be messengers for anideological point of view (that it is appropriate for thestate to provide abortion access) but even to abet acourse of action (calling the listed phone number) thatcan culminate in the death of an unborn child — thevery thing that pro-life pregnancy centers exist toprevent.

The citizens of California — acting through theirelected representatives — have chosen to use stateresources to fund and facilitate abortion access. A mere200 crisis pregnancy centers exist across the length andbreadth of America’s most populous state. Theyrepresent a point of view that lacks political power orlegislative influence.

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But popularity is not the measure of constitutionalpropriety. In Maynard the court held that the FirstAmendment “protects the right of individuals to hold apoint of view different from the majority and to refuseto foster, in the way New Hampshire commands, anidea they find morally objectionable.” Id. at 715.

Here, California commands that pro-life pregnancycenters not merely foster an idea, but cooperate inenabling a course of action which they find morallyobjectionable. This issue has been considered anddecided by this Court in cases that have come before.The government of California simply does not possessthe authority to compel its citizens to speak itsmessage. Let it make its own case to the people of thestate.

III. California’s Intolerance Threatens toExacerbate American Cultural Divide

There is no question that questions and debatesabout abortion are among the most emotional anddivisive of all the questions that dominate Americanpublic life. Tens of millions of orthodox religiousbelievers look at sacred texts that define life’sbeginning in the womb and feel both shock and horrorthat American law grants a right intentionally to kill achild. Many millions have examined the scientific factsof human growth and development and havedetermined that an unborn child is, in fact, a separatehuman life, and there is no rational basis for deprivingit of the legal protections all other people enjoy.

Others, of course, have studied the issue of abortionand have come to a different conclusion. They view theunborn child as an extension of the mother, part of the

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body that she controls. On this view, the unborn childis not human life but rather “potential life,” and theright of abortion is indispensable to human autonomyand the liberation of women from traditional,subservient cultural status.

While the Founders could not anticipate thecontours of an abortion debate that fully emergedalmost two centuries after they drafted theConstitution and Bill of Rights, they could and didanticipate the enduring existence of debate and dissentover the most contentious of public controversies. Afterall, the founding generation was immersed in debatesas consequential as the morality and legality of chattelslavery, an issue that would ultimately divide theUnited States and trigger our nation’s deadliestmilitary conflict.

No less a thinker than the great abolitionistFrederick Douglass expressed the view that free speechwas “the great moral renovator of society andgovernment.” Frederick Douglass, “A Plea For Freedomof Speech in Boston” (Dec. 9, 1860). He blamed thepersistence of slavery, in part, on the lack of freespeech in antebellum America. “Slavery cannot toleratefree speech,” he said. “Five years of its exercise wouldbanish the auction-block and break every chain in theSouth.” Id. Free speech is the “dread of tyrants. It isthe right which they first of all strike down.” Id.

Free speech threatens power. Free speech onmatters of deep and profound public concern threatenspower all the more. That is why — when given theopportunity — the powerful will seek to confine, limit,or (as in this case) coerce dissenting speakers. And thatis why Justice Kennedy was right in his observation

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during the Masterpiece Cakeshop oral argument whenhe asserted that “tolerance is essential in a free society.And tolerance is most meaningful when it’s mutual.”(Oral Arg. Tra. 62) A society in which pro-life clinicsare constrained to direct women to a means ofobtaining abortions is a society made less free.

Intolerance does not settle debates, it magnifiesdivisions. Intolerance does not create cultural orintellectual conformity, it generates seethingresentment. In this case, California is demonstratingthat it is so intolerant of disagreement that it willcommandeer the speech of the most effectivedissenters, the people who work most closely withyoung women who seek alternatives to abortion, themothers who want to choose life.

A tolerant state is not an impotent state. Californiacan and does deploy immense resources to advance itsstate interests. If it chose, it could deploy even moreresources and flood targeted communities with itsfavored messages. It can properly punish medicalprofessionals who violate standards of care. In otherwords, if California is made to protect theconstitutional rights of pro-life citizens, it will not lackfor pro-choice messages – or the resources to makethose messages heard.

It is time for California to be tolerant. It is time forCalifornia to respect the liberties of all its citizens,including those citizens who stand opposed to itspolicies. Its coercion defies precedent. It cannot beallowed to stand.

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CONCLUSION

Compelled speech is not the answer to culturalconflict. This court must not render professionalssecond-class citizens with diminished constitutionalrights. It must not upset generations of case lawprotecting the “individual freedom of mind.” Maynard,430 U.S. at 714. There are few state actions morerepugnant to the consciences of sincere, pro-life citizensthan demanding that they advertise free or low-costaccess to the deadly procedure they work so mightily tooppose. The judgment of the court below must bereversed.

Respectfully submitted,

DAVID FRENCH Counsel of RecordSenior FellowNATIONAL REVIEW INSTITUTE19 West 44th StreetSuite 1701New York, New York 10036(931) 446-7752dfrench@nationalreview.com

Counsel for Amici Curiae

January 15, 2018