Category: Free Speech

Speech Issues on Abortion

Speech Issues on Abortion

This week’s segment of Cline on the Constitution continues the review of major cases decided by the Supreme Court in the last term.


The court issued opinions on two cases involving Freedom of Speech and Association.


In one case the Court affirmed an important principle regarding Free Speech.  In the other they punted.


As to the first case, California’s steady drift toward becoming a complete “Nanny State” resulted in a law directly targeting, appropriately enough, anti-abortion pregnancy Centers.


In National Institute etc. v Becerra, operators of Pro-Life clinics challenged a State Law requiring that they post information on how to get no cost state funded abortions. The law compelled these clinics to speak against, indeed advertise, the very thing they abhor. It is rather Kafkaesque to, by force of law, require people to advertise for a state funded procedure that is anathema to their core beliefs on religion, health and morality.


And that is aside from the fact we were given yet another law, which assumes a free people, are inept and incompetent. In a state like California where obtaining an abortion is literally free on demand, and the State puts out endless reams of materials about to how and where to get an abortion, the “ninny nannies” in the legislature and Governor’s mansion harbor the inchoate suspicion that a woman who wants one might not be able to figure it out how to get one.


The second case is the infamous “Masterpiece Cakeshop” case which presented the issue whether the Court would be willing to uphold a governmental decision that someone’s religious beliefs and practices must be cast aside in service to an ever-increasing alphabet of offended persons who can’t be expected to walk across the street to another merchant to buy a damn wedding cake.  The case centers on the intersection of both Freedom of Religion and Freedom of Speech.  I will have more to say about this case next week.


Now, back to the California abortion advertiser case.  In an attempt to uphold the law the Ninth Circuit Court of Appeals, those legendary masters of legal legerdemain, attempted to invent a new category of speech. They called it “professional speech.”  This new category would give federal courts the means to ignore the usual requirements that “content based” laws that target speech based upon content have to pass strict scrutiny tests.  It would mean government would be free to regulate such speech as they see fit, ban the speech or, like in this case, even require it.


The Supreme Court rightly told them there was no such thing as “Professional Speech” and ruled they couldn’t do that.


Justice Clarence Thomas wrote the majority opinion, but it was Justice Kennedy who succinctly stated the trenchant issue.


“This law is a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression.”


“For here the State requires primarily pro-life pregnancy centers to promote the State’s own preferred message advertising abortions.”


“This compels individuals to contradict their most deeply held beliefs, grounded in basic philosophical, ethical, or religious precepts . . . “


The minority opinion written by Justice Stephen Breyer worried that the majority’s opinion might lead to challenges of “informed consent” rules and regulations.  For example, by endangering laws requiring medical professionals to give enough information that the person consenting to a procedure is doing so with full knowledge of the risks and benefits.  That, however, is more of a civil liability avoidance procedure than a constitutional principle.


The basic Free Speech principle is that if government cannot restrict a person’s freedom of speech, can they require a people to say something they disagree with simply because the government has decided it might be necessary to protect someone it assumes lacks the intelligence or responsibility to get out and get what they want themselves.


The opinion rightly points out that if government determines that a message needs to get to out and they have a rational basis for doing so, then, they have a number of way of disseminating the information, including advertising, themselves.  What they can’t do, is required others to communicate that message for them.


Lastly, one can be supportive of the landmark Casey case that recognizes a woman’s right to choose to a terminate a pregnancy under certain circumstances without the government unfairly burdening that choice yet be concerned when the government passes laws as it did here.  When it becomes so involved in advocacy of a position that it violates constitutional principles put in place to protect one’s freedom to follow sincerely held beliefs, government has gone where they may not go.


For other writings and articles by Phil Cline, visit


The Slants

The Slants

Simon Tam named his band “The Slants.” The name was intended to be a slur against people of Asian decent. Simon, himself a person of Asian descent, felt that by taking ownership of the derogatory term, he could drain it of its “denigrating force.”

When he applied for a trademark for the name, the Federal Government denied Tam’s request based upon agency rules that prohibited the registration of trademarks that might “disparage . . . or bring . . .into contempt or disrepute” any “persons, living or dead.”

Serious football fans know that there is a similar case pending in the federal courts concerning the trademark registration for the Washington Redskins Football team. The same agency suspended the registration of their trademark and the Redskins sued. In a similar vein, the students and alumni of one of our local high schools was affected when the State of California banned the use of the term “Redskins” for public school mascots.

The Supreme Court this week ruled against Political Correctness and Strengthened the case for the Washington Redskins. They held that the Federal Agency violated the Free Speech clause of the Constitution when they denied Tam his trademark.

Some types of speech are less protected than others. For example, Commercial Speech (ads for cars and such) does not have the same protections as Political Speech.

So-called government speech is not protected at all. For example license plates can be regulated as government speech. The court in the Tam case found, however, that Trademarks are private not government speech.

Under the Constitution, the Government may regulate the “time, manner, and place” of speech if the regulation is ‘Viewpoint neutral”. For example the government might be able to ban billboards of a certain size that advertised medical clinics under the rationale they were a distraction to drivers, but they could not ban billboards for medical clinics that performed abortions. Such a rule would not be Viewpoint Neutral.

The Tam case turned on the finding that Offensive speech, however repugnant is a Viewpoint.

The court found that “a fundamental principle of the First Amendment is that the government may not punish or suppress speech based on the disapproval of the ideas or perspectives the speech conveys.” The government’s denial of a trademark because the government decided the term “Slants” was offensive was not Viewpoint Neutral.

And the fact the though the speaker may not mean to offend, but the audience, nevertheless would be offended is not enough to take the speech outside First Amendment protections. As the court stated: “The Government may not insulate a law from charges of Viewpoint Discrimination by tying censorship to the reaction of the speaker’s Audience.”

This language in the opinion is especially important in these times of rampant political correctness on the campuses of public colleges. When colleges, supported by public funds, seek to impose speech codes, ban certain speakers from campus or commencements, or punish the use of words and speech which college administrators or their minions deem “Hate Speech” they violate the Constitution.

“The danger of Viewpoint Discrimination”, the court opined, “is that the government is attempting to remove certain ideas or perspectives from a broader debate. The danger is all the greater if the ideas or perspectives are ones a particular audience might think offensive.”

And finally they said, “A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.”

The bottom line is that the government attempted to ban a name of a band, the Slants, because the name might have offended a portion of the public. The speaker’s intent and the public’s reaction was irrelevant. The government’s denial of the trademark for the Slants was Viewpoint Discrimination and is prohibited under the First Amendment.

It now appears that if the name the Washington Redskins football team is changed someday because it is deemed offensive, it will be because the owners want it changed. It won’t be because the Government ordered it changed. That is as it should be under the Constitution.

As to local high schools around the state that changed the name of their mascots to conform with politically correct dictates from the State Government, it is unlikely anyone would challenge the law at this point. The constitution requires an actual case or controversy for the Supreme Court to throw out a rule. In those cases, it appears the government’s thought police won and the First Amendment lost.