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Curtis Schube

Opinion,

SCOTUS’s NIFLA ruling is as good as everyone says…and better

Curtis Schube

June 29, 2018 (Ruth Institute) – NIFLA v. Becerra is better than anyone could have expected. The Supreme Court's ruling last Tuesday overturned California's onerous speech restriction on pregnancy care centers. Great news, to be sure. It gets better. NIFLA also overturned speech restrictions on therapists who assist people with unwanted same sex attraction.

Pregnancy centers encourage women to choose options other than abortion. The Court found that requiring such centers to post notices advertising abortion violates their First Amendment Free Speech rights. This is a very good result. However, few commentators have mentioned that the NIFLA ruling impacts attempts to ban so-called "conversion therapy."

Laws which ban sexual orientation change efforts ("SOCE" for short) have increasingly entered the national conversation, most recently in California. Before California's recent attempts to ban all forms of SOCE at any age, California already had such a law in place for minors. The law considered it "unprofessional conduct" to "seek to change sexual orientation" for a minor. Any counselor who violated the law faced professional discipline.

California's more recent SOCE laws take an even more extreme position. These laws ban all therapy that aims to change, or even reduce, sexual attraction to the same sex. Therefore, a patient who wants SOCE therapy cannot receive that service without risk to the professional counselor.

In Pickup v. Brown, same sex attracted minors and their parents, as well as counselors who wished to provide their services, claimed that this law violates their First Amendment rights to free speech and free expression. The Ninth Circuit, in 2013, determined that counseling is not speech, but rather professional "conduct." The "First Amendment does not prevent a state from regulating treatment," the Ninth Circuit concluded.

The Third Circuit upheld a similar law in New Jersey using the same logic in the 2014 case, King v. Governors of New Jersey. In relying partly upon Pickup, the Third Circuit concluded that counseling is speech (rather than conduct) but classifies that speech as professional speech. The Third Circuit states that a "professional's services stems largely from her ability to apply…specialized knowledge to a client's individual circumstances… Thus, we conclude that a licensed professional does not enjoy the full protection of the First Amendment."

In the NIFLA case, the Ninth Circuit had justified the requirement for pregnancy centers to advertise for abortion as "professional speech," just like the Ninth and Third Circuits had done for SOCE laws. The Supreme Court opinion overturning the Ninth Circuit's NIFLA opinion, specifically identified Pickup and King as examples of "professional speech" protected by the First Amendment. Writing for the majority, Justice Thomas (pictured above) stated: "Some Courts of Appeals have recognized 'professional speech' as a separate category of speech that is subject to different rules." However, "speech is not unprotected merely because it is uttered by 'professionals.'"

This is a paradigm shift in the existing precedents for SOCE bans.

Thomas seized the opportunity to provide protections to many other professions as well. "Professionals might have a host of good-faith disagreements, both with each other and with the government, on many topics in their respective fields." He identifies doctors and nurses who disagree on the prevailing opinions on assisted suicide or medical marijuana as examples of good faith disagreements. So too are lawyers and marriage counselors who disagree on prenuptial agreements and divorces, and bankers and accountants who disagree on how to commit money to savings or tax reform. One would have to conclude that Justice Thomas' intent is to protect all professionals from being regulated on matters of good faith disagreement.

This is a significant victory for free speech, and not only for pregnancy care centers. The "social justice" movement threatens many professionals in the exercise of their judgement and expertise. This Supreme Court ruling has created broad protections for a significant number of Americans who hold professional licenses. In doing so, the Court also reopened the seemingly settled question as to whether SOCE bans are constitutional. This is a welcome surprise from a case originally thought to be limited only to pregnancy centers.

Published with permission from the Ruth Institute.

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