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Ninth Circuit Can't Make Up Its Mind?

Ninth Circuit Can't Make Up Its Mind?

One of the worst violations of the constitutional right to free speech is compelled speech — i.e., when the government forces you to communicate a message against your will. The U.S. Supreme Court has long struck down such compulsions, in a variety of contexts, as violations of the First Amendment.

For example, the Supreme Court has condemned: requiring unwilling children to pledge allegiance to the flag (West Va. State Bd. of Ed. v. Barnette, 319 U.S. 624 (1943)); requiring newspapers to publish political replies to their editorials (Miami Herald v. Tornillo, 418 U.S. 241 (1974)); making objecting car owners display the state motto "Live Free or Die" on their license plates (Wooley v. Maynard, 430 U.S. 705 (1977)); and making door-to-door canvassers disclose their overhead (Riley v. National Federation of the Blind, 487 U.S. 781(1988)). The Supreme Court has even nixed the seemingly reasonable requirement that recipients of certain federal foreign assistance funds officially oppose prostitution and sex trafficking (Agency for Int'l Dev. v. Alliance for Open Society Int'l, 133 S.Ct. 2321 (2013)).

In the face of this important line of cases, California decided that it would require pro-life pregnancy centers to carry notices alerting their clientele to the availability of free abortions. In other words, the Orwellian "California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act" forces those who consider abortion to be the killing of innocent unborn human beings to advertise precisely how to have those innocent unborn children slain for free.

As you might imagine, numerous pregnancy centers objected to being compelled to speak directly at odds with their life-saving mission. But the Ninth Circuit nevertheless upheld the constitutionality of the compelled speech late last year. See Nat'l Inst. of Family & Life Advocates v. Harris, 839 F.3d 823, 84 (9th Cir. 2016).

(Note: The American Center for Law and Justice, where I work, and other nonprofit legal groups representing pregnancy centers, brought other, parallel constitutional challenges, which the 9th Circuit likewise rejected on authority of the NIFLA decision. There are currently four separate petitions for certiorari pending in the Supreme Court on this matter.)

You might think, then, that a constitutional challenge to a much more routine disclosure requirement -- a safety warning in a commercial ad -- would receive the 9th Circuit's blessing. But you would be mistaken. Less than a year after the NIFLA decision, the 9th Circuit struck down as unconstitutional a city's requirement that ads for "sugar-sweetened beverages" disclose that "[d]rinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay." See American Beverage Association v. City and County of San Francisco, No. 16-16072 (2017).


We're all used to seeing the warning labels on cigarette packages, and if you've ever seen a drug ad in a magazine, you may have notices the accompanying voluminous warnings about possible side effects. As the 9th Circuit acknowledges (some editing remarks removed hereafter), "regulations of commercial speech are subject to lesser ... regulations that impose a disclosure requirement rather than an affirmative limitation on speech are governed by [an even] lesser standard," the 9th Circuit ruled that it is unconstitutional to require sweetened drink ads to warn about the dangers of sugar.

Now, don't get me wrong. The decision in American Beverage is a ringing endorsement of free speech against a governmental "we know what's best for you" regulation. Here's a "taste," if you'll pardon the pun, of the opinion's First Amendment punch: "a required disclosure cannot be upheld [under the lower standard] if the disclosure is not purely factual and uncontroversial." (pp.15-16) "We must also determine whether the compelled disclosure is an unjustified or unduly burdensome regulation that may chill protected commercial speech." (p.17) And how about this passage:

"A disclosure requirement may also be unduly burdensome and chill commercial speech if the disclosure promotes policies or views that are one-sided or 'are biased against or are expressly contrary to the corporation’s views.' ... A compelled disclosure that requires speakers 'to use their own property to convey an antagonistic ideological message,' or 'to respond to a hostile message when they would prefer to remain silent,' or 'to be publicly identified or associated with another’s message,' cannot withstand First Amendment scrutiny."

Remember those pro-life pregnancy centers? They aren't even selling a product, yet the state is forcing them to promote a message — free abortions — directly contrary to their own.

Is it possible to reconcile these decisions? Some might say that the 9th Circuit's pregnancy center rulings are yet another example of the notorious "abortion distortion factor," where normal legal rules go out the window whenever a case touches on abortion.

Whether that's true or not, the two decisions do make for a striking contrast. Here's hoping the Supreme Court will remove the tension between these very different rulings by granting review in the pregnancy center cases, striking down the compelled speech in those cases, and thus vindicating the free speech rights of those making sacrifices to help pregnant women in need.


Walter Weber is a contributor at the Committee for Justice (CFJ) and is Senior Counsel for the American Center for Law and Justice (ACLJ) in Washington, D.C.. However, please note that views expressed here do not necessarily reflect the views of Walter's employer.


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