In Defense of Free Speech, Justice Thomas Wielded the Scalpel, but Justice Kennedy Brought the Hammer

The Supreme Court’s decision today in NIFLA v. Becerra may well turn out to be one of the most consequential First Amendment cases of the last decade, for reasons both doctrinal and tonal. Justice Thomas’s majority opinion rejecting California’s attempt to force pro-life pregnancy centers to advertise for free and low-cost abortions was clean, precise, and cutting. It was the doctrinal scalpel.

Justice Kennedy’s concurrence, by contrast, brought down the tonal hammer. He openly mocked the state of California and clearly called it out for its authoritarianism. It was a short but astonishing opinion, one that — along with his opinion Masterpiece Cakeshop — suggests that his judicial legacy will now include two of the more powerful court statements for people of faith in recent Supreme Court jurisprudence.

Let’s first turn to Thomas’s majority opinion. It was important far less for the specific outcome than for its reasoning. The justices rejected the state’s appeal to create and apply a new category of speech, called “professional speech,” that would enjoy a lower level of constitutional protection.

Lawyers are professionals. Doctors are professionals. So are counselors and other mental-health professionals. As I wrote in an amicus brief on behalf of 41 pro-life family-policy centers, limiting protections for professional speech would have serious consequences:

The so-called learned professions, acting in their professional capacities, are among our most valued participants in the marketplace of ideas. It is one thing to require professionals to exercise due care and competence in the provision of their services. It is another thing entirely to draft them to advance the ideological priorities of an activist state. By requiring pro-life professionals to advertise for free abortions, the state uses its immense power to undermine the very purpose of their professional work.

Fortunately, Justice Thomas not only refused to adopt the professional-speech doctrine, he criticized it at great length. This passage was key:

The dangers associated with content-based regulations of speech are also present in the context of professional speech. As with other kinds of speech, regulating the content of professionals’ speech “pose[s] the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information.” Turner Broadcasting, 512 U. S., at 641. Take medicine, for example. “Doctors help patients make deeply personal decisions, and their candor is crucial.” Wollschlaeger v. Governor of Florida, 848 F. 3d 1293, 1328 (CA11 2017) (en banc) (W. Pryor, J. concurring). Throughout history, governments have “manipulat[ed] the content of doctor-patient discourse” to increase state power and suppress minorities.

Cases are important not just for the outcome, but for the doctrine they announce or reject. In rejecting (at least for now) the concept of “professional speech,” Justice Thomas has helped preserve core First Amendment protections for key members of American society.

Now, on to Justice Kennedy. While he agreed with the majority “in all respects,” he wrote a short and brutal concurrence to specifically chastise California for its apparent viewpoint discrimination and to express concern that pro-life citizens were specifically and intentionally “targeted” because of their beliefs. This passage is striking:

The California Legislature included in its official history the congratulatory statement that the Act was part of California’s legacy of “forward thinking.” App. 38–39. But it is not forward thinking to force individuals to “be an instrument for fostering public adherence to an ideological point of view [they] fin[d] unacceptable.” Wooley v. Maynard, 430 U. S. 705, 715 (1977). It is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders then knew it; to confirm that history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech; and to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for the generations to come. Governments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief. This law imperils those liberties.

Note the not-so-subtle admonition. It’s true “forward thinking” to go back to read constitutional text ratified in 1791. The message is clear. Progressives can’t “progress” past a fundamental respect for liberty and tolerance for their fellow citizens.

This is now the second time this term that Kennedy has clearly called-out and condemned standard progressive rhetoric at the same time that he’s moved decisively to protect the free speech and religious liberty of people of faith. Ironically enough, his sexual-revolution jurisprudence empowered much of the modern assault on religious freedom and free speech. And now his First Amendment jurisprudence is reining in his erstwhile allies. One hopes that at least some of those allies will hear his message and at long last moderate impulses that Kennedy rightly called “authoritarian.”

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