Susan B. Anthony List v. Driehaus is a landmark free speech case regarding the legal doctrine of standing and the ability of citizens to launch pre-enforcement First Amendment challenges against state laws regulating political speech.

Article III of the US Constitution allows citizens to challenge the constitutionality of a law before it is enforced against them.

Susan B. Anthony (SBA) List, a prominent and effective pro-life organization, announced a billboard to be put up in the district of then-Congressman Steven Driehaus asserting that his vote in favor of the Affordable Care Act amounted to a vote in favor of taxpayer-funded abortion. Driehaus threatened the billboard company with legal action, so they refused to put up the ad. He also threatened SBA List that it violated Ohio’s campaign laws by making false statements about his voting record.

Driehaus lost his re-election bid, dropped the lawsuit, and left the country. The district court dropped the lawsuit for “lack of standing” and “ripeness”, meaning it SBA List would not be protected under Article III. SBA’s speech had been successfully suppressed, so they claimed that they could again be sued for violating the Ohio campaign law because their speech centered on criticizing the ACA, not Driehaus specifically.

SBA won this case in a 9-0 SCOTUS decision. The opinion was written by Justice Clarence Thomas. “When an individual is subject to such a threat, an actual arrest, prosecution, or other enforcement action is not a prerequisite to challenging the law….As long as petitioners continue to engage in comparable electoral speech regarding support for the ACA, that speech will remain arguably proscribed by Ohio’s false statement statute.” It was an easy way to chill political speech.

SBA List v. Driehaus remains a highly cited precedent in American constitutional law ensuring citizens can proactively challenge restrictive state laws in federal court before they are forced to choose between self-censorship (chilled speech) and criminal liability. This sets a precedent for future cases this week, including Chiles v. Salazar which specifically addresses clinical speech.

Does the threat of repercussions in the workplace chill us from speaking our mind regarding our view of human dignity when caring for our patients? CAPPA prays that all of us working the health care have the courage and support needed to speak up for human dignity.

PRAYER

O God, who gave one origin to all peoples and willed to gather from them one family for yourself, fill all hearts, we pray, with the fire of your love and kindle in them a desire for the just advancement of their neighbor that, through the good things which you richly bestow upon all, each person may be brought to perfection, every division may be removed, and justice may be established in society. We ask this through Christ, our Lord. Amen

McCullen v. Coakley is a landmark free speech case in which the Court unanimously ruled that a Massachusetts law establishing a 35-foot fixed “buffer zone” around abortion clinic entrances violated the First Amendment. The Court found that while the law was content-neutral, it was not narrowly tailored because it placed an undue burden on the free speech rights of peaceful sidewalk counselors.

In 2007, the Massachusetts state legislature amended mandated a 35-foot buffer zone around the entrances, exits, and driveways of abortion clinics. The law made it a crime for anyone to enter or remain in this zone with the narrow exceptions of clinic patients, employees, or people passing through.

The state passed this law during a time of intense protest outside abortion clinics. The law prohibited protestors from blocking access or approach patients who did not want to speak with them. But among them were “sidewalk counselors” like Eleanor McCullen who argued that the 35-foot boundary severely disrupted their ability to hand out literature, maintain eye contact, and have quiet conversations with women approaching the clinics. They claimed the restriction infringed upon their free speech rights.

The Supreme Court ruled 9-0 in favor of McCullen. Chief Justice Roberts delivered the opinion. The law was considered “content neutral” in that it’s only purpose was to improve public safety, it was not “narrowly tailored” so ended up impeding the First Amendment rights of sidewalk counselors.

Justice Alito points out another effect of the buffer zones that the main opinion did not. Clinics hire escorts to promote their viewpoint; as employees, they do not fall subject to the law. “Speech in favor of the clinic and its work by employees and agents is permitted; speech criticizing the clinic and its work is a crime. This is blatant viewpoint discrimination.”

CAPPA President Kris Correira remembers the white line painted on the sidewalk and road telling anyone witnessing in front of Worcester’s Planned Parenthood that they could not come any closer. One petitioner named in the suit, Nancy Clark, continues her sidewalk counseling to this day. She has saved countless women and their unborn children from all the terrible repercussions of abortion.

PRAYER

God our Creator, we give thanks to you, who alone have the power to impart the breath of life as you form each of us in our mother’s womb; grant, we pray, that we, whom you have made stewards of creation, may remain faithful to this sacred trust and constant in safeguarding the dignity of every human life. Through our Lord Jesus Christ, your Son, who lives and reigns with you in the unity of the Holy Spirit, God, for ever and ever. Amen.

National Institute of Family and Life Advocates (NIFLA) v. Becerra is a landmark free speech case in which the U.S. Supreme Court ruled 5–4 that a California law forcing crisis pregnancy centers to post notices about state-funded abortion services violated the First Amendment’s Free Speech Clause.

California passed the FACT Act compelling any family-planning or pregnancy-related facility to post notices. Licensed facilities had to post, “California has public programs that provide immediate free or low-cost access to comprehensive family planning services, prenatal care, and abortion, for eligible women,” while unlicensed facilities needed to post on site or in ads, “This facility is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services.” Immediately after, NIFLA and other crisis pregnancy centers (CPC) filed suit, claiming this to be “compelled speech”.

The lower courts claimed this was “professional speech” and so was not subject to strict scrutiny – the highest level of free-speech protection. Several lower courts have defined “professionals” as those who provide services to client and subject to “a generally applicable licensing and regulatory regime.” In this case, the Nineth Circuit concluded “professional speech,” which is any speech by a “professional” could also be regulated. That diminishes its First Amendment protection. “It concluded that the licensed notice survives the ‘lower level of scrutiny’ that applies to regulations of ‘professional speech.’”

The Court decided 5-4 in favor of NIFLA. Justice Thomas penned the Court’s decision, joined by Chief Justice Roberts and Justices Kennedy, Alito, and Gorsuch. The dissenting opinion was given by Justice Breyer and joined by Justices Ginsberg, Sotomayor, and Kagan.

First, the Court determined if the notices were “content based” rather than neutral speech. FACT targeted CPC because they are “pro-life (largely Christian belief-based) organizations that offer a limited range of free pregnancy options, counseling, and other services to individuals that visit a center”, according to a state-commissioned report, that “aim to discourage and prevent women from seeking abortions.” In the lower courts, the State bemoaned the number of CPCs and that they were run by organizations like NIFLA who opposed abortion.

The Court found, “The licensed notice is a content-based regulation of speech” and “plainly ‘alters the content’ of petitioners’ speech.” It did not address, as Justice Kennedy points out in a separate opinion, whether this was “viewpoint discrimination” as it did not need to do so to reach their conclusions, but it was apparent.

Next, Thomas addressed the lower court’s construct of “professional speech”. He wrote, “But this Court has not recognized ‘professional speech’ as a separate category of speech. Speech is not unprotected merely because it is uttered by ‘professionals.’” He points out, “This Court has afforded less protection for professional speech in two circumstances—neither of which turned on the fact that professionals were speaking.” First is the requirement for commercial speech to “disclose factual, noncontroversial information,” (truth in advertising). Second, “States may regulate professional conduct, even though that conduct incidentally involves speech.”

The legal precedent comes from Casey v Planned Parenthood in which abortionists could be required to provide informed consent (which they had not been doing.) Indeed, the State can regular any “incidental” speech when the regulation has other aims.

In this case, the compelled speech was not “purely factual and uncontroversial”. It also was not tied to any medical procedure. It regulated all interactions between a [FACT] covered facility and its clients. “Tellingly, many [non-FACT covered] facilities that provide the exact same services as [FACT] covered facilities—such as general practice clinics—are not required to provide the licensed notice.”

We will hear again about “professional speech” in Chiles v. Salazar.

PRAYER

O God, graciously receive the prayers we pour out to you for our country, that harmony and justice may be assured and lasting prosperity come with peace. Through our Lord Jesus Christ, your Son, who lives and reigns with you in the unity of the Holy Spirit, God, for ever and ever. Amen.