On Monday, November 13, the Supreme Court declared that they
would hear the case NIFLA v. Becerra
in early 2018. The major issue underlying the case is whether a California law
requiring “crisis pregnancy centers” to inform their patients about state
subsidized contraception and abortion services violates these centers right to
free speech. The legislators of California argue that “crisis pregnancy
centers” engage in deceptive advertising to trick and frighten women who wish
to receive neutral counseling and advice. On the other side of the issue is
NIFLA, or the National Institute of Family and Life Advocates, which claim that
their services were specifically targeted because their views are unpopular
with the state’s leaders (Barnes). Based upon the information presented so far,
I predict that the Supreme Court will rule that this law is unconstitutional
due to its content based discrimination and targeted audience. Instead of
discussing how the Supreme Court will deliberate on this case though, I am
going to analyze this case through the lens of the Expression-Action Theory of
Thomas I. Emerson.
The
Expression-Action Theory is described by our textbook in the following way:
“freedom of expression includes the right to form and hold beliefs on any
subject and to communicate those beliefs to others by whatever medium one
chooses…It also includes the right to hear other’s opinions, the right to
inquire, reasonable access to information, and the rights to assembly and
association.” (Tedford and Herbeck 433). The overall theory is summarized as
the distinction between expression and action, and states that expression needs
to remain free while action/conduct can be controlled. As an example, Emerson
applies his theory to the problem area of sedition. According to his views,
sedition should be classified as expression so long as it consists of advice
and persuasion. Seditious speech that constitutes action are when the
instructions and preparations go beyond persuasion, streets and doorways are
impeded, and other extreme forms of symbolism (434). Based upon this example,
we can now analyze NIFLA v. Becerra
in terms of Expression-Action Theory.
Let’s
start with the argument of the “crisis pregnancy centers.” They claim that
their purpose is to inform women that they don’t have to get an abortion and
persuade them to carry the fetus to full term. Under Emerson’s
Expression-Action Theory, this would be considered expression, and therefore be
entitled to the full protection of free speech. While their message and purpose
are considered protected because they fall under Emerson’s expression category,
I would argue that their speech should actually be considered action. My reasoning
for this classification is as follows. First, the ads promoting “crisis
pregnancy centers” are misleading—they suggest that these centers offer neutral
advice when in fact they have a biased motive behind the counselling. Second,
this counselling might cause a woman to believe that she has more time than she
does. This distortion of urgency and awareness could end up forcing the woman
to carry the fetus to full term, a decision she could later regret. Overall, it
is the misleading nature of these “crisis pregnancy centers,” and the life
changing outcomes of becoming a parent that make me believe that their speech
should be considered action and not expression.
Now let’s
break down the arguments of the state of California using Expression-Action
Theory. According to the Washington Post article, “California’s Reproductive FACT
Act requires the centers to disclose whether they have medical personnel on
staff and to inform women that the state offers subsidized contraceptives and
abortion.” Looking back at some examples of what Thomas Emerson considers to be
expression, we can see that among the list is the reasonable access to
information. To me, these requirements laid out by California’s Reproductive
FACT Act are meant to do just that—ensure that patients have access to all the
information they need to make a sound decision. In order to facilitate the
spread of this information, the state of California requires the staff of these
centers to pass it along. However, nowhere, as far as I can tell, does it say
that the staff must personally promote/recommend the service. The only
requirement is that the information is passed along. It is this neutral passing
along of information that convinces me that the policies of the Reproductive
FACT Act would be considered expression by Emerson, for the purpose behind the
act is educational and unbiased in nature. Since this law would be considered
expression, it would receive full protection under the First Amendment and
therefore the Supreme Court should not overturn the ruling of the courts
beneath it.
As I
stated earlier though, the Supreme Court is unlikely to see the Reproductive
FACT Act in this light. Rather, they will probably declare it unconstitutional
because it discriminates against the views of the NIFLA and specifically
targets the speech of “crisis pregnancy centers.” If this case were to be
analyzed using Thomas Emerson’s Action-Expression Theory though, I believe that
the Supreme Court could be convinced that the speech of the state is worthier
of protection than that of the “crisis pregnancy centers.” What do you think?
Do you agree with my use of Action-Expression Theory and the results I derive
from it? Is there another framework or view that is better suited for
evaluating this case with?
Sources:
Barnes, Robert. “Supreme Court takes case on free speech
rights of antiabortion counseling centers.” The
Washington Post, 13 Nov. 2017, https://www.washingtonpost.com/politics/courts_law/supreme-court-takes-case-on-free-speech-rights-of-antiabortion-counseling-centers/2017/11/13/cd2003f8-c882-11e7-aa96-54417592cf72_story.html?utm_term=.671970d9a090
Accessed 30 Nov. 2017.
Tedford, Thomas L., and Dale A. Herbeck. Freedom of Speech in the Unites States.
8th ed. Strata Publishing, INC., 2017.
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