//  6/26/18  //  Commentary

Cross-posted from Dorf on Law

Today's decision in National Institute of Family Life Advocates (NIFLA) v. Becerra was ironic in at least one respect. The Court applied strict scrutiny to California's law requiring so-called crisis pregnancy centers to post information regarding abortion options because of a broad understanding of what renders a law content-based. And yet readers of the Court's opinion could be excused for thinking that the decision itself was content-based.

The Court divided 5-4 on ideological grounds, with Justice Thomas writing the majority opinion for himself and the four conservatives. Yet some of the dissenters (the Court's liberal-leaning justices) are, in other contexts, more protective of free speech than some of the majority. It thus looked very much like the reason for the Court's robust protection for free speech here was the subject matter or content of the speech regulation: abortion. (Justice Kennedy is a possible exception to this observation, as he is very strongly in favor of free speech in just about all contexts and typically votes with the liberals in abortion cases.)

That irony aside, the case is telling in at least one other respect. Justice Thomas is often and appropriately held up as the most originalist justice, at least as evaluated by his professed commitments. And yet his opinion contains not a single word about the original meaning of the First Amendment or the Fourteenth Amendment (which makes the First applicable to the states).

Before turning to the jurisprudential point, let me say a few words about the merits. To my mind, this was a reasonably difficult case. I can illustrate that by imagining a similar case outside the abortion context. Suppose that the Texas legislature concluded that people in the state are at risk of not eating enough protein if they dine at vegan restaurants and food trucks. Consequently, the state requires licensed eateries to post notices that the state subsidizes "meat, dairy, and other sources of highly nutritional protein," along with information about where and how to obtain such animal-derived foods. The statement is at best highly misleading, because plant foods contain all the protein humans need. More to the current point, proprietors of vegan eateries in Texas (yes, they exist) could object on free speech grounds. The state is making the vegan eateries convey the state's ideological message, contrary to their views.

I say that NIFLA was nonetheless a hard case, however, because, unlike in my Texas meat-and-dairy example, California had a legitimate interest in passing its law. Legislators worried that women were going to crisis pregnancy centers thinking that they would be informed about all of their lawful options, as one would generally expect from a medical provider, only to be given a partial perspective, based on the anti-abortion/pro-life views of the people running the center. Whether that interest ought to be enough to overcome the right not to speak of the crisis pregnancy centers might depend on the level of scrutiny.

The Court holds that strict rather than intermediate or lower scrutiny applies because the "script" the state requires to be provided is necessarily content-based. Yet, as Justice Breyer argues in dissent, such a broad definition of "content-based" imperils just about all government-mandated disclosures. Justice Thomas attempts to distinguish the mundane examples given by Justice Breyer (such as a mandated notice by elevators of where staircases are located), but it is not clear that he succeeds. I tend to agree with Justice Breyer that NIFLA will give rise to considerable litigation.

Does that mean that the majority is wrong? I think so, but Justice Thomas makes at least a plausible argument for his position based on existing precedent, especially Riley v. National Federation of the Blind, which also treated a disclosure law (applicable to paid solicitors of charitable contributions) as content-based.

Rather than delve into whether Riley and/or other precedents required or at least supported the result in NIFLA, I want to shift gears now to discuss the majority's jurisprudential approach. Justice Thomas's opinion is thoroughly doctrinal. He makes no effort whatsoever to reconcile the existing doctrine or his application of it with the original meaning of the First Amendment or the Fourteenth Amendment.

That's odd. In numerous other cases, including free speech cases, Justice Thomas has refused to apply existing doctrine on the ground that it was inconsistent with the original understanding. For example, he dissented from the Court's invalidation of a law forbidding minors from purchasing or renting violent video games on the ground that the ruling did "not comport with the original public understanding of the First Amendment."  In other cases in which Justice Thomas has gone along with precedents that he regarded as inconsistent with the original understanding, he has frequently written separately to say that he was only doing so because the parties had not briefed and argued the question whether to overrule existing precedent on originalist grounds. So why not in NIFLA?

One possible answer is that here Justice Thomas was writing for the Court, rather than just for himself, but that hardly suffices. If he was seriously concerned about the original understanding, he could have declined the assignment of the majority opinion, in order to write a concurrence. Or, he could have included a footnote stating something anodyne like this: "The parties have not asked us to consider whether the challenged law comports with the original understanding of the First and Fourteenth Amendments. Accordingly, we restrict our attention to the principles set forth in our case law." Surely that would not have lost Justice Thomas his majority.

So why didn't he do at least that? The short answer is that Justice Thomas is an originalist except when he isn't--which is another way of saying that he is not an originalist; he's a reactionary who invokes original meaning when it advances reactionary ideological readings of the Constitution. One need not even think that Justice Thomas is acting in bad faith in doing so. Perhaps he has persuaded himself that he really is just following where the law leads him, because he, like just about all of us, is not aware of his own biases or doesn't see them as biases.

Could Justice Thomas have written an opinion justifying the result in NIFLA based on the original meaning of the First and Fourteenth Amendments? Maybe, but that wouldn't be strong evidence that he was relying on original meaning in any real sense. As University of Alabama journalism professor Matthew Bunker has argued, Justice Thomas's efforts at capturing the original understanding of freedom of speech are a methodological mess. Still, it's striking that in NIFLA he doesn't even say anything perfunctory about original meaning.

The closest one sees to any sort of originalism in NIFLA comes in a concurrence by Justice Kennedy. Responding to what the California legislature's official history characterized as the "forward thinking" behind the challenged law, he writes:

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.

It's shocking that Justice Kennedy chooses to characterize the government of California as "authoritarian" on the same day that the Court, in an opinion he joins, upholds Trump's Muslim ban, but let's put that head-scratcher aside. Justice Kennedy's invocation of the Founders here is not originalism in any sense that distinguishes originalism from any other methodology. It is, rather, what I once called "heroic originalism," in which the author of an opinion associates some idea he or she favors with the prestige of the founders but makes no serious effort to connect the contemporary idea with any prior linguistic or practical understanding. The Brandeis concurrence in Whitney v. California is perhaps the most famous example of this genre. Heroic originalism invokes the original understanding of the text in the most general terms, disguising (for anyone not paying close attention) the effort to fill in the blanks with a contemporary view.

I don't mean to criticize heroic originalism. Understood for what it is--as a purely rhetorical move within a contemporary normative debate--it can serve a variety of useful purposes. For instance, the Brandeis concurrence in Whitney gains some power from its association of free speech with certain patriotic ideals.

But let's not kid ourselves. NIFLA is an ideological decision. The lack of any discussion of the original meaning of the First and Fourteenth Amendments in the majority opinion is an indictment of Justice Thomas's claim to reach results based on original meaning. However, even if the opinion had attempted to derive the result from the original meaning, that would not tell us anything about why the justices voted as they did--at least not in a case involving abortion.

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