In today’s 5-4 decision in Nat’l Inst. of Fam. And Life Advoc., et al. v. Xavier Bercerra, Atty Gen. of Cal., et al., 585 U.S. ___ (2018) the Supreme Court of the United States rejected the “Professional Speech” doctrine found in prior First Amendment cases, which previously exempted content-based restrictions on non-commercial speech of regulated professionals from strict scrutiny analysis.
The First Amendment, as incorporated against the States through the Fourteenth Amendment, prohibits laws that abridge the freedom of speech. First Amendment caselaw distinguishes between content-based and content-neutral regulations. Content-based regulations “target speech based on its communicative content.” Reed v. Town of Gilbert, 135 S. Ct. 2218, 576 U. S. ____ (2015) (slip op., at 6). As a general matter, content-based restrictions of speech in laws “are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.” Id. This strict scrutiny “standard enforces the idea that the Federal and States governments have ‘no power to restrict expression because of its message, its ideas, its subject matter, or its content.’” Id. (quoting Police Dept. of Chicago v. Mosley, 408 U. S. 92, 95 (1972)).
In Nat’l Inst. of Fam. and Life Advoc., SCOTUS considered the constitutionality of California’s Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act) which required clinics that primarily serve pregnant women to provide certain disclosure notices to patients. “[Under FACT,] licensed clinics must notify women that California provides free or low-cost services, including abortions, and give them a phone number to call. Unlicensed clinics must notify women that California has not licensed the clinics to provide medical services.” Nat’l Inst. of Fam. and Life Advoc., 585 U.S. ___ (2018) (slip op., at 1). The legislative purpose of this law was to “ensure that California residents make their personal reproductive health care decisions knowing their rights and the health care services available to them.” Id. at 4 (quoting 2015 Cal. Legis. Serv. Ch. 700, §2 (A. B. 775) (West) (Cal. Legis. Serv.). The Ninth Circuit applied intermediate scrutiny to the Act and upheld its constitutionality.
Several Courts of Appeals, including the Eleventh Circuit, had previously recognized “professional speech” as a separate category of speech that was subject to intermediate or lower scrutiny. See, e.g., King v. Governors of New Jersey, 767 F. 3d 216, 232 (3d Cir. 2014); accord Pickup v. Brown, 740 F. 3d 1208, 1227–1229 (9th Cir. 2014); Moore-King v. County of Chesterfield, 708 F. 3d 560, 568–570 (4th Cir. 2014); Wollschalaeger v. Gov. of the State of Fla., 814 F.3d 1159, 1186 (11th Cir. 2015) ("applying intermediate scrutiny").
These cases define “professionals” as individuals who provide personalized services to clients and who are subject to “a generally applicable licensing and regulatory regime.” Id., at 569; see also, King, supra, at 232; Pickup, supra, at 1230. “Professional speech” is then defined as any speech by these individuals that is based on “[their] expert knowledge and judgment,” King, supra, at 232, or that is “within the confines of [the] professional relationship,” Pickup, supra, at 1228. So defined, these courts had excepted professional speech from the rule that content based regulations of speech are subject to strict scrutiny. See King, supra, at 232; Pickup, supra, at 1053– 1056; Moore-King, supra, at 569.
SCOTUS rejected the “professional speech” doctrine on several grounds. First, SCOTUS stressed the danger of content-based regulations “in the fields of medicine and public health, where information can save lives.” Nat’l Inst. of Fam. and Life Advoc., 585 U.S. ___ (2018) (slip op., at 12). Second, “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.” Id. at 12-13. (internal citation omitted). Third, “when the government polices the content of professional speech, it can fail to ‘preserve an uninhibited marketplace of ideas in which truth will ultimately pre- vail.’” Id. at 13. Finally, that “professional speech” is a vague and difficult category to define with any meaningful precession. Id. at 13-14 (“All that is required to make something a “profession,” , is that it involves personalized services and requires a professional license from the State. But that gives the States unfettered power to reduce a group’s First Amendment rights by simply imposing a licensing requirement.”).
Applying Zaunderer, SCOTUS held that the Californian likely law could not survive even the lower requirements of intermediate scrutiny, and reversed and remanded the matter to the lower court to review denial of entry of a preliminary injunction based on the now rejected "professional speech" doctrine.
Importantly, Justice Thomas reaffirmed that:
A more deferential review continues to apply to laws that “require professionals to disclose factual, noncontroversial information in their 'commercial speech.'” Nat’l Inst. of Fam. and Life Advoc., 585 U.S. ___ (2018) (slip op., at 9) (citing Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626, 651 (1985); Milavetz, Gallop & Milavetz, 585 U. S. ____ (2018), P. A. v. United States, 559 U. S. 229, 250 (2010); Ohralik v. Ohio State Bar Assn., 436 U. S. 447, 455–456 (1978);
“States may [continue to] regulate professional conduct, even though that conduct incidentally involves speech.” Id. (citing Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 884 (1992) (opinion of O’Connor, KENNEDY, and Souter, JJ.); and
In dicta, that the Court could carve out further exceptions in later cases if presented a compelling reason to do so.