Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press... -- First Amendment to the US ConstitutionIn practice, some 200 years after this was ratified and became part of the law of the land, Congress makes laws all the time respecting an establishment of religion (namely the atheistic religion funded by the government, see "The Nature of Religion"), and prohibiting the free exercise thereof (like when a religion reasonably defines itself to be more than merely inner thoughts having no effect on a person's behavior) and abridging the freedom of speech (like when a person speaks military secrets), and of the press (like when the "press" consists of photographs, or text messages on the surface of a T-shirt or wedding cake, or a copy of anything that somebody paid the Copyright office a fee for protection on). Did the Framers of the Constitution, and the voters of the States that ratified it, think of these exceptions and intend to allow for them? Probably not most of them.
But the supreme law of this country is not as you were taught in grade school, a handwritten sheepskin document mounted under glass in a city that did not even exist when it was ratified. The supreme law of the USA is whatever the King Wearing Nine Black Robes says is the law, nothing more or less. So we all look very carefully at what the King pronounces to be law this and every year, and we get all worked up over who got elected President, because he gets to define who is King when one of the Nine retires or dies.
This year the King made new law concerning the freedom of speech, and the 14th Amendment forces the States to be bound by whatever the King says the First Amendment means.
California is a Blue state -- I think that means not enough blood gets to their brains, so they cannot think clearly, or maybe that they are so angry that they become "blue in the face" -- and the government there not only fully endorses the Established Religion of the country, but they have in no small measure set about to force everybody to bow at their child-sacrifice altars. Some of us read our Bibles carefully and we refuse to comply. Some of us Bible-believing Christians happen to live in California. I did too, before it became economically unfeasible. There are a lot of people here in Ore-gone who left California for the same reason, so this also is a Blue state (but that's another story).
Anyway, the left-wing bigots in the California legislature passed a law requiring the God-fearing people preaching against child sacrifice to also post signs supporting state-funded child sacrifice (abortuaries). The people doing this religious activity know that there is no freedom of religion in this country -- you are only free to practice religions that the government has "established" as suitable religions -- so they quite reasonably went against this new law as a "free speech" issue, which the King tends to be much more favorable to.
This year, the King was favorable to their plea, and by a slim 5-4 majority held that the sign-posting law was in fact a violation of the plaintiffs' right to free speech (NIFLA v. Becerra). This is a very convoluted argument, so bear with me.
First, "speech" in the King's new "constitution" is any kind of message that a person might want to communicate, including silly things like burning flags or marching in a parade or even organizing the parade and paying for whatever license the city wants to impose on parades. Furthermore, coerced speech is not free speech. So the Knights of Columbus (a religious organization) a few years ago was permitted exercise their "free speech" by refusing to let people of a different religious persuasion march in their parade. Portland lets people express their "free speech" by standing around in a public park holding chains and/or assault rifles (see my blog post "Taking the Bible Out of Schools" last month) so long as nobody is harmed -- but the government gets to define what counts as "harm": for example killing children in child-sacrifice is not harm, but refusing to tell people to do so does count as harm (at least in California). The King decided otherwise. But I'm getting ahead of myself.
Splitting the "speech" hair into allowed restrictions vs "free" requires more discernment than the average person (or even lawyer or judge) can muster up, so the courts invented a distinction between "commercial speech" (which can be regulated or restricted) and other kinds of speech which cannot. "Commerce" is a term used in the (original) Constitution as referring to what Congress can make laws about (at least between the States, and with other nations), so I suppose they felt that it's pretty understandable. You'd think so. Commerce is buying and selling products and services in an open marketplace. But then "commerce" is the excuse the King used to punish a farmer growing grain on his own farm to feed his own chickens when the government decided that he was required to buy high-priced grain from other (interstate) sources, and not plant his own fields. In other words, the King gets to make the rules. Period. The lefties understand that, and generally use it to their advantage. Except they fear greatly when the King is chosen by their political opponents (who they unreasonably expect to do the same in return), so you get riots in the streets.
The King's slim majority prefers to maintain the fiction that we are a nation under the "Rule of Law" rather than the more honest Machiavellian "Might Makes Right" -- you see this distinction when reading their respective opinions -- so they tried really hard to put some constraints on how "commercial speech" can be regulated.
First, our precedents have applied more deferential review to some laws that require professionals to disclose factual, noncontroversial information in their "commercial speech."Disclosure laws may only force people doing commerce to add "factual, noncontroversial information" to what they have to say. Tobacco is known to cause cancer, so the government can require tobacco companies to say so in their ads and product packaging. California is permitted to require gasoline pumps to say the same of the fuel they sell you. So, the thinking goes, it follows that California may also force religious people preaching against child sacrifice to state the "factual, noncontroversial information" encouraging people to avail themselves of the services of state-funded child sacrifice centers. More than half of the people in this country oppose child sacrifice at all, let alone that their taxes are paying for it, so the content of the coerced "speech" is hardly noncontroversial. In this case, the very reason for these people's existence, and the reason the California government is attacking them with draconian laws like this, is because they are preaching against the government's Established religion. But nobody is saying anything about the religious elephant in the room. This is presumably "commercial speech."
Except it isn't. Justice Breyer's long-winded dissent brings up the example of a Pennsylvania doctor which the King previously determined that he may validly be required to inform his child sacrifice wannabe that there are alternatives, because she must give "informed consent" to the medical procedure he is about to perform on her body, yet here we have the law imposing requirements on persons who are not doing any medical procedure at all; this is not about informed consent to a dangerous procedure, but rather encouragement to go somewhere else to have that dangerous procedure performed. If anything, the law should be requiring the notification of that other place, where the danger does indeed exist. But they don't do that. Child sacrifice is a dogma of the state Established religion, and the state wants to forbid preaching against it, not for it.
Justice Breyer's dissent also brings up the example of California's (presumably acceptable) law requiring hospitals to tell parents about child seat belts. This has nothing to do with informed consent, because the hospital must make this disclosure regardless of whether the client is having a (dangerous) medical procedure done or not. However, as Justice Thomas pointed out in his presentation of the Court's opinion, the prior Zauderer case (on which both the majority and the dissent relied) requires the requirement to be noncontroversial; seat belts are not controversial, and the hospitals being so required are all evidently in favor of the required disclosures. The requirement imposed by the new law violates the very purpose for the existence of the clinics to which it applies, which (as everyone no doubt admits) is the purpose of the law.
Nobody bothered to notice that while the hospitals required to tell parents about child seat belts are arguably "commercial" in that they generally perform services for money, the clinics to which this new law applied are not commercial in any possible sense of the word -- not even (unlike the unfortunate chicken farmer growing his own grain instead of buying it) in their preaching the avoidance of child sacrifice, which being state-funded, is also not commercial: there is no money involved in what the clinic does for its patrons -- and the superior court whose decision the King reversed did not attempt to say otherwise. Rather instead they called it "professional speech," claiming it therefore was also exempt from the protections afforded free speech. Justice Thomas offered his opinion that "this Court has never recognized 'professional speech' as a separate category of speech subject to different rules." At least that seems to be the King's opinion this year.
Next year, who knows? The King is people, and people change their minds, or get replaced by other people with different opinions. Because nobody any more believes in God nor His higher law to Whom and for which we are all held accountable, the law of the land is no different from the King of England from which our forefathers rebelled more than 240 years ago in creating this country, nor from first-century Rome, which the great Apostle surely had in mind when he told us to "submit to the governing authorities, for there is no authority except that which God has established."
In the mean time, and for another year or three, the regulation on "commercial speech" is limited to requiring "factual, noncontroversial information," and there is no separate "professional speech" category with less protection than political speech. You can plan on that "Constitutional right" going away after Trump leaves office.
Rev. 2018 September 14