FAN 200 (First Amendment News) Helen Norton, “Taking Listeners’ First Amendment Interests Seriously”

Helen Norton is Professor and Ira C. Rothgerber, Jr. Chair in Constitutional Law at the University of Colorado Law School. Professor Norton’s scholarly and teaching interests include constitutional law, civil rights, and employment discrimination.  Two of her more recent publications are: “The Government’s Manufacture of Doubt,” 16 First Am. L. Rev. 342 (2018) and “The Government’s Lies and the Press Clause,” 89 U. Colo. L. Rev. 453 (2018).

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Let’s say you’ve learned that you’re 10 weeks pregnant.

Professor Helen Norton

You may have several children already, or none. You may be a teenager or you may be in your 40s. You may have a job–or maybe you just lost one. You may or may not be married. You may have health insurance; you may not. You may know that you don’t want an abortion. You may know that you do. You may be unsure. In any event, you are now considering your next steps.

Turns out that many folks have something to say to you about what you should do next. What do you want from those speakers? If you’re like many (if not most), you want accurate information that informs, but does not coerce, your decision-making. You don’t want to be lied to, you don’t want relevant information withheld from you, and you don’t want to be bullied. Here, then, you probably want to know the risks and benefits of your options, their costs, and the qualifications of the folks offering to serve you. You probably want to know what services are available from other sources, and at what cost.

For these reasons, California, like a number of other jurisdictions, required facilities that seek to serve pregnant women to disclose certain information to those women. First, it required those facilities licensed under state law to provide women with notice that “California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women.” This tells women about additional options, and their cost. Second, the state required unlicensed facilities to notify women that “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.” This tells women about the qualifications of those seeking to serve them.

But last June a 5-4 Supreme Court preliminarily enjoined California’s law, holding that it likely violated the free speech rights of crisis pregnancy centers, organizations often affiliated with or operated by those opposing abortion. Most, if not all, of these centers do not offer referrals or any other services related to birth control or abortion, and many have no professional health care providers on staff. In so holding, the Court ignored what women as listeners would find helpful in making important decisions about their health and lives. Focusing instead on the centers as speakersand what they do and don’t want to say to the pregnant women they seek to influence, the Court demonstrated its continuing failure to protect listeners’ autonomy, enlightenment, and self-governance interests – values at the heart of the Free Speech Clause.

As I explain in more detail in a forthcoming essay, the Court need not, and should not, have done so. In certain settings, law sometimes puts listenersfirst when their First Amendment interests collide with those of speakers. And collide they often do. Sometimes speakers prefer to tell lies when their listeners long for the truth. Sometimes listeners hope that speakers will reveal their secrets, while speakers resist disclosure. And at other times, speakers seek to address certain listeners when listeners wish simply to be left alone. When speakers’ and listeners’ First Amendment interests conflict, whose should prevail?

(credit: Gavin Ortlund)

A “listener-centered” approach to certain free speech problems outside of public discourse understands the First Amendment to permit the government to regulate the speech of comparatively knowledgeable or powerful speakers when that expression frustrates their listeners’ interests. (“Public discourse” involves the universe of speech key to democratic self-governance like campaign and other political speech, where courts have historically privileged speakers’ autonomy interests in saying what they want to say.)

Why put listeners first in environments of expressive inequality? When speakers enjoy certain advantages of information or power over their listeners, they can mislead or muscle their listeners in ways that strike us as unfair and sometimes dangerous. When we take seriously the First Amendment interests of listeners who suffer disadvantages of information or power in these relationships, we improve the quality of the communicative discourse. We also recognize listeners as ends in themselves–rather than as mere means through which speakers seek to achieve their own ends.

And a listener-centered approach still leaves those speakers free to make a wide range of expressive choices: it does not force speakers to mouth opinions that they don’t hold, nor does it prohibit them from sharing their opinions or additional accurate information of their choosing in non-coercive settings

Consider the following clashes between speakers’ and listeners’ First Amendment interests:

Lies often advance the speaker’s autonomy interests in saying what he wants to say at the expense of his listeners’ interests in receiving accurate information to inform their decision-making. A listener-centered resolution of this conflict understands the First Amendment to allow the government to require comparatively knowledgeable or powerful speakers to tell the truth when they choose to speak on certain matters even if they would prefer to dissemble. For this reason, law generally requires commercial actors to speak accurately when they extol their products’ attributes to consumers, professionals to accurately list the risks of their recommended course of action, to their patients and clients, and a corporation’s leaders to portray its economic situation truthfully when describing its prospects to shareholders.

A knowledgeable speaker’s secrets and non-disclosures can also threaten listeners’ interests while enhancing his own. A listener-centered approach understands the First Amendment to permit the government to require comparatively knowledgeable and powerful speakers to make accurate disclosures about issues material to listeners’ decision-making, even if those speakers would prefer not to. Think, for example, of the government’s requirements that commercial speakers affirmatively disclose the health or safety dangers posed by their products.

The Supreme Court’s traditional commercial speech doctrine long exemplified a listener-centered approach. In a setting where commercial actors hold more information about their goods and services than their consumers, the Court interpreted the First Amendment to permit the government to regulate commercial speech that frustrates listeners’ interests while protectingcommercial speech that serves them. The Court thus treats commercial speech that is false, misleading, or related to illegal activity (like advertisements for illegal drugs) as entirely unprotected because listeners have no constitutionally protected interest in receiving that information. At the same time, the Court generally protects truthful and non-misleading commercial speech from government regulation because that expression can provide great value to consumers’ decisionmaking. For instance, the Court has applied intermediate scrutiny to strike down laws prohibiting sellers from publishing accurate information about legal products or services, like the price of prescription drugs or the alcohol strength of beer.

The professional speech setting also shows how law can serve listeners’ First Amendment interests sometimes by protecting expression from the government’s regulation, and at other times by regulating it to ensure its trustworthiness and thus its value to listeners. We support listeners’ interests in quality professional advice when we interpret the First Amendment to protect lawyers’ and doctors’ speech from governmental restrictions that are inconsistent with professional standards – like the federal law that forbade federally-funded legal services lawyers from representing clients challenging welfare law even though professional standards generally require lawyers vigorously to pursue their client’s plausible claims.

Then there is the Florida law that banned doctors’ discussions of gun safety with their patients even when professional standards encourage such conversations to prevent accidental injuries. At the same time, we also promote listeners’ interests in quality professional advice when we understand the First Amendment to permit the government to regulate professionals’ speech to ensure its trustworthiness. Examples include professional responsibility rules that regulate professionals’ speech to protect clients’ interests, such as those that require lawyers to disclose potential conflicts of interest and that prohibit lawyers from knowingly making false statements of material fact or law.

Here I’ve discussed the value of a listener-centered approach to certain free speech problems in several settings: commercial, professional, and reproductive health care (and elsewhere I’ve also explored a listener-centered approach to workplace speech). All involve offers or exchanges outside of public discourse where the speaker has more information (and sometimes power) than his listeners. In each of them, the speaker seeks to shape his listeners’ choices in his preferred direction: to persuade them to buy what he’s selling; to settle rather than sue or to wait rather than operate (or vice versa); or to continue a pregnancy. All involve the speaker’s delivery of information that is objectively verifiable: the attributes of a particular product; the professional consensus about a course of medical treatment or legal action; and the existence and extent of available reproductive health care services. And all involve listeners who are making decisions (often life-shaping decisions) about their own property or health. When we take the side of listeners in these relationships, we promote their First Amendment interests by enabling them to receive accurate information that informs, but does not coerce, their decision-making.

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2 Responses

  1. Brett Bellmore says:

    “even when professional standards encourage such conversations to prevent accidental injuries. ”

    It’s widely understood that the professional standards organization is virulently anti-gun, and is just writing its politics into the standards. Not that this really impacts the legal issue, but it does put the conflict into a different light.

  2. Joe says:

    “widely understood”

    By whom?

    What “different light” here means is unclear. The specific case cited CENSORED speech but like Prof. Eugene Volokh at his own blog, when that involves certain types of legislation,* we hear less of if from some quarters. What is the “light” here? Censorship of doctors, many of whom are hunters and the like, because we fear they won’t apply the standards appropriately?

    We can cite various leanings of various groups here but the First Amendment provides a generally libertarian rule (if open to regulations, especially when involving professional speech in public regulated areas). Anyways, the “listeners rights” argument works best in just that context and that provides a strong reason against the ruling in the crisis pregnancy case since it involved licensed clinics and disclosure laws for unlicensed ones. See the dissenting opinion.

    But, as we know, some groups are biased against abortion rights, somewhat virulently so at times, and that includes probably the current majority of the Supreme Court (Kennedy a split case).

    * I have been less of a reader there once it no longer was an independent blog, but for years there a range of free speech issues were covered, but numerous conflicts that burdened speech rights of reproductive health providers (e.g., biased ideological messaging) was never covered. Meanwhile, things like the alleged vagueness of high school harassment policies were repeatedly referenced.