Free Speech, Pro-Life or Anti-Abortion? The Media’s Supreme Court Quandary

Framing a legal question the right way is incredibly important. Good lawyers are supposed to write tight, easy-to-read intros that make the judge say to him/herself: Hey, why didn’t I think of that?

Most people never read whole articles and a surprising number of readers don’t make it past the first paragraph of a news story. Plenty of people share articles without ever reading them.

These two disparate facts are to the point that headlines are everything. Intro paragraphs, too. The media knows this. I know this. I deliberately write provocative titles for most pieces—for example, Saudi Arabia Grants Citizenship to a Robot, Which Makes Sense for a Country Where Citizenship is Meaningless—because I’m jammed in between other excellent writers who’ve composed other excellent stories.

Most people never read whole articles, and a surprising number of readers don’t make it past the first paragraph of a news story.

But I’m an op-ed writer, not an “objective” journalist. I have different journalistic obligations, like not plagiarizing, avoiding ad hominem attacks (still working on this one) and not quoting people out of context or misrepresenting source material. (I also have a secondary pseudo-journalistic obligation of real-time reporting to my wife when the baby’s diaper pail is empty.)  

So, how do news agencies fare with their headlines for culture war cases that make it to the Supreme Court? Let’s find out...

The Supreme Court just granted review for a case—National Institute of Family and Life Advocates v. Xavier Becerra—that decides the free speech claims of pro-life “crisis pregnancy centers.” The crisis centers object to a California law that requires them to advertise abortionists’ services to their patrons.

What kind of headline can you expect to see in articles covering NIFLA v. Becerra and what’s in that crucial first paragraph?

Several of the headlines are eye-catchers: The Supreme Court Picked Up an Abortion Case and You Should Pay Attention in Elite Daily; The Supreme Court Took a Major Abortion Case That Could Stump All the Justices in Mother Jones; Be Careful What You Sue For in Slate.

Provocative stuff, right? You’ll probably want to keep reading them, at least for a minute. But right off the bat, the reader learns nothing about the case other than the fact that it involves abortion and will likely be controversial.

So, let’s break down the issues in NIFLA v. Becerra for a clearer picture of what’s important:

The First Amendment doesn’t allow laws that aren’t content neutral, meaning laws that target people because of their beliefs or the content of their speech. For instance, the government can’t make a signage law that targets churches by passing a bill that says that “‘faith-based’ non-profit organizations are prohibited from advertising with city and state transportation agencies." Cities, states, and yes, even Congress all need a better reason than I don’t like your beliefs to ban certain types of speech.

On the other hand, there’s also a constitutional right to abortion guaranteed by the Fourteenth Amendment, a right which can’t be unduly burdened.

I think the above framing is fair (although I’m sure plenty would object), especially since NIFLA v. Becerra doesn’t threaten abortion services - it only concerns the advertising of abortions in California’s crisis centers, places that don’t provide abortion services at all. In that way, this case isn’t really about abortion. The First Amendment issue predominates.   

NIFLA’s petition for a writ of certiorari—the petition where a party requests that the Supreme Court hear its case—frames the issue in NIFLA v. Becerra clearly enough: “The State of California enacted a law called the ‘Reproductive FACT Act.’ The State admits its purpose is targeting ‘crisis pregnancy centers’ based on their viewpoint that ‘discourag[es]’ abortion. The Act forces pro-life religious licensed centers to post notices that encourage women to contact the State to receive information on free or low cost abortions.”

Minimally, the allegation that the government is attacking an organization because of their beliefs should be newsworthy. It’s the lead in the petition, so any journalist worth their salt—meaning any reporter who’s bothered to read the petition for writ instead of just scrolling through SCOTUSBLOG—ought to front-load their coverage with that allegation.

But few have.

Slate does a pretty good job for the layman, using short-hand for the reader in saying that NIFLA and other groups “argue that the law violates the CPCs’ freedom of speech under the First Amendment.” But saying that the case is a “religion-fueled fight over free speech” is misleading, at best. As Amy Howe explains, the Court has “declined to decide whether the disclosures run afoul of another part of the First Amendment that bars the government from prohibiting the free exercise of religion.”

Adam Liptak at the New York Times does a better job of framing the issue but he also neglects to mention NIFLA’s biggest gripe: that they’re being targeted specifically because they are a pro-life (or, anti-abortion) organization. Liptak is NYT's Supreme Court correspondent.

Elite Daily is a prime-time worst offender, deliberately misrepresenting the legal issue in NIFLA v. Beccara by saying it’s “officially classified as a free speech case at the base level, but it's around an abortion case.” How can it be “around an abortion case” if there’s no right to abortion being legally contested? Saying that a ruling in favor of NIFLA “could have serious repercussions for women's reproductive rights” is misleading, too. It’s hard to see how women’s reproductive rights would be harmed by striking down a law that compels NIFLA to engage in content-specific speech it objects to. Where’s the barrier to abortion services? There is none. There’s no universe in which a NIFLA-friendly ruling means that California women can’t still go to an abortion clinic and use their services. A ruling in no way effects how actual abortion clinics operate.

The importance of obscure free speech doctrines like content neutrality is something consistently underemphasized by the media. I’m sure this is partly because legal tests are about as exciting as watching paint dry; I don’t enjoy talking about Zubulake’s seven-factor test for proper cost-shifting analysis, and neither should you.

Nevertheless, the overuse of buzzwords like “anti-abortion” and the sometimes deliberately misleading description of the case shortchanges readers. Is fake news a problem? Sure. But clearly, disingenuous reporting is also to blame.