Pro-Life Organizations, Will They Be Mandated To Promote Abortion?

Pro-Life Organizations, Will They Be Mandated To Promote Abortion?:Â In today”s program, Mike Farris, the head of Alliance Defending Freedom, will be with us! He has just argued a case before the U.S. Supreme Court regarding a law that is trying mandate pro-life organizations in California to promote abortion. Tune in now to learn more!

Air Date:Â 04/18/2018

Guest: Mike Farris

On-air Personalities: David Barton, Rick Green, and Tim Barton

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Transcription note: Â As a courtesy for our listeners’ enjoyment, we are providing a transcription of this podcast. Transcription will be released shortly. However, as this is transcribed from a live talk show, words and sentence structure were not altered to fit grammatical, written norms in order to preserve the integrity of the actual dialogue between the speakers. Additionally, names may be misspelled or we might use an asterisk to indicate a missing word because of the difficulty in understanding the speaker at times. We apologize in advance.

Faith And The Culture

Rick:

You”ve found your way to the intersection of faith and the culture. This is called WallBuilders Live and it”s where we talk about the hottest topics of the day. Always from a biblical, historical, and constitutional perspective.

We’re here with David Barton, he”s America’s premier historian and our founder of WallBuilders. Also, Tim Barton, national speaker and pastor, and he”s president of WallBuilders. My name is Rick Green, I’m a former Texas state legislator.

You can find out more about all three of us and the ministry at WallBuilders.com and WallBuildersLive.com. Now, WallBuilders Live is our radio website, so that’s where you can listen to archives of the program over the last couple of weeks. And then WallBuilders.com is where you can get all kinds of great resources for you and your family, so check that out at WallBuilders.com

David, Tim, later in the program Mike Farris will be with us. He’s the head of Alliance Defending Freedom and just argued a case before the Supreme Court. It’s not Foundations of Freedom Thursday, that’s normally our Foundation’s Thursday program is when we really dive into constitutional issues and take questions. But let’s still talk about some of those constitutional issues and foundational principles like free speech.

David:

Free speech is an area that I don’t think is very well understood today. As evidenced by the fact that polling shows right now that 19 percent of college students say that they think that violence is an appropriate response to free speech you don’t like. If that’s your response you don’t understand what free speech actually is, you don’t understand what’s protected by the Constitution with the First Amendment. That makes sense they might not know that because only 1 out of 1000 Americans can actually name the freedoms in the First Amendment. So, by and large, we don’t even know what that means.

The Origins of Free Speech in America

David:

So, when you look back at free speech, what that means, it”s very, very, very, significant. Because coming out of the European experience, coming out of Great Britain particularly for those that were in America back 200 years ago, the government regulated your speech, told you what you could and couldn’t say. If you said something that crossed what the government wanted you to say, you’re facing a real problem.

A great example of that is a case that goes to the 1730s in New York. At that point we”re a colony of Great Britain, and it was Peter Zenger. Peter Zenger had a newspaper in New York and he criticized the crown of Great Britain, criticized the King of Great Britain. Now, they had a law that said you cannot criticize the king. So, this goes to court in New York and the law is very clear you’re not allowed to have free speech if it makes the king look bad.

It got into the court and the judge there, De Lancey, actually ruled and said, “No, if what you say is true then that’s an absolute defense against the charge that you libel the king or slander the king. If what you said was true then you can say bad things about people if it’s true.” That was the origins of free speech in America is the government can’t tell you what you can and can’t say and you have a complete defense if what you say is accurate and true.

So, that starts the free speech that you have a right to speak out against the government. There were times when America tried to change that. We had, in 1798, what were called the Alien and Sedition Acts were under John Adams they said, “Oh you can’t criticize the American president.” And 24 journalists did and they were all thrown in jail for criticizing the president. So, Thomas Jefferson said, “That’s wrong.” He released all of them out of jail.

Why Truth is Important

David:

But we’ve always had these attempts across time for the government to try to tell you what you can and can’t say. Now, that doesn’t mean you can say anything you want to because there are limits on free speech. And that’s why truth is important. If I lie about you, Rick, you can take me to court depending on whether I do it on the radio or on paper. You can take me for libel and slander and if I said something that was a lie you can nail me and you can get monetary damages. But the government can’t regulate my speech. The government can’t tell me what I can and can’t say. I’ve got liabilities if I lie about something, that’s a problem.

So, the concept of free speech really is significant. Now, I will say the court expanded it back in the 70s and 80s they said, “Oh, by the way, burning the flag is free speech.” Well, time out, that’s behavior – that’s not speech. That’s not what you’re saying that”s what you’re doing. And so the court back in the 70s and 80s suddenly made behavior the same thing as speech, which is crazy. We”ve always had laws regulating behavior, but that’s where they got into saying, “Well, new dancing, that’s free speech.” No it’s not – it”s behavior, that’s behavior that can be regulated. Well, that’s change. Now, those courts are starting to come back and saying, “No, no, no, there’s a difference between speech and behavior.”

But having said all that, what Mike Ferris is having to argue in this case literally is a law where the government of California is telling Pro Life Clinics what they have to say in their message. It’s giving them a message they have to deliver and the government is saying if you don’t you’re in trouble and here’s what the government requires you to say.

Now, from a historical standpoint that is a real problem. And that’s the case that Mike Ferris has had to argue. So, it’s an interesting case, the eyes of the nation are on it. Is the government going to be allowed to tell people what they have to say? That pro-life people have to, at the government’s demand, deliver a pro abortion message? Which is what they’re requiring pro-life clinics to do in California, you have to promote abortion in your pro-life clinics. Really? Can you do that? Not under original freespace, but we’ll see what happens with this case.

The Opposite of What We Typically Think Of

Rick:

So, this is really the opposite of what we typically think of when we think free speech. Free speech meaning I can say what I believe. In this case you can’t force me to say something I don’t believe or don’t want to participate in.

David:

I even looked up, just hit it here real quick, what is the definition of free? And the online dictionary says, “Not under the control or in the power of another.” So, free speech means that my speech is not under the control or in the power of anyone else – including the government of California. Or, by the way, the government of the United States, or the government of Texas, or the government of Omaha, Nebraska, or anything else. The government cannot control my speech. I’m not under the control or power of another. That’s my free speech.

And, by the way, violence is not an appropriate response to free speech. It’s just not. There’s other venues for dealing with that. So, this is a big question is, are we going to maintain the fundamental definition of free speech that we’ve always had, which means we will have liberty? Or will we change this and let the government define what free speech means, which means we lose liberty?

So, if this case goes the wrong direction this will be a huge blow to liberty and the First Amendment as we have known it for the last several centuries. But then again, when you don’t know history or the constitution, then you’re more willing to give up stuff you didn’t know you possessed. And that’s part of the danger with where we are with the lack of knowledge about free speech today in America.

Rick:

When we come back from the break the attorney that actually argued this case before the Supreme Court just about a week or so ago will be with us, Mike Farris. Stay with us, you’re listening to WallBuilders Live.

Leadership Training Program

Rick:

Hey, friends! We’ve got a great program to share with you today. It”s the WallBuilders Leadership Training Program and it’s an opportunity for 18 to 25 year olds to come spend two weeks diving into the original documents we’re always talking about here on WallBuilders Live.

Tim, you’ve already been doing this a couple of summers and seen the results of young people coming to this program. We’re going to see more of them coming this year.

Tim:

Yeah, Rick, it”s something that”s been cool to see the transformation with young people coming in. The emphasis, for us, largely is a pursuit of truth. We have a culture that doesn’t know what truth is. We don’t know what biblical truth is, or constitutional truth, or the American heritage that we have. And so we really dive into original documents and say, “Well, what did they actually write? What did they actually do? Not just what did somebody say, what is actually true, and the truth is what’s transformational.

David:

Yeah, guys. This really is a remarkable opportunity. And for those who want to spend time with us and spend time in the original documents, this is a great program. So, if you’re from 18 to 25, or you know someone who’s 18 to 25, send them to sign up for one of our three sessions this summer at WallBuilders.com/leadershiptraining.

Rick:

Welcome back thanks for staying with us here on WallBuilders Live. Our friend, Mike Farris, back with us. Now President, CEO, and general counsel of Alliance Defending Freedom. Also founder of Patrick Henry and so many other great things, Homeschool Legal Defense. Mike, we could go on and on, man, I really appreciate all your work in the culture. You’ve done so much to preserve freedom. And now you’re right there at ADF fighting on the front lines – just argued before the Supreme Court again.

Mike Farris:

Well, Rick, thank you for being a good friend and a faithful friend all these years yourself.

On the Front Lines

Rick:

Well, I tell you what, you have been on the front lines of some of the most important battles and this one is huge for a lot of reasons – free speech, life, a lot of other reasons. But not the first time you’ve argued before the Supreme Court. How many times have you been before the court?

Mike Farris:

Arguing? Two. I”ve been introduced for a longtime as having argued a number of cases in the Supreme Court and I always say, “Well, that’s true as long as you remember that one”s a number.” But this is my second – thirty two years apart.

Rick:

Wow.

Mike Farris:

Between my first and my second oral arguments. Yeah.

Rick:

And the first one actually had to do with the Electoral College, right? Or some– I can’t remember.

Mike Farris:

No, that was a different– that case didn’t get to the Supreme Court. But it was an Establishment Clause case – whether or not a student who was going blind, who was eligible for blind funding, could use his vocational rehabilitation * to go to Bible college. And the state of Washington said “no” and the Supreme Court of the United States said, 9 to 0, that I was right in that freedom of religion prevailed. So, that’s the * case from the 1980s.

Rick:

So, we could have said a hundred percent victory record at the Supreme Court. Let’s hope we can continue to say that, right? This one”s–

Mike Farris:

I’m hoping. Yeah. It’s– I”m hoping we can get another 9-0. Not necessarily counting on that, but I am very hopeful for a victory.

Cases Out of Liberal States

Rick:

Well, now, this one came out of California. So, what is it with you and cases out a liberal states? The first one out of Washington state now this one out of California.

Mike Farris:

Well, it’s God’s timing apparently.

Rick:

Yeah.

Mike Farris:

California passed a law that said the pro-life pregnancy centers had to deliver messages that were designed to suppress their effectiveness. There are medical pro-life centers and there are non-medical centers that give emotional support, practical help, diapers, baby cribs, lots of other things. And for the medical ones, they had to put up ads inside the facility telling women, “If you want a free abortion call the state of California. Here’s their phone number.” I”ve trimmed it up a bit, but that’s the essence of what it says.

On the non-medical centers, they were required to, in all their advertising, to have these huge disclaimers that they don’t provide medical services. And their font had to be bigger than the ad itself – 29 words times multiple languages. Which was designed just to drive them out of the business of advertising so that they couldn’t get the message out to promote the pro-life cause so that women would have a choice of choosing life rather than choosing abortion.

Rick:

And, Mike, this was legislation at the state level in California that was requiring this?

Mike Farris:

Correct, Yeah.

Rick:

Okay.

You Can Tell Where It”s Coming From

Mike Farris:

The legislature and, of course, signed by the governor. And the law was actually co-authored by NARAL – the National Abortion Rights Action League. So, you can tell where it’s coming from.

Rick:

Yeah. Â Â

Mike Farris:

Supposedly it was designed to require all women, pregnant women, in California to receive this message. But when you started reading the fine print and looking at the way the statute worked, they exempted every form of medical practice in this state from having to do this except for non-profit pro-life centers. Everybody else got out.

Rick:

Wow.

Mike Farris:

And so this kind of gerrymandering was very concerning to the Supreme Court. Even Justice Kagan was asking a lot of questions about the gerrymandering issue and others as well. Others that were on the liberal side of the fence traditionally seemed very concerned about certain components of this law.

Rick:

And to put this in context so people understand, this is literally requiring of organizations that exist for the purpose of saving babies and saving lives, these are pro-life organizations trying to protect women and babies, and it’s literally requiring them to support and promote abortion.

Mike Farris:

Exactly. It”s facilitating abortion by giving them notice in large print on the wall that says, “If you want a free or low cost abortion here is the number to call.” There’s two sentences, but I’ve given you the most important parts of the two sentences.

Rick:

Yeah. So, how did you think the justices responded? What was your feeling about, other than Kagan being interested in it– specifically the fact that it wasn’t across the board applied to everybody, what do you think?

The Legitimacy of the Law

Mike Farris:

Well, they were– Justice Kennedy was very concerned about the compelling nature of the advertising rules and the egregious nature and undue burden there. And so the legal commentators that were in the courtroom who write about the Supreme Court regularly unanimously reported it as the court was very concerned about the legitimacy of the law. So, it was a very fair ruling.

The best way for me to give you the gaging is when the justices walked off the bench and I turned around and looked at the courtroom, a couple hundred lawyers sitting there and then the general public right behind them, I knew the lawyers were on our side. They were all beaming just big grins and the lawyers on the other teams were very much despondent. So, it wasn’t just my read of the case. Just the faces in the Supreme Court said that it went really well.

Rick:

Yeah, that’s great. And this is, timeline wise, probably what, June, July, August, somewhere in there, that we’d probably hear a result?

Mike Farris:

Well, it would definitely be before the 30th of June, but not a lot before that.

Rick:

Okay. Okay. And a win, what does that look like? A win would be to strike down the statute completely or at least somehow create some exemptions for these pro-life organizations. How would you define that? What are you really asking the court to do?

Mike Farris:

Well, since it only applies to pro-life organizations, a win”s going to knock the statue out.

Rick:

Okay.

Mike Farris:

If it applied across the board then that would give a basis for what, as you know, is called an “as applied challenge”. But I don’t think that’s going to happen here. I think they’re going to, likely, if they rule in our favor which I am very hopeful about, will knock the statute out entirely. That doesn”t mean that California can’t try something different that would be a little more modest, broader, perhaps. But to directly require people to advertise for abortion or to put pro-life centers out of the advertising business with these ridiculous disclaimer rules.

I think that one’s going to fall down and hopefully create a really nice broad principle about compelled speech. Which is the government can’t stop you from saying what they don’t want you to say. They’re trying now to get you to say what they prefer you to say rather than your own message. And that’s got to come to a screeching halt real quick.

We Should All Be Concerned About That

Rick:

Yeah. I saw in your comments afterwards, your public comments that, “Look, a government that can keep you from saying something is one thing, but a government that can make you say things like this, we should all be concerned about that.”

Mike Farris:

That’s exactly right. And there was a day where everybody in the country pretty much agreed with the idea that I may disagree with what you have to say, but I’ll defend, to the death, your right to say it. And the same thing would be true in compelled speech. They don’t want the government to force you to say things whether you like the government’s message are not.

We should all be against compelled speech as a general principle and all be against censorship as a general principle. There’s minor exception to that, but as a general principle that’s something that all Americans should embrace. And, fortunately, it looks like the majority of the Supreme Court still thinks that way. Now, we’ll see for sure when that decision comes down, but it’s very hopeful.

Rick:

Mike, the group, the case is called NIFLA does that stand for the pro-life group? What does that– as people are listening for the decision–

Mike Farris:

Yeah, it’s National Institute for Family and Life Advocates. Tom Glassner is the president of NIFLA. It’s a coalition of about 2,000 crisis pregnancy centers, pro-life pregnancy centers, in the country. Tom and I have been friends since the early 1980s. In fact, when I came to ADF he quickly made me promise that I would argue the case myself. Which is a little unusual for someone in the CEO slot to be taking a couple of months out of your schedule to argue the case in the Supreme Court, but I couldn’t resist his request. And it was a lot of fun and I’m really glad that I could do that.

A Couple Thousand Attorneys

Rick:

Well, we’re glad you’re there at ADF and the website – ADFLegal.org. Folks can follow what you guys are doing – not just this case, you guys have tons of cases. You”ve got the Jack Phillips case and a lot of others that people need to be following this year. And they can donate online at that website as well to support what you all do. Your network is now a couple thousand attorneys around the country, right?

Mike Farris:

Indeed it is yeah. So, we’re really grateful for the dozens and dozens of cases that we’re able to have at any one time. And we’re defending college students arrested for passing out copies of the Constitution. In both Michigan and Massachusetts, two colleges in America managed to get that one wrong. Colleges are punishing students for preaching the gospel even though they stayed inside the free speech zone.

So, we’ve got just a ton of cases going on. Many about free speech, right to life. We are doing a lot in the whole area of protecting student privacy against the so-called transgender movement. Just a lot of cases going on and we really encourage people to read up about what we’re doing and get involved.

Rick:

Yeah. And a lot of people say, “Well, what could I do? I’m not an attorney.” Or, “I can’t do this.” Or, “I can”t do that.” Look, everybody out there can donate to help make this happen. What you guys do, Mike, is you come alongside people that can’t afford the sometimes hundreds of thousand of dollars in legal fees to try some of these cases and do what you guys are doing. And so it”s those donations from around the country that help to make that happen.

So, I really encourage people to visit ADFLegal.org today, contribute, get on the e-mail list, follow what’s happening there. Mike Farris, always good to have you, brother. Keep up the great work. We look forward to a great report on this case. I know you’re super busy, but I hope we can get you back this summer to celebrate together a victory here.

Mike Farris:

Count on it. It”s always a pleasure to be with you.

Rick:

Alright, brother. Thank you very much. We’ll be right back with David and Tim Barton.

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Rick:

Welcome back to WallBuilders Live. Back with David and Tim Barton now. Thanks to Mike Farris for joining us on the program today. And, guys, so we won’t know for a few more weeks where this case is going to go. But, David, you mentioned before the interview with Mike how important this was and which way it goes will say a lot about what the new definition of free speech is going to be in America.

David:

Yeah, it will say a lot and hopefully the court– and it sounds like the court will probably come down on the traditional definition of free speech and keep the government from telling you what you have to say when you deliver a message. And hopefully that is going to be right. It is certainly an optimistic view that the attorneys reacted the way that Mike saw them – some players and some were not. Or even the fact that you get Kagan and others asking questions that would indicate that they’re really concerned over the government coercing a message when you should have a voluntary choice on that message.

Hopefully These are Good Indicators

David:

So, we’ll see. Hopefully these are good indicators, but we’ll know in a few weeks. Because the court does leave town at the end of June, their term is over at the end of June. And they typically hold what might be considered controversial issue type decisions, which would be the Jack Phillips case, the baker, which would be abortion cases – they typically hold that to the last week of the term and then they leave.

Tim:

Let me throw out something I think is so interesting about this too. As we’ve already identified in this case, this is not just about something you can’t say, it’s something you’re required to say. And if you go back to the Declaration, right, the reason that the Founding Fathers gave 27 grievances, the reasons we separated from Britain, this long train of abuses as they identified it. Nowhere in that train of abuses do you find something as egregious, and in the case of free speech, as “the king made us say this”. You find what the king would not allow them to do or forced them to. Maybe in the case of we have to hold these soldiers in our home, we have to feed them. There were things they were forced to do.

Almost a First in Government Tyranny in America

Tim:

But with free speech it’s always been what you couldn’t say not what you were required to say. This is almost a first of government tyranny in America with the issue of speech. Has there been a time before where we’ve seen the government forcing, coercing, compelling, someone to say specific things and if they didn’t say that they would be punished?

David:

Well, we’ve seen a lot of times where the government tried to shut down speech it didn’t like. And a lot of that was in the slavery debate where that in the U.S. Senate you had a lot of the Southern senators who would try to shut down speech that was anti slavery. John Quincy Adams, the House tried to shut him down. But there– I just can’t off the top of my head–

Rick:

Well, I can think of one that would be somewhat like this. I don’t know if in terms of legal terms if it would fit, but definitely a First Amendment issue. But if you make me, if you force me to make a cake for a same sex marriage that has a message on it–

David:

Yeah.

Rick:

–that is somewhat speech, right?

David:

Yep.

Rick:

That’s certainly, now we’re getting back to the discussion of is it behavior or is it speech? But certainly if that’s my art, if that’s my gifting, and I’m crafting a message with that cake, or that photograph, or that flower arrangement, or whatever it is. That seems like a similar type thing – you’re making me participate in making me express something. Maybe not quite the same because it”s not actual words, but could be, I guess, if it”s on a cake.

Talk About Targeted

Tim:

No, I think it’s a great point. I was also thinking as you were communicating that point that there probably are some other areas where the government has gotten involved. So, at federal agencies, institutions, even in different kinds of workers unions, where they are told, “You have to respond in this way. You have to say these kinds of things.”

So, there are moments when you do see the coercion, the compelling, of speech and behavior. It’s so interesting that you have a state that is– and as Mike pointed out, this is something that the only organization in the state that is required to do this, the only one that wasn’t exempted from this–

Rick:

Talk about targeted.

Tim:

Right– were these pro-life groups. And so it it seems like a different level of oppression coming from government. But you’re right, when you look at whether you’re a photographer, or a baker, or some of these cases where you have people that have deeply held religious beliefs and they are being coerced into supporting a specific behavior that violates their religious belief, that goes against their belief system. And so that could be, in essence, something along those same lines certainly. It just seems like this is a very different world we live in.

And so, man, certainly God help us to get a good decision on this. America will look very different if we get to the place that government is able to tell us not just what we can”t do, but what we are required to say in spite of our deeply held religious beliefs.

A Little Bit of Trivia

David:

And by the way, a little piece of just irrelevant trivia on this. Rick, you started out saying you’ve argued a number case the Supreme Court. He said, “Well, if you consider one. Â Â Now it”s two.” So, I thought Mike had argued a bunch of cases as well, but he hadn’t. And he said it’s been 32 years between them which is kind of a throwback.

John Quincy Adams only argued two cases in the U.S. Supreme Court, 37 years between them.

Rick:

Oh wow.

David:

He was a great attorney, argued really significant cases, and so here Michael is and Â Â Lord willing, he’s going to keep a 100 percent winning record on his two cases.

Rick:

Right.

David:

But he actually heads an organization that, I think, over the last two or three years, I think they’ve argued was it 24 cases the U.S. Supreme Court? So, while he’s not always the one in court they certainly argue these cases. But I thought that”s just a little fun piece of trivia that it’s been 32 years for him and it was 37 years for John Quincy Adams. So, maybe we’ll see the same good results.