MR. KOJO NNAMDIWelcome back. Maybe you remember this, maybe you don't. Back in 2009, the City of Baltimore made national news for passing a law that said all faith-based pregnancy centers must tell clients up front whether or not their center provided abortion and contraception services. The goal, Baltimore officials said, was to eliminate the confusion that sometimes occurred. Pro-choice advocates called it intentional deception. But that confusion occurred when women went into pregnancy centers that appeared to offer full women's health and medical services, but actually did not. Earlier this year, a federal court judge reviewed the Baltimore law and struck it down. Why? He said it violated the First Amendment.

MR. KOJO NNAMDIBut that did not stop the New York City council this month from passing a very similar notification law. So we thought we should ask a legal expert what is this about. What can and can't the government require people to say? Jeff Rosen joins us by telephone. He is a professor at George Washington University Law School and the legal affairs editor at The New Republic. His most recent book is "The Supreme Court: The Personalities and Rivalries That Defined America." Jeff Rosen, thank you for joining us.

PROF. JEFFREY ROSENThanks for having me.

NNAMDIWhen non-lawyers think about First Amendment cases, we think about the right to speak, not about our right not to be compelled to speak. How does the law distinguish between those two?

ROSENThere are a series of cases saying you can't be forced to convey a political message that you don't want to. There was a case from 1969 where students were wearing black arm bands to protest the Vietnam War, and that was held to be their right. And similarly, when citizens of New Hampshire challenged the requirement that your license plate say live free or die in 1977, the Supreme Court said they had a right not to display live free or die on our license plate. That was a form of compelled speech that was impermissible. Now what's going on in these Baltimore and New York cases...

NNAMDIWell, before we get to that...

ROSENYeah.

NNAMDI...how about compelled speech that is permissible, like the language on cigarette packs or postings of the Heimlich Maneuver at restaurants? Why are those allowed and others not?

ROSENVery good question. And those are considered to be neutral regulations that have to do with health, their safety. So if you're notifying people of health risks in a neutral way and are not trying to force people to embrace a political message that they don't embrace, that's held to be fine. Similarly, if you're having even abortion clinics prohibited from engaging in deceptive advertising, claiming that they're offering one kind of service but not another, that would be okay, too. It's the special situation of forcing people to embrace a political message that they don't like that the Supreme Court is concerned about.

NNAMDIAs I understand it, when it comes to issues related to abortion, there's a lengthy history of freedom of speech cases. Can you give us an overview?

ROSENThere is a lengthy history. There was an important case in 1991 where the government provided family planning services, and the Bush administration, the first Bush administration, said that if you get these funds, you can't engage in abortion-related activities. You can only engage in other family planning activities. And the Supreme Court upheld that on the grounds that if you take federal funds, you have to take the bitter with the sweet. It's a condition of receiving the funds that you not use the government's money to promote a message the government doesn't approve of. And then, even more relevant to the current cases, there's a whole series of cases involving buffer zones around abortion clinics. And, you know, there are abortion protesters who like to discourage...

NNAMDIYes.

ROSEN...people from having abortions. The Supreme Court, in 2000, said that if the buffer zone applies to all medical facilities and doesn't allow you to approach anyone who goes into the medical facility within 8 feet, that's okay. That's constitutional because it's a neutral regulation that's not attempting to discourage a particular viewpoint, and therefore that was upheld. The central claim of the Baltimore judge, who struck down this requirement that faith-based pregnancy crisis clinics display information about abortion, is that it wasn't neutral. It only applied to these faith-based clinics. It didn't apply to other abortion clinics and therefore really was selected specifically to force faith-based clinics to embrace a message that they didn't embrace. And that was a violation of the First Amendment.

NNAMDIAnd in that case, the judge suggested an alternative. He said the city could try a content-neutral advertising law. What did he mean by that?

ROSENI think he meant that if you said that no medical facility is allowed to engage in deceptive advertising, to claim that they're providing one kind of service while they're actually providing another, that would be fine 'cause it's not targeting the faith-based clinics in particular, but you couldn't just target the faith-based clinics.

NNAMDINew York City Council says it has crafted its law more specifically than the Maryland one, and that it will withstand a legal challenge. To yours truly, as a non-lawyer, they look pretty similar. What do you think?

ROSENJustice Kojo, I think you put your finger on it. They look pretty similar to me, too. There's a slight difference, which is that the New York law applies to all pregnancy crisis centers, and the Baltimore law applied only to faith-based pregnancy crisis centers. So if a judge were inclined to uphold the New York law, he would say it's broader and content-neutral. But my instinct is with yours. I think a judge might well hold the New York, that because this law, like the Baltimore one, is targeting pregnancy centers, because of disagreement with the faith-based message and doesn't apply to all medical facilities, the way the Colorado law does, the New York law might very well be struck down, just as the Baltimore law was.

NNAMDIWell, there was one city councilman in New York, Daniel Halloran, who agreed with that. He said when you target speech, it's inherently unconstitutional. One of the individuals who runs such an -- a facility says, I'm going to have to read a government script every time a girl approaches us. It's government-regulated speech which is content- and viewpoint-targeted. It's unconstitutional because it does not apply to other facilities. It applies only to us because of our viewpoint on abortion.

NNAMDIBut then we got a comment from Donna Lieberman of the New York Civil Liberties Union, who said, "This is not viewpoint-based. It's about deception. Unlicensed ideologues have a right to be ideologues to espouse their beliefs, but they don't have the right to dress up as doctors and masquerade as health care providers and deceive women into thinking they've been to a doctor when they have not." What do you say, Jeff Rosen?

ROSENI think, again, you know, you can argue it on other side, as the lawyers do. But the people who wanna support the law would say, just as the New York Civil Liberty person did, it's really about deceptive advertising. The argument on the other side would be if you really are concerned about deceptive advertising, you would forbid that for all medical facilities. You wouldn't just target these pregnancy clinics when everyone knows that the real motive of this law was to focus on these faith-based centers and force them to embrace a message that they don't actually embrace.

NNAMDIWhat happens when different jurisdictions have conflicting laws?

ROSENWell, they get challenged before different courts. And when lower courts disagree, in particular when the lower circuit courts disagree, then that's ripe for a Supreme Court challenge. The Supreme Court is most likely to hear a case when you have a split between the circuit courts. We haven't quite gotten that far in these cases, but it seems like it could well be headed up to the Supreme Court.

NNAMDIWell, there is clearly some confusion here. Reportedly, there are around 4,000 faith-based "crisis pregnancy centers" in the country compared to fewer than a thousand abortion clinics. And the crisis centers often locate themselves across the street from clinics, which leads to the confusion. Do you see any way that legislators might be able to clear up that confusion easily, and if not legislators, then who?

ROSENThat is an interesting challenge. You know, on the one hand, these faith-based clinics are choosing their locations as a form of political protest, or in order to signal their effort to provide an alternative to the abortion centers. On the other, there's a danger of confusion. I think the Baltimore judge gave a roadmap for the right way to draft the law. You would draft the law to include all medical facilities. You would say that they have to provide a notice of the services they do provide and those that they don't. And I think that might very well do the trick. So I'm sure a smart lawyer who really wanted to pass a law that could pass constitutional muster could, in fact, draft one.

NNAMDII'd like you to reiterate how the buffer zones around clinics that provide abortions did pass constitutional muster when it was challenged.

ROSENAgain, this was the Hill case in 2000. And the rule was it applied to all medical facilities. And the law -- the rule was that you are not allowed to approach anyone within 8 feet of the buffer zone. And because it didn't target speech but was broadly created -- there's a hundred-foot buffer zone around all medical facilities. That was held to be fine.

NNAMDIWell, compare that to the recent Supreme Court ruling that seemed to say that there does not need to be a buffer zone around funerals when proponents of protesters or supporters of protesters who have been protesting at military funerals violate what they feel is their privacy in the buffer zone. Why are buffer zones around clinics allowed, but apparently not around the funerals of veterans?

ROSENVery good question, and it's a very interesting analogy. In the funeral case, it was relevant that the people who are attending the funeral could not see the protesters. In practice, the protesters were a thousand feet from the funeral, and the family members weren't made aware of the message until after the funeral. And in fact, since the case came down, the court noted -- I think it was Maryland has actually passed a buffer zone funeral law, saying you have to stay something like a thousand feet away.

ROSENSo, for the court, it was relevant that the context suggested the speech wasn't targeted at the attendees of the funeral in a way that they could see. And the court went out of its way to stress that neutral buffer zone laws at funerals would be fine -- those would be time, place and manner restrictions. That funeral case, which, of course, got a lot of attention, is a reminder of how incredibly pro-free speech this court is, even when you're dealing with speech that people hate the most. And that suggests that in a case like these abortion cases that the Roberts court might well be inclined to say you can have neutral regulations, but you cannot target speech in this way.

NNAMDIAny other cases that we might want to be looking at to see how the court comes down on this issue?

ROSENI think we've covered the gist of them. The abortion bubble zone cases are so well-established right now that I think they do provide a good roadmap for how you can draft these buffer zones if you really wanted to in a constitutional way.

NNAMDIJeff Rosen is a professor at George Washington University Law School and the Legal Affairs editor at The New Republic. His most recent book is called "The Supreme Court: The Personalities and Rivalries That Defined America." Jeff Rosen, thank you very much for joining us.

ROSENA pleasure to talk. Thank you.

NNAMDIAnd thank you all for listening. I'm Kojo Nnamdi.