NJ reproductive health bill raises First Amendment concerns

Free speech advocates say a liability provision could expose people to lawsuits over protected speech.

Free speech advocates are warning that a provision in a reproductive rights bill headed to a vote in the New Jersey Legislature could violate the First Amendment by exposing journalists and others to lawsuits based on protected speech.

The concerns center on a single section of Assembly Bill A2218 and Senate Bill 2260, which was approved by the Senate two weeks ago and is scheduled for a vote in the full Assembly on Thursday, June 11.

Critics are not challenging the broader legislation, which would expand protections for reproductive health care providers and patients and create criminal penalties for assault, threats, intimidation, obstruction, and property damage directed at people seeking or providing reproductive health care services.

They object to a provision that would allow a person to sue if someone “causes a reasonable person to suffer damage to the person’s business or personal reputation, financial harm, or pain and suffering, mental anguish, or emotional harm” because the person, entity, or facility provides, volunteers, assists with, or receives reproductive health care services.

The New Jersey Press Association is among the organizations opposing the provision in Section 6 of A2218 and Section 5 of S2260.

“These bills lack basic constitutional safeguards and would punish truthful reporting relating to reproductive health care services, as well as protected opinions about such services,” New Jersey Press Association Chairman Brett Ainsworth said.

Free speech advocates argue the disputed provision creates liability without requiring that speech be false, defamatory, threatening, or otherwise fall within one of the narrow categories of expression that courts have historically allowed governments to regulate.

The First Amendment generally protects truthful speech, criticism, and opinions. Courts have recognized only limited categories of speech that may be punished, including defamation, fraud, obscenity, incitement, fighting words, true threats, speech integral to criminal conduct, and child pornography. 

According to opponents, the bill’s language could expose journalists, advocacy groups, and ordinary residents to lawsuits based on truthful reporting or protected opinions if someone claims the speech caused reputational, financial, or emotional harm.

“Language around the vague term ‘reasonable person’ enables broad claims to ostensibly protect reputations or hurt feelings,” Ainsworth said.

“For example, contrary to what the Constitution requires, the expansive language means a reporter could be civilly or criminally liable for publishing an article about the troubling practices of a reproductive healthcare services provider, even if the reporting was well-documented and fully accurate,” he said. “A provider could simply assert his or her reputation or emotions were harmed by that truthful reporting.”

Under the bill, a court could award injunctive relief, compensatory damages, punitive damages, attorney’s fees, and other equitable relief. The attorney general would also be authorized to bring civil actions and seek penalties against violators.

“NJPA believes these bills run afoul of the First Amendment in multiple ways and would be struck down by a court,” Ainsworth said. “If adopted, however, the proposed bills would chill free speech in the interim and ultimately saddle some future defendant with the burdens of proving that unconstitutionality. NJPA strongly encourages the Legislature to strike these provisions from the bills.”

Lawyer CJ Griffin, the director of the Stein Public Interest Center at Pashman Stein Walder Hayden, noted that reporters regularly write about reproductive rights and gender-affirming care.

“Under this language, if you report on a provider’s practices and that provider claims the coverage caused emotional harm or damaged their reputation, you could be sued — even if the reporting is accurate,” Griffin said. “The same concern applies to commentary about people who receive these services. The provision is extraordinarily broad and vague.”

Griffin noted that the bill is largely a response to attacks on reproductive and gender-affirming health care.

“I know many people will be disappointed to see any part of it challenged or delayed. But the ultimate constituent has to be the Constitution,” she said. “This provision is unconstitutional because it seeks to impose civil and potentially criminal penalties on protected speech.”

Griffin expressed concern that even if a court ultimately strikes down or narrows the language to comply with the First Amendment, it will chill speech in the meantime.

“Someone will have to be dragged into court, bear the expense, and prove that the law cannot constitutionally be applied to their speech,” she said.