Monday, March 02, 2015

Pregnancy clinic ads are commercial speech

First Resort, Inc. v. Herrera, No. C 11-5534 (N.D. Cal. Feb. 20, 2015)   
The court rejected a facial challenge to San Francisco’s Pregnancy Information Disclosure and Protection Ordinance, “aimed at ensuring that indigent women facing unexpected pregnancies are not harmed by false or misleading advertising by certain providers of pregnancy-related services that do not offer abortions or referrals for abortions.” First Resort is a non-profit corporation which operates a state-licensed community medical clinic in San Francisco. The clinic offers pregnancy testing, ultrasounds and counseling, but not abortions, emergency contraception, or referrals for same.  
First Resort’s ads characterize it as a provider of medical care and counseling services for pregnant woman. Abortions and related resources are “featured prominently in its promotional materials.”  Thus, its website has a heading “Abortion Counseling,” claiming to offer “abortion information, resources, and compassionate support for women facing the crucial decisions that surround unintended pregnancies and are considering abortion.” Another page discusses “Pregnancy Services and Abortion Services,” and claims to provide “pregnancy options counseling and many other services.” The website and ads make no mention of First Resort’s anti-abortion views or refusals to provide abortions or referrals.  First Resort targets women considering abortion, and uses Adwords to show its paid ads when “San Francisco” and “abortion” or “emergency contraception” are used in combination.  It considers keyword advertising “a means of competing with abortion providers for the attention of online viewers.”
First Resort relies on donations generated through fundraising. Members of First Resort’s senior management receive enhanced compensation based on the number of new clients brought in.
San Francisco passed the Ordinance because pregnancy clinics that oppose abortion—“crisis pregnancy centers”—have become common throughout California. While some centers readily acknowledge their anti-abortion stance, others don’t.  The City found that some intentionally deceive women, causing them harm.  The deception is especially harmful to poor women, for whom time is of the essence, “and even a few days delay in accessing emergency contraception or abortion services can render less invasive options unavailable.”
The ordinance therefore barred a “limited services pregnancy center” from making statements of fact related to their services that were “untrue or misleading, whether by statement or omission,” when the center knew or should reasonably know were untrue or misleading.  In particular, it was unlawful to make statements “with the intent not to perform the services expressly or impliedly offered, as advertised.”  After giving notice of a violation, the City Attorney could file a civil action, with injunctive relief available as well as civil penalties of $50-500.
Because First Resort brought a facial challenge, it had a heavy burden of showing unconstitutionality across the board. The City took the position that the Ordinance only regulated false and misleading conmmercial speech, which is unprotected.  There was no dispute that only false and misleading speech was targeted, so the court asked only whether the Ordinance regulated commercial speech.

The Supreme Court has held that speech may be “characterized as commercial when (1) the speech is admittedly advertising, (2) the speech references a specific product, and (3) the speaker has an economic motive for engaging in the speech.” While “[t]he combination of all of these characteristics . . . provides strong support for the . . . conclusion that [the communication is] properly characterized as commercial speech,” it is not necessary that each of the characteristics “be present in order for speech to be commercial.”  Factors (1) and (2) were true of First Resort’s ads here.
First Resort argued that its ads weren’t commercial speech because it didn’t engage in economic transactions with its clients and thus had no economic motive for its communications. But that wasn’t helpful for a facial challenge. In any event, failure to charge a fee wasn’t dispositive.  The record strongly supported the conclusion that First Resort’s ads, in context, were economically motivated.  First Resort paid for Adwords, and considered its ads a means of competing with abortion providers for online attention.  “Notably, First Resort’s ability to attract clients to its clinic is critical to its fundraising efforts—which, in turn, are necessary to First Resort’s operations, including the provision of free services.” Thus, the ads were economically motivated, and even for First Resort the Ordinance targeted commercial speech.
True, fundraising per se isn’t commercial speech, but it was First Resort’s ads, not its fundraising activity, that was at issue; the fundraising just provided context to the economic motivation. First Resort also argued that its ads were inextricably intertwined with noncommercial exhortations to get free pregnancy counseling.  But the Ordinance didn’t regulate any such solicitations—only the (unprotected) false advertising thereof.
Also, even if the First Amendment were implicated, the Ordinance was not impermissible content or viewpoint discrimination. The regulation depended on the services offered by a clinic, not its views; there were many reasons a clinic might not offer abortions that were unrelated to its views on abortion. First Resort and other clinics remained free to express their views.  This reasoning also disposed of First Resort’s equal protection claim.  First Resort argued that it was being discriminated against in violation of its right of conscience.  But the Ordinance didn’t compel First Resort to support any particular belief about abortion; it just couldn’t defraud or mislead the public about the services it offered.
Finally, First Resort alleged that the Ordinance is preempted by Section 17500 on the grounds that they are “nearly identical and seek to regulate the exact same conduct—false and misleading advertising.” California state preemption of local regulation differs a bit from federal preemption because in theory it could preempt local rules that “duplicate” state law.  But the case law indicated that what “duplicates” really meant was “creates double jeopardy” and this wasn’t a criminal law, so it didn’t create that problem.  Other cases using the “duplicate” rule looked to interference with state law, and there was none here. Also, the Ordinance wasn’t coextensive with state law: it was narrower than the general false advertising law, but also broader in that it covered false advertising even when the services at issue weren’t offered for sale.

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