Friday, July 05, 2013

Limited service pregnancy centers may be engaging in misleading commercial speech

Greater Baltimore Center for Pregnancy Concerns, Inc. v. Mayor and City Council of Baltimore, No. 11-1111 (4th Cir. July 3, 2013) (en banc)

Panel opinion discussed here.  Once again, though this walks like a First Amendment case, the fact that it is an abortion case makes it of likely limited practical significance for any other type of speech, but because hope reigns eternal I cover it here.  Also, plenty of grist here for those who believe that procedure is substance.

The district court permanently enjoined Baltimore’s ordinance requiring limited-service pregnancy centers to post disclaimers that they don’t provide or make referrals for abortion or birth control services.  The majority reversed because the district court improperly denied the city discovery and otherwise disregarded basic rules of civil procedure.

Before an answer had been filed, plaintiffs sought summary judgment, arguing that the ordinance discriminated based on viewpoint and failed strict scrutiny.  They argued that the disclaimer ensured that “every conversation at a limited-service pregnancy center begins with the subject of abortion, and convey[ed] the morally offensive message that abortion is available elsewhere and might be considered a good option.”  The city, by contrast, characterized the ordinance as a consumer protection regulation, referring to legislative history finding that limited-service pregnancy centers often engage in deceptive advertising to attract women seeking abortion and comprehensive birth control centers and then use delay tactics to keep women from getting those services, thus threatening their health because the risks and costs of abortion increase as a woman advances through her pregnancy, and because delays in access to birth control can leave the woman vulnerable to unintended pregnancy and sexually transmitted diseases.  The city submitted four pieces of evidence from the legislative record relating to false advertising by pro-life pregnancy centers—a US congressional report on misleading practices including attempts to advertise as providing “abortion” services; a NARAL report on misleading practices in Maryland specifically; written testimony from a woman who, 16 years previous, as a 16-year-old was misled by a center advertising under “Abortion Counseling”; and written testimony from a doctor at U Md. who testified that, “[a]s an educator of college-aged women,” she had “heard countless stories from students who go [to limited-service pregnancy centers], assuming they will get a full range of services and counseling and wind up feeling harassed, coerced, and misinformed.”  The city also argued that summary judgment was premature and that discovery into the Center’s advertising practices was justified, as well as discovery into whether the Center’s services were a form of commerce and thus the ordinance regulated commercial speech.  The city also said that it would provide further evidence of the harms from delays in access to birth control/abortion services, and the vulnerability of women seeking family planning/pregnancy care to deception.

The district court found that, by submitting the legislative record, the city had converted its motion to dismiss into a motion for summary judgment.  It rejected the city’s request for discover as an improper “attempt to generate justifications for the Ordinance following its enactment.”  It defined its task as to determine whether the ordinance on its face was subject to and satisfied the applicable level of scrutiny, confining itself only to the evidence relied on by the city counsel when the ordinance was passed.  The district court then found that strict scrutiny applied, because the services it offered were free despite having commercial value, like sacramental wine, communion wafers, and prayer beads; that any commercial and noncommercial elements were inextricably intertwined; and that the ordinance failed strict scrutiny because the dialogue between the centers and women begins when women enter the waiting room, and the mandated sign would alter the course of the center’s communications with them.  Plus, the district court found that the ordinance was enacted out of disagreement with plaintiffs’ viewpoints, because, being targeted at those who don’t offer abortion or birth control, it therefore was discriminatorily aimed at those with objections to such services.  Even assuming a compelling interest, the ordinance wasn’t narrowly tailored to target only centers engaging in deceptive practices; the city could use existing regulations on false advertising or a new content-neutral ordinance applicable to noncommercial entities.

The majority didn’t evaluate the ultimate merits, though.  The chief error was awarding summary judgment without discovery, which was an abuse of discretion based on an error of law, since there wasn’t proper notice by the court that it was going to treat the motion to dismiss as a motion for summary judgment.  Submitting the legislative record doesn’t, as a matter of clear circuit precedent, constitute submission of material beyond the pleadings justifying such a conversion.  Moreover, conversion is only justified if the parties are afforded a reasonable opportunity for discovery.

The district court denied discovery on the theory that a facial challenge made discovery unwarranted.  But the district court didn’t “fairly examine” whether the ordinance was invalid in all or even a substantial number of applications, as required for a facial challenge. Instead, the district court accepted the center’s description of itself and then assumed that all limited-service pregnancy centers shared the same characteristics. This was as-applied rather than facial review, but a proper as-applied challenge would’ve required discovery.

A further abuse of discretion came when the district court restricted its analysis to the legislative record.  A justification for a law can’t be invented post hoc in response to litigation, but the record can be augmented with evidence to support the existing justification, which was all the city sought to do.

The district court additionally failed to draw all justifiable inferences in the nonmovant’s favor.  The divide between noncommercial and commercial speech is very important here, since disclosure requirements aimed at misleading commercial speech need only survive rational basis scrutiny by being reasonably related to the prevention of deception. The city’s commercial speech theory shouldn’t have been rejected so early by the district court, though it might not ultimately succeed.  The city argued that limited-service pregnancy centers proposed commercial transactions every time they offered to provide commercially valuable goods and services, such as pregnancy testing, sonograms, or options counseling, to a consumer.  Whether speech is actually commercial is fact-driven.  Speech beyond “I will sell you X good at Y price” can be commercial, depending on the circumstances.  The district court reasoned that the plaintiff’s purpose in advertising wasn’t to propose a commercial transaction, nor was its speech related to the center’s economic interest.  But it wasn’t undisputed that the plaintiff’s motives were entirely religious or political; discovery was needed to determine whether, for example, centers were referring women to pro-life doctors in exchange for charitable contributions. 

Anyway, commercial speech doesn’t depend entirely on the center’s economic motive.  Context matters, including the listener’s viewpoint, since commercial speech’s level of constitutional protection is predicated not just on the speaker’s interest but on the way in which such speech assists consumers and disseminates information.  See Fargo Women’s Health Organization, Inc. v. Larson, 381 N.W.2d 176 (N.D. 1986) (enjoining deceptive advertising misleading women to believe that a clinic provided abortions in order to lure them in for anti-abortion counseling; though services were free to women, speech was still commercial if the ads were in a commercial context and directed at providing services and soliciting patronage rather than exchanging ideas).  This context differentiated the services here from sacramental wine, etc.; no one alleged that churches were advertising their provision of the latter in a commercial context to solicit patronage.  Without all the pertinent evidence, it was impossible to analyze the regulated speech.

The existing record did have some relevant evidence, including ads for Option Line, with which the plaintiff had a relationship.  Option Line advertised that its “consultants will connect you to nearby pregnancy centers that offer the following services”: “Free pregnancy tests and pregnancy information”; “Abortion and Morning After Pill information, including procedures and risks”; “Medical services, including STD tests, early ultrasounds and pregnancy confirmation”; and “Confidential pregnancy options.”  The city argued that the ad was deceptive.

Nor was any commercial speech inextricably intertwined with fully protected speech as a matter of law.  The district court merely speculated that “[t]he dialogue between a limited-service pregnancy center and an expectant mother begins when the client or prospective client enters the waiting room of the center.” And it “prematurely and perhaps inaccurately characterized [the required] disclaimer as ‘a stark and immediate statement about abortion and birth-control,’ i.e., a declaration that abortion and birth control are morally acceptable options.” Discovery could refute these factual assumptions and show that any commercial aspects of a limited-service center’s speech weren’t inextricably intertwined with fully protected noncommercial speech by showing that nothing in the ordinance prevented the center from conveying noncommercial messages.

And the district court precipitately concluded that the ordinance discriminated based on viewpoint, surmising that it must have been aimed at centers with moral or religious qualms about abortion or birth control.  But the fact that a regulation covers people with a particular viewpoint doesn’t itself render the regulation content or viewpoint based.  Viewing the legislative record in the light most favorable to the city, there was evidence that the ordinance was enacted to fight deceptive advertising and promote health.  Also, there might be limited-service pregnancy centers without moral or religious qualms that refrain from providing or referring for abortion or birth control for other reasons.

And finally, the district court erred by determining that the ordinance wasn’t narrowly tailored. If strict scrutiny applied, the city had to be given the opportunity to develop evidence relevant to the compelling government interest and narrow tailoring issues, including evidence on the purportedly less restrictive alternatives. 

The majority noted that, on the same day, the 4th Circuit approved a partial preliminary injunction against a similar law in Montgomery County (enjoining a required disclosure that “the Montgomery County Health Officer encourages women who are or may be pregnant to consult with a licensed health care provider” but not a required disclosure that “the Center does not have a licensed medical professional on staff”).  This procedure avoided constitutional injuries to the plaintiff, assuming strict scrutiny applied, but paid attention to the fact that the record was undeveloped.  That preliminary decision was not an abuse of discretion. 

The majority took the position that the two cases were therefore perfectly consistent, while the dissenters here “would wholly exempt the Center from fundamental procedures to which all civil litigants are both subject and entitled.”  The dissenters “candidly acknowledge[d] that ‘the district court engaged hypothetically from time to time in discussion about the potential relevance of facts,’” but didn’t deal with that problem.  The Federal Rules exist to further due process and deserve respect, especially given the ready availability of preliminary injunctive relief.  Among other things, the dissenters mischaracterized the city’s aim as avoiding misrepresentations about abortions; though there was record evidence that limited-service centers did provide misinformation about abortion, such as that it caused breast cancer, the city always took the position that the ordinance was aimed at deceptive advertising aimed at women seeking abortion and birth control services and then using delay tactics to keep women from those services.

Judge Wilkinson dissented, saying a lot about “the dangers of state-compelled speech.”  The Center really, really doesn’t want to post the disclosure, because it believes that abortion and birth control are profoundly wrong and that even to mention them suggests that they’re readily available elsewhere, thus suggesting that they are viable options.  It may not be technically viewpoint discriminatory, but it compels groups that oppose abortion to “utter a government-authored message without requiring any comparable disclosure -- or indeed any disclosure at all -- from abortion providers.”  (Planned Parenthood feels your pain.)

What about the procedure stuff?  This was an “indiscriminate,” “amorous affair with litigation that is anything but benign.”  The question was whether drawing out the case would “vindicate the assertion of a constitutional right or suffocate it.”  Requiring the Center to suffer through discovery imposed a high price on it for attempting to vindicate its free speech rights, and here the majority authorized a fishing expedition into its motives and operations looking for some vaguely “commercial” activity.  Potential profit motives were “far-fetched hypotheticals.” The resulting delays and costs were especially onerous given the plain violation of the plaintiff’s constitutional rights.

Plus, the city rushed to regulate speech rather than considering other alternatives; mandated speech should be a last resort, but the legislative history didn’t indicate any attempt to consider alternatives. “Posting warning signs in its own voice outside the Center, undertaking a public information effort of its own, or applying the anti-fraud provisions in state law are all alternatives that the City now seems eager to reject but nowhere indicates it ever considered or tried.”  Based on the city’s “bald assertion” that these wouldn’t work, the majority authorized discovery.  Authorizing discovery without a showing that less restrictive alternatives had been considered encourages legislatures to adopt “the most constitutionally offensive option rather than the least.”

The majority also erroneously treated the plaintiffs’ challenge as as-applied rather than facial, forcing other centers with similar beliefs to sue in a war of attrition.

Sometimes the government can get discovery.  “But one does not need discovery to discover the obvious.”  (But are the ads misleading?  Why wouldn’t discovery help illuminate that question?)

Judge Wilkinson noted that compelled speech can further a pro-life agenda as well as a pro-choice one, and argued that the majority’s rule would “bite the very hands that feed it.”  “It is easy to imagine legislatures with different ideological leanings from those of the Baltimore City Council enacting measures that require organizations like Planned Parenthood to post a statement in their waiting rooms indicating what services they do not provide. Indeed, after today’s decision, I would expect a flurry of such measures.”  (Myself, I think legislatures are too busy mandating four-foot-wide doorways and hospital admission privileges to truck with trivialities like signs on the wall, but who knows?)

(Aside from the assumption that the majority was acting only to further an abortion rights agenda, though, the dissent has an important point, except that the horse is well out of the barn. It’s notable that Judge Wilkinson didn’t have any precedent to cite showing that abortion providers receive meaningful First Amendment protection right now, because they don’t.  His posited “services we don’t provide” disclosures are highly beside the point, given the mandated disclosures about risks etc. that have already been approved despite their much greater factual contestability.  If courts presently applied the same compelled speech analysis to abortion providers that they did to anyone else, the dissent would have a good point.  Also, we might still want to discuss advertising for the services separately, as opposed to statements made in the course of delivering the services.)

Finally, Judge Wilkinson noted, the state did have broad police powers to regulate for health and safety, “which includes the authority to require the disclosure of limited amounts of accurate information.”  (Perhaps he has remembered the existing disclosure requirements on abortion providers after all?)  But “the state generally may not force individuals to utter statements that conflict with beliefs so profound that they define who we are.”  (Note that statements like “abortion ends a human life” have at least a structural similarity to “we don’t provide abortions”—the problem for both sides is what they imply, not the brute fact.  Uncharitably, I suspect that lurking underneath Judge Wilkinson’s formulation is the idea that the belief that women should be able to choose whether to bring pregnancies to term, and the belief that such choices are vitally important to their well-being, are not beliefs “so profound” as to define who a person is.)

Judge Niemeyer separately dissented.  There was no need for discovery, because everything here was a question of law.  Compelled speech and content-based regulations always impose huge burdens and are subject to strict scrutiny, even when the regulated speech includes potentially commercial speech. Because the ordinance regulates both commercial and noncommercial speech by addressing all providers of limited pregnancy services regardless of their motives, and because it didn’t prohibit misrepresentations but rather mandated speech regardless of what the pregnancy center represented, the facial challenge should’ve succeeded. 

(One of the majority’s theories of why the speech might be commercial, and the more plausible one it seems to me, is not primarily a factual question—the idea is that by looking to consumers like a commercial service provider, which is part of the deceptiveness, the center is engaging in commercial speech, since an economic motive is not absolutely required to be commercial speech under Bolger and since the center appears to be offering services rather than offering an invitation to engage in discourse.  While discovery might not be needed on this point (though evidence of consumer reception might well be relevant), if it is still the case that an economic motive isn’t absolutely required—that is, if Bolger is still good law—then the dissent isn’t really engaging with the issue, which is the proper definition of commercial speech.)

The city had the burden of justifying the restriction, and it failed.  Less restrictive alternatives included public education campaigns on the “alleged” dangers of pregnancy centers or promotion of consultation with doctors for pregnant women, along with prosecuting violations of false advertising laws.  (I wonder how the dissenters would feel about a lawsuit charging a limited-service center with advertising a service it didn’t intend to provide: classic bait and switch.  If, as the dissenters are sure, the centers are not engaging in commercial speech, are they subject to such laws?)  Discovery wouldn’t be needed to tell whether the ordinance was overinclusive.  Narrow tailoring is a question of law, determining whether the challenged law “targets and eliminates no more than the exact source of the ‘evil’ it seeks to remedy.” (Still seems like one might occasionally want facts about that, especially if the alternatives don’t work.)

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