pregnancy center isn't commercial speaker; common sense can't justify mandated disclosure

Centro Tepeyac v. Montgomery County, No. DKC 10–1259, 2014 WL 923230 (D. Md. Mar. 7, 2014)

The court enjoins Montgomery County’s attempts to make an anti-abortion counseling center conspicuously disclose that they don’t have medical personnel on staff and that “the Montgomery County Health Officer encourages women who are or may be pregnant to consult with a licensed health care provider.” The County’s interest was in avoiding deception of women who might otherwise believe, in part because they associated pregnancy tests with medical care, that they were receiving medical advice/care and therefore delay receiving prenatal care.  The County’s concerns were based in significant part on a study finding that approximately 87% of such centers contacted provided false or misleading information about the health effects of an abortion and a NARAL study that sent volunteers into such centers in Maryland, including Centro Tepeyac, and found that every center visited provided false or misleading information, including “false information about abortion risks, misleading data on birth control, and emotionally manipulative counseling.”

Centro Tepeyac provides its goods and services free of charge, though it does solicit donations and accepts donations from women it serves.  It sued, arguing that the mandatory disclosure chilled its speech and suggested that clients should go elsewhere.

The County provided no additional evidence that any pregnant woman who went to such a center delayed seeking medical care because she believed she had spoken with a licensed medical professional.  The County hasn’t advertised its message in other ways due to resource constraints and due to the public health community’s view that targeted messages work better than broad disseminations.

The court found that strict scrutiny applied.  First, the court rejected the argument that the resolution’s disclosure requirement was triggered only by the Center’s conduct and thus not subject to strict scrutiny.  Providing information about pregnancy-related services (speech) was part of the trigger for the requirement, and thus the requirement was content-based. (To the extent that all services require talking about them, this doesn’t make much sense, though the larger commercial speech doctrine currently deals with most such problems.)  Turner Broadcasting didn’t apply because cable companies aren’t regulated like pregnancy centers; other entities that provide nonprofessional information about other health topics aren’t required to disclose.

Nor were cases upholding abortion disclosure mandates helpful, because the people who perform abortions are doctors, and thus subject to reasonable licensing and regulation.  The Center wasn’t regulated as practicing medicine.

The County argued that the speech here could be treated as commercial speech and/or professional speech, but no dice.  Centro Tepayac’s speech was noncommercial, because it provides free services, which “by definition” can’t be a commercial transaction; and it was motivated by social concerns rather than economic interest.  In rare circumstances, some women served have later donated to Centro Tepayac, but “[t]he infrequent receipt of unsolicited donations from women who have previously visited Centro Tepeyac and the placement of links on Centro Tepeyac’s website to donate does not, as the County contends, prove that Centro Tepeyac offers pregnancy-related services in furtherance of their economic interests.”  Absence of economic motive is not dispositive; even under a more contextual analysis of speaker and listener, though, the speech was noncommercial.  A case in which an anti-abortion provider misleadingly advertised under a name highly similar to that of an abortion provider did involve commercial speech, where the ads expressly stated that financial assistance was available and that major credit cards are accepted and the ads were placed in a commercial context and advertised services rather than promoted ideas.

The County argued that Centro Tepayac did provide products and services, and solicited customers through ads (e.g., its website touting the availability of pregnancy tests, childbirth support, maternity and baby clothing, etc.).  But the websites, while containing donation links, also said that all services were free.  This wasn’t a case in which the ads were “in all practical respects indistinguishable from those of the for-profit clinics.”  Also, the speech being regulated here was within the Centro Tepayac waiting room, “not amongst the general discourse between and among pregnancy-service providers and pregnant women.” There was nothing in the record indicating that Centro Tepayac was advertising its services in the waiting room. Even if the website counted as commercial speech, that didn’t mean that all of its speech could be regulated as commercial speech.

As for the argument that this was professional speech, “professional speech occurs when a party offers individualized advice that engenders a relationship of trust with a client.” As Justice White said, “One who takes the affairs of a client personally in hand and purports to exercise judgment on behalf of the client in light of the client’s individual needs and circumstances is properly viewed as engaging in the practice of a profession.”  Justice Jackson similarly distinguished between general speech and specific advice: “[T]he state may prohibit the pursuit of medicine as an occupation without its license, but I do not think it could make it a crime publicly or privately to speak urging persons to follow or reject any school of medical thought.... This wider range of power over pursuit of a calling than over speech-making is due to the different effects which the two have on interests which the state is empowered to protect.”

But merely providing information to women and leaving them to decide on their own how to use pregnancy-related information wouldn’t be professional speech.  “Not every offering of advice or information creates a relationship of trust.”  The County argued that Centro Tepayac promised confidentiality to women, an indicator of professional speech, but that wasn’t enough.  There was no evidence that Centro Tepayac did more than provide pregnancy-related information; nothing showed that it purported to exercise judgment on behalf of its clients.  Discussion of professional subject matter isn’t inherently practice of a profession.

Strict scrutiny was therefore applied; it was fatal in fact, as applied to Centro Tepayac (though since the challenge was as applied, the court didn’t hold the Resolution facially unconstitutional). Assuming that protecting health was a compelling interest (assuming?), there wasn’t enough evidence that the restriction at issue actually furthered that interest. A state must identify an actual problem in need of solving, and the speech restriction must be necessary to the solution. 

Along with the reports of false/misleading claims by pregnancy centers, individuals testified that they visited centers in Montgomery County, including Centro Tepayac.  They received medical-ish claims about abortion and birth control and had to ask before volunteers disclosed that staff weren’t doctors and that abortion/birth control weren’t available from the centers.  Opponents of the regulation testified that they didn’t confuse anyone; the Shady Grove Pregnancy Center stated on its website that it wasn’t an abortion provider and their intake form says that the center isn’t a medical facility; Birthright’s testimony was similar. Likewise, Centro Tepayac’s pregnancy test form says, in English and Spanish, that a test result is “not a diagnosis. The person to make a diagnosis is your physician. We recommend you contact your doctor as soon as possible.”  Centro Tepayac is not decorated like a medical facility, but is supposed to be “homey.”  If asked, its volunteers would state it is not a licensed medical facility, but they do not immediately volunteer it because they want to focus on their positive aspects.

The court found the record insufficient to sustain the regulation.  “Assuming arguendo [(!)] that the County has a compelling interest in positive health outcomes for pregnant women, the critical flaw for the County is the lack of any evidence that the practices of [pregnancy centers] are causing pregnant women to be misinformed which is negatively affecting their health. It does not necessarily follow that misinformation will lead to negative health outcomes.” 

(Okay, sorry, interjection is not enough here.  In what way is protecting women’s health “arguably” not a compelling interest?  By contrast, here are things recognized as compelling interests in U.S. v. Alvarez, 132 S.Ct. 2537 (2012): “recognizing and expressing gratitude for acts of heroism and sacrifice in military service,” “‘foste[ring] morale, mission accomplishment and esprit de corps’ among service members,” and “the integrity of the military honors system in general, and the Congressional Medal of Honor in particular.”  Those are compelling interests.  But women’s health, only “arguably.”  But hey, what war on women?)

Anyhow, the County only provided evidence for the cause (misinformation), not the effect (health harms).  (Interesting also that the harm to women’s autonomy from being misinformed is not important here.  Because this is an abortion case, it’s not really a First Amendment case, so no free speech lessons ought to be taken from it, but if we were in the business of doing so, I would note that many, many consumer protection laws rest on the premise that consumers have an interest in knowing the truth and making up their own minds, rather than on being told what an advertiser would prefer they think.  I think that’s a pretty compelling interest too, and I would expect in a non-abortion case that most courts would agree—after all, even Alvarez found that the government had a compelling interest in the “integrity,” which is to say truthfulness, of representations about the Medal of Honor.)

Even assuming that the pro-choice volunteers who did this investigating are telling the truth (how generous!), and thus that pregnancy centers are presenting themselves as medical providers and women are accepting their misinformation as sound medical advice, that still doesn’t show harm to pregnant women’s health.  There was no evidence that anyone forewent or delayed medical care after patronizing a center. Evidence that people were angry at having been tricked didn’t include evidence of negative health outcomes.

This was the same as Brown v. Entertainment Merchants Association, where there wasn’t sufficient evidence that violent video games cause aggression in minors.  Important ends don’t always translate to legitimate means. The state “bears the risk of uncertainty, ambiguous proof will not suffice.” While intuitively a failure to disclose nonmedical status might lead to delayed medical treatment, that’s also true about violent video games leading to youth violence.  When core First Amendment interests are implicated, mere intuition is insufficient, as are anecdotes. 

Final comment: This is not unique to this opinion, but we really don’t have any First Amendment theory of when anecdotes become data. Sometimes the Court even allows “common sense” to do the causal lifting.  Florida Bar v. Went For It, Inc., 515 U.S. 618, 628 (1995) (“Indeed, in other First Amendment contexts, we have permitted litigants to justify speech restrictions by reference to studies and anecdotes pertaining to different locales altogether, or even, in a case applying strict scrutiny, to justify restrictions based solely on history, consensus, and “simple common sense.”) (citations omitted). But this is an abortion case, so we won’t get a replicable answer here anyway.

I probably should add:  The First Amendment is also for people with whom we disagree, sometimes including people whose noncommercial speech is deceptive.  I don't find intermediate parts of the reasoning persuasive, and I think they'd have bad consequences were they applied elsewhere.  I would appreciate more consistency, but I don't think the result here is surprising or out of the mainstream.