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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