Monday, January 08, 2018

"pregnancy center" wasn't commercial speaker and couldn't be forced to disclose anti-abortion stance via mandatory label

Greater Baltimore Center for Pregnancy Concerns, Inc. v. Mayor of Baltimore, 2018 WL 298142 (4th Cir. Jan. 5, 2018)

The court of appeals affirmed the invalidation of an ordinance requiring pregnancy clinics that do not offer or refer for abortions to disclose that fact through signs posted in their waiting rooms: “The City has considerable latitude in regulating public health and deceptive advertising. But Baltimore’s chosen means here are too loose a fit with those ends, and in this case compel a politically and religiously motivated group to convey a message fundamentally at odds with its core beliefs and mission.”

As applied to the Center at issue, the ordinance didn’t regulate commercial speech.  Its speech didn’t propose a commercial transaction, certainly not “in the waiting room where the disclaimer would appear. Even if pregnancy-related services are discussed there, the Center collects no remuneration of any kind, including referral fees from physicians. A morally and religiously motivated offering of free services cannot be described as a bare ‘commercial transaction.’” The fact that the Center advertised its services, some of which had commercial value in other context, didn’t itself transform the Center’s ideological and religious advocacy into commercial activity.  This distinguished the ordinance from the application of general false advertising laws to actual advertising by similar clinics; the ordinance applied to pregnancy centers regardless of whether they advertised at all. The record didn’t show that the Center had an economic motivation for its speech; even if its fundraising depended on the ability to attract clients, speculation about that fact, without more, was too attenuated to be an economic motivation.

The court of appeals also rejected the attempt to defend the ordinance as a regulation of professional speech.  Professional speech regulations are subject to sliding-scale review, depending on where the speech is placed on the continuum from public dialogue on one end to regulation of professional conduct on the other.  This review “applies to traditional occupations, such as medicine or accounting, which are subject to comprehensive state licensing, accreditation, or disciplinary schemes,” and at its core is when “the speaker is providing personalized advice in a private setting to a paying client.”

The Center wasn’t like that.  Maryland doesn’t require pregnancy centers to be licensed or otherwise subject to a state regulatory scheme.There was no medical or professional board that certified the Center’s employees, nor any disciplinary panel that regulates their conduct. The Center had a volunteer “medical director” who was a licensed physician, but she was “very rarely” on site and didn’t meet directly with clients. Thus, no one in the Center practiced a “profession” “in the traditional sense contemplated by our First Amendment jurisprudence.” Although the Center “provid[es] personalized advice in a private setting,” its clients weren’t paying.  [I take it that the court of appeals isn’t saying that pro bono medical/legal services couldn’t be regulated by professional licensing bodies—but now how do we decide what is unauthorized practice of law/medicine in individual consultations?]

In a footnote, the court of appeals distinguished the Ninth Circuit’s decision in Harris, 839 F.3d 823, cert. granted, No. 16-1140 (U.S. Nov. 13, 2017). That law, which was upheld by the Ninth Circuit, required only licensed clinics to post a notice informing women of the availability of state-sponsored services, including abortion, and a phone number to call for more information.  That disclaimer was “markedly” different in who it covered, and thus in the scrutiny that it received, as well as in content.  Unlicensed clinics simply had to post a notice stating that their facilities weren’t licensed by the state; because that compelled speech didn’t mention abortion, “the burden on the speaker—and therefore the First Amendment analysis—was different in kind.”

Anyway, because of this noncommercial/nonprofessional context, the disclosure requirement was subject to strict scrutiny, and failed. Although the compelled speech was “essentially factual,” that didn’t “divorce the speech from its moral or ideological implications.” Here, the compelled speech was particularly troubling because “the disclaimer portrays abortion as one among a menu of morally equivalent choices. … The message conveyed is antithetical to the very moral, religious, and ideological reasons the Center exists.”  [Of course, this reasoning will not regularly be applied to mandatory disclosures of facts/non-facts by clinics that provide abortion services, because abortion doesn’t get ordinary First Amendment treatment.]  The court of appeals cautioned that the Center’s anti-choice mission gave it “no license at all to lie to women, … [b]ut it does provide some latitude in how to broach a sensitive topic.”  

Baltimore’s interests in fighting deceptive advertising and preventing the health risks that can accompany delays in abortions were “plainly important.” However, the court of appeals agreed with the district court that “there is insufficient evidence to demonstrate that deception actually takes place and that health harms are in fact being caused by delays resulting from deceptive advertising.”  After seven years, Baltimore didn’t identify “a single example of a woman who entered the Greater Baltimore Center’s waiting room under the misimpression that she could obtain an abortion there.” [Note the implicit suggestion that the evidence must be about the particular entity at issue.  Query whether the same logic could be applied against a clinic just starting up?  What about against the FTC’s Franchise Rules, which require a lot of disclosures based on experience with franchises in general?  Commercial speech doctrine presently should distinguish that last example, though rumblings from the DC Circuit suggest otherwise.  My own opinion is that one could coherently say “generalization from a record of bad behavior within this field is allowed where the speech is commercial, but must be individualized where the speech is noncommercial.”]

Plus, Baltimore wasn’t using the most narrow means:

It is scrutiny of means that helps identify the point on the spectrum where valid disclosures slip silently into the realm of impermissible compelled speech. Particularly troubling in this regard is (1) that the ordinance applies solely to speakers who talk about pregnancy-related services but not to speakers on any other topic; and (2) that the ordinance compels speech from pro-life pregnancy centers, but not other pregnancy clinics that offer or refer for abortion.

Thus, the regulation was neither content nor viewpoint neutral.  [Compare: the Franchise Rules apply solely to speakers who offer franchises, but not speakers on any other topic, and the ordinance compels speech from franchisors, but not other businesses that refuse to franchise/sell things that aren’t franchises.  Without commercial speech doctrine, these are the same situations, and it seems that only generic fraud law would be constitutional, even if there are specific industries in which prophylactic and information-providing measures would be helpful.]

The court of appeals was also unpersuaded that less restrictive means were unavailable. The government itself could inform citizens about the scope of services offered at various facilities “through a public advertising campaign,” and it could enforce laws against misleading advertising. More fundamentally, there was “only a loose fit between the compelled disclosure at issue and the purported ills identified by the government.”  If the problems are deceptive advertising and consequent delays in abortion services. In that respect the ordinance is quite overinclusive, it’s overinclusive to apply to pregnancy centers “without regard to whether their advertising is misleading, or indeed whether they advertise at all.”

In what one might read on commentary on present matters beyond abortion, the court of appeals concluded, “[w]eaponizing the means of government against ideological foes risks a grave violation of one of our nation’s dearest principles: ‘that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.’” 

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