In late June, in First Resort, Inc. v. Herrera, a Ninth Circuit panel ruled that a San Francisco false-advertising ordinance that applies only against pregnancy-service centers that don’t provide or refer for abortions is constitutionally permissible. On a divided vote, the panel also ruled that the ordinance was not preempted by California’s false-advertising law.
The panel’s rulings are highly dubious and appear to reflect the abortion distortion that misshapes so much judicial reasoning. A pending petition for rehearing en banc (see also opposition (link fixed) and reply) gives the Ninth Circuit an opportunity to undo the damage before it spreads to other contexts.
In her majority opinion, Judge Dorothy Nelson (appointed by President Carter in 1979) makes no effort to conceal her biases. In her background section, she states as fact that “[f]alse and misleading advertising by clinics that do not provide abortions, emergency contraception, or referrals to providers of such services has become a problem of national importance.” Her lead support for this factual assertion is a supposed “congressional report.” But what she mischaracterizes as a “congressional report” is not a report of Congress, or of either House, or of any committee of either House, but rather a report issued by Congressman Henry Waxman’s minority staff on the House Committee on Government Reform. Yet she would have us believe that a report issued by a single House member’s staff, together with the introduction in Congress of a bill on the matter, suffice to establish the existence of a “problem of national importance.” Ridiculous.
Nelson’s legal reasoning isn’t any better. On the “central issue … whether the regulated speech should be characterized as commercial,” Nelson begins by citing circuit precedent that defines commercial speech as “speech that does no more than propose a commercial transaction.” But the clinic in the case, rather than engaging in commercial transactions with its clients, offers its services for free. That somehow doesn’t keep Nelson from invoking as precedent a case that involved “paid” medical services and from positing that what really matters is that the clinic’s “solicitation of a non-paying client base directly relates to [its] ability to fundraise and, in turn, to buy more advertisements.” But, as the clinic points out, “under this novel and expansive definition [of commercial speech], a pastor’s homily intended to attract worshippers and encourage donations would be commercial speech.” (Reply at 5.) Indeed, if trying to attract an audience for your speech and engaging in fundraising render speech commercial, then the commercial-speech doctrine would swallow up much of the First Amendment.
Nelson fares no better in her claim that an ordinance whose findings declare that it is targeting “clinics that seek to counsel clients against abortion” does not discriminate on the basis of viewpoint. Nelson opines that it is theoretically possible that the ordinance could apply against a clinic that “choose[s] not to offer abortions or abortion referrals for reasons that have nothing to do with their views on abortion, such as financial or logistical reasons.” But, the clinic argues, the Supreme Court’s governing precedents make clear that the content-neutrality of a law turns not on whether speakers with different subjective motivations could violate it but rather on whether the law’s application depends on the content of the message.
Let’s hope that the en banc Ninth Circuit gives this matter more careful consideration.