an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Abortion, the First Amendment, and the Fourth Circuit’s "Kangaroo Court"
Crisis Pregnancy Centers (CPCs) do not provide or refer for abortion or birth control services. Baltimore passed a law requiring such centers to post a sign stating that they do not provide or refer for these services. Pretty straightforward stuff, especially given the evidence that women visiting the centers often erroneously believe that they do provide such services. Last week, however, the Fourth Circuit affirmed the district court’s permanent injunction of Baltimore’s law, holding that Baltimore’s law violates the centers’ First Amendment rights. This case raises novel and complex questions about the First Amendment, and in particular, about the definition of commercial speech: if the court had held that the disclosure applied to commercial speech, it almost certainly would have withstood review.
First, some background on CPCs and the motivation behind the Baltimore law. The explicit goal of "Crisis Pregnancy Centers" is to target "abortion-minded" or "abortion-vulnerable" pregnant woman with offers of pregnancy-related services, and to then encourage these women to carry to term. These pro-life centers, however, have a long history of deceiving and misleading women, as documented by numerous reports. Planned Parenthood provides a nice summary of the tactics some of these centers use, from giving false information about the medical and emotional effects of abortion, to telling women they aren’t really pregnant in an attempt to delay, and ultimately to prevent, women from accessing abortions. In addition, many CPCs give off the appearance of being a licensed medical facility—many centers offer ultrasounds, collect insurance information, and even go so far as to have their employees dress in medical scrubs—even though many of these centers are in fact not licensed as medical facilities, and do not have a licensed medical provider on staff. In the face of this evidence, several cities, such as NYC, Austin, and Baltimore, passed laws requiring these centers to post disclosures informing women about what services the centers does not provide, and in NYC’s case, whether the center is a licensed medical facility.
The CPCs have challenged these laws as compelling speech, in violation of their First Amendment rights. So far, the courts have bought their arguments (the decision on the NYC law, Evergreen Assoc. Inc. v. New York, 801 F. Supp. 2d 197 (S.D.N.Y. 2011), is currently on appeal to the Second Circuit). The Fourth Circuit decision, however, is notable for the strength of its dissent by Judge King. He calls the majority’s decision "indefensible," and describes the proceedings as following "a course more fitting a kangaroo court than a court of the United States." Importantly, he faults the majority for discounting "the real possibility that the Ordinance targets only commercial speech."
Commercial disclosure laws are subject to rational basis scrutiny under Zauderer v. Office of Disciplinary Council, a test these laws could most certainly meet. The courts considering the CPC disclosure laws, however, have concluded that Zauderer is inapplicable because the CPCs, which provide their services for free, are not engaged in commercial speech. Looking to the Court’s narrowest definition of commercial speech in Virginia Pharmacy as "speech which does no more than propose a commercial transaction," these courts have concluded that the offer of free services does not qualify. But the definition of commercial speech is not so simple—the Court outlined a multi-factor approach in Bolger v. Youngs Drug Products Corp. , making clear that the definition of commercial speech should not depend solely on the economic motivations of the speaker. Judge Niemeyer’s majority opinion in the Fourth Circuit, however, does just that, concluding that the free nature of the centers’ services is dispositive to the commercial speech inquiry because "there is no indication that the Pregnancy Center is motivated by an economic interest or that it is proposing any commercial transaction."
In contrast, Judge King looks to the Bolger factors, and concludes that when evaluating the commercial nature of a speech act, "context matters." In Judge King’s view, "[f]rom a First Amendment free speech perspective, that context includes the viewpoint of the listener, for ‘[c]ommercial expression not only serves the economic interest of the speaker, but also assists consumers and furthers the societal interest in the fullest possible dissemination of information.’ " (quoting Central Hudson and citing Dean Robert Post’s UCLA Law Review Article, The Constitutional Status of Commercial Speech). Under Judge King’s analysis, the CPCs cannot escape the commercial speech doctrine simply because their services are free—the definition of commercial speech depends on the context of their speech in a commercial marketplace, and on the perspective of women who are the audience for the CPCs’ offer of services.
Judge King advocates exactly the type of context-specific inquiry that I outline in my forthcoming piece in the University of Pennsylvania Journal of Constitutional Law, which deals with several open questions about the compelled commercial speech doctrine, including questions raised by the graphic tobacco labeling requirements currently before the D.C. Circuit. The Second Circuit has yet to hear arguments on the CPC’s challenge to NYC’s law, but arguments are scheduled for this fall. Scholars from the Information Society Project at Yale Law School, where I am currently a resident fellow, filed an amicus brief on the commercial speech question in the Second Circuit case, making a context-specific inquiry that looks to the perspective of the listener. Maybe the Second Circuit will take Judge King’s lead and engage in a more three-dimensional commercial speech inquiry in deciding the appropriate level of scrutiny to apply to NYC’s law. For now, we will have to rest with Judge King’s dissent.
Jennifer Keighley is a resident fellow at the Program for the Study of Reproductive Justice at Yale’s Information Society Project. You can reach her by e-mail at jennifer.keighley at gmail.com Posted
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