Whether the government has substantial latitude, and is entitled to deferential review, in regulating false and misleading commercial and professional speech within an industry, and in protecting the public from deceptive marketing and the purveying of misinformation by service providers.
In 2015, California passed the Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act), which requires licensed “crisis pregnancy centers” (CPCs) to prominently disclose that California offers publicly funded family planning services, including contraception and abortion, and requires unlicensed clinics to prominently disclose that they are not licensed and do not offer a licensed medical provider. CPCs are entities presenting themselves as free, full-service women’s health clinics, but are actually operated by opponents of abortion solely to pressure pregnant women not to consider abortion as an option. The United States Supreme Court is currently considering whether the law violates CPCs’ free speech rights by compelling their speech.
On February 27, 2018, the Public Health Law Center joined an amicus brief drafted by Public Good Law Center on behalf of consumer groups and allies, seeking to avert a decision that would hamper government’s authority to regulate deceptive advertising. The brief argues that the FACT Act should be upheld as an appropriate response to a sustained, continuing, and often coordinated historical pattern of deception by CPCs. After summarizing the ways CPCs misrepresent themselves to bring in and influence pregnant women, and provide damaging misinformation and apply abusive pressure tactics to women after they come in, the brief argues that this history makes a deferential level of First Amendment scrutiny appropriate. In commercial speech contexts, such a pattern of deception has been held to justify industry-wide regulation, without an individualized showing that each affected enterprise engaged in deception, and factual disclosures in particular have been subjected to little more than rational basis review. Our brief argue that a similar approach should be applied here. We point out that regardless of whether CPCs are held to engage in commercial speech, deceptive speech is entitled to less protection when speakers enter the market as providers of services, a transacting public relies on the speech in question, there is substantiated potential for concrete harm, and any regulation is both minimally intrusive and incidental to regulating the provision of professional services. That the speech concerns a topic about which members of the regulated enterprises have strong convictions does not change the analysis: it is the speakers who have chosen to mask their advocacy behind a façade of offering services; they remain free to engage in fully protected public advocacy for their anti-abortion views.
The litigation is ongoing.