No. 16-1140
================================================================

In The

Supreme Court of the United States
-----------------------------------------------------------------NATIONAL INSTITUTE OF FAMILY &
LIFE ADVOCATES, d/b/a NIFLA, et al.,
Petitioners,
v.
XAVIER BECERRA, ATTORNEY GENERAL
OF CALIFORNIA, et al.,
Respondents.
-----------------------------------------------------------------On Writ Of Certiorari To The
United States Court Of Appeals
For The Ninth Circuit
-----------------------------------------------------------------BRIEF OF BLACK WOMEN FOR WELLNESS,
CONSUMER ACTION, CONSUMER FEDERATION
OF CALIFORNIA, PUBLIC GOOD LAW CENTER,
AND PUBLIC HEALTH LAW CENTER AS AMICI
CURIAE IN SUPPORT OF RESPONDENTS
-----------------------------------------------------------------THOMAS BENNIGSON
Counsel of Record
SETH E. MERMIN
SOPHIA TONNU
PUBLIC GOOD LAW CENTER
1950 University Avenue, Suite 200
Berkeley, CA 94704
(510) 336-1899
tbennigson@publicgoodlaw.org
Counsel for Amici Curiae
================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM

 TABLE OF CONTENTS
TABLE OF AUTHORITIES ..................................... iv
STATEMENT OF INTEREST ................................... 1
SUMMARY OF ARGUMENT.................................... 3
ARGUMENT .............................................................. 6
I.

THE FACT ACT IS A RESPONSE TO
DECEPTIVE MARKETING AND THE
PURVEYING OF MISINFORMATION. ........... 6
A. CPCs Employ Deceptive Advertising to
Attract Low-Income Women Seeking
Abortions.......................................................... 6
B. CPCs Provide Discredited Misinformation and
Employ Unprofessional Pressure Tactics. .... 10
C. Vulnerable Pregnant Women Are Harmed by
CPC Deception. .............................................. 11
D. The California Legislature Had Ample
Evidence of CPC Deception. .......................... 12

II.

GOVERNMENT REGULATION IS AN
APPROPRIATE RESPONSE TO A PATTERN
OF WIDESPREAD DECEPTIVE
ADVERTISING. ............................................... 14
A. Government Has Substantial Latitude to
Protect the Public from Misleading
Commercial Speech. ...................................... 14

i

 B. Government May Regulate False or
Misleading Speech Within an Industry
Without a Particularized Showing That Each
Affected Enterprise Has Engaged in Deceptive
Speech. ........................................................... 16
III. THE FACT THAT CPCs OFFER SERVICES
WITHOUT PAYMENT DOES NOT CHANGE
THE STANDARD OF REVIEW. ..................... 19
A. The FACT Act Can Plausibly Be Taken to
Regulate Commercial Speech. ...................... 19
1. The location of the disclosures is not
dispositive of whether the Act regulates
commercial speech. .................................. 19
2. Advertising by service providers seeking to
attract clients may be commercial speech,
even if no money is charged. .................... 22
B. Deceptive Marketing of Services Does Not
Receive Greater Protection When the Services
are Free of Charge. ........................................ 23
C. The Reasons for Deferential Review of
Commercial Disclosures Apply Equally in the
Context of Professional Speech. .................... 25
D. The Disclosures Are Subject to Deferential
Review Because They Occur in the Context of
Professional Speech. ...................................... 28
E. CPCs’ Deceptive Professional and Commercial
Speech Are Not “Inextricably Intertwined”
With Fully Protected Speech. ....................... 31

ii

 IV. THE FACT THAT THE DISCLOSURES
CONCERN A TOPIC ABOUT WHICH THERE
ARE STRONG FEELINGS AND
CONVICTIONS DOES NOT AFFECT THE
STANDARD OF REVIEW. .............................. 33
A. That the Factual Disclosures Relate to an
Issue About Which There Is Controversy Does
Not Change the Analysis. ............................. 33
B. That the Disclosures Concern a Topic About
Which Members of the Regulated Enterprises
Have Strong Convictions Does Change the
Analysis. ........................................................ 34
C. The Disclosures Are Viewpoint-Neutral....... 36
D. Content Neutrality Cannot Distinguish
Compelled Speech Offensive to the First
Amendment From Compelled Disclosures
Subject to Deferential Review....................... 37
V.

THE CHALLENGED DISCLOSURES ARE
THE SORT OF SPEECH REGULATION
LEAST OFFENSIVE TO THE FIRST
AMENDMENT.. ............................................... 38

CONCLUSION ......................................................... 40

iii

 TABLE OF AUTHORITIES
Cases
44 Liquormart, Inc. v. Rhode Island,
517 U.S. 484 (1996)...................................... 26, 27
Am. Meat Inst. v. U.S.D.A.,
760 F.3d 218 (D.C. Cir. 2014) ...................... 16, 37
Bates v. State Bar,
433 U.S. 350 (1977).............................................. 4
Beeman v. Anthem Prescription Mgmt.,
315 P.3d 71 (Cal. 2013) ...................................... 16
Bolger v. Youngs Drug Prods. Corp.,
463 U.S. 60 (1983).............................................. 23
Brown v. Hartlage,
456 U.S. 45 (1982).............................................. 14
Central Hudson Gas & Elec. Corp. v. Public Serv.
Comm’n,
447 U.S. 557 (1980)............................................ 39
Church & Dwight Co. v. SPD Swiss Precision
Diagnostics, GmBH,
843 F.3d 48 (2d Cir. 2016) ................................. 15
Citizens United v. Fed. Election Comm’n,
558 U.S. 310 (2010)............................................ 39
Conant v. Walters,
309 F.3d 629 (9th Cir. 2002) ............................. 29

iv

 CTIA-The Wireless Ass’n v. City of Berkeley,
854 F.3d 1105 (9th Cir. 2017) ........................... 16
Disc. Tobacco City & Lottery, Inc. v. U.S.,
674 F.3d 509 (6th Cir. 2012) ....................... 16, 33
ECM BioFilms, Inc. v. F.T.C.,
851 F.3d 599 (6th Cir. 2017) ............................. 15
Encyclopaedia Britannica, Inc. v. F.T.C.,
605 F.2d 964 (7th Cir. 1979) ............................. 15
Expressions Hair Design v. Schneiderman,
137 S. Ct. 1144 (2017)........................................ 38
Fanning v. F.T.C.,
821 F.3d 164 (1st Cir. 2016) .............................. 15
Fargo Women’s Health Organization, Inc. v. Larson,
381 N.W.2d 176 (N.D. 1986) .............................. 22
First Resort, Inc. v. Herrera,
860 F.3d 1263 (9th Cir. 2017) ....................... 6, 22
Friedman v. Rogers,
440 U.S. 1 (1979)................................................ 17
Gertz v. Robert Welch, Inc.,
418 U.S. 323 (1974)............................................ 26
Goldfarb v. Va. State Bar,
421 U.S. 773 (1975)............................................ 26
Gonzales v. Carhart,
550 U.S. 124 (2007)............................................ 26

v

 Greater Baltimore Ctr. for Pregnancy Concerns
v. Mayor & City Council,
721 F.3d 264 (4th Cir. 2013) ....................... 20, 22
Greater Baltimore Ctr. for Pregnancy Concerns
v. Mayor & City Council,
879 F.3d 101 (4th Cir. 2018) ............................. 30
In re Primus,
436 U.S. 412 (1978)...................................... 24, 25
In re R.M.J.,
455 U.S. 191 (1982).......................3, 14, 15, 17, 28
Int’l Dairy Foods Ass’n v. Boggs,
622 F.3d 628 (6th Cir. 2010) ............................. 18
King v. Governor of New Jersey,
767 F.3d 216 (3d Cir. 2014) .............25, 28, 29, 30
Lewis v. Pearson Found.,
908 F.2d 318 (8th Cir. 1990) ............................. 11
Locke v. Shore,
634 F.3d 1185 (11th Cir. 2011).......................... 31
Lowe v. SEC,
472 U.S. 181 (1985)............................................ 27
Meese v. Keene,
481 U.S. 465 (1987)............................................ 39
Milavetz, Gallop & Milavetz, P.A. v. United States,
559 U.S. 229 (2010)........... 4, 16, 17, 19, 23, 27, 38
Moore-King v. Cty. of Chesterfield,
708 F.3d 560 (4th Cir. 2013) ....................... 27, 30

vi

 Nat. Electrical Manufacturers Ass’n v. Sorrell,
272 F.3d 104 (2d Cir. 2001) ............................... 16
Nat’l Comm’n on Egg Nutrition v. F.T.C.,
570 F.2d 157 (7th Cir. 1977) ............................. 15
Nationwide Biweekly Admin., Inc. v. Owen,
873 F.3d 716 (9th Cir. 2017) ............................. 17
Ohralik v. Ohio State Bar Ass’n,
436 U.S. 447 (1978)................................ 17, 24, 32
Pharm. Care Mgmt. Ass’n v. Rowe,
429 F.3d 294 (1st Cir. 2005) .............................. 16
Pickup v. Brown,
740 F.3d 1208 (9th Cir. 2014) ............... 21, 27, 29
Planned Parenthood v. Rounds,
530 F.3d 724 (8th Cir. 2008) ............................. 40
Pleasant Grove City v. Summum,
555 U.S. 460 (2009)............................................ 39
Pruneyard Shopping Ctr. v. Robins,
447 U.S. 74 (1980).............................................. 39
Pub. Citizen, Inc. v. Louisiana Attorney Disciplinary
Bd.,
632 F.3d 212 (5th Cir. 2011) ............................. 17
R.J. Reynolds Tobacco Co. v. Shewry,
423 F.3d 906 (9th Cir. 2005) ............................. 35
Reed v. Town of Gilbert,
135 S. Ct. 2218 (2015)........................................ 38

vii

 Removatron Int’l Corp. v. F.T.C.,
884 F.2d 1489 (1st Cir. 1989) ............................ 15
Riley v. Nat’l Fed’n of the Blind,
487 U.S. 781 (1988)...................................... 31, 32
Rumsfeld v. Forum for Academic and Institutional
Rights, Inc. [FAIR],
547 U.S. 47 (2006)........................................ 34, 35
Sorrell v. IMS Health Inc.,
564 U.S. 552 (2011)...................................... 25, 36
Stuart v. Camnitz,
774 F.3d 238 (4th Cir. 2014) ....................... 29, 40
Test Masters Educ. Servs., Inc. v. Robin Singh Educ.
Servs., Inc.,
799 F.3d 437 (5th Cir. 2015) ............................. 20
Thompson v. W. States Med. Ctr.,
535 U.S. 357 (2002)............................................ 14
United Haulers Ass’n, Inc. v. Oneida-Herkimer Solid
Waste Mgmt. Auth.,
550 U.S. 330 (2007).............................................. 3
United States v. Alvarez,
567 U.S. 709 (2012)...................................... 14, 26
United States v. Philip Morris USA Inc.,
566 F.3d 1095 (D.C. Cir. 2009) .......................... 20
Virginia State Bd. of Pharmacy v. Va. Citizens
Consumer Council,
425 U.S. 748 (1976)........................................ 3, 27

viii

 Wollschlaeger v. Governor,
848 F.3d 1293 (11th Cir. 2017).......................... 29
Zauderer v. Office of Disciplinary Counsel,
471 U.S. 626 (1985)..................................... passim
Statutes
15 U.S.C. § 2686 ....................................................... 18
49 U.S.C. § 32908 ..................................................... 33
Cal. Bus. & Prof. Code § 651.................................... 23
Cal. Civ. Code § 2982 ............................................... 18
Haw. Rev. Stat. § 431 ............................................... 17
N.C. G.S. 130A-155 .................................................. 33
N.M. Stat. § 59A-57-4 .............................................. 18
Va. Code § 22.1-271.2 ............................................... 33
Wash. Admin. Code § 4-30-142 ................................ 23
Regulations
12 C.F.R. § 226.6 ...................................................... 18
12 C.F.R. § 226.18 .................................................... 18
29 C.F.R. pt. 471(A), App. A .................................... 35

ix

 Other Authorities
Bryant, Amy et al., Crisis Pregnancy Center
Websites: Information, Misinformation and
Disinformation,
90 CONTRACEPTION 601 (2014) ...................... 8, 10
Bryant-Comstock, Katelyn et al., Information about
Sexual Health on Crisis Pregnancy Center Web
Sites: Accurate for Adolescents?,
29 J. PEDIATRIC & ADOLESCENT GYNECOLOGY 22
(2016).................................................................. 11
Chen, Alice, Crisis Pregnancy Centers: Impeding the
Right to Informed Decision Making,
19 CARDOZO J.L. & GENDER 933 (2013) .................
...............................................................6, 8, 11, 12
Consumer Protection and Patient Safety Issues
Involving Bogus Abortion Clinics: Hearing,
Subcomm. on Regulation, Bus. Opportunities, &
Energy, 102d Cong., at 68-69 (Sept. 20, 1991) .. 10
French, Valerie et al., Influence of Clinician Referral
on Nebraska Women’s Decision-to-Abortion Time,
93 CONTRACEPTION 236 (2016) ............................ 9
Gallacher, Kirsten, Protecting Women from
Deception: The Constitutionality of Disclosure
Requirements in Pregnancy Centers,
33 WOMEN’S RTS. L. REP. 113 (2011) ....... 7, 11, 12
Guttmacher Institute, State Policies on Later
Abortion (2018) .................................................. 12

x

 Halberstam, Daniel, Commercial Speech,
Professional Speech, and the Constitutional
Status of Social Institutions,
147 U. PA. L. REV. 771 (1999) ............................ 27
Holtzman, Beth, Have Crisis Pregnancy Centers
Finally Met Their Match: California’s
Reproductive Fact Act,
12 NW. J. L. & SOC. POL’Y 78 (2017) .......... 7, 9, 11
McElroy, Meagan, Protecting Pregnant
Pennsylvanians: Public Funding of Crisis
Pregnancy Centers,
76 PITT. L. REV. 451 (2015) .................................. 7
Mertus, Julie, Fake Abortion Clinics,
16 WOMEN & HEALTH 95 (1990) ........................ 11
Minority Staff of H. Comm. on Gov’t Reform, 109th
Cong., Report on False and Misleading Health
Information Provided by Federally Funded
Pregnancy Resource Centers, at 8 (July 2006)
[Waxman Report] ............................................... 10
NARAL, Unmasking Fake Clinics: The Truth About
Crisis Pregnancy Centers in California 8 (2010) 8
Nat’l Abortion Fed’n, Crisis Pregnancy Centers: An
Affront to Choice, at 3 (2006) ............................... 9
Post, Robert, The Constitutional Status of
Commercial Speech,
48 UCLA L. REV. 1 (2000) ................................. 21

xi

 Reproductive Freedom, Accountability,
Comprehensive Care, and Transparency Act:
Hearing on Assemb. B. 775 Before the Assemb.
Standing Comm. on Health, 2015 Leg., Reg.
Sess. (Cal. 2015)................................................. 13
Rosen, Joanne, The Public Health Risks of Crisis
Pregnancy Centers, 44 PERSP. SEXUAL HEALTH
201 (2012) ..................................................... 11, 12
Shanor, Amanda, The New Lochner,
2016 WIS. L. REV. 133 (2016) ............................. 37
Swartzendruber, Andrea et al., Sexual and
Reproductive Health Services and Related Health
Information on Pregnancy Resource Center
Websites: A Statewide Content Analysis,
28 WOMEN’S HEALTH ISSUES 14 (2018)................ 8
Tsukayama, Hayley, Google Removes “Deceptive”
Pregnancy Center Ads,
WASHINGTON POST (Apr. 28, 2014) ...................... 8
Winter, Meaghan, “Save the Mother, Save the Baby”:
An Inside Look at a Pregnancy Center
Conference,
COSMOPOLITAN (Apr. 6, 2015) .......................... 7, 9

xii

 STATEMENT OF INTEREST
Amici curiae are consumer protection and
public health organizations. Amici submit this brief
to underscore the importance of ensuring that the
information received by consumers, particularly in
matters involving their health, is adequate, accurate,
and not misleading.
Amici are concerned that the resolution of this
case not compromise the state’s ability to protect the
public from deceptive advertising. By providing useful
information to individuals who might not otherwise
receive it, the FACT Act increases the likelihood that
consumers will make informed decisions and reduces
the chance that they will be misled. That is a goal
fully consistent with the First Amendment.1
Black Women for Wellness is a womancentered, community-based, education and advocacy
organization working to empower Black women and
girls to attain healthy lives and families. BWW
believes that access to accurate health information
and freedom from external coercion are essential for
women’s autonomous decision-making. BWW was a
co-sponsor of the FACT Act in the California
legislature.
Consumer Action is a national non-profit
consumer education organization that empowers lowand moderate-income and limited-English-speaking
No counsel for a party authored this brief in whole or in part,
and no one other than amici and their counsel made a monetary
contribution to the preparation or submission of this brief. All
parties have consented to the filing of this brief.
1

1

 consumers to prosper, and advocates for consumers’
rights in the media and before lawmakers. Every day
Consumer Action sees consumers – especially those
who can least afford it – suffering significant harms
from deceptive marketing.
Consumer Federation of California is a
non-profit advocacy organization that works to enact
consumer protection laws and regulations and ensure
their enforcement, and conducts education and
research on consumer issues. CFC has worked to
strengthen and enforce laws regulating truth in
advertising, preventing fraud and deceptive
marketing, ensuring food and drug safety, and
protecting low-income consumers.
The Public Good Law Center is a public
interest law firm specializing in consumer protection,
public health, and First Amendment law. Public
Good has authored numerous amicus briefs in First
Amendment cases concerning disclosure requirements and regulation of false advertising, and in
cases involving debt collection, credit reporting, and
other contexts in which disclosure regimes protect
vulnerable citizens.
The Public Health Law Center, located at
the Mitchell Hamline School of Law, Minnesota’s
largest law school, is a nonprofit legal center
dedicated to public health. The Center helps community leaders develop and defend public policies
that protect America’s health, and has filed more than
fifty briefs as amicus curiae in the nation’s highest
courts, many of them addressing the impact of the
First Amendment on government’s ability to protect
2

 the public from deceptive advertising and preserve
consumers’ ability to make informed health decisions.
SUMMARY OF ARGUMENT
“[G]overnment is vested with the responsibility
of protecting the health, safety, and welfare of its
citizens.” United Haulers Ass’n, Inc. v. OneidaHerkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 342
(2007). To fulfil this responsibility, “government may
take broad[] action to protect the public from injury
produced by false or deceptive … product advertising.
Virginia State Bd. of Pharmacy v. Va. Citizens
Consumer Council, 425 U.S. 748, 778 (1976). The
principle applies perhaps even more to advertising for
professional services, because of “the special
possibilities for deception presented.” In re R.M.J.,
455 U.S. 191, 203 (1982). Accepting NIFLA’s
contention that the First Amendment tolerates
regulation of false advertising only for paid services
would leave government unable to extend protection
to low-income citizens who rely on pro bono
professional services. The First Amendment does not
require such an untenable consequence.
The modest disclosure requirements of the
FACT Act are a response to an extensive and
sustained history of deceptive representations. “Crisis
pregnancy centers” [CPCs] routinely market
themselves to women seeking abortions as neutral
health care providers and pregnancy counselors,
without disclosing their ideological mission to oppose
abortion or that they provide neither abortions nor
abortion referrals. Through their advertising, choice
of names, locations, and appearance of their offices,
3

 CPCs foster confusion between themselves and actual
abortion providers. Once they get pregnant women
into their offices, CPCs provide discredited
misinformation about the medical and psychological
dangers of abortion, and employ a variety of
subterfuges to get women to delay abortion until it is
too late, often even flatly lying about, for example,
how advanced a pregnancy is or how long a woman
may legally obtain one.
These are the hallmarks of a deceptive
marketing campaign. If it concerned any other
product or service, there would be no question that
the state could act to dispel the deception.
“Advertising that is false, deceptive, or misleading of
course is subject to restraint.” Bates v. State Bar, 433
U.S. 350, 383 (1977). In particular, California may
seek to remedy the deception by requiring accurate,
factual disclosures, such as those challenged here,
subject only to First Amendment review only under
the deferential standard that the disclosures be
“reasonably related to the State’s interest in
preventing deception of consumers.” Zauderer v.
Office of Disciplinary Counsel, 471 U.S. 626, 651
(1985). Moreover, a pattern of deception like the one
found here may justify industrywide regulation,
without an individualized showing that each affected
enterprise engaged in deception. Milavetz, Gallop &
Milavetz, P.A. v. United States, 559 U.S. 229, 251
(2010).
NIFLA’s efforts to distinguish the foregoing
precedents on the ground that CPCs do not engage in
commercial speech are not to the point. Neither the
absence of fees nor their strong ideological convictions
4

 give CPCs a right to engage in deceptive solicitations.
Indeed, there is good reason to conclude that this is a
commercial speech case: the speech burdened by the
disclosures is promotional advertising intended to
attract clients for services in a commercial
marketplace.
But regardless of how that question is decided,
the fact that CPCs do not charge for their services
should not affect the standard of review. Deceptive
speech is not entitled to protection when speakers
enter the market as providers of services, a
transacting public relies on the speech in question,
and there is substantiated potential for concrete
harm. The state has particular leeway to act when
deceptive speech occurs in the context of professional
services.
Petitioners’ ideological mission does not change
the level of review either. No one disputes Petitioners’
right to advocate forcefully against abortion in the
public sphere. What they may not do, however, is
enter the market of health care providers, market
their services under false pretenses, and dispense
misinformation to clients. Petitioners may not have it
both ways – disguising their advocacy by presenting
themselves as health care providers and then
objecting to any regulation affecting their
‘professional’ speech by claiming the First Amendment protections appropriate for advocacy on a
matter of public concern.
NIFLA’s objections are particularly misplaced,
given that California has not attempted to restrict
CPCs’ speech in any way, but seeks only to require
5

 CPCs to convey a neutral factual government message informing clients either of the providers’ nonmedical status or of the availability of other options.
ARGUMENT
I.

THE FACT ACT IS A RESPONSE TO
DECEPTIVE
MARKETING
AND
THE
PURVEYING OF MISINFORMATION.

The FACT Act was California’s response to extensive evidence of a widespread pattern of deceptive
outreach by CPCs creating the false impression that
they help women seeking abortions. Women who
arrive at CPCs expecting abortion assistance instead
receive deceptive delaying tactics, intense pressure,
and grossly inaccurate warnings about the health
risks of abortion.
A.

CPCs Employ Deceptive Advertising to
Attract Low-Income Women Seeking
Abortions.

“False 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.” First Resort, Inc. v. Herrera, 860 F.3d
1263, 1268 (9th Cir. 2017). CPCs attract pregnant
women seeking abortions with advertisements
offering “accurate abortion information,”2 or

Alice Chen, Crisis Pregnancy Centers: Impeding the Right to
Informed Decision Making, 19 CARDOZO J.L. & GENDER 933, 951
(2013).
2

6

 “pregnancy options,”3 without disclosing that they do
not perform or refer women for abortions. CPCs
routinely purchase phone directory listings under
“abortion services” and buy advertising that will
cause their ads to show up on internet search engines
when users search for “abortion” and related terms. 4
CPC staff are taught to respond with evasions when
callers ask directly whether they provide abortions.5
CPCs “purposely locate themselves in close
proximity to abortion clinics in order to confuse
…women seeking abortions,” because, in the words of
one CPC activist, “The best client you ever get is one
that thin[ks] they’re walking into an abortion clinic.”6
A worker at a CPC located near a Planned Parenthood
clinic told an investigator that the locations confuse
clients “all the time.”7 They often compound the
confusion by choosing names similar to that of the
nearby clinic, often with matching acronyms,8 as well
as choosing misleadingly neutral names “to draw in

Beth Holtzman, Have Crisis Pregnancy Centers Finally Met
Their Match: California’s Reproductive Fact Act, 12 NW. J. L. &
SOC. POL’Y 78, 86 (2017).
4 Id.
5 Meaghan Winter, “Save the Mother, Save the Baby”: An Inside
Look at a Pregnancy Center Conference, COSMOPOLITAN (Apr. 6,
2015), http://www.cosmopolitan.com/politics/a38642/heartbeatinternational-conference-crisis-pregnancy-centers-abortion.
6 Meagan McElroy, Protecting Pregnant Pennsylvanians: Public
Funding of Crisis Pregnancy Centers, 76 PITT. L. REV. 451, 453
(2015).
7 Kirsten Gallacher, Protecting Women from Deception: The
Constitutionality of Disclosure Requirements in Pregnancy
Centers, 33 WOMEN’S RTS. L. REP. 113, 125 n.92 (2011).
8 Holtzman, supra note 3, 86.
3

7

 unsuspecting women.”9
Such deceptive practices are not isolated
instances. Nationally, 79% of centers that advertised
on Google “indicated that they provided medical
services such as abortions,” though they did not.10 A
12-month investigation of California CPCs found that
69% of CPCs advertised that they provided unbiased
counseling, but only 21% disclosed that they opposed
abortion.11
Independent scholarly studies have found
similar results throughout the United States. A study
of 254 CPC websites in 12 states found that 87% did
not disclose that the center was not a medical
facility.12 58% of Georgia CPCs investigated did not
provide notice that they do not provide or refer for
abortion services.13 In Nebraska, “[w]omen commonly
located the abortion clinic via an online search. Crisis
Chen, supra note 2, 951.
Hayley Tsukayama, Google Removes “Deceptive” Pregnancy
Center
Ads,
WASHINGTON
POST
(Apr.
28,
2014),
https://www.washingtonpost.com/news/the-switch/wp/2014/04/
28/naral-successfully-lobbies-google-to-take-down-deceptivepregnancy-center-ads.
11 NARAL, Unmasking Fake Clinics: The Truth About Crisis
Pregnancy
Centers
in
California
8
(2010),
https://www.sfcityattorney.org/wp-content/uploads/2015/08/
Unmasking-Fake-Clinics-The-Truth-About-Crisis-PregnancyCenters-in-California-.pdf.
12 Amy Bryant et al., Crisis Pregnancy Center Websites:
Information,
Misinformation
and
Disinformation,
90
CONTRACEPTION 601 (2014).
13 Andrea Swartzendruber et al., Sexual and Reproductive
Health Services and Related Health Information on Pregnancy
Resource Center Websites: A Statewide Content Analysis, 28
WOMEN’S HEALTH ISSUES 14 (2018).
9

10

8

 pregnancy centers are among the top results when
searching for abortion services in Nebraska ….
[T]heir websites provide misinformation.”14
Many unlicensed CPCs convey the appearance
of a comprehensive health care clinic by requiring
volunteers and staff to wear white lab coats or
medical scrubs, among other stratagems.15
Deceptive advertising is a coordinated
strategy. At the 2014 annual conference of Heartbeat
International, the world’s largest network of CPCs,
speakers suggested a variety of marketing practices
for “attracting ‘abortion-minded’ clients,” including
taking neutral-sounding names to disguise their
mission; employing internet technology to target
women searching for ‘abortion’ or ‘abortion services’;
deflecting phone inquiries about whether the center
provides abortions; and making waiting rooms “feel
like ‘professional environments.’”16 The Family
Research Council and Care Net conducted market
research to determine that innocuous names such as
“Women’s Resource Center” that disguised their
mission would be effective in attracting women
seeking abortions.17 Concerted efforts to misrepresent

Valerie French et al., Influence of Clinician Referral on
Nebraska
Women’s
Decision-to-Abortion
Time,
93
CONTRACEPTION 236, 241 (2016).
15 Holtzman, supra note 3, 83.
16 Winter, supra note 5.
17 Nat’l Abortion Fed’n, Crisis Pregnancy Centers: An Affront to
Choice, at 3 (2006), https://www.prochoice.org/pubs_research/
publications/downloads/public_policy/cpc_report.pdf.
14

9

 their mission have been a hallmark of CPCs since
their inception.18
B.

CPCs Provide Discredited Misinformation
and Employ Unprofessional Pressure
Tactics.

Once pregnant women arrive at CPCs, they are
likely to receive significant misinformation. A 2006
Congressional investigation found that 87% of clinics
surveyed nationally provided medically inaccurate
information about abortion.19 Clients were told that
abortion dramatically increased risks of breast
cancer, infertility, and mental illness.20 All of these
contentions are contrary to medical consensus. 21 A
more recent twelve-state study of 254 CPC websites
found that 80% contained inaccurate or misleading
information about the risks of abortion.22 CPCs also
purvey misinformation about the ineffectiveness of
contraception.23

Consumer Protection and Patient Safety Issues Involving
Bogus Abortion Clinics: Hearing, Subcomm. on Regulation, Bus.
Opportunities, & Energy, 102d Cong., at 68-69 (Sept. 20, 1991)
(quoting early CPC training manual), http://hdl.handle.net/
2027/pst.000019273587.
19 Minority Staff of H. Comm. on Gov’t Reform, 109th Cong.,
Report on False and Misleading Health Information Provided by
Federally Funded Pregnancy Resource Centers, at 8 (July 2006)
[Waxman
Report],
http://www.chsourcebook.com/articles/
waxman2.pdf.
20 Id. at 8-14.
21 Id.
22 Bryant et al., supra note 12, 603.
23 Katelyn Bryant-Comstock et al., Information about Sexual
Health on Crisis Pregnancy Center Web Sites: Accurate for
18

10

 CPCs employ a number of deceptive delaying
tactics to keep women from getting abortions, such as
misrepresenting the likelihood of a spontaneous
miscarriage,24 or scheduling follow-up appointments
for ultrasounds weeks after an initial appointment.25
To encourage delay, some CPCs lie outright to women
about how advanced their pregnancy is26 or about the
timeframe for legal abortions,27 or schedule purported
abortion appointments for clients at hospitals that do
not perform abortions. Lewis v. Pearson Found., 908
F.2d 318, 319 (8th Cir. 1990), aff’d on reh’g, 917 F.2d
1077 (8th Cir. 1990). Unwitting arrivals expecting
abortion referrals are subjected to high-pressure antiabortion presentations, and sometimes physically
restrained from leaving until the presentation is
finished.28
C.

Vulnerable Pregnant Women Are Harmed
by CPC Deception.

Deceptive delaying tactics by CPCs have a
significant impact. Abortions become less safe, more
expensive, and harder to access as a pregnancy
advances.29 A woman stalled by a CPC may miss the
window for legal abortions altogether in the
Adolescents?, 29 J. PEDIATRIC & ADOLESCENT GYNECOLOGY 22,
23 (2016); Chen, supra note 2, 11.
24 Holtzman, supra note 3, 85.
25 Gallacher, supra note 7, 129; see also Chen, supra note 2, 10.
26 Holtzman, supra note 3, 85.
27 Joanne Rosen, The Public Health Risks of Crisis Pregnancy
Centers, 44 PERSP. SEXUAL HEALTH 201, 202 (2012),
http://www.jstor.org/stable/42004128.
28 Julie Mertus, Fake Abortion Clinics, 16 WOMEN & HEALTH 95,
99 (1990).
29 Holtzman, supra note 3, 85.

11

 seventeen states that ban abortions after twenty
weeks.30 Women who decide against an abortion are
still subject to increased health risks, since CPC
clients are often discouraged from seeking medical
care elsewhere, even when women report abnormal
symptoms.31
The costs of delay are borne most by those least
able to bear them. CPC clients are disproportionately
young, uneducated, and low-income.32 In fact CPCs
often purposely target those constituencies, as well as
women of color.33 The costs of delaying abortion have
particular impact on young and economically
disadvantaged women.34
D.

The California Legislature Had Ample
Evidence of CPC Deception.

The FACT Act was passed in substantial part
because California’s legislature found that CPCs
employed “intentionally deceptive advertising and
counseling practices [that] often confuse, misinform,
and even intimidate women from making fully-

Guttmacher Institute, State Policies on Later Abortion (2018),
https://www.guttmacher.org/state-policy/explore/state-policieslater-abortions.
31 Id.; see also Ushma Upadhyay et al., Incidence of Emergency
Department Visits and Complications After Abortion, 125
OBSTETRICS AND GYNECOLOGY 175, 181 (2015) (study of Medi-Cal
recipients found that risk of abortion-related complications rose
after first trimester), https://cloudfront.escholarship.org/
dist/prd/content/qt523956jn/qt523956jn.pdf.
32 Rosen, supra note 27, 201.
33 Gallacher, supra note 7, 121-22; Chen, supra note 2, 951.
34 Rosen, supra note 27, 202.
30

12

 informed, time-sensitive decisions about critical
health care.” JA 39.
The Legislature had ample grounds to reach
this conclusion. The Legislature commissioned an
extensive study of CPC practices, and took note of a
second extensive study. JA 39-41. It was familiar with
California litigation against California CPCs for
deceptive practices. JA 42. The Legislature heard
testimony about a study finding that 91% of CPCs
visited in California provided misleading information
about the health risks associated with abortion;35
testimony that Heartbeat International advises its
affiliated pregnancy centers to misleadingly attract
women seeking reproductive health care with a
website resembling a health care clinic site, while
keeping a separate website directed to donors that
highlights their anti-abortion mission;36 testimony
from a physician about patients who mistook CPCs
for comprehensive women’s health clinics, based on
online advertising, were delayed in accessing needed
services, and given medically inaccurate information;37 and testimony from another physician who
treated a young woman whose baby faced lifelong

Reproductive Freedom, Accountability, Comprehensive Care,
and Transparency Act: Hearing on Assemb. B. 775 Before the
Assemb. Standing Comm. on Health, 2015 Leg., Reg. Sess. (Cal.
2015) (statement of Amy Everitt, State Dir., NARAL Pro-Choice
California).
36 Id.
37 Reproductive Freedom, Accountability, Comprehensive Care,
and Transparency Act: Hearing on Assemb. B. 775 Before the
Sen. Standing Comm. on Health, 2015 Leg., Reg. Sess. (Cal.
2015) (statement of Julianna Mello, OB-GYN, Univ. of Cal.,
Davis).
35

13

 serious health risks after the mother, in reliance on a
CPC, delayed seeking medical care for her diabetes.38
In sum the Legislature’s concerns about deception by CPCs and the consequent harms to
pregnant women were far from speculative.
II.

GOVERNMENT REGULATION IS AN APPROPRIATE RESPONSE TO A PATTERN OF
WIDESPREAD DECEPTIVE ADVERTISING.

“[D]emonstrable falsehoods are not protected
by the First Amendment in the same manner as
truthful statements,” Brown v. Hartlage, 456 U.S. 45,
60 (1982). While the First Amendment protects even
some deliberately deceptive speech, United States v.
Alvarez, 567 U.S. 709, 718-20, 722-23 (2012)
(plurality op’n), that protection is reduced when, as in
this case, there is “legally cognizable harm associated
with a false statement.” Id. at 719.
A.

Government Has Substantial Latitude to
Protect the Public from Misleading Commercial Speech.

Commercial speech that has been found
“misleading ... is not protected by the First
Amendment.” Thompson v. W. States Med. Ctr., 535
U.S. 357, 367 (2002). “Misleading advertising may be
prohibited entirely.” In re R.M.J., 455 U.S. at 203.
And even in cases of truthful advertising that is only

Id. (statement of Sally Greenwald, OB-GYN, Univ. of Cal.
S.F.).
38

14

 “potentially misleading,”
required. Id. at 203.

disclaimers

may

be

The FACT Act should be reviewed in light of
the sustained, continuing, and often coordinated,
historical pattern of industrywide deception to which
it is a response. If an ordinary business engaged in
such practices, there would be no doubt that its
deceptive advertising could be enjoined, see, e.g.,
Church & Dwight Co. v. SPD Swiss Precision
Diagnostics, GmBH, 843 F.3d 48 (2d Cir. 2016)
(upholding permanent injunction against false claims
in advertising for home pregnancy test); provide a
basis for liability, see, e.g., Fanning v. F.T.C., 821 F.3d
164 (1st Cir. 2016), cert. denied, 137 S. Ct. 627 (2017)
(upholding finding that operator was personally liable
for misrepresentations on website); or, as in this case,
mitigated through factual disclosures. See, e.g., ECM
BioFilms, Inc. v. F.T.C., 851 F.3d 599 (6th Cir. 2017)
(upholding
order
requiring
that
disclaimer
accompany claims that certain plastics were
biodegradable); Removatron Int’l Corp. v. F.T.C., 884
F.2d 1489 (1st Cir. 1989) (upholding required
disclosure in hair removal advertisements that effect
is temporary). Two cases involved scenarios strikingly
reminiscent of CPC tactics. See Encyclopaedia
Britannica, Inc. v. F.T.C., 605 F.2d 964 (7th Cir. 1979)
(upholding required notification that home visits
were sales calls, after finding that salespeople gained
access to homes through deceptive ploys such as fake
research questionnaires; Nat’l Comm’n on Egg
Nutrition v. F.T.C., 570 F.2d 157 (7th Cir. 1977)
(upholding order requiring trade group to identify
itself as such in advertising, to avert confusion caused
by its misleading name).
15

 When accurate factual disclosures are imposed,
“an advertiser’s rights are adequately protected as
long as disclosure requirements are reasonably
related to the State’s interest in preventing deception
of consumers.” Zauderer, 471 U.S. at 651; accord
Milavetz, 559 U.S. at 250.39 Zauderer provides the
standard for reviewing the disclosures required here.
B.

Government May Regulate False or
Misleading Speech Within an Industry
Without a Particularized Showing That
Each Affected Enterprise Has Engaged in
Deceptive Speech.

NIFLA’s objection that the Act applies
“prophylactically”
to
all
CPCs
without
a
particularized showing that a given CPC “speaks
anything ‘misleading,’” NIFLA Br. at 7, is unavailing.
“[W]here the record indicates that a particular form
or method of advertising has in fact been deceptive …
or when experience has proved that in fact such
The Court has not made clear whether such deferential review
is appropriate for factual disclosure requirements serving
interests other than preventing deception. But, noting that the
advertiser’s “constitutionally protected interest in not providing
any particular factual information … is minimal,” Zauderer, 471
U.S. at 651, every court of appeals that has considered the issue
has applied deferential review to disclosures serving other state
interests as well. See, e.g., CTIA-The Wireless Ass’n v. City of
Berkeley, 854 F.3d 1105, 1117 (9th Cir. 2017); Am. Meat Inst. v.
U.S.D.A., 760 F.3d 218 (D.C. Cir. 2014) (en banc) (reversing
contrary holdings); Disc. Tobacco City & Lottery, Inc. v. U.S.,
674 F.3d 509, 556 (6th Cir. 2012); Pharm. Care Mgmt. Ass’n v.
Rowe, 429 F.3d 294, 316 (1st Cir. 2005); Nat. Electrical
Manufacturers Ass’n v. Sorrell, 272 F.3d 104, 115 (2d Cir. 2001);
see also Beeman v. Anthem Prescription Mgmt., 315 P.3d 71, 90
(Cal. 2013).
39

16

 advertising is subject to abuse, the States may impose
appropriate restrictions.” In re R.M.J., 455 U.S. at
202-03; see also Friedman v. Rogers, 440 U.S. 1, 15
(1979) (noting that even if a particular party’s
advertising of its trade name was “not in fact
misleading,” it could still be prohibited, because it
exemplified a trend “which enhances the opportunity
for misleading practices”); Ohralik v. Ohio State Bar
Ass’n, 436 U.S. 447, 464 (1978) (upholding
prohibitions on attorney solicitation as “prophylactic
measures,” not requiring “proof that [petitioner’s]
conduct constituted actual overreaching”).
Factual disclosure requirements, which
“trench much more narrowly on [First Amendment]
interests than do flat prohibitions on speech,”
Zauderer, 471 U.S. at 651, may a fortiori be applied
industrywide when there is evidence of a pattern of
misleading advertising. “Evidence in the congressional record demonstrating a [misleading]
pattern of advertisements” is sufficient to establish
the likelihood of deception. Milavetz, 559 U.S. at 251
(upholding requirement that all debt relief
advertising include specified disclosures, and
dismissing objection that “the Government … has
adduced no evidence that [Petitioner’s] advertisements are misleading”); see also Nationwide Biweekly
Admin., Inc. v. Owen, 873 F.3d 716, 735 (9th Cir.
2017) (“It is not necessary to show that any particular
solicitation is actually deceptive…. [T]he state may
reasonably decide to require disclosure for a class of
solicitations that it determines pose a risk of
deception”); Pub. Citizen, Inc. v. Louisiana Attorney
Disciplinary Bd., 632 F.3d 212, 218 (5th Cir. 2011)
(Zauderer review applies to disclosures targeting
17

 advertising that is only potentially misleading); Int’l
Dairy Foods Ass’n v. Boggs, 622 F.3d 628, 641 (6th
Cir. 2010) (same).
Indeed, the law is replete with disclosure
requirements aimed at preventing consumer
deception imposed on whole industries or general
types of advertising, without requiring a showing that
a particular business has been deceptive. See, e.g., 12
C.F.R. §§ 226.6 and 226.18 (offerors of consumer
credit must make written, detailed disclosures of all
finance charges, expressed as an annual percentage
rate); N.M. Stat. § 59A-57-4(B)(1) (marketers of
managed health care plans must disclose benefits,
exclusions, responsibilities, and rights); Haw. Rev.
Stat. § 431:10H-216 (long-term care insurance
providers must disclose the tax consequences of
purchasing such insurance).
Required disclosures may include referrals to
other resources. See, e.g., 15 U.S.C. § 2686(a) (sellers
and leasers of target housing must provide referrals
to state and local agencies for information about
available government and private assistance and
funding for lead hazard abatement, and advice on
obtaining a list of contractors); Cal. Civ. Code §
2982(h) (car dealers and repair facilities must inform
consumers about where to lodge complaints).
In passing the FACT Act, the California
legislature had evidence of an extensive pattern of
misleading advertising by CPCs. Accordingly, it may
impose an industrywide disclosure requirement,
provided it is reasonably related to preventing
deception.
18

 III. THE FACT THAT CPCs OFFER SERVICES
WITHOUT PAYMENT DOES NOT CHANGE
THE STANDARD OF REVIEW.
The foregoing precedents govern this case.
Regardless of whether CPC speech is deemed
commercial, the considerations justifying deferential
review of factual disclosures and industrywide
regulation apply equally here.
A.

The FACT Act Can Plausibly Be Taken to
Regulate Commercial Speech.

Neither the fact the disclosures are presented
in clinics rather than attached to advertising, nor the
fact that the advertising is for free services, provide
good reason to conclude that the disclosures required
by the FACT Act concern commercial speech less than
do those upheld in Milavetz and Zauderer.
1.

The location of the disclosures is not
dispositive of whether the Act
regulates commercial speech.

The court of appeals misapplied commercial
speech doctrine in reasoning that the FACT Act
“primarily regulates the speech that occurs within the
clinic, and thus is not commercial speech.” Pet.App.
19a n.5 (presumably referring to fact that the
disclosures are posted or distributed at CPC
facilities). But, as the D.C. Circuit explained with
respect to disclosures aimed at correcting deceptive
cigarette marketing, the argument “that the standalone corrective statements do not fall within the
commercial speech doctrine because they are not
19

 attached to advertisements, is a red herring. The
context of the corrective statements does not dictate
the level of scrutiny; rather, the level of scrutiny
depends on the nature of the speech that the
corrective statements burden.” United States v. Philip
Morris USA Inc., 566 F.3d 1095, 1143 (D.C. Cir. 2009)
(applying Zauderer review to “‘freestanding’ corrective statements … not connected to existing advertising”). Because the disclosure requirements of the
FACT Act were a legislative response to CPCs’
misleading solicitation of clients for services, those
solicitations are the speech burdened in this case, and
it is their nature that dictates the appropriate level of
scrutiny.
Accordingly, courts apply “reasonable relationship” review under Zauderer to requirements to
publish disclosures apart from advertising or sales.
See, e.g., Test Masters Educ. Servs., Inc. v. Robin
Singh Educ. Servs., Inc., 799 F.3d 437, 453 (5th Cir.
2015) (reviewing under Zauderer required posting of
remedial statement on third party website); Greater
Baltimore Ctr. for Pregnancy Concerns v. Mayor &
City Council, 721 F.3d 264, 284-87 (4th Cir. 2013) (en
banc) (holding that more factfinding was required to
determine whether required sign postings – not
attached to advertising – at pregnancy center were
commercial speech).
Even if the FACT Act was in part a response to
misleading representations made by CPCs after
clients were enrolled, that would be no reason for less
deferential review. When providers of professional
services mislead – or just misinform – actual clients,
their speech receives no more protection than does
20

 false advertising. See, e.g., Pickup v. Brown, 740 F.3d
1208, 1228 (9th Cir. 2014) (“doctors are routinely held
liable for giving negligent medical advice to their
patients, without serious suggestion that the First
Amendment protects their right to give advice that is
not consistent with the accepted standard of care”).
Moreover, required informational postings
entirely unrelated to advertising are commonplace at
places of business, whether they warn of safety risks,
notify consumers or employees of their rights,
announce that cigarettes may not be sold to minors,
or simply inform patrons of maximum occupancy or
the location of an Exit. To hold that such postings are
subject to scrutiny more exacting than “reasonable
relationship” review would upend countless legal
regimes.40

Indeed, the latter sort of posting in practice receives – and
perhaps ought to receive – less protection than that accorded
commercial speech. See Robert Post, The Constitutional Status
of Commercial Speech, 48 UCLA L. Rev. 1, 4 (2000) (“the
category of commercial speech ought to be distinguished from
the innumerable kinds of commercial communications, ranging
from professional speech to product safety warnings, that do not
receive the First Amendment protections even of ‘commercial
speech’”).
40

21

 2.

Advertising by service providers
seeking to attract clients may be
commercial speech, even if no money is
charged.

Several courts have reasoned persuasively that
solicitation of non-paying clients by non-profit CPCs
may be commercial speech.
North Dakota’s high court considered a
pregnancy clinic’s “deceptive advertising … [that]
misleads persons into believing that abortions are
conducted at the clinic with the intent of deceptively
luring those persons to the clinic to unwittingly
receive anti-abortion propaganda.” Fargo Women’s
Health Organization, Inc. v. Larson, 381 N.W.2d 176,
177 (N.D. 1986). The court reasoned that whether the
clinic received money from its clients was not
dispositive of whether its speech was commercial. Id.
at 180-81. What was dispositive was that the clinic’s
advertisements were placed in a commercial context,
and were directed toward soliciting clients for services
“rather than toward an exchange of ideas,” making
them “classic examples of commercial speech.” Id. at
181.
Other courts have agreed that CPC advertising
could be commercial speech even in the absence of
economic motivation. See First Resort, 860 F.3d at
1274 (concluding that “advertising designed to attract
a patient base in a competitive marketplace for
commercially valuable services” was commercial
speech, regardless of whether there was an economic
motivation); Greater Baltimore Ctr., 721 F.3d at 28586 (holding that the absence of economic motivation
22

 did not preclude classifying speech as commercial),
citing Bolger v. Youngs Drug Prods. Corp., 463 U.S.
60, 67 n.14 (1983) (although a speaker’s economic
motivation is one of the characteristics of commercial
speech, it is not necessary that each characteristic be
present for speech to be commercial).
There is a strong case that the disclosures
required by the FACT Act burden commercial speech.
B.

Deceptive Marketing of Services Does Not
Receive Greater Protection When the
Services are Free of Charge.

In any event, regardless of how CPCs’ speech is
labeled, NIFLA’s contention that CPCs’ speech in the
course of marketing and providing professional
services is entitled to a higher level of First
Amendment protection than speech in the course of
marketing and providing otherwise similar services
for payment is supported by neither precedent nor
reason. There was no indication in Milavetz, 559 U.S.
229, that the Court intended to exempt attorneys
acting pro bono from the disclosure requirements
upheld there. To hold that the state has less authority
– or indeed less duty – to protect recipients of pro bono
services from deceptive marketing or advice, or
simply from misinformation, than to protect
recipients of paid services, would be to fail the most
vulnerable members of society. Professional rules of
conduct prohibiting deceptive or misleading
representations, e.g. Cal. Bus. & Prof. Code § 651
(doctors); Wash. Admin. Code § 4-30-142 (accountants), do not include exemptions for pro bono services.

23

 In re Primus, 436 U.S. 412 (1978), which held
that the First Amendment protects the right to join
together in litigation to advance political goals, id. at
426 (citations omitted), does not stand for the
proposition that the level of scrutiny for regulations
affecting service provider speech depends on whether
the services are paid for. The Court did not hold that
solicitations for free professional services could not
constitute commercial speech.
A crucial distinction from this case is that there
were no allegations that the solicitation at issue in In
re Primus involved deception. To the contrary, the
Court explicitly stated that findings of deceptive
solicitation would alter the analysis: “The State’s
special interest in regulating members whose
profession it licenses … amply justifies the
application of narrowly drawn rules to proscribe
solicitation that in fact is misleading … or involves
other features of deception.” Id. at 438. In noting that
it did not decide whether the state could permissibly
regulate if “an innocent or merely negligent misstatement were made by a lawyer on behalf of an
organization engaged in furthering associational or
political interests,” id. at 438 n.33, the Court clearly
implied that protection would in any event not extend
to deliberately deceptive solicitation by such an
organization.
Moreover, the Court also distinguished the
solicitation protected in In re Primus from the less
protected solicitation in Ohralik, 436 U.S. 447, on the
ground that the solicitation in the former case was by
letter, rather than in person, and therefore, afforded
less “opportunity for overreaching or coercion.” In re
24

 Primus, 436 U.S. at 435. When fearful, pregnant
young women seek advice from professional health
care providers, by contrast, there is great opportunity
for overreaching and coercion.
Finally, In re Primus struck down a speech
restriction. The present case involves only factual
disclosures, a significantly lesser encroachment on
First Amendment freedoms.
C.

The Reasons for Deferential Review of
Commercial Disclosures Apply Equally in
the Context of Professional Speech.

Regardless of whether the speech at issue is
classified as commercial, the reasons justifying
deferential review of factual disclosures apply equally
when professional services are offered free of charge.
See King v. Governor of New Jersey, 767 F.3d 216,
234-36 (3d Cir. 2014) (concluding that “professional
speech should receive the same level of First
Amendment protection as that afforded commercial
speech,” because “commercial and professional speech
share important qualities”).
Like
commercial
contexts,
professional
contexts present particular dangers of harm to the
public. Commercial speech receives reduced
protection in large part because of “the government’s
legitimate interest in protecting consumers from
‘commercial harms.’” Sorrell v. IMS Health Inc., 564
U.S. 552, 579 (2011) (citation omitted). But the state’s
interest in protecting the public from harm is not
limited to commercial harms. First Amendment
protection for false statements is generally reduced
25

 where “legally cognizable harm [is] associated with a
false statement.” Alvarez, 567 U.S. at 719. For
example, the First Amendment permits liability for
defamation, even when there is no evidence of any
monetary harm. Gertz v. Robert Welch, Inc., 418 U.S.
323, 346 (1974). Potential harm to the public from
health services – whether paid for or free of charge –
may be more consequential than most commercial
harms. As noted, CPC deception may lead to serious
harm to health, and in fact monetary harm as well,
e.g., the increased cost of a delayed abortion.
Consequently, just as commerce is “an area
traditionally subject to government regulation,” 44
Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 499
(1996) (plurality op’n), so is professional conduct. See,
e.g., Goldfarb v. Va. State Bar, 421 U.S. 773, 792
(1975) (“as part of their power to protect the public
health, safety, and other valid interests,” states have
“broad power to establish standards for … regulating
the practice of professions”). This is particularly true
of the provision of health services. See, e.g., Gonzales
v. Carhart, 550 U.S. 124, 157 (2007) (“it is clear the
State has a significant role to play in regulating the
medical profession”). Just as “the State’s power to
regulate commercial transactions justifies its
concomitant power to regulate commercial speech
that is ‘linked inextricably’ to those transactions,” 44
Liquormart, 517 U.S. at 499 (citation omitted), so too
does the state’s power to regulate the professions
justify its power to regulate speech in the conduct of
a profession.
Like commercial speech, professional speech is
protected and regulated principally in support of the
26

 listener’s (client’s) interest in receiving reliable
information, rather than for the speaker’s interest in
self-expression or advocacy on public issues. See
Moore-King v. Cty. of Chesterfield, 708 F.3d 560, 569
(4th Cir. 2013) (contrasting permissible listenercentered regulation of commercial and professional
speech with protection of speaker autonomy in public
discourse). Because “First Amendment protection for
commercial speech is justified in large part by the
information’s value to consumers,” Milavetz, 559 U.S.
at 249, when government “requires the disclosure of
beneficial consumer information, the purpose of its
regulation is consistent with the reasons for according
constitutional protection to commercial speech and
therefore justifies less than strict review.” 44
Liquormart, 517 U.S. at 501. Similarly, both the lead
and concurring opinions in Lowe v. SEC, 472 U.S. 181
(1985) “emphasize the importance of the relationship
to a client for whose benefit the State may regulate
[professional] communication[s]. This is not far from
the
Court’s
examination
of
commercial
communications with the interests of the listener in
mind.”41 See also Pickup, 740 F.3d at 1228 (more
regulation of speech is tolerated in the professionalclient relationship, because “the purpose of
[professional] relationships is to advance the welfare
of the clients, rather than to contribute to public
debate”).
Finally, much as listeners are often less able to
assess the accuracy of commercial speech than are its
disseminators, Virginia Bd. of Pharmacy, 425 U.S. at
Daniel Halberstam, Commercial Speech, Professional Speech,
and the Constitutional Status of Social Institutions, 147 U. PA.
L. REV. 771, 844 (1999).
41

27

 771 n.24 (justifying regulating commercial speech for
accuracy), so are listeners reliant on professional
expertise. Cf. In re R.M.J., 455 U.S. at 202 (“The
public’s comparative lack of knowledge … renders
advertising for professional services especially
susceptible to abuses”).
The significant harms associated with
misleading professional speech, the recognized
authority of the state to regulate the professions, the
primacy of listener interests in receiving accurate
information, and the asymmetry in relevant
knowledge between professionals and clients all
support the conclusion that misleading professional
speech should not be protected any more than is
misleading commercial speech, and that the
deferential standard of review applied to accurate,
factual disclosures in commercial contexts is
applicable to professional contexts as well.
D.

The Disclosures Are Subject to Deferential
Review Because They Occur in the Context
of Professional Speech.

Because the factual disclosures required by the
FACT Act occur in the context of professional speech,
they should be reviewed under the deferential
“reasonable relationship” standard applied to
commercial disclosures in Zauderer, 471 U.S. 626.
Courts of Appeals that have considered the
question have generally agreed that regulations of
speech by professionals within the context of
providing services to their clients are subject to
reduced First Amendment scrutiny. See King, 767
28

 F.3d. at 224 (“Because Plaintiffs are speaking as
state-licensed professionals within the confines of a
professional relationship, … th[e] level of protection
is diminished”); Pickup, 740 F.3d at 1228 (“the First
Amendment tolerates a substantial amount of speech
regulation within the professional-client relationship
that it would not tolerate outside of it”).
Factual disclosures in the context of
professional speech should be accorded “reasonable
relationship” review under Zauderer. See King, 767
F.3d at 236 (contrasting standard of review for
professional speech restrictions with the Zauderer
standard appropriate for review of “a compulsion of
truthful factual information”). When courts have
applied a higher level of scrutiny than Zauderer
review in professional speech contexts, it has been
either when (1) reviewing speech restrictions, rather
than disclosures, see Wollschlaeger v. Governor, Fla.,
848 F.3d 1293 (11th Cir. 2017) (en banc) (statute
limiting physicians’ authority to ask patients about
firearms in their homes and keep records); King, 767
F.3d 216 (statute prohibiting licensed counselors from
engaging in sexual orientation change therapy on
minors);42 Conant v. Walters, 309 F.3d 629, 637 (9th
Cir. 2002) (disciplining physicians for recommending
medical marijuana); or (2) when reviewing compelled
speech far more intrusive than a mere printed factual
disclosure. See Stuart v. Camnitz, 774 F.3d 238 (4th
Cir. 2014) (requirement that physicians show
sonogram and describe fetus in real time to women
seeking abortions).
The King court explicitly noted that disclosures are reviewed
more deferentially. 767 F.3d at 236.
42

29

 Staff of CPCs – whether licensed or unlicensed
– are engaged in professional speech when they
advise and refer clients, and schedule and perform
tests. “Professional speech analysis applies … where
a speaker ‘takes the affairs of a client personally in
hand and purports to exercise judgment on behalf of
the client.’” Moore-King, 798 F.3d at 569 (citations
omitted); see also King, 767 F.3d at 232 (“a
professional’s speech warrants lesser protection …
when it is used to provide personalized services to a
client based on the professional’s expert knowledge
and judgment”).43
Because the present case concerns unintrusive
factual disclosures in a context of professional speech,
reasonable relationship review is appropriate.

The Fourth Circuit’s conclusion that similar disclosure
requirements do not regulate professional speech, because
pregnancy centers are not state-regulated or required to be
licensed, and clients do not pay for services, Greater Baltimore
Ctr. for Pregnancy Concerns v. Mayor & City Council, 879 F.3d
101, 109 (4th Cir. 2018), is unpersuasive. But the court did not
explain why the First Amendment should allow government less
authority to protect recipients of pro bono professional services
from deception or other malpractice. And authority to regulate
or require licensing for pregnancy centers, even if not fully
exercised, surely includes the authority to require unlicensed
providers to make clear that they do not offer licensed
professional services, particularly when providers dress in
medical scrubs and otherwise seek to create the impression that
they are medical professionals.
43

30

 E.

CPCs’ Deceptive Professional and Commercial Speech Are Not “Inextricably
Intertwined” With Fully Protected Speech.

CPC solicitations of and communications to
clients are neither public advocacy nor “inextricably
intertwined with otherwise fully protected speech.”
Riley v. Nat’l Fed’n of the Blind, 487 U.S. 781, 796
(1988).
Of course, health care providers and other
professionals do not surrender their full rights to
advocate for their beliefs outside the professional
relationship. “There is a difference, for First
Amendment
purposes,
between
regulating
professionals’ speech to the public at large versus
their direct, personalized speech with clients.” Locke
v. Shore, 634 F.3d 1185, 1191 (11th Cir. 2011).
The FACT Act affects CPCs’ personalized
speech with clients, not speech to the public at large.
It is the CPCs who have chosen to mask their
advocacy behind offers of services; they remain free to
engage in fully protected public advocacy for their
beliefs. And nothing in the Act interferes with them
advocating for their beliefs even to clients. But their
ideological motivations, no matter how sincere, do not
immunize their misrepresentations to clients and
potential clients once they have entered the
marketplace of service providers.
Hidden advocacy disguised as the offering of
health services is not an instance of “inextricably
intertwined speech.” Riley, 487 U.S. at 796. It is an
instance of deception in solicitation and in the offering
31

 of professional services. By contrast, there were no
allegations that the regulated fund-raisers in Riley
engaged in any deception. And the Riley Court made
clear that the First Amendment does not prevent
government
from
“prohibit[ing]
professional
fundraisers from obtaining money on false pretenses
or by making false statements.” Id. at 800.
The context
of
professionals offering
pregnancy-related services further distinguishes the
present case from Riley. The combination of highly
vulnerable clients and the likelihood of deferring to
presumed professional expertise increase the need to
protect against deceptive communications. Cf.
Ohralik, 436 U.S. at 465 (“the potential for
overreaching is significantly greater when … a
professional trained in the art of persuasion,
personally solicits a[] distressed lay person”).
In sum, whether CPC advertising and
communications to clients are classified as
commercial or professional speech or analyzed apart
from a categorical approach, the considerations
justifying relatively deferential review of regulation
aimed at misleading communications are equally
applicable here. The fact that CPCs offer services
without charge provides no reason to review factual
disclosures, or industrywide regulations aimed at
preventing deception, more stringently here than in
commercial contexts.

32

 IV. THE FACT THAT THE DISCLOSURES
CONCERN A TOPIC ABOUT WHICH THERE
ARE STRONG FEELINGS AND CONVICTIONS DOES NOT AFFECT THE STANDARD
OF REVIEW.
NIFLA’s contentions that the disclosures here
are ideological or viewpoint-based, concern a
“controversial” topic, or compel CPCs to engage in
speech against conscience, likewise fail to justify more
stringent scrutiny here than that accorded
commercial speech disclosures under Zauderer.
A.

That the Factual Disclosures Relate to an
Issue About Which There Is Controversy
Does Not Change the Analysis.

That the required postings may concern “a
deeply divisive ideological matter,” NIFLA Br. at 30,
does not affect the standard of review. “[W]hether a
disclosure is scrutinized under Zauderer turns on
whether the disclosure conveys factual information ...,
not on whether the disclosure ... incites controversy.”
Disc. Tobacco City & Lottery, Inc. v. U.S., 674 F.3d
509, 569 (6th Cir. 2012). The requirement that
automobile manufacturers disclose mileage ratings,
49 U.S.C. § 32908, is not subject to heightened
scrutiny because of public controversies about climate
change, nor do disputes about mandatory vaccination
necessitate heightened scrutiny of requirements that
schools report immunization rates. E.g. Va. Code §
22.1-271.2; N.C. G.S. 130A-155(c). The FACT Act
requires only straightforward statements of
uncontroversially true facts.

33

 B.

That the Disclosures Concern a Topic About
Which Members of the Regulated
Enterprises Have Strong Convictions Does
Change the Analysis.

NIFLA’s contention that the licensed facility
disclosure offends the First Amendment by
compelling speech against its members’ convictions,
NIFLA Br. at 17, 24-26, is misplaced. As noted,
speakers’ interest in autonomy is of secondary
concern in the context of commercial and professional
speech, and that is the discourse in which NIFLA and
its allies have chosen to place themselves.
Even in a case with no commercial elements,
Rumsfeld v. Forum for Academic and Institutional
Rights, Inc. [FAIR], 547 U.S. 47 (2006), the Court
rejected an argument much like NIFLA’s. Because of
their opposition to discriminatory military policies,
law schools contended that required notices
facilitating military recruiting constituted compelled
speech against their convictions, arguing that
“treat[ing] military and nonmilitary recruiters alike
in order to comply …, could be viewed as sending
the message that they see nothing wrong with the
military’s policies, when they do.” Id. at 64-65.44 The
Court rejected the law schools’ argument, reasoning
that the schools remained free to criticize military
policies, and that onlookers could understand the
difference between speech the school agrees with and

Although FAIR concerned a condition on funding, the Court
explicitly decided the case on the basis that the requirements
would withstand First Amendment review even if they were
directly compelled. 547 U.S. at 60.
44

34

 “speech the school permits because legally required to
do so.” Id. at 65.
Similar reasoning is apposite here. Like the
Solomon Amendment challenged in FAIR, the FACT
Act imposes “nothing … approaching a Governmentmandated pledge or motto” that CPCs “must
endorse.” Id. at 62. Like the law schools, CPCs are
required only to post neutral factual messages
informing of an available option. CPCs remain free to
speak against abortion and to distance themselves
from any implicit message that they see nothing
wrong with abortion. No reasonable observer would
think that posted information about available
services including abortion was the speech of an
organization dedicated to opposing abortion, any
more than a posting notifying employees of their
rights under labor law, see 29 C.F.R. pt. 471(A), App.
A, represents the views of the owner of the workplace.
Cf. R.J. Reynolds Tobacco Co. v. Shewry, 423 F.3d
906, 925 (9th Cir. 2005) (no reasonable observer could
believe that anti-tobacco industry ads funded by tax
on cigarette sales were the tobacco industry’s speech).
If there is any confusion in this case, it is attributable
to the CPCs’ disingenuousness in presenting
themselves as something other than ideological
advocates. Their own misrepresentations do not
transform an ordinary disclosure requirement into a
violation of their First Amendment rights.
If the Solomon Amendment – where there were
no concerns about deceptive speech, and which had no
relation to commercial speech or solicitation of clients
for services – did not call for heightened scrutiny, still
less so does the FACT Act.
35

 C.

The Disclosures Are Viewpoint-Neutral.

NIFLA’s contention that the FACT Act targets
viewpoint is baseless. To begin, the Act does not force
anyone to advance a “viewpoint-biased message.”
NIFLA Br. at 18. Like the Solomon Act, the FACT Act
requires only the provision of neutral information
about available options.
If CPCs are targeted, it is not out of opposition
to their viewpoint, NIFLA Br. at 7, 18, but because of
their extensive record of harmful deception.45 Much
as “a State may choose to regulate … advertising in
one industry but not in others, because the risk of
fraud ... is in its view greater there,” IMS Health, 564
U.S. at 579, California is entitled to focus its
deception-remedying efforts where there is evidence
of widespread harmful deception. If there were a
widespread pattern of anti-overpopulation zealots
advertising ‘adoption counseling centers,’ and
credible evidence that pregnant mothers seeking
adoption resources at those centers were pressured
into obtaining abortions and inundated with
misinformation about the psychological harms of
giving a child up for abortion, California would
presumably require disclosures from those ‘adoption
centers’ as well. If California did not, CPCs could
reasonably complain that they were targeted for their

NIFLA misleadingly quotes a legislative summary’s use of
“unfortunately” as evidence of animus against CPCs’ viewpoint.
See NIFLA Br. at 34. It is clear in context that “unfortunately”
refers not to CPCs’ discouraging abortions, but to CPCs’
deceptive advertising and counseling. See JA 84-85.
45

36

 viewpoint. But in the actual world, such a complaint
is unfounded.
D.

Content Neutrality Cannot Distinguish
Compelled Speech Offensive to the First
Amendment From Compelled Disclosures
Subject to Deferential Review.

NIFLA’s arguments that the disclosures here
are subject to heightened scrutiny because they are
content-based is little more than a smokescreen – the
concept of content neutrality is inapplicable to
compelled disclosures. “By definition, all mandatory
disclosures require some defined class to say
something rather than something else.” Amanda
Shanor, The New Lochner, 2016 WIS. L. REV. 133, 178
(2016). Therefore, unless all disclosure requirements
are to be subject to strict scrutiny, content
discrimination cannot serve as a useful distinction in
this context.
Even if only disclosures triggered by certain
speech content are considered “content-based,” it
would not make sense, for example, to subject
warnings of the hazards of smoking to a higher level
of scrutiny if they are required only in cigarette
advertising (content-triggered) than if they were
required in advertising for all products (not contenttriggered). See Am. Meat Inst. v. United States Dept.
of Agriculture, 760 F.3d 18, 33 n.1 (D.C. Cir. 2014)
(Kavanaugh, J., concurring in judgment) (“The First
Amendment does not tolerate … compel[led]
disclosures unrelated to the product or service – for
example, a compelled disclosure on all food packages

37

 (not just cigarette packages) that cigarette smoking
causes cancer”).
The Court has repeatedly applied a lenient
standard of review in upholding required disclosures
of specific content triggered by specific speech
content. See Milavetz, 559 U.S. at 233 (requiring
specific content – “We are a debt relief agency,”
triggered by specific speech content – offers of debt
relief); Zauderer, 471 U.S. at 650 (requiring specific
content – that legal clients might be liable for
litigation costs, triggered by specific content – offers
of legal representation on contingency). The dubious
supposition that this Court intended, in Reed v. Town
of Gilbert, 135 S. Ct. 2218 (2015), to overturn decades
of precedent sub silentio was definitively refuted
when the Court subsequently issued a remand to
determine whether a state statute could “be upheld as
a valid disclosure requirement under Zauderer.”
Expressions Hair Design v. Schneiderman, 137 S. Ct.
1144, 1151 (2017).
V.

THE CHALLENGED DISCLOSURES ARE
THE SORT OF SPEECH REGULATION LEAST
OFFENSIVE TO THE FIRST AMENDMENT.

The protective measures of the FACT Act
infringe minimally on First Amendment freedoms, in
several respects.
First, “the First Amendment interests
implicated
by
disclosure
requirements
are
substantially weaker than those at stake when speech
is actually suppressed.” Zauderer, 471 U.S. at 651
n.14. When the Court has struck down speech
38

 srestrictions, it has often suggested that required
disclosures would offer a less problematic alternative.
See, e.g., Central Hudson Gas & Elec. Corp. v. Public
Serv. Comm’n, 447 U.S. 557, 571 (1980) (instead of
banning electricity advertising, state could “further
its policy of conservation” by “requir[ing] that …
advertisements include information about … relative
efficiency and expense”).
The principle is not limited to commercial
contexts, extending even to core political speech. See
Meese v. Keene, 481 U.S. 465, 480 (1987) (upholding
labeling requirement, because “Congress did not
prohibit, edit, or restrain the distribution of advocacy
materials…. Congress simply required the disseminators … to make additional disclosures that would
better enable the public to evaluate [their] import”).
Required disclosures of political campaign spending
similarly receive less stringent scrutiny than do
restrictions on political spending, because disclosure
requirements “do not prevent anyone from speaking,”
and because of the public’s “informational interest.”
Citizens United v. Fed. Election Comm’n, 558 U.S.
310, 366, 369 (2010).
Second, requiring a private speaker to convey a
message is least offensive to the First Amendment
when an observer is unlikely to attribute the message
to the private speaker. See Pleasant Grove City v.
Summum, 555 U.S. 460, 471 (2009) (finding
monuments on government land constitutional in
part because “there is little chance that observers will
fail to appreciate the [governmental] identity of the
speaker”); Pruneyard Shopping Ctr. v. Robins, 447
U.S. 74, 87 (1980) (finding no violation of First
39

 Amendment rights in part because mall owners
“could disclaim any sponsorship of the message and
could explain” that the message was posted “by virtue
of state law”). CPCs can likewise easily dissociate
themselves from the offending disclaimers. Nothing
here “effectively restricts the ability of doctors to
distance themselves from” a required statement.
Planned Parenthood v. Rounds, 530 F.3d 724, 746
(8th Cir. 2008). The physician need not even deliver
the disclosures herself.
Finally, the disclosures required here do not
intrude unduly on vulnerable clients who may be
unwilling listeners. Cf. Stuart, 774 F.3d at 255
(striking down requirement that a woman seeking an
abortion view in real time a sonogram of her fetus
while the doctor describes the fetus, “irrespective of
the needs or wants of the patient, in direct
contravention of … the principle of patient
autonomy”); Rounds, 530 F.3d at 746-47 (striking
down as coercive pre-abortion requirements that
woman sign each page of a written disclosure to
certify that she has read and understood it).
Because the FACT Act infringes minimally on
First Amendment freedoms, it is subject to a lenient
standard of review.
CONCLUSION
Because California may remedy deceptive
speech by service providers, and has chosen a remedy
that minimally burdens the First Amendment, the
proper standard with which to examine the
challenged disclosures is “reasonable relationship”
review under Zauderer.
40

 Respectfully submitted,
Thomas Bennigson
Counsel of Record
Seth E. Mermin
Sophia TonNu
PUBLIC GOOD LAW CENTER
1950 University Avenue, Suite 200
Berkeley, CA 94704
(510) 336-1899
tbennigson@publicgoodlaw.org
Counsel for Amici Curiae
February 27, 2018

41