Protecting the Free Speech Rights of Pro-Life Pregnancy Centers | American Center for Law and Justice
  Search  |  Login  |  Register

ACLJ Profile Completion

Verified

Protecting Free Speech Rights of Pro-Life Centers

By Walter M. Weber1520277349542

The ACLJ filed a friend-of-the-court brief today in the Supreme Court in an important free speech case from California. The case is First Resort, Inc. v. Herrera. At stake are the free speech rights of pro-life pregnancy centers and, indeed, countless charitable agencies.

Here's the background: The City of San Francisco is targeting pregnancy resource centers with a new ordinance supposedly aimed at "misleading" speech. The problem is that abortion advocates like NARAL consider much of the pro-life message to be misleading. For NARAL, Planned Parenthood, and their allies, abortion is a wonderful thing that never (or almost never) hurts women. Therefore, talking women out of abortion must, by their lights, involve "misleading" women.

A pro-life center in San Francisco, First Resort, represented by the Becket Fund for Religious Liberty, challenged the SF ordinance in federal court, but the trial court rejected the lawsuit. First Resort appealed, but the U.S. Court of Appeals for the Ninth Circuit also rejected the challenge. What was especially remarkable was how the Ninth Circuit reached that result: the SF-based federal appeals court ruled that the speech of pro-life pregnancy centers was "commercial speech" – like cigarette  

This is a big problem. The rules for "commercial speech" permit far more government regulation and restriction than is otherwise allowed under the First Amendment. So when First Resort petitioned the Supreme Court to hear the case, we at the ACLJ felt the need to weigh in on First Resort's side. In our amicus brief supporting First Resort's petition for Supreme Court review, we explained:

Commercial speech is that which proposes a commercial transaction. Yet the court below held that the speech of a nonprofit charity, which sells nothing, was somehow commercial speech – with concomitant reduced First Amendment protection. This holding is dramatically inconsistent with Supreme Court precedent and would sweep into the realm of commercial speech the communications of charities across the board.

As we noted:

First Resort, Inc., is not a commercial business. Rather, it is an entirely charitable entity that sells no products or services. It proposes no commercial transactions to its clientele, but instead offers them assistance free of charge, like any other charity. The commercial speech doctrine is therefore wholly inapplicable.

But the Ninth Circuit's wrong result was just the beginning.

The Ninth Circuit acknowledged the absence of paid services or sales here, but insisted that the same rule should apply if the entity raises funds off the services that it advertises. . . . Let that point sink in for a bit. If an entity can raise more money through donations because it performs more charitable services as a consequence of advertising – promoting – those same services, then, says the Ninth Circuit, those advertisements are “commercial speech.” One is left to wonder, is there any donor-supported charity that would not fit the Ninth Circuit’s description? Every charity must somehow get out the word about its good works, with a view to bringing in the clientele that charity assists. The church that runs a food pantry, the public interest legal group that represents domestic abuse victims for free, the large foundation that awards grants to promising musicians – all of these, and more, are engaged in “commercial speech” under the Ninth Circuit’s rationale whenever they inform potential beneficiaries of their particular charitable functions.

The Ninth Circuit added that First Resort gives away services (pregnancy assistance and counseling) that could also be sold, as if that mattered. As we countered:

But the same could be said of any charity that feeds the hungry, clothes the naked, instructs the ignorant, or visits the sick or imprisoned. There is a world of difference between a commercial enterprise that gives away some free services or goods to drum up business or good will, and a charity that only gives away services or goods.

In short, the Ninth Circuit swept virtually all charities into the same box as used car shops, subject to significantly reduced free speech rights. As we concluded:

The Ninth Circuit’s holding on the scope of commercial speech bears no resemblance to this Court’s line of relevant precedents and spells trouble for charitable operations across the board, at the expense of First Amendment rights. This Court should grant review.

Let's hope the Supreme Court notices how off-base the Ninth Circuit has gone with this one and agrees to review the case. Our filing in support of the petition is designed to raise the odds of that happening.

We also recently filed another amicus brief in another crisis pregnancy centers (CPC) case at the Supreme Court. The high Court is scheduled to hold oral argument on March 20th. As we have previously explained:

In California, we represent multiple pro-life centers in a challenge to a state law requiring CPCs to provide clients with information about how they can obtain an abortion elsewhere. The Supreme Court of the United States has agreed to hear a similar lawsuit challenging the law, and we filed a brief explaining why that law is unconstitutional. We also represent a CPC in Hawaii challenging similar unconstitutional requirements.

Save Babies at the Supreme Court

Pro Life  Signatures

LOGIN

Receive the latest news, updates, and contribution opportunities from ACLJ.

$20
$40
$60
$120
$240
Make this a monthly tax-deductible gift.

As we aggressively battle taxpayer-funded the abortion industry to save babies at the Supreme Court, we urgently need you. Your gift could save lives.

Email Address is required.
First Name is required.
Last Name is required.
Credit Card Number is required.
Verification Code is required.
Expiration Month is required.
Expiration Year is required.
Receive the latest news, updates, and contribution opportunities from ACLJ.
Encourage your friends to sign and donate by sharing this petition.
Latest in
Pro Life

31 Senators Aim to Block Planned Parenthood From More Relief Funds

By Jordan Sekulow1611003643438

Planned Parenthood may be gearing up to make another play for federal relief funds intended for actual small businesses and not a billion-dollar abortion behemoth. This cannot be tolerated. A group of 31 pro-life Senators, led by Sen. Tom Cotton (AR), has taken action to block Planned Parenthood...

read more

Pro-abortion Justice Sotomayor Ironically Uses Pro-Life Talking Points

By Walter M. Weber1610731568758

Supreme Court Justice Sonia Sotomayor has been a reliable pro-abortion vote on the Supreme Court. That didn’t change when she dissented from a recent pro-life victory in abortion-pill litigation. Yet ironically, in her dissent (joined by Justice Elena Kagan), Justice Sotomayor embraced several...

read more

Abortion Is the Leading Cause of Death at Nearly 42% of Deaths

By Jordan Sekulow1610490296014

According to a new report , abortion is now the world’s leading cause of death, accounting for nearly 42% of all deaths worldwide. Let that sink in for a moment. That’s almost HALF. More than cancer. More than heart disease. More than any criminal violence. In 2020, our entire country, and indeed...

read more

Court of Appeals for 5th Circuit Delivers Major Victory for Life

By Laura Hernandez1608051477537

In a critical blow to Planned Parenthood’s access to taxpayer funds, the full United States Court of Appeals for the Fifth Circuit held that the states of Texas, Louisiana, and Mississippi could disqualify Planned Parenthood as a medical services provider under Medicaid. This effectively defunds...

read more