When Advertising Becomes Political Speech: The Case of Crisis Pregnancy Centers
The National Institute of Family and Life Advocates (NIFLA) is a membership organization for crisis pregnancy centers (CPCs), which are medically licensed or unlicensed institutions that frequently present themselves as full-service reproductive clinics in advertising, but do not perform abortions. NIFLA provides legal counsel and other services for hundreds of CPCs in the United States. Pro-choice organizations and other social justice advocates have described CPCs’ ads as misleading because they often imply that CPCs perform abortions. This criticism has led multiple states, including California, to attempt to regulate CPCs’ ads because of their misleading nature. In a new article in First Amendment Studies, Bradley Queen argues that the 2018 Supreme Court case National Institute of Family and Life Advocates v. Becerra failed to consider the CPCs’ ads and marketing as commercial speech, which sets a troubling precedent for speech and reproductive rights.
NIFLA v. Becerra
California’s Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act was intended to prevent CPCs from engaging in misleading or deceptive advertising and other practices that can mislead patients about the services CPCs offer and their status as medically licensed institutions. The deceptive practices at CPCs have harmed patients in a variety of ways, such as forcing patients to watch graphic videos about abortion before declaring that the center does not offer that service, telling patients that they are too far along to consider abortion when they are not, or misreading ultrasounds in ways that have led to serious physical harm. The FACT Act attempted to remedy these harms by requiring specific disclosures, including disclosing that facilities were not licensed medical facilities and informing patients about their options regarding contraception and abortion.
In National Institute of Family and Life Advocates (NIFLA) v. Becerra, NIFLA alleged that California’s FACT Act violated CPCs’ First Amendment rights, and, in a 5-4 decision, the Supreme Court agreed.
In the article, Queen notes that the Court relied on Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio (1985), which pertains to commercial speech. Due to potential harms from false speech, false commercial speech, such as product and services advertising, has not traditionally received full protection under the First Amendment. Instead, such speech can be limited in the interests of protecting consumers from deception in marketplaces.
The Zauderer decision on which the Court relies is concerned with preventing consumer confusion by using disclosure requirements to limit the harms caused by false commercial speech. However, in NIFLA v. Becerra, Queen argues that “the majority eschews this aspect of Zauderer to exploit its ill-conceived controversiality test.” In this case, the Court assessed the CPCs’ speech as ideological speech, rather than factually hardy commercial speech. Thus, the majority determined that the CPCs’ speech was not subject to Zauderer at all. Instead, the majority argued, the FACT Act was an attempt at viewpoint discrimination and an attempt to stifle the pro-life viewpoint of CPCs.
Criticism of the NIFLA v. Becerra Decision
According to Queen, the reasoning in NIFLA v. Becerra is flawed, in part because “Justice Thomas assumes NIFLA’s pro-life advocacy is visible but does not engage NIFLA’s speech directly.” Thomas’ majority opinion never considers how the FACT Act disclosures interact with the CPCs’ own speech, including ads and the practices at the clinics. Queen notes that a more substantive look at the speech acts themselves would make clear that they are commercial speech. In addition, the larger context of commercial speech within the reproductive products market is not considered at all, even though such speech has consequences for patients’ health.
Queen argues that the NIFLA decision undermines previous decisions that have long served to protect consumers. Thus, NIFLA’s speech is not judged on the same standards as previous commercial speech cases, and the ill effects of the speech are not considered. Queen concludes that the NIFLA decision ultimately determines that “a woman’s right to accurate information when considering reproductive choices” is less important than the right of a speaker, even in a commercial marketplace.