FAN 200 (First Amendment News) Tamara R. Piety, “A Constitutional Right to Lie? Again?: National Institute of Family and Life Advocates d/b/a NIFLA v. Becerra”

Tamara R. Piety is a professor of law at the University of Tulsa Law Scool. She is the author of Brandishing The First Amendment: Commercial Expression in America, as well as numerous articles and essays about commercial and corporate speech. Her most recent articles include, “Why Personhood Matters,” in Constitutional Commentary  and “The First Amendment and the Corporate Civil Rights Movement” in the Journal of Business & Technology Law. 

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Professor Tamara Piety

Imagine the following scenario: a group of people  believe that cancer is punishment for sins and that God gives people cancer in order for them to “get right with the Lord.” Because of these beliefs, group members reject conventional medical treatment for cancer. But they are  concerned that so many other people seek treatment for cancer, rather than looking to God. They believe such people are passing up an opportunity for redemption made especially for them. They also believe that the billions of dollars spent on treating cancer is contrary to God’s will and deprives other needy people, especially children, of government assistance. Because of its concerns, the group is attempting to attract more adherents. In the past, such efforts involved door-to-door solicitations. But this is an excruciatingly slow way of gaining supporters; and because most people do not have cancer, they are not interested in the group’s message. “If only there was a way to make sure that we were only talking to people with cancer!,” leaders said.

The group learns that there is a way to specifically target people with cancer: advertise as a cancer treatment center and most of those responding are likely to be cancer patients. Once potential patients are in the door, they can be told why this dreadful disease hides a special opportunity that God has given them. The group is overjoyed that this stratagem will deliver just the people they need to talk to about this life and death matter. So the group forms a non-profit corporation it calls “AAAmerican Cancer Care.” They choose this name so that it will likely be first in any directory and appear on the first page of any on-line search for cancer treatment. Just to be safe, the group also buys a Google ad guaranteed to appear on the first page.

Now our putative religious group has a built-in stream of potential converts in the form of people who are seeking cancer treatment and imagine that AAAmerican provides it. This is ideal from the group’s perspective; it is far from ideal for cancer sufferers who arrive looking for cancer care and instead get a lecture that their disease is a punishment from God who will very likely let them die if they do not turn their will and their life over to Him and reject all medical treatment.

If you had terminal cancer, had troubled to do a search for a treatment center, perhaps taken time off work, maybe even traveled a substantial distance to come to this center and then were confronted, not only with no services, but with this kind of message, you might feel annoyed at best; and traumatized and angry, at worst. But you would certainly feel misled. You would be right; our hypothetical group not only knows that such mistakes are likely; it is actually counting on them. The whole purpose of the center is to proselytize the group’s message, not to treat cancer. It doesn’t want healthy people. It wants people with cancer.

The above scenario is no mere, abstract hypothetical; it is what many “crisis pregnancy centers” (CPCs) do every day. They engage in advertising calculated to confuse the public about what services they provide, hoping thereby to drive pregnant women seeking abortions to their doors. These are the women the CPCs wish to engage with their message. They are not interested in talking to women who have already decided to proceed with the pregnancy. Their target audience is women who have decided to pursue an option which the CPCs do not provide: abortion. And in order to bring these women to their doors, the CPCs have deliberately obfuscated the matter of what services they provide.Their business model appears to be predicated on luring women into their centers under false pretenses. Because abortions are more difficult to obtain in some states than others, it is not unusual for women seeking abortions to travel long distances; they may have to spend money on childcare, or have forfeited a day’s pay, to make the trip. Because CPCs do not provide abortions, those sacrifices will be for naught if such a woman arrives at a CPC. Worse still, there are reports that some CPCs have promised women that if they choose to carry their pregnancies to term, the center will assist them with after care, adoption services, and financial assistance that they subsequently failed to deliver.

Shouldn’t a state be able to prohibit deception like this? Can’t states regulate false advertising? For most of the 20th century the answer to that question would have been “yes.” After the Supreme Court’s decision in National Institute of Family and Life Advocates d/b/a NIFLA v. Becerrathe answer is probably “No.”

Becerra involved an attempt by California to address the public harms of the CPCs’ deceptive business model by requiring CPCs to provide women with information about where they could obtain (among many other services) abortions. The law was only a partial measure. It did not forbid the deceptive advertising itself (which, arguably, it should have been able to do). So it would not have prevented women from being deceived. And it could not prevent those who were deceived from having to endure unwanted lectures and pleas. But it would have mitigated the harm by at least presenting women who had arrived at the CPC under a misunderstanding about the services it provided, with truthful information about where the services they were seeking could be had.

The disclosure provided:

California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women. To determine whether you qualify contact the county social services office at [telephone number of relevant office]. §123472(a) (1). (Breyer, J. dissenting Slip op. at 2).

The Supreme Court held that California’s law requiring such notices was unconstitutional because it constituted “compelled” speech which violated the First Amendment rights of these crisis pregnancy centers. The Court held that these notices, which offered true, factual information about where women could obtain abortions, and which were devoid of argument about the merits of any choice, were “content based” and “controversial”; the warning constituted a “script,” the Court said, which someone opposed abortion should not be compelled to say.

These characterizations are – and there is just no delicate way to put this – nonsense.

Abortion is controversial: a true statement about where one may be obtained is not. And the characterization of this truthful, factual disclosure as anathema to abortion opponents overlooks the fact that they would not be in the position to have to make these hated disclosures had they not intentionally lured pregnant women to their centers under false pretenses in the first place, because, make no mistake, the pregnant woman seeking an abortion is the CPCs’ target audience. The CPCs have nothing to offer to women who were already planning to carry their pregnancies to term if their mission is to discourage abortion. At best, they may offer some health screenings, pregnancy tips, and the like. But that is not the reason for their existence. The reason they exist is to try to convince women who have chosen to have an abortion, or women who are not sure what they want to do, not to have an abortion.

Probably most people would have no problem with the state forbidding our hypothetical cancer “treatment” center from advertising, let alone requiring it to provide truthful information about where such treatment was available. The state has long been given the authority, authority which has been relatively uncontested for decades, to regulate most false advertising. Why is this different?

It may be that the Becerra decision is an outlier, that it is an example of  “abortion exceptionalism.” Certainly the Supreme Court has been willing to make astonishing exceptions to ordinary First Amendment doctrine when it comes to abortion: upholding rules prohibiting doctors from offering true information (the availability of abortion) and to require them to provide false “information” (abortion is linked to breast cancer) or requiring procedures that are not medically necessary (ultrasounds). But in some ways it is mainstream and consistent with the Court’s other First Amendment decisions which have injected confusion into the commercial speech doctrine by increasingly relying on a “content neutrality” requirement for speech covered by the doctrine. This is an oxymoronic requirement in the context of a doctrine defined by its content: it is the commercial speech doctrine. It has also been expanding the definition of what speech is protected far beyond its previous boundaries. This imperils regulation of false advertising.

Given that in the Stolen Valor case the Court also discarded the decades-old understanding that false speech had no intrinsic First Amendment value, it seems we once again are confronted with a claim for a constitutional right to lie. This time, unlike in the Nike v. Kasky case, the Supreme Court majority has apparently agreed that there should be such a right.  It remains to be seen whether this is simply another example of abortion exceptionalism, or if it presages a finding that commercial speech is to be treated like other protected speech. In New York Times v. Sullivan, Justice William Brennan proposed that when it comes to freedom of expression, the First Amendment requires some “breathing space” for false speech. (p. 272). I doubt he or any other member of the Court thought false advertising required similar latitude. Does commercial speech really require such “breathing space”? We may be about to find out.

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