Analysis Law and Policy

Re-Examining the Baltimore CPC Case: Does CPC Speech Constitute “Commercial Speech?”

Imani Gandy

Earlier this month, the U.S. Court of Appeals for the Fourth Circuit granted a new hearing in Greater Pregnancy Concerns vs. City of Baltimore, the case in which a three-judge panel flouted common sense and the rules of civil procedure in its rush to rule in favor of the plaintiff Pregnancy Center on summary judgment and protect the Catholic Church's right to lie and deceive women.

Earlier this month, the U.S. Court of Appeals for the Fourth Circuit granted a new hearing in Greater Pregnancy Concerns vs. City of Baltimore, the case in which a three-judge panel flouted common sense and the rules of civil procedure in its rush to rule in favor of the plaintiff Pregnancy Center on summary judgment and protect the Catholic Church’s right to lie and deceive women.

In Greater Pregnancy Concerns, the Fourth Circuit considered an ordinance which the City of Baltimore passed in order to protect women’s health and to prevent crisis pregnancy centers (CPCs) from misleading vulnerable women about the services they provide.

As I explained in my previous post about this case, many CPCs falsely advertise themselves as health clinics but are anything but. They are limited-service religious-based organizations that use lies and manipulation to guilt women into “Doing the Right Thing” according to their religious and gender ideology. Women who visit these clinics think they are going to a full-services health clinic; instead they get an earful of guilt and What Would Jesus Do. (The answer is always, “Keep the baby.”)

The City of Baltimore sought to protect women from being deceived by these CPCs through an ordinance requiring CPCs to post a sign stating that they do not offer abortion or birth control services and would not refer women to clinics that do. The City argued that the ordinance was a reasonable regulation of commercial speech, and that the ordinance served the state’s compelling interest in preventing women from being deceived by CPCs with ulterior religious motives. The Court disagreed. It found that the Pregnancy Center’s speech did not constitute commercial speech, and in doing so, completely ignored the City’s arguments to the contrary.

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Commercial speech is “expression related solely to the economic interests of the speaker and its audience.” The Court held that the Pregnancy Center’s speech involved provision of “free services,” and that there was no evidence that the Pregnancy Center is motivated by any economic interest.” This makes neither logical nor legal sense.

First, the Supreme Court has held that under some circumstances, speech can promote the speaker’s economic interest even though the speech is not a proposal to engage in a commercial transaction.  As the City argued, CPCs may operate as nonprofits, but “they effectively engage in commerce by offering pregnancy testing, sonograms, and options counseling, all of which have commercial value, garnering payments and fees in the marketplace.”

And as the dissent noted, “We know that nonprofit entities with religious or political motives can engage in commerce… And although outwardly the Center appears to be driven by religious purposes only, certain operational intricacies may prove otherwise. For instance, as observed in a similar case, if the Center were “referring women to pro-life doctors in exchange for ‘charitable’ contributions, the analysis could change.'”

Second, as a matter of common sense, just because organizations operate as non-profit organizations does not necessarily mean that they are not motivated by economic interest. Non-profit organizations are economic actors, just as for-profit organizations are, as anyone who has been involved in fundraising for nonprofit organizations surely understands. For example, perhaps the Pregnancy Center’s funding was contingent upon it not engaging in any speech that might be viewed as sanctioning birth control or abortion services.

The Court pointed out that there was no evidence in the record of economic motive; but what it should have done is allowed the City an opportunity to present such evidence. In its haste to end the case via summary judgment, the Court improperly refused to allow the City an opportunity to present evidence that would have allowed the trial court to make a fair determination of that fact. The Court simply accepted the Pregnancy Center’s attorneys’ word, not based upon admissible evidence, that the Pregnancy Center’s sole motive was religious and not economic.

Ultimately, whether or not the Pregnancy Center was driven solely by religious purposes is less relevant than the fact that the Court did not provide an opportunity for the City to present evidence that the Pregnancy Center was not driven solely by religious motivation and was actually engaged in commerce. This is important: Under court rules regarding summary judgment, a party that requests additional time to conduct discovery (i.e., gather facts and admissible evidence) is almost always entitled to that time. A court may not grant summary judgment in favor of a party if the opposing party demonstrates that a factual dispute exists with respect to material facts.

The City argued that a factual dispute existed as to whether or not the Pregnancy Center was motivated by economic interest, and if given the opportunity, the City might have been able to gather evidence demonstrating that the Pregnancy Center was engaged in commerce, thereby rendering its speech commercial. The City also might have been able to gather evidence to counter the Pregnancy Center’s claim that the Pregnancy Center was driven solely by religious ideology. (Remember, under the rules regarding summary judgment, the court was required to grant the City such an opportunity, especially since the Pregnancy Center’s claim that it was motivated only by religious ideology was made through its attorneys, and not through any admissible evidence.) If successful, a lesser standard of review–a standard other than the difficult-to-overcome strict scrutiny standard–would have applied. This, of course, would have made far more difficult the Pregnancy Center’s efforts to strike down the ordinance as unconstitutional.

That the Court flatly refused the City’s request for discovery and granted summary judgment in favor of the Pregnancy Center is an egregious error, one which the Fourth Circuit will likely remedy upon rehearing the case. As the dissent notes, “summary judgment is never appropriate where, as here, there are genuine disputes of material fact.” The majority opinion is replete with references to the inadequate factual record presented by the City of Baltimore, and criticism directed at the City for not presenting evidence related to critical issues. But as the dissent points out, “criticizing the record as somehow lacking merely begs the real question underlying the errors of the district court: Why was the City denied a full and fair opportunity to conduct discovery and present a proper record?”

Why, indeed.  Let’s hope the Fourth Circuit corrects its error.

[You can read my marked up copy of the Fourth Circuit decision here on Scribd.]

News Law and Policy

Three Crisis Pregnancy Centers Served for Breaking California Law

Nicole Knight Shine

The notices of violation issued this month mark the first time authorities anywhere in the state are enforcing the seven-month-old Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act.

The Los Angeles City Attorney is warning three area fake clinics, commonly known as crisis pregnancy centers (CPCs), that they’re breaking a new state reproductive disclosure law and could face fines of $500 if they don’t comply.

The notices of violation issued this month mark the first time authorities anywhere in the state are enforcing the seven-month-old Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act, advocates and the state Attorney General’s office indicate.

The office of City Attorney Mike Feuer served the notices on July 15 and July 18 to two unlicensed and one licensed clinic, a representative from the office told Rewire. The Los Angeles area facilities are Harbor Pregnancy Help Center, Los Angeles Pregnancy Services, and Pregnancy Counseling Center.

The law requires the state’s licensed pregnancy-related centers to display a brief statement with a number to call for access to free and low-cost birth control and abortion care, and for unlicensed centers to disclose that they are not medical facilities.

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“Our investigation revealed,” one of the letters from the city attorney warns, “that your facility failed to post the required onsite notice anywhere at your facility and that your facility failed to distribute the required notice either through a printed document or digitally.”

The centers have 30 days from the date of the letter to comply or face a $500 fine for an initial offense and $1,000 for subsequent violations.

“I think this is the first instance of a city attorney or any other authority enforcing the FACT Act, and we really admire City Attorney Mike Feuer for taking the lead,” Amy Everitt, state director of NARAL Pro-Choice California, told Rewire on Wednesday.

Feuer in May unveiled a campaign to crack down on violators, announcing that his office was “not going to wait” amid reports that some jurisdictions had chosen not to enforce the law while five separate court challenges brought by multiple fake clinics are pending.

Federal and state courts have denied requests to temporarily block the law, although appeals are pending before U.S. Court of Appeals for the Ninth Circuit.

In April, Rebecca Plevin of the local NPR affiliate KPCC found that six of eight area fake clinics were defying the FACT Act.

Although firm numbers are hard to come by, around 25 fake clinics, or CPCs, operate in Los Angeles County, according to estimates from a representative of NARAL Pro-Choice California. There are upwards of 1,200 CPCs across the country, according to their own accounting.

Last week, Rewire paid visits to the three violators: Harbor Pregnancy Help Center, Los Angeles Pregnancy Services, and Pregnancy Counseling Center.

Christie Kwan, a nurse manager at Pregnancy Counseling Center, declined to discuss the clinic’s noncompliance, but described their opposition to the state law as a “First Amendment concern.”

All three centers referred questions to their legal counsel, Alliance Defending Freedom (ADF), an Arizona-based nonprofit and frequent defender of discriminatory “religious liberty” laws.

Matt Bowman, senior counsel with ADF, said in an email to Rewire that forcing faith-based clinics to “communicate messages or promote ideas they disagree with, especially on life-and-death issues like abortion,” violates their “core beliefs” and threatens their free speech rights.

“The First Amendment protects all Americans, including pro-life people, from being targeted by a government conspiring with pro-abortion activists,” Bowman said.

Rewire found that some clinics are following the law. Claris Health, which was contacted as part of Feuer’s enforcement campaign in May, includes the public notice with patient intake forms, where it’s translated into more than a dozen languages, CEO Talitha Phillips said in an email to Rewire.

Open Arms Pregnancy Center in the San Fernando Valley has posted the public notice in the waiting room.

“To us, it’s a non-issue,” Debi Harvey, the center’s executive director, told Rewire. “We don’t provide abortion, we’re an abortion-alternative organization, we’re very clear on that. But we educate on all options.”

Even so, reports of deceit by 91 percent of fake clinics surveyed by NARAL Pro-Choice California helped spur the passage of the FACT Act last October. Until recently, a person who Googled “abortion clinic” might be directed to a fake clinic, or CPC.

Oakland last week became the second U.S. city to ban false advertising by facilities that city leaders described as “fronts for anti-abortion activists.” San Francisco passed a similar ordinance in 2011.

News Human Rights

Remaining Charges Dropped Against Officers in Freddie Gray Case

Michelle D. Anderson

Gray, who was Black, died of a neck injury a week after being taken into police custody in April 2015. The 25-year-old’s death led to widespread protest and civil disobedience against racial injustice and a number of reforms in Baltimore and across Maryland.

Three Baltimore Police Department officers charged in the 2015 death of Freddie Gray will not go to trial as originally planned.

Chief Deputy State Attorney Michael Schatzow of the Baltimore City State Attorney’s Office said during a court hearing Wednesday that his office would not prosecute Officer Garrett Miller and Sgt. Alicia White or attempt to retry Officer William Porter, whose case ended in a mistrial in December.

Baltimore City State’s Attorney Marilyn Mosby had charged Miller, White, and Porter, along with Officer Edward Nero, Officer Caesar Goodson Jr., and Lt. Brian Rice, in Gray’s May 2015 death in police custody.

The officers faced an array of charges, ranging from second-degree depraved-heart murder and reckless endangerment to second-degree assault and involuntary manslaughter.

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All of the officers pleaded not guilty.

Judge Circuit Judge Barry G. Williams acquitted Nero, Goodson, and Rice during bench trials that ended in May, June, and July, respectively. Miller’s trial was set to begin Wednesday; White, October 13, and Porter, September 6.

Gray, who was Black, died of a neck injury a week after being taken into police custody in April 2015. The 25-year-old’s death led to widespread protest and civil disobedience against racial injustice and a number of reforms in Baltimore and across Maryland.

Mosby, in filing charges against the officers, attempted to hold law enforcement accountable for failing to secure Gray in a seat belt after transporting him in a police van following his arrest, among other alleged negligent acts. Prosecutors charged that Gray was illegally detained before police officers found a knife in his pocket.

Mosby stood by her decision to bring charges against the six officers during a brief press conference held near the Gilmor Homes public housing project, where Gray was taken into police custody.

“We stand by the medical examiners determination that Freddie Gray’s death was a homicide,” Mosby said.

She touted her team’s success during the trials, including an appellate court victory that led some officers to testify against one another and asserted that a summary judgment was among many reasons she had “legitimate reasons” to pursue criminal charges.

Mosby praised the reforms that had come over the past year, including a new “use of force” policy Baltimore police instituted this year. The new policy emphasizes de-escalation and accountability. It marks the first rewrite of the policy since 2003.

“For those that believe I am anti-police, that’s simply not the case. I am anti-police brutality,” Mosby said.

The conference was the first time Mosby had spoken in months, since a gag order imposed by Williams had kept prosecution and defense alike from commenting on the police trials.

The decision to drop charges stemmed from “an apparent acknowledgement” that convictions were unlikely for the remaining officers, the Baltimore Sun reported.

This was because the prosecution would face major challenges during Miller’s trial since they wouldn’t be able to use anything he said on the witness stand during Nero’s trial in an attempt to convict him. Miller had spoken during Nero’s trial in an immunized testimony and with protections against self incrimination, the Sun reported.

Williams said in previous trials that prosecutors failed to show sufficient evidence to support their stance that the officers acted recklessly and caused Gray’s death. He said prosecutors wanted him to rely on “presumptions or assumptions” and rejected the notion that police intentionally gave Gray a “rough ride” in the police vehicle, according to numerous news reports.

The decision to drop charges drew criticism from many activists and citizens alike, but drew praise from the Baltimore City Fraternal Order of Police Lodge 3 union, which had repeatedly urged the prosecution to drop charges.

Baltimore Bloc, a local grassroots group, said in a statement this spring that Mosby should be removed from office for failing to secure convictions against officers and continued to criticize her on Twitter after the announcement that charges would be dropped.