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Statistics in NIFLA v. Becerra, the Crisis Pregnancy Center Disclosure Case

Check out how the majority and the dissent describe one aspect of the California disclosure rules.

National Institiute of Family Life Advocates v. Becerra is an interesting, important, and difficult case, and there's a lot to be said both for the majority and dissenting opinions. But here I just wanted to point out how they deal with one data point -- the number of languages in which the compelled disclosures have to be made. This data point is potentially relevant because it bears on how much the compelled disclosure interferes with the centers' speech; the majority argues,

The application of the unlicensed notice to advertisements demonstrates just how burdensome it is. The notice applies to all "print and digital advertising materials" by an unlicensed covered facility. These materials must include a government-drafted statement that "[t]his facility is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services." An unlicensed facility must call attention to the notice, instead of its own message, by some method such as larger text or contrasting type or color.

This scripted language must be posted in English and as many other languages as California chooses to require. As California conceded at oral argument, a billboard for an unlicensed facility that says "Choose Life" would have to surround that two-word statement with a 29-word statement from the government, in as many as 13 different languages. In this way, the unlicensed notice drowns out the facility's own message. More likely, the "detail required" by the unlicensed notice "effectively rules out" the possibility of having such a billboard in the first place.

Some might argue that the magnitude of the burden shouldn't matter, either because such compelled disclosures are unconstitutional regardless of how big they are, or because they are constitutional regardless of how big they are -- but the majority did view it as at least potentially relevant to some readers.

But just how should we measure the magnitude of the burden, given that the required number of languages varies from county to county? California law requires disclosures (both by crisis pregnancy centers and by many other medical facilities) in a particular language if the primary speakers of the language in the county exceed a particular threshold, and the number of languages can vary sharply, from 2 to 13. Here's how the majority frames the data, even before it gets to the explicit argument about burden:

The notice must be in English and any additional languages identified by state law. In some counties, that means the notice must be spelled out in 13 different languages. See State of Cal., Dept. of Health Care Services, Frequency of Threshold Language Speakers in the Medi-Cal Population by County for Jan. 2015, pp. 4-5 (Sept. 2016) (identifying the required languages for Los Angeles County as English, Spanish, Armenian, Mandarin, Cantonese, Korean, Vietnamese, Farsi, Tagalog, Russian, Cambodian, Other Chinese, and Arabic).

L.A. County, though, is the only county that requires 13 different languages; this isn't happening in "some" counties, but only in one.

On the other hand, here's how the dissent frames the data:

[The Act] would require disclosure in no more than two languages—English and Spanish—in the vast majority of California's 58 counties. The exception is Los Angeles County, where, given the large number of different-language speaking groups, expression in many languages may prove necessary to communicate the message to those whom that message will help. Whether the requirement of 13 different languages goes too far and is unnecessarily burdensome in light of the need to secure the statutory objectives is a matter that concerns Los Angeles County alone, and it is a proper subject for a Los Angeles-based as applied challenge in light of whatever facts a plaintiff finds relevant. At most, such facts might show a need for fewer languages, not invalidation of the statute.

Yet while it's true that only two languages are required "in the vast majority of California's 58 counties," that vast majority of counties contains a minority of the state's population. If you review the data in Dept. of Health Care Services, Frequency of Threshold Language Speakers in the Medi-Cal Population by County for Jan. 2015, apparently the proper source (cited by the majority, and the dissent doesn't offer any rival source), and then cross-reference it with population statistics for the state (I used the 1/1/2018 data), you find that more than two languages are required in counties that represent a titch more than 2/3 of California's population; it seems likely, then, that about 2/3 of California clinics have to provide disclosure in more than two languages.

Indeed, over 57% of Californians live in counties where the disclosures have to be given in 6 or more languages -- Alameda (6), Los Angeles (13), Orange (6), Sacramento (6), San Diego (6), San Francisco (7), and Santa Clara (7). You can also calculate the average number of languages per county, weighted by county population; that should roughly capture the average number of languages seen by an average Californian visiting a clinic, as well as the average number of languages required per clinic (assuming the clinics are distributed proportionally to the population). That weighted average is 6.3.

So the majority opinion stresses an outlier county (with 13 languages), and seems to err in describing "some counties" (rather than one) requiring the 13 languages. But the dissent, by focusing on the "vast majority of .. counties" in which only 2 languages are required, misses the picture for 2/3 of all Californians, who will see 3 or more languages, and for the majority of all Californians, who will see 6 or more languages.

This is a small matter, of course; but I thought it was worth pointing out. Law students, lawyers, and others: Be careful with how legal sources (well, really, any sources) describe data, even when the sources come from highly authoritative institutions.

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  • Longtobefree||

    There was an earlier article about California courts being OK with impossible laws.
    Well, this law specifically included "digital media", and yet the mandatory message alone is 178 characters. Kind of makes effective use of Twitter impossible.
    Are all of the languages that may be required, depending on county, something that all digital platforms can accurately render?

  • FlameCCT||

    Good catch. Not to mention ones, message would be drowned out by mandatory government propaganda on other platforms just like billboards, flyers, etc.

  • Brett Bellmore||

    So, given that the hypothetical billboard is in one language, the state would actually require that the disclaimer be comprehensible by people who couldn't understand the message it was attached to.

    How would that prevent them from being misled?

    The state of California frequently adopts laws it knows are impossible to comply with. It's a deliberate tactic for effectively outlawing things they know they can't get away with explicitly outlawing. This is just another example.

  • regexp||

    The state of California frequently adopts laws it knows are impossible to comply with

    Why focus on California? Because it fits your bias? I can name an law passed by every state in this union regardless of the party in charge that this is true.

  • PoxOnBothYourHouses||

    regexp: "I can name an law passed by every state in this union regardless of the party in charge that this is true."

    I'm not disputing this, but a few examples would be nice. They should probably be laws of red states.

  • David Nieporent||

    The state of California frequently adopts laws it knows are impossible to comply with

    Why focus on California?

    Because that's the topic of the post?

  • FlameCCT||

    1. CA is the subject under discussion on this topic, not one of the 49 other States.
    2. CA is well known for passing laws that are specifically written so that one cannot be in compliance.
    3. CA is well known for choosing illegal foreign nationals over US citizens and legal foreign nationals.

  • Brett Bellmore||

    "2. CA is well known for passing laws that are specifically written so that one cannot be in compliance."

    Not quite. CA is well known for passing laws that are specifically written so that one cannot be in compliance without refraining from exercising a civil liberty the state government disapproves of.

    It's generally possible to comply with California law if you refrain from owning guns, or counseling people not get get abortions, or what have you.

  • Joe_JP||

    "This scripted language must be posted in English and as many other languages as California chooses to require."

    The very point of the requirement is that the disclosure should be written in other languages given the many languages many people in the state speak and understand as their primary language. The requirement is in place to help people understand the message. It is not like it should only be written in Spanish.

    This might be unduly burdensome in specific contexts but the general point of the enterprise is opposite what you make it out to be. It also again is generally not "impossible to comply with" (especially since as I understand it the requirement is tied to local need, so each time it doesn't have to be in all those languages).

    Every state has some sort of law that is hard to comply with though luckily the state generally takes that into consideration and doesn't apply it in a zero tolerance sort of way. I'm sure you can find numerous South Carolina laws of the sort, especially for libertarian minded sorts with a lower tolerance. The courts are appropriate to deal with as applied challenges in particular to help deal with that basic reality to a system of laws.

  • Social Justice is neither||

    Then tie this to all other state required required speech and see what your really asking for.

    Cancer warnings...up to 13 languages
    Restaurant Nutrition disclosures...up to 13 languages
    Street signs...up to 13 languages

    Until we start seeing that then the only real purpose is to drown out the specific viewpoint with noise.

    If a service provider can't communicate effectively to serve the local need then they won't have business. Problem solved without government mandates.

  • bernard11||

    If a service provider can't communicate effectively to serve the local need then they won't have business. Problem solved without government mandates.

    Not true of service providers who don't want to communicate certain things. Tobacco companies were not exactly falling all over themselves to put cancer warnings on cigarette packs.

  • perlchpr||

    Some might argue that the magnitude of the burden shouldn't matter, either because such compelled disclosures are unconstitutional regardless of how big they are

    "What, we only made her have sex against her will with just one of our soldiers, instead of fifty of them. I don't know why she's even complaining!"

  • ReaderY||

    I think comparing an organization's having to disclose it doesn't have a medical license to being raped is a bit of stretch.

    I think such a disclosure requirement is both consistent with standard commercial-law disclosure requirements of various and (unlike some of the other requiremnts) doesn't infringe in any legitimate religious or speech rights, so long as it is cabinened to circumstances that don't burden the organization's ability to speak. Requiring 13 language disclosures on every billboard advertisement was overreach, but there would be a number of applications, including providing a disclosure form to prospective clients, that wouldn't be.

  • PoxOnBothYourHouses||

    ReaderY: "but there would be a number of applications, including providing a disclosure form to prospective clients, that wouldn't be."

    Whatever the constitutionality of this, it apparently wasn't what the statute (merely) required.

  • Agammamon||

    I disagree.

    Are there any licensed occupations where a license is *optional*? I don't think so. Even in the case under discussion, what is optional is providing medical care - if a clinic provides medical care it must have a licensed caregiver/s - that's not optional. What is optional is offering that care. If you're offering care, you *must* have a licensed caregiver on staff - and if you don't and you offer medical services then you're already breaking the law without the notice requirements.

    Secondly, if there are, wouldn't those *licensed* offer up to prospective customers that they are licensed? As a way of distinguishing themselves as being a different level of quality in their marketing? As such, if anyone *doesn't* tell you they are licensed, a reasonable consumer would assume they are not.

    In either case, compelling someone to disclose their licensing status doesn't serve any purpose.

  • santamonica811||

    Ag,
    I think that if one is highly educated and informed, then yes; I agree with you that this consumer would assume there is no license. But for the vast majority of people . . . if they walked into a clinic (regardless of it being associated with pro-choice or anti-choice messages), and someone came in and said, "Here are the severe medical risks to having an abortion.", or, "Abortions at your period of pregnancy are extremely medically safe with a very low level of complications." . . . again, the vast majority of people will likely assume that this medical information is coming from someone with, well, medical training.

    I am sort of shocked that you cannot see an purpose in requirement disclosure of licensing status. Even if you disagree with the requirement, it's easy to come up with positives. If people are told "pro-choice" statistics, and also are told that the person giving the info has no licensing, then there will be a (deserved!!!) skepticism about the info just received. Same with "anti-choice" stats . . . it would be extraordinary helpful to know if these stats are coming from a medical doctor/nurse/etc., or, if they are coming from someone off the streets who has as much medical training as you or I have.

  • Brett Bellmore||

    The point here is that they're being forced to disclose that they're not licensed to do something that doesn't require a license. At great length, in multiple languages.

    It's just an effort to hide their own message under an avalanche of the state's message, and force them to advertise against themselves at their own expense.

  • Joe_JP||

    People are repeatedly confused that crisis pregnancy clinics that look like medical clinics are not actually licensed. The clinics in fact go out of their way to look like medical clinics.

    So, something that is advertised where there is a shown chance of misleading the public is required to disclose they are not licensed, helping people make informed choices. This is basic regulatory practice. The state has a diverse population whose first language is not English. They wish to make sure they too understand. The only real issue is overbreadth.

    The "state's message" here is "this isn't a licensed clinic," and since the state licenses clinics, that is a perfectly reasonable message for them to promote. This blog for some reason over the years did not seem overly concerned with states requiring pro-choice clinics to be required to include many anti-choice messages. This is strange given Eugene Volokh has strong pro-speech views, including fearing high school anti-harassment policies are too vague and interfere with free speech.

    The dissent in the case pointed out this double standard -- the Supreme Court, more so than earlier, allowed such state required messages in one context without any case being taken to limit it in any fashion since Casey while the limited rule here (the unlicensed clinic regulations as a whole deemed okay by the Trump Administration) was singled out for concern. The concern for "avalanche of state's message" here has been selective.

  • Brett Bellmore||

    "People are repeatedly confused that crisis pregnancy clinics that look like medical clinics"

    You mean, they have brick exteriors and nice landscaping? I mean, what does "look(s) like a medical clinic" mean, really? That they didn't set up in a former fast food joint?

    If they're not providing medical services, they aren't "clinics". They're just counseling centers. Engaged in speech, and nothing else.

  • Rev. Arthur L. Kirkland||

    Personnel at these facilities wear medical scrubs, attempting to generate the impression they know what they are talking about consequent to training and qualification.

  • Joe_dallas||

    The states notice requirement was
    A) We are not a licensed medical provider and,
    B) you are required to provide a notice that you can obtain an abortion elsewhere

  • FlameCCT||

    "If people are told "pro-choice" statistics, and also are told that the person giving the info has no licensing, then there will be a (deserved!!!) skepticism about the info just received."

    The problem is that the law did not address pro-choice verbage, only anti-choice verbage. No pro-choice center/clinic were required to advertise for those that want to prevent abortion.

  • Rev. Arthur L. Kirkland||

    Our yahoo states ardently push legitimate health clinics to spout anti-abortion nonsense. Conservative legislators enact laws requiring compelled speech in this context and right-wing judges generally approve those laws.

    Movement conservatives -- including the Volokh Conspiracy -- like to play 'heads we win, tails you lose' with respect to speech.

    Enjoy it while you can, clingers.

  • ThomasW||

    Licensing is generally optional in engineering. It's required for an independent practice but companies hire engineers all the time who do not have a Professional Engineer (PE) license. Rules about if or when a PE needs to be involved vary by state.

    While I haven't done a systematic investigation, when looking at job openings I can't ever remember seeing a PE license required for an engineering job with a company.

    Of course, on the other side is the guy in Oregon who was fined for calling himself an engineer while saying something the state didn't like.

  • Brett Bellmore||

    Right, I've been employed as an engineer most of my life, and never been licensed. No reason to be, my employers didn't care.

  • bernard11||

    Your employer can figure out if you are qualified to do the job you hold, can evaluate your performance, and can fire you if you don't measure up.

    That's vastly different than a woman going to one of these phony clinics looking for medical information.

  • Rev. Arthur L. Kirkland||

    You can sneer about 'phony clinics,' but the libertarian (or libertarianish) audience here recognizes them as Blessed Angels On A Mission From God.

    And blessed angels working for God get certain indulgences . . . like the benefit of a 'heads we win, tails you lose' standard with respect to compulsory speech.

  • ReaderY||

    It also bothered me that both the majority and the dissent seemed to be interpreting and presenting facts most favorable to their positions, acting as advocates, not judges.

  • DjDiverDan||

    "The notice must be in English and any additional languages identified by state law. In some counties, that means the notice must be spelled out in 13 different languages. See State of Cal., Dept. of Health Care Services, Frequency of Threshold Language Speakers in the Medi-Cal Population by County for Jan. 2015, pp. 4-5 (Sept. 2016) (identifying the required languages for Los Angeles County as English, Spanish, Armenian, Mandarin, Cantonese, Korean, Vietnamese, Farsi, Tagalog, Russian, Cambodian, Other Chinese, and Arabic)."

    What, no requirement of the notice in Braile? Doesn't the state of California care whether or not the blind can read billboards? At least the Federal Government, when enforcing the ADA, requires that the keypads on drive-thru ATMs include Braile markings - you know, to help the blind drivers of America that want to use drive-thru ATMs.

  • Agammamon||

    "At least the Federal Government, when enforcing the ADA, requires that the keypads on drive-thru ATMs include Braile markings "

    No they don't. Manufacturers simply don't make special keypads specifically for drive-thru ATMS - as such they get the same keypads as the walk-up ones.

  • santamonica811||

    Stop botherin DJDiver with the facts. It's much more satisfying to twist this into yet another (false) example of "Look what idiots the government forces us to be." rather than the truthful "Banks are just making good economic decisions re buying fungible keypads." explanation.

  • Greg F||

    No they don't. Manufacturers simply don't make special keypads specifically for drive-thru ATMS - as such they get the same keypads as the walk-up ones.

    Yes they do.

    220 and 707 Automatic Teller Machines and Fare Machines
    Section 707 of the 2010 Standards adds specific technical requirements for speech output, privacy, tactilely-discernible input controls, display screens, and Braille instructions to the general accessibility requirements set out in the 1991 Standards. Machines shall be speech enabled and exceptions are provided that cover when audible tones are permitted, when advertisements or similar information are provided, and where speech synthesis cannot be supported. The 1991 Standards require these machines to be accessible to and independently usable by persons with visual impairments, but do not contain any technical specifications.
  • ThomasW||

    I've seen drive through and walk up ATMs both with and without braille locally, so I'm not sure there's an absolute requirement here. Many ATMs use touch screens without any possibility of braille.,

  • Rossami||

    Look closer, ThomasW. There will always be a small braille notice directing the person to a headset jack where audio instructions describe the key strokes to be made. You'll also notice that certain keys have tactile markings (such as the dot for the 5 key, a raised circle for the Enter key, etc.).

    The only exception I can think of is an ATM built entirely around voice recognition. The ADA would allow such a device - but I haven't yet seen one and I'm hard-pressed to figure out how such a device could comply with other privacy laws. But maybe it's possible.

  • Rossami||

    I have personal experience with this matter and I am afraid you are wrong, Agammamon. The ADA requires tactile markings on all ATMs. I know of a number of banks who were successfully sued and had to upgrade the keypads of their drive-thru ATMs even though the old non-tactile keypads were still functional.

    The logic behind the requirement is not the insane "the blind might be driving" nor the possible-but-incredibly-dangerous "the blind might walk up to a drive-thru ATM". The actual reasoning behind the requirement is the (merely very improbable) scenario in which a sighted driver is taking a blind passenger on a series of errands and the blind person might choose to sit in the left side back seat in order to process his/her own ATM transactions from the car.

  • santamonica811||

    I (after reading this thread) got in touch with an old girlfriend, who used to manage a bank. She said that is rare for people to use the drive-through section on foot, but it does happen, and for a variety of reasons. It happened a lot after the Northridge earthquake, it has happened after bank robberies (ie, when the interior is a crime scene, but the police have allowed the drive-through to continue to operate), it has happened after the bank's interior was closed for cleaning due to mold (yuck!), and probably other reasons she could not recall off the top of her head.

    She did not mention Rossami's hypo (blind passenger in the vehicle, who wants to handle the transaction him/herself), but that probably also happens reasonably often.

  • TwelveInchPianist||

    "I (after reading this thread) got in touch with an old girlfriend..."

    Don't worry. That's not weird or anything.

  • NToJ||

    Or the blind person calls a taxi to take them to an ATM, but doesn't want to reveal their PIN to the taxi driver.

  • NToJ||

    "...you know, to help the blind drivers of America that want to use drive-thru ATMs."

    Blind people can use drive-thru ATMs when they are driven to them by not-blind people.

  • BillyG||

    Be careful with how legal sources (well, really, any sources) describe data, even when the sources come from highly authoritative institutions.

    "Figures don't lie, but liars figure." - Attributed to Mark Twain.

    The problem with statistics is you can make them say anything you want. It all depends on how you decide to cherry pick or slide & dice the data.

  • Jerry B.||

    A Russian car and an American car had a drag race.

    The Russian car finished second,

    The American car finished next to last.

  • FlameCCT||

    That reminds me of reports I've seen in TASS/Pravda under the USSR especially when discussing the bourgeois capitalist American pigs! ;-)

  • BillyG||

    Nice one, I'm saving that for use at work. Even recognizing the trick you used up front, it took me a minute to piece together the finish order.

  • Alan Beck||

    It seems like what is most important to this conversation is whether the litigants made a facial or an as applied challenge. I am not familiar with the litigation so I don't know. If it is an as applied challenge and the litigant live in L.A. County then the 13 languages requirement is relevant. If the case was a facial challenge then Salerno seems to suggest otherwise.

  • Eugene Volokh||

    Facial challenges in First Amendment cases generally don't apply the very demanding Salerno standard -- rather, they apply the First Amendment overbreadth standard, in which the case is whether the law restricts a substantial amount of constitutionally protected speech.

  • ||

    When liberals pass a law, assume it was passed in bad faith. It makes everything else much easier to understand.

  • Toranth||

    Let me fix that for you:
    "When politicians pass a law, assume it was passed in bad faith."

  • Dilan Esper||

    Reminiscent of the argument in every 8th Amendment death penalty case about counting states.

  • PublicName5||

    Maybe they could avoid the language issue by using pictographs?

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