Is Promotion of Free Services "Commercial Speech" for First Amendment Purposes?

One of several interesting questions that arises in a case involving regulations of pregnancy centers that seek to help pregnant women without offering abortions or abortion counseling.

From today's decision by Judge William K. Session III (D. Vt.) in Nat'l Inst. of Family & Life Advocates v. Clark, which allows plaintiffs' challenge to a Vermont regulation to go forward (denying defendants' motion to dismiss):

Plaintiffs challenge [a] provision[] in Vermont Senate Bill No. 37 …. [that] prohibits "unfair and deceptive" acts in commerce by LSPCs [limited services pregnancy centers], including dissemination of information to the public any "advertising about the services or proposed services performed at that center that is untrue or clearly designed to mislead the public." The subsection on legislative intent explains that "accurate information about the services that a limited-services pregnancy center performs … is essential to enable individuals in this State to make informed decisions about their care."

The Advertising Provision does not explicitly define what it means for an advertisement to be misleading. However, the statement of findings and legislative intent states that some LSPCs "provide confusing and misleading information to pregnant individuals contemplating abortion by leading those individuals to believe that [the LSPCs] offer abortion services and unbiased counseling," and that some LSPCs have promoted "patently false or biased medical claims about abortion." Such misleading advertising is "of special concern to the State because of the time-sensitive and constitutionally protected nature of the decision to continue or terminate a pregnancy." …

Defendants argue that the advertising provision only prohibits false and misleading commercial speech, which is not protected by the First Amendment, and accordingly ask the Court to dismiss Plaintiffs' Complaint. For the following reasons, that request is denied.

The threshold issue is whether the restricted speech is commercial in the first place. "The propriety of distinguishing commercial from noncommercial speech in evaluating a First Amendment claim derives from Supreme Court precedents affording the former only 'a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values.'" Commercial speech is generally defined as "speech that does no more than propose a commercial transaction." Courts have explained that this definition is a "starting point," and try to give effect to "a 'common-sense distinction between commercial speech and other varieties of speech."

The Supreme Court has focused on three factors in evaluating whether speech is commercial: whether the speech is an advertisement, whether it references a particular product, and whether there is an economic motivation underlying the speech. It has also counseled that commercial speech is "expression related solely to the economic interests of the speaker and its audience."

Plaintiffs have plausibly alleged that the speech restricted by the advertising provision is not merely commercial. The first Bolger prong goes in favor of the State; the statute limits its purview to "advertising about the services or proposed services performed at the center." The advertising provision's narrow scope—applying only to "advertising about the services or proposed services" at the LSPC—makes it seem like the statute targets only speech that is aimed at proposing a commercial transaction.

However, drawing all plausible inferences in favor of Plaintiffs, prongs two and three from Bolger both counsel against concluding that the LSPCs' speech is purely commercial, at least for purposes of the motion to dismiss. Several courts have concluded that medical clinics promote specific products. However, the Vermont statute does not regulate Plaintiffs' advertising with reference to a specific product—rather, it focuses on which entities are advertising, and requires that all of their advertisements conform to certain standards. This seems to regulate LSPCs rather than a particular service that they provide.

Finally, it is not clear whether economic motive undergirds Plaintiffs' activities—so for purposes of the motion to dismiss, the Court concludes that it does not. It is undisputed that Plaintiffs provide services free of cost, and it is difficult to categorize solicitations as "proposed transactions" when the target audience is not charged. As the Fourth Circuit explained, "[a] morally and religiously motivated offering of free services cannot be described as a bare 'commercial transaction.'" {This is an issue that requires additional factual development. The Court is mindful that LSPCs provide services that trade off with other services, arguably placing their solicitations in a commercial context.}

Consequently, although the advertising provision plainly regulates only advertising, the statute's regulation based on actor rather product combined with the LSPCs' ostensible lack of economic motivation for speech requires the preliminary conclusion that the regulated speech is not purely commercial.

Because Plaintiffs' regulated speech is not commercial, the advertising provision is subject to heightened scrutiny. Strict scrutiny permits speech restrictions only when the government proves that its restrictions "are narrowly tailored to serve compelling state interests."

The State submits that the advertising provision is "narrowly tailored to serve compelling state interests." Specifically, it argues that the advertising provision serves to protect consumers "against unfair and deceptive business practices, including false advertising," and submits that the legislature specifically found that LSPCs frequently make false and misleading claims. This may be the case, but narrow tailoring is a factual question that is best evaluated with a more developed evidentiary record. The legislature's rationale for the law and the fit of the law to the relevant social problem are factual questions that the Court will address at later stages of litigation….

The State next argues that the provider regulation is a restriction on professional conduct that incidentally burdens speech and therefore receives "intermediate scrutiny or less." The Supreme Court considered this issue in a 2018 case involving these same plaintiffs. Nat'l Inst. of Fam. & Life Advocs. ("NIFLA") v. Becerra (2018). In NIFLA, the Court noted that while "professional speech" is not categorized as a type of speech entitled to reduced First Amendment protection, states have broader authority to regulate speech of professionals than non-professionals in two circumstances: first, when states require that professionals disclose "factual, noncontroversial information" in their commercial speech, and second, when states regulate professional conduct "even though that conduct incidentally involves speech." In support of this second point, the Court cited with approval prior decisions regulating professional conduct such as state rules limiting lawyers' communication with potential clients; state regulation of malpractice by professionals; and state requirements that doctors performing abortions must provide information "in a manner mandated by the State" about the risks of this medical treatment.

In concluding that states may regulate professional conduct that incidentally burdens speech, the NIFLA Court noted that while "drawing the line between speech and conduct can be difficult, this Court's precedents have long drawn it." It also noted that "[a]s with other kinds of speech, regulating the content of professionals' speech 'pose[s] the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information." This is especially true in the medical field, where "doctors help patients make deeply personal decisions, and their candor is crucial."

Post-NIFLA, several cases have upheld restrictions on professional conduct even when that conduct includes some speech. See, e.g., Del Castillo v. Sec'y, Fla. Dep't of Health (11th Cir. 2022) (upholding a statute requiring a license to practice as a dietician or nutritionist even when the restrictions also covered "nutrition counseling"); Capital Assoc. Indus., Inc. v. Stein (4th Cir. 2019) (upholding a ban on the practice of law by non- lawyers). The central question here is whether the provider regulation governs speech or conduct.

The Court concludes that while the statute primarily regulates conduct, its burden on speech may be more than "incidental" for two reasons.

First, the provider regulation [a separate regulation discussed in more detail in the full opinion -EV] makes licensed providers responsible for the (non-professional) speech/conduct of others. The statute seeks to regulate the speech of non-professionals—unlicensed medical providers—by treating them as professionals even when they would not otherwise be subject to state licensing regimes if they worked anywhere else. Importantly, the covered non-professional conduct includes speech: as Plaintiffs note, "health information" is defined to include "any oral or written information in any form that relates to … the past, present, or future physical or mental health or condition of a client." Drawing all inferences in favor of the Plaintiffs, the provider regulation could make licensed providers responsible for any conversation between an unlicensed provider and a patient at an LSPC when that conversation at all relates to the health of the patient.

The specific issue is with the narrow category of individuals who are made accountable for non-licensed speech: licensed providers who work at LSPCs. This suggests content (and viewpoint) discrimination. The law does not make all licensed providers at pregnancy clinics responsible for ensuring that health care services, information, and counseling comply with Vermont law. Instead, it singles out LSPCs for that treatment, subjecting the conduct and speech of medical service providers with particular views to heightened burdens. This could trigger heightened scrutiny. See, e.g., Holder v. Humanitarian L. Project (2010) (stating that when a law governing conduct regulates a message, First Amendment principles apply).

The second problem with the provider regulation is that it restricts the conduct (and speech) of non-licensed individuals. In some ways, this is perfectly benign: licensing requirements only work if people without licenses are restricted from taking certain actions. In Capital Associated Industries, the relevant statutory scheme precluded corporations from practicing law without a license. But this rule was applied without reference to the type of law that was practiced. Here, on the other hand, non-licensed individuals are exempt from medical professional standards in two circumstances: (1) if they work at any clinic other than an LSPC; or (2) if they work at an LSPC that does not employ a licensed provider. This under-inclusivity raises questions about whether the provider regulation is actually a conduct regulation or a licensing scheme directed at restraining speech.

While the NIFLA Court concluded that legislatures may regulate professional conduct when that restriction incidentally burdens speech, the provider regulation makes professionals responsible for the expressive conduct of others. NIFLA does not address that issue. It also does not stand for the principle that the government may regulate non-professional speech under the pretense that it is regulating professional speech….

The court also had this to say about whether the law is content- or viewpoint-discriminatory:

The parties dispute whether either provision constitutes content or viewpoint discrimination. Content-based laws, which "target speech based on its communicative intent," are "presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling interests." Viewpoint discrimination is a particularly insidious form of content discrimination, taking place when the government targets "particular views taken by speakers on a subject." Even an apparently content-neutral regulation can be deemed content-based if "there is evidence that an impermissible purpose or justification" underpins it….

It is challenging to discern whether the instant laws are content-based or content-neutral. On the one hand, the advertising provision regulates LSPCs' advertisements without reference to the content of the advertisements. This makes it different from classic content-discrimination cases, in which the law allows or disallows speech based on the subject discussed. The advertising provision only considers whether the restriction is false or deceptive, which is a determination that can—in a sense—be made without reference to the content contained in the advertisement because it focuses solely on the binary question of whether consumers would think the advertisement promotes a service or product that it does not.

On the other hand, evaluating whether an advertisement is false or deceptive clearly requires consideration of its content (what it offers) and whether it is a faithful and non-misleading representation of the services provided. Regardless, it is well-established that the government may enact "content-based restrictions on false or misleading commercial messages." This reinforces the importance of the (unresolved) threshold question: whether Plaintiffs' advertisements are commercial….

The State argues that the advertising provision is not viewpoint discriminatory because it simply closes a loophole. It states that Vermont's general consumer protection statute does not apply to LSPCs because they "usually provide their services for free." It therefore argues that the advertising provision was necessary to prevent LSPCs from engaging in deceptive advertising simply because they do not collect payment from clients. The Court is unwilling to credit this assertion at the motion to dismiss phase, when it must draw all reasonable inferences in favor of Plaintiffs. Additionally, that argument is insufficient to defeat Plaintiffs' viewpoint discrimination claim: it still does not explain why the advertising provision applies solely to LSPCs instead of all clinics that do not charge for their services, which are presumably equally un-restricted by the Vermont consumer protection statute….

As you can tell from the opinion, the court isn't definitively opining on whether the law is constitutional; there is more left to be litigated here. There's a lot more to the opinion, including a discussion of the regulation that imposes various other (non-advertising-related) obligations on licensed health care providers who work at LSPCs; you can read it all here.