First Resort, Inc. v. Herrera, No. 15-15434 (9th Cir. 2017)
Annotate this CaseSan Francisco's Pregnancy Information Disclosure and Protection Ordinance, a law designed to protect indigent women facing unexpected pregnancies from the harms posed by false or misleading advertising by limited services pregnancy centers (LSPCs), is constitutional and not preempted by state law. The Ninth Circuit affirmed the district court's decisions in favor of the City and held that the Ordinance is facially valid where it only regulates unprotected commercial speech and is not void for vagueness. The Ordinance was valid as applied to First Resort because it did not regulate First Resort's protected speech, First Resort's commercial speech was not inextricably intertwined with its protected speech, and the Ordinance did not discriminate based on viewpoint. The panel also held that the Ordinance does not violate the Equal Protection Clause, and is not preempted by California Business and Professions Code 17500.
Court Description: Constitutional Law. The panel affirmed the district court, and held that San Francisco’s Pregnancy Information Disclosure and Protection Ordinance (the “Ordinance”) was constitutional and not preempted by state law. The Ordinance is a law designed to protect indigent women facing unexpected pregnancies from the harms posed by false or misleading advertising by limited services pregnancy centers (“LSPC”). First Resort, Inc., an LSPC, challenged the constitutionality of the Ordinance. The panel held that the Ordinance is facially valid because it regulates only unprotected false or misleading commercial speech – a category of speech afforded no constitutional protection; and the Ordinance is not unconstitutionally vague. The panel held that the Ordinance was valid as applied to First Resort. Specifically, the panel held that: the Ordinance does not regulate First Resort’s protected speech; First Resort’s commercial speech is not inextricably intertwined with its protected speech; and the Ordinance does not discriminate based on the particular opinion, viewpoint, or ideology of First Resort or other LSPCs. FIRST RESORT V. HERRERA 3 The panel held that the Ordinance does not violate the Equal Protection Clause of the Fourteenth Amendment. The panel held that the Ordinance regulates only unprotected commercial speech, and because the Ordinance does not unconstitutionally burden the fundamental right to free speech, the Ordinance is subject only to rational basis review. The panel concluded that the Ordinance was rationally related to legitimate government interests. The panel held that the Ordinance was not preempted by California’s false advertising law, Cal. Bus. & Prof. Code § 17500. The panel declined to apply duplication preemption to invalidate the Ordinance because its enforcement did not raise double-jeopardy concerns, and First Resort had not demonstrated that it duplicated state law. Judge Tashima concurred in all of the panel’s opinion, except for Part 4, as to which he remained dubitante (doubtful about the legal proposition but hesitant to declare it wrong). Judge Tashima was unpersuaded that the Ordinance was not preempted by California’s false advertising law, and he would certify that question to the California Supreme Court.
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