Federal Judge Issues Injunction against New York City Speech-Squelching Ordinance: Part Two

By Dave Andrusko

Chris Slattery, president, Expectant Mother Care/EMC Frontline Pregnancy Center

Because there is so much happening each and every day, I want to make sure that the very important legal victory won yesterday by pregnancy help centers in New York City does not get lost in the shuffle.

If you had a chance to read “Federal Judge Issues Injunction against NY City Law Targeting CPCs,” you know the broad outlines of U.S. District Judge William H. Pauley III’s 22-page decision placing a preliminary injunction on “Local Law 17”

The pro-abortion New York City Council, led by its vocally pro-abortion Speaker Christine C. Quinn, enacted an ordinance, scheduled to go into effect yesterday, that was speech-squelching on steroids.

In a nutshell Local Law 17 required women helping centers (also known as CPCs) to inform clients of a number of things, including most egregiously that they do not provide abortions or abortion referrals, or provide emergency contraception, and  to “post signs [in English and Spanish] in the lobbies of their counseling centers, add extensive additional written language to their advertising materials, and to provide oral statements during both ‘in person’ and telephonic conversations regarding the services offered by crisis pregnancy centers,” according to ACJU which was one of the counsels for the plaintiffs– Expectant Mother Care/EMC Frontline Pregnancy Center and Life Centers of New York, two CPCs.

No such requirements were made of abortion clinics, which is no surprise since NARAL is the driving force by such legislation all over the country.

What did Judge Pauley find? (By the way, based on news accounts of the original hearing, you’d probably be surprised by yesterday’s outcome. He did not seem overly sympathetic—or perhaps that was just the reporters’ bias.)

*To secure an injunction, the women helping centers needed to show a likelihood of success on the merits and (in the absence of an injunction) irreparable harm, in this instance to their First Amendment rights. They easily passed those two tests, aided no doubt by the courts’ traditional vigorous defense of free speech.

Judge Pauley showed how unless they spoke “certain messages,” they’d be heavily fined or closed. “This is unquestionably a direct limitation on speech,” Pauley wrote.

How about likelihood of success on the merits? As we talked about yesterday, the only possible way the City Council could prevail was for Judge Pauley to accept the argument that the CPCS were engaging in less-protected “commercial speech.”

The city council made the patently absurd duel-edged argument that this was so because CPCs advertise “goods and services” (e.g. diapers which they give away free!) that have commercial value and “receive something of value in return for these goods and services”—the opportunity to speak to an audience.

His sarcasm barely contained, Judge Pauley wrote, “If speech becomes commercial speech merely through the offer of a valuable good or service, then [quoting a previous decision] ‘any house of worship offering their congregants sacramental wine, communion wafers, prayer beads, or other objects with commercial value, would find their accompanying speech subject to diminished constitutional protection.’”

His very next sentence is crucial, because it demonstrated how the City Council’s logic could be extended to other organizations that are less disfavored.

“Likewise, a domestic violence organization advertising shelter to an abuse victim would find its First Amendment rights curtailed, since the provision of housing confers an economic benefit on the recipient.” Judge Pauley found the second part of the City Council’s argument that the CPCs were engage in commercial speech–-the “audience” argument– “particularly offensive.”

“While Defendants apparently regard an assembly of people as an economic commodity, this Court does not,” he wrote. “Under such a view, flyers for political rallies, religious literature promoting church attendance, or similar forms of expression would constitute commercial speech merely because they assemble listeners for the speaker.”

*  ”The First Amendment’s guarantee of freedom of speech includes both the right to speak freely and the right to refrain from speaking at all,” Pauley explained. There is a lot in his opinion that talks unfavorably about “government-preferred speech.”

* If the basis of the supposed need for this law is that CPCs are acting in a dishonest/fraudulent way, then surely there is a track record in New York City of such behavior, right? Pauley mentions, almost as an aside, that “In substance, Plaintiffs intimate that the evidence [of alleged deceptive practices/fraud] was contrived,” and goes on later to observe that “[W]hile the City Council maintains that anti-fraud statutes have been ineffective in prosecuting deceptive facilities, Defendants could not confirm that a single prosecution has ever been initiated.” Not one!

·         The ordinance, Pauley concluded, is “unconstitutionally vague.” And “in view of the fact that Local Law 17 relates to the provision of emergency contraception and abortion—among the most controversial issues in our public discourse—the risk of discriminatory enforcement is high.”

·         There are many other fascinating facets (such as the additional costs in advertising which CPCs, which operate hand-to-mouth, would find difficult to finance), but there is one that no account I read mentioned: The requirements “will alter the tenor of Plaintiffs’ advertising by drowning their intended message in the City’s preferred admonitions.”

As I mentioned yesterday, it took about a second and a half for Quinn to vow to appeal. But pro-lifers are encouraged, knowing that Judge Pauley’s decision is the third time in less than six months that a federal judge has slapped down pro-abortion efforts to abridge the free speech rights of women helping centers.

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