By Dave Andrusko
A day before a law targeting crisis pregnancy centers in New York City was to go into effect U.S. District Judge William H. Pauley III issued a preliminary injunction, blasting the City Council for passing a law he called “offensive to free speech principles.” The 22-page decision (available at www.nysd.uscourts.gov/cases/show.php?db=special&id=116), came Wednesday afternoon.
Judge Pauley’s decision is the third time in less than six months a federal judge has slapped down pro-abortion efforts to abridge the free speech rights of women helping centers. The other two are Judge Deborah Chasanow (a law passed by the Montgomery County Council) and Judge Marvin J. Garbis (an ordinance passed by the Baltimore City Council).
Judge Pauley’s opinion was reminiscent of Judge Garbis’s findings.
“Local Law 17” was replete with requirements, including that crisis pregnancy centers “post signs 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.
Among the many requirements of Local Law 17 is to state whether the facility provides referrals for abortion and emergency contraception.
There were hefty fines for noncompliance– between $200 and $1,000 for first violation–and between $500 and $2,000 for each additional violation. Judge Pauley noted three or more separate violations within two years could result in closure.
As is always the case with such laws, the requirements did not apply to abortion businesses such as Planned Parenthood.
In a very important passage, Judge Pauley quoted from a previous decision in which a court held “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.”
Attorneys for the City Council clearly understood the only chance they had to win was to persuade the court that the crisis pregnancy centers were engaging in “commercial” speech, which the courts have held is afforded far less First Amendment protection.
The city council made the patently absurd duel-edged argument that CPCs are engaging in commercial speech because they advertise “goods and services” (e.g. diapers which they give away!) that have commercial value and “receive something of value in return for these goods and services”—the opportunity to speak to an audience.
Based on this, he wrote “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–the “audience” argument– “particularly offense.”
“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.”
Were the City Council’s view to prevail, it “would represent a breathtaking expansion of the commercial speech doctrine.”
Noteworthy is that Judge Pauley called the city council’s bluff. First, he wrote that “In substance, Plaintiffs intimate that the evidence [of alleged deceptive practices/fraud] was contrived.”
Then he observed, “[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.”
Judge Pauley also pointed out that Local Law 17 burdens the CPCs both because it will “increase Plaintiffs’ advertising costs by forcing them to purchase more print space or airtime,” and “will alter the tenor of Plaintiffs’ advertising by drowning their intended message in the City’s preferred admonitions.”
The battle will go on, however. “City Council Speaker Christine C. Quinn said the ruling ‘is deeply disappointing and is a disservice to women,’” the Associated Press reported. “She promised an immediate appeal.”