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SCOTUS: Non-Profit Free Speech Under Attack in California

March 6, 2018

WASHINGTON, DC:  Southeastern Legal Foundation today filed a brief with the U.S. Supreme Court urging it to hear a critical First Amendment case coming out of the Ninth Circuit. The facts of First Resort v. Herrera are, unfortunately, nothing new. At stake are First Amendment free speech guarantees against government action for non-profit organizations – a growing threat across the U.S.

 

San Francisco passed a law which prohibits pregnancy centers that refuse to perform abortions from making any “false” advertising for the sole purpose of shutting down pro-life pregnancy centers and ending “pro-life advocacy” in the City. Through the ordinance, the City gave its attorney extensive enforcement powers, including the broad discretion to determine whether a statement is “false” or “misleading” and to file civil lawsuits seeking injunctions, monetary penalties, and attorney’s fees.

 

First Resort, the primary target of this ordinance, filed a lawsuit in federal court challenging the constitutionality of the ordinance arguing that it violated the First Amendment. On appeal, the Ninth Circuit found against First Resort in an opinion that violated the Supreme Court’s clear precedent in several ways.

 

First, the ordinance prohibits speech both because of the speaker and because of its content. Twice in the last decade, the Supreme Court held that both content-based and speaker-based regulations are presumptively unconstitutional. The Ninth Circuit simply ignored these cases, dispensing with a significant aspect of the Supreme Court’s First Amendment jurisprudence and allowing the content and speaker based law to stand without the requisite review.

 

Second, the Ninth Circuit found the ordinance prohibited commercial speech and was thus, presumptively valid. In finding the speech was commercial, the Ninth Circuit reasoned that even though First Resort is nonprofit organization, any speech (even that of former clients speaking to each other) that may result in fundraising was commercial. In other words, anything that a nonprofit or public interest organizations does is commercial – posting to a blog, filing a lawsuit, providing counseling, giving a sermon, the list is endless. Applying its holding to other situations, the Ninth Circuit categorically excluded nonprofit organizations from the protections of the First Amendment.

 

In its brief, SLF urges the Supreme Court to grant the writ of certiorari and hear this critical case. If the Ninth Circuit’s holding is allowed to stand, nonprofit organizations throughout the Ninth Circuit will be silenced.

 

Click here for SLF's SCOTUS amicus brief

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