Amicus Curiae Brief — First Resort, Inc., Petitioner v. Dennis J. Herrera, et al.

No. 17-1087

================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------FIRST RESORT, INC.,

Petitioner,

v.

DENNIS J. HERRERA, et al.,

Respondents.

-----------------------------------------------------------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

-----------------------------------------------------------------BRIEF OF AMICUS CURIAE

SOUTHEASTERN LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

-----------------------------------------------------------------KIMBERLY S. HERMANN

Counsel of Record

SOUTHEASTERN LEGAL FOUNDATION

2255 Sewell Mill Rd., Ste. 320

Marietta, GA 30062

(770) 977-2131

khermann@southeasternlegal.org

Counsel for Amicus Curiae

March 5, 2018

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTIONS PRESENTED

Since this Court’s decision in Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015), lower courts have divided

over the question whether the government’s illicit

motive in enacting a speech regulation suffices to trigger strict scrutiny. Most circuits apply strict scrutiny

when a law discriminates against content or viewpoint

either on its face or in its purpose. The Eighth and

Ninth Circuits, however, hold that the government’s

purpose is irrelevant to the analysis. This case involves

a First Amendment challenge to a San Francisco law

that penalizes “false” advertising by pro-life, but not

pro-choice, pregnancy centers. Although legislative

findings plainly announce the law’s target – “clinics

that seek to counsel clients against abortion” – the

Ninth Circuit found the law viewpoint-neutral, deeming irrelevant all evidence of governmental intent to

target pro-life speech. The court further found that advertising by pregnancy centers that charge no fees and

engage in no commercial transactions with women was

nevertheless “commercial speech” subject to reduced

scrutiny, implicating a longstanding four-way split in

the lower courts over the definition of commercial

speech. The questions presented are:

1.

Whether a speech regulation applying

only to speech concerning pregnancy services by pregnancy centers that do not refer for abortion, and enacted to target

speakers with pro-life views, is subject to

strict scrutiny.

ii

QUESTIONS PRESENTED – Continued

2.

Whether this Court’s “commercial speech”

doctrine can be applied to the speech of

non-profit pregnancy centers who provide

free and often religiously motivated assistance to pregnant women.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................................

i

TABLE OF CONTENTS ......................................

iii

TABLE OF AUTHORITIES .................................

iv

INTEREST OF AMICUS CURIAE ......................

1

SUMMARY OF ARGUMENT ..............................

2

ARGUMENT ........................................................

3

I.

The Ninth Circuit’s economic motivation

test undermines the durability of commercial speech leaving it susceptible to regulations that chill speech ............................

3

A. The Court affords speech that proposes a transaction less protection

than other types of speech because it

is objective, durable, and less likely to

be chilled by regulation .......................

3

B. The Ninth Circuit’s overbroad definition of commercial speech chills speech

that is neither durable nor objective .....

9

C. Overbroad definitions of commercial

speech silence nonprofit and public interest organizations ............................. 12

II.

This case provides an opportunity for this

Court to reaffirm that all content-based

and speaker-based restrictions warrant

strict scrutiny ............................................ 14

CONCLUSION..................................................... 18

iv

TABLE OF AUTHORITIES

Page

CASES

Associated Press v. United States, 326 U.S. 1

(1945) .........................................................................5

Austin v. Mich. State Chamber of Commerce, 494

U.S. 652 (1990) ........................................................14

Bates v. State Bar of Ariz., 433 U.S. 350 (1977) ...........8

Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S.

469 (1989) ............................................................ 9, 10

Bennie v. Munn, 137 S. Ct. 812 (2017) .........................1

Bigelow v. Virginia, 421 U.S. 809 (1975) ....................16

Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60

(1983) ................................................................... 9, 10

Buckley v. Valeo, 424 U.S. 1 (1976) .............................15

Cammarano v. United States, 358 U.S. 498

(1959) ..................................................................... 4, 6

Carey v. Brown, 447 U.S. 455 (1980) ..........................14

Central Hudson Gas & Elec. Corp. v. Pub. Serv.

Comm’n of N.Y., 447 U.S. 557 (1980) .............. 7, 8, 10

City of Cincinnati v. Discovery Network, Inc., 507

U.S. 410 (1993) .................................................. 10, 16

Cohen v. California, 403 U.S. 15 (1971) .....................14

Consol. Edison Co. v. Pub. Serv. Comm’n, 447

U.S. 530 (1980) ........................................................14

Ctr. for Competitive Politics v. Harris, 136 S. Ct.

480 (2015) ..................................................................1

v

TABLE OF AUTHORITIES – Continued

Page

De Jonge v. Oregon, 299 U.S. 353 (1937) ....................14

First Nat’l Bank of Boston v. Bellotti, 435 U.S.

765 (1978) ................................................................15

First Resort v. Herrera, 80 F. Supp. 3d 1043 (N.D.

Cal. 2015).................................................................13

First Resort v. Herrera, 860 F.3d 1263 (9th Cir.

2017) .................................................................... 9, 10

Friedman v. Rogers, 440 U.S. 1 (1979)..........................8

Greater Baltimore Ctr. for Pregnancy Concerns,

Inc. v. Mayor and City Council of Baltimore,

879 F.3d 101 (4th Cir. 2018) ....................................12

Lehman v. City of Shaker Heights, 418 U.S. 298

(1974) .........................................................................6

Matal v. Tam, 137 S. Ct. 1744 (2017) .........................12

Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights

Comm’n, No. 16-111, 2017 U.S. LEXIS 4226

(Jun. 26, 2017) ...........................................................1

Minority TV Project, Inc. v. FCC, 134 S. Ct. 2874

(2014) .........................................................................1

NAACP v. Button, 371 U.S. 415 (1963) ................. 14, 16

NAACP v. State of Alabama, 357 U.S. 449 (1958)....... 13

New York Times Co. v. Sullivan, 376 U.S. 254

(1964) ................................................................... 4, 14

Pittsburgh Press Co. v. Pittsburgh Comm’n on

Human Relations, 413 U.S. 376 (1973).....................5

vi

TABLE OF AUTHORITIES – Continued

Page

Police Dep’t of Chicago v. Mosley, 408 U.S. 92

(1972) .......................................................................14

Posadas de Puerto Rico Assocs. v. Tourism Co.,

478 U.S. 328 (1986) ...................................................8

Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218

(2015) ........................................................... 15, 16, 17

Regan v. Time, Inc., 468 U.S. 641 (1984).......................14

Sorrell v. IMS Health, Inc., 564 U.S. 552 (2011) ... 15, 16, 17

Street v. New York, 394 U.S. 576 (1969) .......................14

Susan B. Anthony List v. Driehaus, 134 S. Ct.

2334 (2014) ................................................................1

Terminiello v. Chicago, 337 U.S. 1 (1949) ...................14

Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622

(1994) .......................................................................16

Valentine v. Chrestensen, 316 U.S. 52 (1942) ... 3, 4, 5, 6

Virginia State Bd. of Pharm. v. Va. Citizens Consumer Council, Inc., 425 U.S. 748 (1976) .......... 6, 7, 8

Ward v. Rock Against Racism, 491 U.S. 781

(1989) .......................................................................15

Wood v. Georgia, 370 U.S. 375 (1962) .........................14

RULES

Sup. Ct. R. 37.2(a) .........................................................1

Sup. Ct. R. 37.6 .............................................................1

vii

TABLE OF AUTHORITIES – Continued

Page

OTHER AUTHORITIES

Alex Kozinski & Stuart Banner, Who’s Afraid

of Commercial Speech?, 76 Va. L. Rev. 627

(1990) .........................................................................3

Black’s Law Dictionary (10th ed. 2014) .....................10

1

INTEREST OF AMICUS CURIAE1

Southeastern Legal Foundation (SLF), founded in

1976, is a national nonprofit, public interest law firm

and policy center that advocates constitutional individual liberties, limited government, and free enterprise in the courts of law and public opinion. SLF

advocates for the protection of our First Amendment

rights. This aspect of its advocacy is reflected in the

regular representation of those challenging overreaching governmental and other actions in violation of

their First Amendment freedoms. See, e.g., Masterpiece

Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, No. 16111, 2017 U.S. LEXIS 4226 (Jun. 26, 2017); Bennie v.

Munn, 137 S. Ct. 812 (2017); Ctr. for Competitive Politics v. Harris, 136 S. Ct. 480 (2015); Minority TV Project, Inc. v. FCC, 134 S. Ct. 2874 (2014); Susan B.

Anthony List v. Driehaus, 134 S. Ct. 2334 (2014).

SLF has an abiding interest in the protection of

the freedoms set forth in the First Amendment – specifically the freedom of speech and the freedom to exercise one’s religion. This is especially true when the

law suppresses free discussion and debate on public

issues that are vital to America’s civil and political

institutions, and when the law suppresses one from

1

All parties have consented to the filing of this brief by blanket consent on file with the Clerk of Court or by notice to amicus

curiae, and the parties were notified of amicus curiae’s intention

to file this brief at least 10 days prior to the filing of this brief. See

Sup. Ct. R. 37.2(a). No counsel for a party has authored this brief

in whole or in part, and no person other than amicus curiae, their

members, and their counsel has made a monetary contribution to

the preparation or submission of this brief. See Sup. Ct. R. 37.6.

2

expressing his or her religious beliefs. SLF is profoundly committed to the protection of American legal

heritage, which includes all of those protections provided for by our Founders in the First Amendment.

------------------------------------------------------------------

SUMMARY OF ARGUMENT

San Francisco enacted the challenged ordinance

to silence First Resort, a nonprofit organization which

exists solely to serve the public interest. It did so knowing that any judicial challenge would likely fail because the Ninth Circuit refuses to apply this Court’s

precedent with respect to both commercial speech and

content-based, speaker-based restrictions.

Amicus writes separately to highlight two additional reasons why this case warrants review. First, the

Ninth Circuit’s overbroad definition of commercial

speech chills speech that is neither durable nor objective, effectively silencing nonprofit organizations like

amicus who will shut their doors before disclosing constitutionally protected information such as donor and

member lists. Second, on several recent occasions this

Court has held that content-based and speaker-based

restrictions on speech warrant strict scrutiny, regardless of the nature of the speech. While the Court’s

statements remain unequivocal, several lower courts

including the Ninth Circuit insist on finding vagueness in them and refuse to apply strict scrutiny to commercial speech restrictions. Such a complete disregard

for this Court’s precedent warrants review to ensure

3

that one’s level of First Amendment protection is not

dependent on where you live.

------------------------------------------------------------------

ARGUMENT

I.

The Ninth Circuit’s economic motivation

test undermines the durability of commercial speech leaving it susceptible to regulations that chill speech.

A. The Court affords speech that proposes

a transaction less protection than

other types of speech because it is objective, durable, and less likely to be

chilled by regulation.

In 1942, “the Supreme Court plucked the commercial speech doctrine out of thin air.” Alex Kozinski &

Stuart Banner, Who’s Afraid of Commercial Speech?,

76 Va. L. Rev. 627, 627 (1990). It all began with Valentine v. Chrestensen, 316 U.S. 52 (1942), when a man

wanted to pass out handbills on the New York streets

advertising tours of his submarine. Id. at 53. The City

told him the handbills violated the New York Sanitary

Code, which forbade “distribution in the streets of commercial and business advertising matter” but allowed

distribution of “handbills solely devoted to ‘information or a public protest.’ ” Id. In response, he printed

and distributed new handbills with the original ad on

one side and a statement protesting the city ordinance

on the other side. Id.

4

After the police “restrained” him, the submarine

owner challenged the constitutionality of the restraint

on speech. Id. at 53-54. Without citing a single source

or providing any legal basis whatsoever,2 the Court

proclaimed, “We are . . . clear that the Constitution imposes no such restraint on government as respects

purely commercial advertising.” Id. at 54. Despite the

lower court’s concern about drawing a line between

speech made for pecuniary gain and speech for the

public interest, the Court declined to provide any guidance as to what constitutes commercial and noncommercial speech. Id. at 55 (explaining that the case

before it was not based on “subtle distinctions” and

that it need not “assume possible cases not now presented”). And with that “casual, almost offhand” ruling, Cammarano v. United States, 358 U.S. 498, 514

(1959) (Douglas, J., concurring), any speech that could

be deemed “commercial” was categorically excluded

from First Amendment protection.

In New York Times Co. v. Sullivan, 376 U.S. 254

(1964), the Court gave its first indication – subtle as it

may have been at the time – that the categorical exclusion of commercial speech from First Amendment protection would not survive the test of time. It did so by

distinguishing the advertisement at issue from that in

2

The most logical explanation of the Court’s holding lies in

its concern that the submarine owner attached the protest to his

advertisement to evade the New York Sanitary Code. The Court

explained that “[i]f that evasion were successful, every merchant

who desires to broadcast advertising leaflets in the streets need

only append a civic appeal, or a moral platitude, to achieve immunity from the law’s command.” Chrestensen, 316 U.S. at 55.

5

Chrestensen, explaining that the latter was “purely

commercial advertising” and thus concluding that

when speech goes beyond “purely commercial advertising” it is worthy of being protected. Id. at 266. More

specifically, the Court found that a newspaper ad

placed by civil rights advocates was “not a ‘commercial’

advertisement in the sense in which the word was

used in Chrestensen” because it “communicated information, expressed opinion . . . on behalf of a movement

whose existence and objectives are matters of the

highest public interest and concern.” Id. The Court explained that if it allowed the Chrestensen “purely commercial” restraints in cases like Sullivan, “[t]he effect

would be to shackle the First Amendment in its attempt to secure ‘the widest possible dissemination of

information from diverse and antagonistic sources.’ ”

Id. (quoting Associated Press v. United States, 326 U.S.

1, 20 (1945)).

Further indications that the Court would soon reject or further limit Chrestensen appeared in the dissents of Justices Blackmun and Stewart in Pittsburgh

Press Co. v. Pittsburgh Comm’n on Human Relations,

413 U.S. 376 (1973),3 and Justices Brennan, Marshall,

3

See Pittsburgh Press, 413 U.S. at 401 (Stewart, J., dissenting) (“Whatever validity the Chrestensen case may still retain

when limited to its own facts, it certainly does not stand for the

proposition that the advertising pages of a newspaper are outside

the protection given the newspaper by the First and Fourteenth

Amendments. Any possibility on that score was surely laid to rest

in New York Times Co. v. Sullivan.”); Id. at 397-98 (Douglas, J.,

dissenting) (“Commercial matter, as distinguished from news, was

held in Valentine v. Chrestensen, not to be subject to First Amendment protection. My views on that issue have changed since 1942,

6

and Powell in Lehman v. City of Shaker Heights, 418

U.S. 298 (1974).4 In the various dissents, the Justices

questioned the continued validity of Chrestensen, suggesting agreement with Justice Douglas’ 1959 observation that the categorical exclusion of commercial

speech from First Amendment protection “has not survived reflection.” Cammarano, 358 U.S. at 514.

In 1976, the Court finally dispensed with Chrestensen and recognized commercial speech – speech that

does “no more than propose a commercial transaction”

– as protected by the First Amendment. Virginia State

Bd. of Pharm. v. Virginia Citizens Consumer Council,

425 U.S. 748, 762 (1976) (quoting Pittsburgh Press, 413

U.S. at 385). In doing so, the Court wrote in depth

about the public interest element of commercial speech

stating that “[a]s to the particular consumer’s interest

in the free flow of commercial information, that interest

may be as keen, if not keener by far, than his interest

in the day’s most urgent political debate.” Id. at 763.

The Court found that the free flow of commercial

products, and the communication of where, how, and

why they were made, was “indispensable.” Id. at 765.

“[E]ven if the First Amendment were thought to be

primarily an instrument to enlighten public decisionmaking in democracy, we could not say that the

the year Valentine was decided. As I have stated on earlier occasions, I believe that commercial materials also have First Amendment protection.”).

4

See Lehman, 418 U.S. at 314 n.6 (Brennan, J., dissenting)

(“It is sufficient . . . to recognize that commercial speech enjoys at

least some degree of protection under the First Amendment.”).

7

free flow of information does not serve that goal.” Id.

The Court found that there are few commercial messages that lack a public interest element, and that “no

line between publicly ‘interesting’ or ‘important’ commercial advertising and the opposite kind could ever

be drawn.” Id.

Yet with that admission, the Court explained that

its holding did not dispense with defining speech as

commercial or noncommercial, or with the potential

application of different levels of scrutiny for the two

categories. Id. at 771 n.24. Rather, the Court justified

its proposed “different degree of protection” for commercial speech – which it later defined in Central

Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980) – on the conclusion that

speech that proposes a commercial transaction is more

objective, verifiable, and durable, and thus, less likely

to be chilled. Id.

Even if the differences do not justify the conclusion that commercial speech is valueless,

and thus subject to complete suppression by

the State, they nonetheless suggest that a

different degree of protection is necessary to

insure that the flow of truthful and legitimate

commercial information is unimpaired. The

truth of commercial speech, for example, may

be more easily verifiable by its disseminator

than, let us say, news reporting or political

commentary, in that ordinarily the advertiser

seeks to disseminate information about a specific product or service that he himself provides and presumably knows more about than

8

anyone else. Also, commercial speech may be

more durable than other kinds. Since advertising is the sine qua non of commercial profits, there is little likelihood of its being chilled

by proper regulation and foregone entirely.

Id.

To date, the Court has declined to revisit the distinction between commercial and noncommercial

speech.5 In the years following Virginia State Board of

Pharmacy, the Court reiterated that because commercial speech proposes a commercial transaction, it is

both durable and objective and thus, not “particularly

susceptible to being crushed by overbroad regulation.”

Bates v. State Bar of Ariz., 433 U.S. 350, 381 (1977); see

also Friedman v. Rogers, 440 U.S. 1, 10 (1979) (“Because it relates to a particular product or service, commercial speech is more objective, hence more verifiable,

than other varieties of speech.”); Central Hudson, 447

U.S. at 564 n.6 (“[C]ommercial speech, the offspring of

economic self-interest, is a hardy breed of expression. . . .”).

5

This is not to say that no one has questioned the distinction.

See, e.g., Posadas de Puerto Rico Assocs. v. Tourism Co., 478 U.S.

328, 351 (1986) (Brennan, J., dissenting) (“[N]o differences between commercial and other kinds of speech justify protecting

commercial speech less extensively where, as here, the government seeks to manipulate private behavior by depriving citizens

of truthful information concerning lawful activities.”).

9

B. The Ninth Circuit’s overbroad definition of commercial speech chills speech

that is neither durable nor objective.

Commercial speech is not only durable and objective, it is also valuable. As this Court has explained,

“some of our most valued forms of fully protected

speech are uttered for a profit.” Bd. of Trs. of State

Univ. of N.Y. v. Fox, 492 U.S. 469, 482 (1989). When a

court applies anything other than this Court’s proposed transaction test to determine if speech is “commercial,” it risks chilling speech protected by the First

Amendment. This Court’s proposed transaction test is

intentionally narrow and limited in its reach to prevent courts from finding speech is commercial just because it has some connection to profit. See, e.g., id.

(finding that just because speech results in a profit

does not necessarily mean that such speech “proposes

a commercial transaction, which is what defines commercial speech”).

Rather than follow this Court’s precedent, the

Ninth Circuit created its own test,6 which focuses

6

The Ninth Circuit points to Bolger v. Youngs Drug Products

Corp., 463 U.S. 60 (1983), to support its theory that economic motivation alone can justify classifying speech as commercial. Its reliance on Bolger is misplaced. Rather than expand the definition

of commercial speech, the Court in Bolger explained that “the fact

that Youngs has an economic motivation for mailing the pamphlets would clearly be insufficient by itself to turn the materials

into commercial speech.” Id. at 67 (emphasis added). The Ninth

Circuit incorrectly relies on footnote 14 of the Bolger opinion to

find that some characteristics, by themselves, are enough to classify speech as commercial. First Resort v. Herrera, 860 F.3d 1263,

1272 (9th Cir. 2017). That reading of Bolger is too simplistic. In

10

primarily on the economic motivation behind the

speech. It classifies far more speech as commercial

than would be captured under this Court’s proposed

transaction test, including speech that is neither durable nor objective.

This results because this Court’s test requires that

a “seller” make an offer to a “consumer,” whereas, the

economic motivation requires nothing more than the

mere thought of money. “Proposal” is defined in Black’s

Law Dictionary as “[s]omething offered for consideration or acceptance; a suggestion.” Proposal, Black’s

Law Dictionary (10th ed. 2014). But, under the Ninth

Circuit’s economic motivation test, no offering or

suggestion is required. Applying its test, the Ninth

Circuit found that First Resort’s use of a service which

directs internet searchers using Google to search

keywords like “San Francisco,” “abortion,” and “emergency contraception,” to First Resort’s website, constituted commercial speech. First Resort, 860 F.3d at

1276. According to the Ninth Circuit, paying Google

City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1983),

the Court explained that while Bolger relied on the speaker’s economic motivation, “[i]t is noteworthy that in reaching that conclusion we did not simply apply the broader definition of commercial

speech advanced in Central Hudson . . . but rather ‘examined

them carefully to ensure that speech deserving of greater constitutional protection is not inadvertently suppressed.’ ” Id. at 423

(quoting Bolger, 463 U.S. at 66). Further, the Court noted that

in Fox, a case decided six years after Bolger, it “described the category even more narrowly, by characterizing the proposal of a

commercial transaction as ‘the test for identifying commercial

speech.’ ” Discovery Network, 507 U.S. at 422-23 (quoting Fox, 492

U.S. at 473-74).

11

Ads so that your nonprofit’s website shows up higher

in a Google search list is commercial speech even

though the Google search involves no transaction.

Whether the use of this kind of service constitutes

speech at all is questionable. But even accepting that

conclusion, it is no more commercial than strategically

naming your company so that it shows up first in the

phone book.

Under its economic motivation test, the Ninth Circuit also found that encouraging clients to discuss

their experiences at First Resort with others, constituted commercial speech because shared client stories

are “useful in fundraising.” Id. Classifying actions that

remotely, or even inadvertently contribute to fundraising success as commercial speech extends the proposed

transaction test too far and frustrates the purpose of

the commercial speech doctrine. It is unclear how

many degrees of separation from the actual transaction between consumer and service provider are encompassed under the economic motivation test. But,

according to the Ninth Circuit, word of mouth about an

organization’s services is also a commercial transaction, even though the organization is not speaking, and

the conversation is happening between two consumers.

Simply because these conversations could lead to new

clients, which could lead to bonuses for the clinic’s

management, the court found a commercial transaction had taken place. Not only is this speech neither

durable nor objective, but it is not even made by First

Resort.

12

C. Overbroad definitions of commercial

speech silence nonprofit and public interest organizations.

This case is but one example of how the government stifles the voices of disfavored (and vulnerable)

speakers by simply labeling speech as commercial. “If

affixing the commercial label permits the suppression

of any speech that may lead to political or social ‘volatility,’ free speech would be endangered.” Matal v. Tam,

137 S. Ct. 1744, 1765 (2017). The Ninth Circuit’s economic motivation test silences nonprofit and public interest organizations in several ways.

First, most nonprofits and public interest organizations are forced into silence because they cannot afford to challenge unconstitutional speech restrictions.

For example, in Greater Baltimore Ctr. for Pregnancy

Concerns, Inc. v. Mayor and City Council of Baltimore,

879 F.3d 101 (4th Cir. 2018), litigation began in 2011,

and did not conclude until January 2018 after appealing up to the Fourth Circuit twice on the very issue

of whether the pregnancy center’s speech was commercial or noncommercial. Litigating a case for seven

years could financially cripple any business, especially

a nonprofit organization serving a public interest. It

also results in using funds raised on litigation, rather

than program costs – something many nonprofits cannot do without risking violations of their charters.

Second, an expansive definition of commercial

speech opens the door to compelling nonprofits to publicly disclose donor lists and financial information that

13

would otherwise be protected by the First Amendment.

See NAACP v. State of Alabama, 357 U.S. 449, 462-63

(1958) (finding that compelled disclosure of petitioner’s

membership list “may induce members to withdraw

from the Association and dissuade others from joining

it because of fear of exposure . . . and of the consequences of [that] exposure”). The City tried this very

tactic here when it sought all “communications with

donors that place a monetary value on services” and

“communications with donors that represent the number or type of services that will be covered by a particular donation.” Joint Letter Brief Re: Motion to Compel

Documents and Further Deposition Testimony at 6,

First Resort v. Herrera, 80 F. Supp. 3d 1043 (N.D.

Cal. 2015) (No. 11-5534-SBA), ECF No. 52. The City

argued it needed the information because those documents “place a monetary value on First Resort’s services, which relates to both the ‘economic motive’ and

the ‘services offered’ factors of the commercial speech

test.” Id. However, as First Resort pointed out, it did

not have to produce donor information because the requested records “have absolutely no impact on the

‘commercial speech’ analysis as they are not the speech

that is at issue.” Id.

The prospect of courts allowing governments to

compel nonprofit donor lists alone is enough to silence

those serving the public interest. Many nonprofits

would rather shut their doors than breach the confidentiality that their donors expect. The Ninth Circuit’s

test not only opens the door, but almost encourages

government abuse and forced silence.

14

II.

This case provides an opportunity for this

Court to reaffirm that all content-based

and speaker-based restrictions warrant

strict scrutiny.

The Ninth Circuit’s overbroad definition of commercial speech cannot be reconciled with this Court’s

First Amendment jurisprudence. “[A]bove all else, the

First Amendment means that government has no

power to restrict expression because of its message, its

ideas, its subject matter, or its content.” Police Dep’t of

Chicago v. Mosley, 408 U.S. 92, 95 (1972).7 “Contentbased restrictions are the essence of censorial power.”

Austin v. Mich. State Chamber of Commerce, 494 U.S.

652, 699 (1990) (Kennedy, J., dissenting). This Court

has concluded time and time again that “[r]egulations

which permit the Government to discriminate on the

basis of the content of the message cannot be tolerated

under the First Amendment.” Regan v. Time, Inc., 468

U.S. 641, 648-49 (1984) (citing Carey v. Brown, 447 U.S.

455, 463 (1980); Mosley, 408 U.S. at 95-96). Traditional

First Amendment principles mandate that “[w]here a

government restricts the speech of a private person,

the state action may be sustained only if the government can show that the regulation is a precisely drawn

means of serving a compelling state interest.” Consol.

Edison Co. v. Pub. Serv. Comm’n, 447 U.S. 530, 540

7

See also Cohen v. California, 403 U.S. 15, 24 (1971); Street

v. New York, 394 U.S. 576 (1969); New York Times Co. v. Sullivan,

376 U.S. 254, 269-70 (1964); NAACP v. Button, 371 U.S. 415, 445

(1963); Wood v. Georgia, 370 U.S. 375, 388-89 (1962); Terminiello

v. Chicago, 337 U.S. 1, 4 (1949); De Jonge v. Oregon, 299 U.S. 353,

365 (1937).

15

(1980) (citing First Nat’l Bank of Boston v. Bellotti, 435

U.S. 765, 786 (1978); Buckley v. Valeo, 424 U.S. 1, 25

(1976)). “A less stringent analysis would permit a government to slight the First Amendment’s role ‘in affording the public access to discussion, debate, and the

dissemination of information and ideas.’ ” Id. at 541

(quoting Bellotti, 435 U.S. at 783).

This Court has, on more than one occasion, held

that all content-based and speaker-based restrictions

on speech are “presumptively unconstitutional and

may be justified only if the government proves they are

narrowly tailored to serve compelling state interests.”

Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 2266

(2015); Sorrell v. IMS Health, Inc., 564 U.S. 566 (2011)

(quoting Ward v. Rock Against Racism, 491 U.S. 781,

791 (1989)) (“The First Amendment requires heightened scrutiny whenever the government creates ‘a

regulation of speech because of disagreement with

the message it conveys.’ ”). This is true regardless of

whether a court finds the speech is commercial or noncommercial. Sorrell, 564 U.S. at 566 (finding that even

if a law appears neutral on its face, “its purpose to suppress speech and its unjustified burdens on expression

would render it unconstitutional. Commercial speech is

no exception.”) (emphasis added).

In Sorrell, this Court made the unequivocal statement that “commercial speech is no exception” to strict

scrutiny analysis of a content-based regulation. Id.

at 566. Notably, the government argued that “heightened judicial scrutiny is unwarranted because its

law is a mere commercial regulation.” Id. This Court

16

rejected that argument and found that even though

commercial speech “results from an economic motive,

so too does a great deal of vital expression.” Id. at 567.

Further, the Court made clear that governments may

not avoid strict scrutiny of their content-based restrictions, simply by categorizing the regulated speech

as commercial. Id. at 580 (“The State has burdened a

form of protected expression that it found too persuasive. At the same time, the State left unburdened those

speakers whose messages are in accord with its own

views. This the State cannot do.”); Bigelow v. Virginia,

421 U.S. 809, 822 (1975) (quoting NAACP v. Button,

371 U.S. 415, 429 (1963)) (“The Court has stated that

‘a State cannot foreclose the exercise of constitutional

rights by mere labels.’ ”). Thus, “[r]egardless of the particular label asserted by the State – whether it calls

speech ‘commercial’ or ‘commercial advertising’ or ‘solicitation’ – a court may not escape the task of assessing the First Amendment interest at stake. . . .”

Bigelow, 421 U.S. at 826.

Several years later, the Court reiterated that “[a]

law that is content based on its face is subject to strict

scrutiny regardless of the government’s benign motive,

content-neutral justification, or lack of ‘animus toward

the ideas contained’ in the regulated speech.” Reed, 135

S. Ct. at 2228 (quoting Discovery Network, 507 U.S. at

429). The Court explained that it has “insisted that

‘laws favoring some speakers over others demand

strict scrutiny when the legislature’s speaker preference reflects a content preference.’ ” Id. at 2230 (quoting Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 658

17

(1994)). And, just in case any question remained, the

Court further stated, “Not ‘all distinctions’ are subject

to strict scrutiny, only content-based ones are. Laws

that are content neutral are instead subject to lesser

scrutiny.” Id. at 2232.

Content-based and speaker-based restrictions on

speech are no less harmful in the commercial arena.

The danger that “future government officials may one

day wield such statutes to suppress disfavored speech”

still exists. Id. at 2229. The consequences of regulating

the speech of commercial actors based on content not

only chills speech, but can also run those speakers

out of the market place. The Court made clear in both

Sorrell and in Reed, that content-based restrictions

receive strict scrutiny. Even so, the Ninth Circuit approached this issue as if uncertainty remains and refused to apply the standard necessary to protect speech

from ordinances enacted to silence disfavored speakers. It is vital that this Court review this case to prevent any further chilling of protected speech.

------------------------------------------------------------------

18

CONCLUSION

For the reasons stated in the Petition for Certiorari and this amicus curiae brief, this Court should

grant the petition for writ of certiorari.

Respectfully submitted,

KIMBERLY S. HERMANN

Counsel of Record

SOUTHEASTERN LEGAL FOUNDATION

2255 Sewell Mill Rd., Ste. 320

Marietta, GA 30062

(770)-977-2131

khermann@southeasternlegal.org

Counsel for Amicus Curiae

March 5, 2018