First Resort, Inc. v. Dennis J. Herrera, et al.

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 fourway 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.

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.