OPP. TO PET. FOR REHEARING; NO. 15-15434 n:\cxlit\li2017\120602\01210423.docx
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FIRST RESORT, INC.,
Plaintiff - Appellant,
vs.
DENNIS J. HERRERA, in his official capacity as City Attorney of the City of San Francisco; BOARD OF SUPERVISORS OF THE CITY & COUNTY OF SAN FRANCISCO, THE CITY AND COUNTY OF SAN FRANCISCO,
Defendants - Appellees.
Case No. 15-15434 U.S. District Court No. 4:11-cv-05534 SBA U.S. District Court for Northern California, Oakland
OPPOSITION OF APPELLEES TO APPELLANT’S PETITION FOR REHEARING EN BANC
On Appeal from the United States District Court for the Northern District of California
The Honorable Saundra B. Armstrong
DENNIS J. HERRERA, State Bar #139669 City Attorney YVONNE R. MERÉ, State Bar #173594 Chief of Complex and Affirmative Litigation CHRISTINE VAN AKEN, State Bar #241755 MATTHEW D. GOLDBERG, State Bar #240776 MOLLIE M. LEE, State Bar #251404 Deputy City Attorneys 1390 Market Street, Sixth Floor San Francisco, California 94102-5408 Telephone: (415) 554-4285 Facsimile: (415) 437-4644 E-Mail: [email protected] Attorneys for Defendants - Appellees City and County of San Francisco, et al.
Case: 15-15434, 08/02/2017, ID: 10530252, DktEntry: 68, Page 1 of 22
OPP. TO PET. FOR REHEARING; NO. 15-15434 i n:\cxlit\li2017\120602\01210423.docx
TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................................................... ii
INTRODUCTION ..................................................................................................... 1
BACKGROUND ....................................................................................................... 2
ARGUMENT ............................................................................................................. 5
I. THE PANEL’S OPINION IS CONSISTENT WITH CONTROLLING AUTHORITY FROM THIS COURT AND THE UNITED STATES SUPREME COURT. .................................... 5
II. THE ORDINANCE DOES NOT DISCRIMINATE BASED ON VIEWPOINT. ................................................................................. 9
III. THE PANEL’S COMMERCIAL SPEECH HOLDING DOES NOT WARRANT FURTHER REVIEW. ........................................... 11
IV. THE PANEL’S DUPLICATION PREEMPTION DECISION DOES NOT WARRANT FURTHER REVIEW. ............................... 12
CONCLUSION ........................................................................................................ 15
STATEMENT OF RELATED CASES ................................................................... 16
CERTIFICATE OF COMPLIANCE ....................................................................... 16
CERTIFICATE OF SERVICE ................................................................................ 17
Case: 15-15434, 08/02/2017, ID: 10530252, DktEntry: 68, Page 2 of 22
OPP. TO PET. FOR REHEARING; NO. 15-15434 ii n:\cxlit\li2017\120602\01210423.docx
TABLE OF AUTHORITIES Federal Cases
Avery v. Midland Cnty. Tex. 390 U.S. 474 (1968) ............................................................................................. 15
Bolger v. Youngs Drug Prods. Corp. 463 U.S. 60 (1983) ........................................................................................ 11, 12
Cal. Outdoor Equity Partners v. City of Corona No. CV 15-03172 MMM AGRX, 2015 WL 4163346 (C.D. Cal. July 9, 2015) ... 8
Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm.’n of N.Y. 447 U.S. 557 (1980) .................................................................................. 6, 7, 8, 9
City of Cincinnati v. Discovery Network, Inc. 507 U.S. 410 (1993) ............................................................................................. 11
Contest Promotions, LLC v. City & Cty. of San Francisco No. 15-CV-00093-SI, 2015 WL 4571564 (N.D. Cal. July 28, 2015) .................... 8
Flo & Eddie, Inc. v. Pandora Media, Inc. 851 F.3d 950 (9th Cir. 2017) ................................................................................ 14
Greater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Council of Balt. 721 F.3d 264 (4th Cir. 2013) ................................................................................ 11
Hunt v. City of Los Angeles 638 F.3d 703 (9th Cir. 2011) ................................................................................ 11
Lone Star Sec. & Video, Inc. v. City of Los Angeles 827 F.3d 1192 (9th Cir. 2016) ................................................................................ 8
Maryland v. Wilson 519 U.S. 408 (1997) ............................................................................................. 10
Matal v. Tam 137 S. Ct. 1744 (2017) ......................................................................................... 10
Nat’l Inst. of Family & Life Advocates (NIFLA) v. Harris 839 F.3d 823 (9th Cir. 2016) ............................................................... 5, 7, 8, 9, 10
Case: 15-15434, 08/02/2017, ID: 10530252, DktEntry: 68, Page 3 of 22
OPP. TO PET. FOR REHEARING; NO. 15-15434 iii n:\cxlit\li2017\120602\01210423.docx
Pickup v. Brown 740 F.3d 1208, reh’g en banc denied (9th Cir. 2014) .......................................... 10
Reed v. Town of Gilbert, Ariz. 135 S. Ct. 2218 (2015) .................................................................................. 5, 7, 8
Retail Dig. Network, LLC v. Prieto 861 F.3d 839 (9th Cir. 2017). ................................................................................. 6
Rosenberger v. Rector and Visitors of Univ. of Va. 515 U.S. 819 (1995) ............................................................................................. 10
Sorrell v. IMS Health, Inc. 564 U.S. 552 (2011) .................................................................................. 5, 6, 7, 9
United States v. Am.-Foreign S. S. Corp. 363 U.S. 685 (1960) ............................................................................................... 5
United States v. Nordic Vill. Inc. 503 U.S. 30 (1992) ............................................................................................... 10
United States v. Swisher 811 F.3d 299 (9th Cir. 2016) .................................................................................. 7
Federal Statutes
42 U.S.C. § 1983 ..................................................................................................................... 4
Federal Rules Federal Rules of Appellate Procedure
Rule 35 .............................................................................................................. 5, 12
State Cases
Am. Acad. of Pediatrics v. Lungren 16 Cal.4th 307 (1997) ............................................................................................. 3
Case: 15-15434, 08/02/2017, ID: 10530252, DktEntry: 68, Page 4 of 22
OPP. TO PET. FOR REHEARING; NO. 15-15434 iv n:\cxlit\li2017\120602\01210423.docx
State Statutes and Codes
California Health & Safety Code § 123470 ................................................................................................................. 2
California Welfare & Institution Code § 17000. .................................................................................................................. 3
California Business and Professions Code § 17500 ................................................................................................................... 1 § 17534.5 .............................................................................................................. 14
S.F. Admin Code § 93.1 ...................................................................................................................... 1 § 93.2(2) .................................................................................................................. 3 § 93.2(9) .................................................................................................................. 2 § 93.2(10) .......................................................................................................... 3, 12 § 93.2(11) ................................................................................................................ 3 § 93.3(f) .............................................................................................................. 3, 4 § 93.3(g) .................................................................................................................. 4 § 93.4 ...................................................................................................................... 3
State Rules
California Rules of Court Rule 8.548(a) ........................................................................................................ 14
Case: 15-15434, 08/02/2017, ID: 10530252, DktEntry: 68, Page 5 of 22
OPP. TO PET. FOR REHEARING; NO. 15-15434 1 n:\cxlit\li2017\120602\01210423.docx
INTRODUCTION
False and misleading advertising by limited services pregnancy centers
(“LSPCs”) has become a problem of national importance. Local governments
around the county have sought to address the harms caused by these deceptive
practices. In 2011, the City and County of San Francisco (“City” or
“San Francisco”) enacted the Pregnancy Information Disclosure and Protection
Ordinance, S.F. Admin. Code chapter 93, §§ 93.1 et seq. (“Ordinance”). The
Ordinance is modest. It prohibits LSPCs from engaging in false or misleading
advertising concerning their pregnancy-related services; it does not affect any other
speech.
Appellant First Resort Inc. (“First Resort”) challenged the Ordinance. A
panel of this Court affirmed the District Court by reaching a narrow and
unremarkable conclusion: the Ordinance is constitutional and not preempted by
state law. More specifically, the panel held that the Ordinance is facially valid
because it regulates only false or misleading commercial speech—a category of
speech afforded no constitutional protection. The panel held that the Ordinance is
valid as applied to First Resort because First Resort’s misleading commercial
speech is not inextricably intertwined with its protected speech, and the Ordinance
does not discriminate based on the opinion, viewpoint, or ideology of First Resort
or other LSPCs. Finally, the panel held that the Ordinance was not preempted by
California’s false advertising law (“FAL”), California Business and Professions
Code section 17500. The Panel declined to apply duplication preemption to
invalidate the Ordinance because its enforcement does not raise double-jeopardy
concerns, and it does not duplicate state law.
First Resort contends that this case should be reheard en banc because these
holdings conflict with controlling authority and raise issues of exceptional
Case: 15-15434, 08/02/2017, ID: 10530252, DktEntry: 68, Page 6 of 22
OPP. TO PET. FOR REHEARING; NO. 15-15434 2 n:\cxlit\li2017\120602\01210423.docx
importance. First Resort’s arguments—which largely mirror the arguments
First Resort previously raised before the District Court and this Court—are
unpersuasive. Contrary to First Resort’s characterization, the panel decision in this
case is fact-specific and wholly consistent with binding precedent. The panel
upheld a narrowly drawn ordinance that prohibits unprotected false and misleading
commercial speech. The opinion neither sets new ground nor deviates from well-
settled legal principles. First Resort’s Petition for Rehearing En Banc should be
denied.
BACKGROUND
Some providers of pregnancy-related services do not offer a full range of
reproductive health services, but falsely advertise or mislead the public into
thinking they do offer such a full range of services. This issue has been the subject
of a Congressional report and proposed federal legislation. Local governments
around the country have sought to curtail such deceptive practices. The state of
California also recently passed a statute, the Reproductive FACT Act (“FACT
Act”), dealing with this pressing problem of consumer protection and women’s
health. Cal. Health & Safety Code § 123470.
The San Francisco Board of Supervisors passed its Ordinance in a ten-to-one
vote, and it took effect on December 4, 2011. The Ordinance amended the
San Francisco Administrative Code, adding Chapter 93, sections 93.1 through
93.5.
The Ordinance is intended to prevent several distinct harms. First, “[w]hen
a woman is misled into believing that a clinic offers services that it does not in fact
offer, she loses time crucial to the decision whether to terminate a pregnancy,” and
“may also lose the option to choose a particular procedure, or to terminate a
pregnancy at all.” S.F. Admin. Code, § 93.2(9). Second, the City is the medical
Case: 15-15434, 08/02/2017, ID: 10530252, DktEntry: 68, Page 7 of 22
OPP. TO PET. FOR REHEARING; NO. 15-15434 3 n:\cxlit\li2017\120602\01210423.docx
provider of last resort for indigent individuals who need medical care, including
women facing unexpected pregnancies. Cal. Welf. & Inst. Code § 17000. As
such, the City would absorb the higher costs associated with delayed medical
procedures related to abortion. S.F. Admin. Code, § 93.2(11); Appellant’s Excerpt
of Record, vol. II, 65 ¶29, August 17, 2017, Docket 7-2 and 7-3 (“ER”). Finally,
such delay also causes constitutional injury, as a woman’s right to choose whether
to terminate a pregnancy is protected by both the federal and state Constitutions,
and is protected from interference by third parties and the government.
S.F. Admin. Code § 93.2(2); see also Am. Acad. of Pediatrics v. Lungren,
16 Cal.4th 307, 325-331 (1997).
To prevent these harms, the Ordinance bars false or misleading advertising
by LSPCs, i.e., providers of pregnancy-related services that do not offer abortion
services or emergency contraception, and do not refer for those services.
S.F. Admin. Code §§ 93.3(f), 93.4.
The Ordinance does not prohibit abortion-related advocacy. Nor does it
regulate statements describing particular procedures. The Ordinance’s sole focus
is on the goods and services actually or impliedly offered in a center’s advertising.
Indeed, the Ordinance explicitly rejects any intent to “regulate, limit or curtail . . .
advocacy.” S.F. Admin. Code § 93.2(10).
The Ordinance applies equally to all pregnancy centers based solely on
whether they offer or refer for a full range of reproductive care services. This
distinction is directly in line with a recommendation made by the American
College of Obstetricians and Gynecologists, which stated that it was the ethical
obligation of medical providers to either perform or refer for reproductive services
including abortion. Appellees’ Supplemental Excerpts of Record vol. I, 141-47,
November 18, 2017, Docket 12. The Ordinance applies regardless of a center’s
Case: 15-15434, 08/02/2017, ID: 10530252, DktEntry: 68, Page 8 of 22
OPP. TO PET. FOR REHEARING; NO. 15-15434 4 n:\cxlit\li2017\120602\01210423.docx
reason for declining to provide or refer for abortion or emergency contraception
services, and applies equally to state-licensed medical clinics and to pregnancy
counseling centers with no medical staff. S.F. Admin. Code §§ 93.3(f), (g).
First Resort filed the instant action on November 16, 2011. First Resort’s
First Amended Complaint (“FAC”) contains three causes of action under 42 U.S.C.
section 1983, challenging the Ordinance as: 1) violating the First and Fourteenth
Amendments’ guarantee of free speech; 2) violating the Fourteenth Amendment’s
guarantee of equal protection; and 3) subject to field preemption under state law.
ER vol. II, 263-290.
On March 11, 2014, First Resort and the City filed cross-motions for
summary judgment on all three causes of action asserted in the FAC. The District
Court granted the City’s motion in full, denied First Resort’s motion, ER vol. I, 4-
23, and entered judgment for the City. ER vol. I, 3.
First Resort noticed its Appeal on March 9, 2015. ER vol. I, 1-2. The
parties completed their briefing in December 2015, and this Court accepted amicus
curiae briefs filed in support of Defendants-Appellees from 1) NARAL Pro-Choice
California, California Religious Coalition for Reproductive Choice, California
Women Lawyers, and Women Lawyers Association of Los Angeles, 2) the
Information Society Project at Yale Law School and First Amendment Scholars,
and 3) the Attorney General of California. Oral argument was heard on
November 15, 2016, and this Court issued a published opinion on June 27, 2017.
The opinion affirmed the District Court, and held that the Ordinance was
constitutional and not preempted by state law. First Resort filed its Petition for
Rehearing En Banc on July 11, 2017, which was followed by the Court’s Order
directing appellees to file this response.
Case: 15-15434, 08/02/2017, ID: 10530252, DktEntry: 68, Page 9 of 22
OPP. TO PET. FOR REHEARING; NO. 15-15434 5 n:\cxlit\li2017\120602\01210423.docx
ARGUMENT
En banc courts are convened only when extraordinary circumstances exist,
calling for the authoritative consideration and decision by a majority of the court.
United States v. Am.-Foreign S. S. Corp., 363 U.S. 685, 689 (1960). Accordingly,
Rule 35 of the Federal Rules of Appellate procedure provides, in part, a rehearing
en banc “is not favored and ordinarily will not be ordered unless: (1) en banc
consideration is necessary to secure or maintain uniformity of the court’s
decisions; or (2) the proceeding involves a question of exceptional importance.”
Fed. R. App. P. 35(a).
First Resort advances several arguments why this case should be reheard en
banc. They are unpersuasive. The panel’s opinion does not conflict with
controlling authority. Rather, as discussed in Section I, it is a straightforward
application of the facts of this case to well-established legal principles. Nor does
the proceeding raise issues of exceptional importance. On the contrary, as
explained in Sections II through IV, the panel’s opinion is narrow and
unremarkable.
I. THE PANEL’S OPINION IS CONSISTENT WITH CONTROLLING AUTHORITY FROM THIS COURT AND THE UNITED STATES SUPREME COURT.
First Resort contends that rehearing en banc is necessary to secure
uniformity of the court’s decisions because the panel’s opinion conflicts with
Sorrell v. IMS Health, Inc., 564 U.S. 552 (2011) (“Sorrell”), Reed v. Town of
Gilbert, Ariz., 135 S. Ct. 2218 (2015) (“Reed”), and Nat’l Inst. of Family & Life
Advocates (NIFLA) v. Harris, 839 F.3d 823 (9th Cir. 2016) (“NIFLA”).
(Appellant’s Pet. for Reh’g En Banc at 5-10, July 11, 2017, Docket 64-1 (“Pet.”).)
Not true. The panel’s opinion does not conflict with or deviate from any of these
cases.
Case: 15-15434, 08/02/2017, ID: 10530252, DktEntry: 68, Page 10 of 22
OPP. TO PET. FOR REHEARING; NO. 15-15434 6 n:\cxlit\li2017\120602\01210423.docx
1. Sorrell v. IMS Health, Inc.
In Sorrell, the Supreme Court considered a First Amendment challenge to a
Vermont statute that restricted the sale, disclosure, and use of pharmacy records for
marketing purposes. To the extent First Resort contends that Sorrell establishes a
new heightened standard applicable to commercial speech beyond the familiar
Central Hudson test, First Resort is wrong. Central Hudson Gas & Elec. Corp. v.
Pub. Serv. Comm.’n of N.Y., 447 U.S. 557, 572 (1980) (“Central Hudson”).
First Resort fails to cite this court’s recent decision in Retail Digital Network, LLC,
which interprets Sorrell as a straightforward application of well-established First
Amendment principles, rather than creating new or heightened standards.
Retail Dig. Network, LLC v. Prieto, 861 F.3d 839 (9th Cir. 2017). “Sorrell did not
mark a fundamental departure from Central Hudson’s four-factor test, and
Central Hudson continues to apply.” Id. at 846.
Retail Digital Network, LLC’s interpretation of Sorrell is correct. At the
outset of its legal discussion, the Sorrell Court addressed Vermont’s argument that
the law did not regulate speech, before turning to whether the law satisfied the
four-part commercial speech test established by Central Hudson, 447 U.S. at 572.
Notably, the Sorrell Court referred to “heightened judicial scrutiny” within the
context of the initial discussion. Sorrell, 564 U.S. at 563–71. It thus follows that
the “heightened” scrutiny to which the Court referred is the scrutiny that courts
apply to speech regulations—as opposed to the rational basis review that courts
apply to non-speech regulations of commerce and non-expressive conduct.1
1 Even if Sorrell could be interpreted as applying a heightened level of
scrutiny, this outcome stems from the court’s conclusion that the law “on its face burden[ed] disfavored speech by disfavored speakers.” Sorrell, 564 U.S. at 564. In other words, the law imposed burdens that were “aimed at a particular viewpoint.” Sorrell, 564 U.S. at 565. In contrast, the panel here concluded that the Ordinance does not discriminate based on viewpoint. (See Section II, infra.)
Case: 15-15434, 08/02/2017, ID: 10530252, DktEntry: 68, Page 11 of 22
OPP. TO PET. FOR REHEARING; NO. 15-15434 7 n:\cxlit\li2017\120602\01210423.docx
Not only did Sorrell not establish any new, heightened standard of review,
but its application of the well-established Central Hudson factors was consistent
with the panel’s application of those factors here. The first factor of the
Central Hudson test provides, “there can be no constitutional objection to the
suppression of commercial messages that do not accurately inform the public about
lawful activity.” Central Hudson, 447 U.S. at 563. In other words, the
Constitution affords no protection to false or misleading commercial speech. In
Sorrell, the Court conceded that there was no argument that the challenged
provision would “prevent false or misleading speech.” (Sorrell, 564 U.S. at 579.)
Thus, it moved on to the next Central Hudson factors. In contrast, the panel here
concluded, “the Ordinance only regulates false or misleading commercial speech”;
thus it satisfied Central Hudson and First Resort’s facial challenge failed.
(Opinion at 18, June 27, 2017, Docket 58-1 (“Opinion”).)
2. Reed v. Town of Gilbert, Ariz.
First Resort’s contention that the panel’s opinion conflicts with Reed is even
more puzzling. First Resort contends the Ordinance is a content-based regulation
of speech, and therefore “presumptively unconstitutional” and justified only if the
government proves the Ordinance “[is] narrowly tailored to serve compelling state
interests.” 135 S. Ct. at 2226.2
This rule does not apply here. Reed was not a commercial speech case, and
it is well-established that Reed does not heighten or displace the Central Hudson
2 The rule is murkier than First Resort alleges. Since Reed, courts have
recognized that not all content-based regulations merit strict scrutiny. NIFLA, 839 F.3d at 837; United States v. Swisher, 811 F.3d 299, 311–13 (9th Cir. 2016) (en banc) (discussing Reed and noting examples that illustrate that “[e]ven if a challenged restriction is content-based, it is not necessarily subject to strict scrutiny”).
Case: 15-15434, 08/02/2017, ID: 10530252, DktEntry: 68, Page 12 of 22
OPP. TO PET. FOR REHEARING; NO. 15-15434 8 n:\cxlit\li2017\120602\01210423.docx
test applicable to regulations of commercial speech. See Lone Star Sec. & Video,
Inc. v. City of Los Angeles, 827 F.3d 1192, 1198 n.3 (9th Cir. 2016) (noting that
“although laws that restrict only commercial speech are content based, see
Reed III, 135 S. Ct. at 2232, such restrictions need only withstand intermediate
scrutiny. See Central Hudson....”); see also Cal. Outdoor Equity Partners v.
City of Corona, No. CV 15-03172 MMM AGRX, 2015 WL 4163346, at *9 (C.D.
Cal. July 9, 2015) (“Reed has no bearing on this case” where the Ordinance at issue
bans commercial billboards); Contest Promotions, LLC v. City & Cty. of
San Francisco, No. 15-CV-00093-SI, 2015 WL 4571564, at *4 (N.D. Cal. July 28,
2015) (“Reed does not concern commercial speech, and therefore does not disturb
the framework which holds that commercial speech is subject only to intermediate
scrutiny as defined by the Central Hudson test”).
Here, the panel determined the Ordinance only regulates unprotected false or
misleading commercial speech and is thus facially valid and valid as-applied to
First Resort. (Opinion at 18, 23.) Reed does not bear on—much less conflict
with—this conclusion.
3. National Institute of Family & Life Advocates (NIFLA) v. Harris.
First Resort notes that the panel commenced its First Amendment analysis
by determining that the Ordinance narrowly regulated false or misleading
commercial speech, whereas NIFLA commenced its First Amendment analysis by
determining whether the FACT Act constituted either a content-based restriction or
viewpoint discrimination. This is both wrong and irrelevant. It is wrong because
prior to its content and viewpoint analysis, the NIFLA court did, in fact, conclude
that the FACT Act does not regulate commercial speech. NIFLA, 839 F.3d at 835
n.5. It is irrelevant because any superficial distinction in the ordering of the
analysis is non-substantive, and certainly does not rise to the level of establishing a
Case: 15-15434, 08/02/2017, ID: 10530252, DktEntry: 68, Page 13 of 22
OPP. TO PET. FOR REHEARING; NO. 15-15434 9 n:\cxlit\li2017\120602\01210423.docx
conflict. Regardless of the sequencing, the panel here properly determined that the
Ordinance both satisfies Central Hudson because it only regulates false or
misleading commercial speech (Opinion at 13-18) and does not discriminate based
on the particular viewpoint or ideology of First Resort or other LSPCs (Opinion at
21-27).
First Resort further contends that, in contrast to NIFLA, the panel did not
discuss or apply Sorrell. But, as discussed supra, this Court has concluded that
Sorrell did not establish a new standard applicable to commercial speech. In other
words, the Sorrell opinion provided nothing for the panel here to discuss or apply.
Rather, the panel properly applied the well-established (and still controlling)
Central Hudson test.
II. THE ORDINANCE DOES NOT DISCRIMINATE BASED ON VIEWPOINT.
Unmoored from the Rule 35 criteria, First Resort restates one of the
arguments it previously advanced before this Court: the Ordinance engages in
viewpoint discrimination by regulating only the speech of organizations whose
viewpoints regarding abortion are disfavored by the City. (Pet. at 7-9.) The panel
carefully considered this argument, and rejected it.
The panel concluded that the Ordinance does not regulate LSPCs based on
their views, but rather based on the services they offer. (Opinion at 25.) “Contrary
to First Resort’s assertion, an LSPC may choose not to offer abortions or abortion
referrals for reasons that have nothing to do with their view on abortion, such as
financial or logistical concerns.” (Opinion at 26.) And within the category of
LSPCs that are regulated, the Ordinance narrowly prohibits false or misleading
speech regarding the goods and services actually or impliedly offered in an LSPC’s
Case: 15-15434, 08/02/2017, ID: 10530252, DktEntry: 68, Page 14 of 22
OPP. TO PET. FOR REHEARING; NO. 15-15434 10 n:\cxlit\li2017\120602\01210423.docx
advertising (because such speech is a threat to women’s health), irrespective of the
LSPC’s views or beliefs. (Opinion at 26.)
These conclusions are consistent with well-settled first amendment doctrine.
For example, this is the same conclusion reached by this Court in NIFLA, which
determined that the notice requirement at issue there did not discriminate based on
viewpoint. As in NIFLA, the Ordinance here “applies to all licensed and
unlicensed facilities, regardless of what, if any, objections they may have to certain
family-planning services.” NIFLA, 839 F.3d at 835. The analysis does not change
simply because the regulation concerns pregnancy-related services or another
controversial topic. For example, in Pickup v. Brown, 740 F.3d 1208, reh’g en
banc denied (9th Cir. 2014), this Court considered a statute that prohibited licensed
mental health providers from providing sexual orientation change efforts therapy to
children under eighteen years of age. Pickup, 740 F.3d at 1227-29. Despite the
statute’s express regulation of a controversial topic, the Court invoked the
professional speech doctrine and declined to apply a heightened level of scrutiny.
Id. at 1231.
Justice Kennedy’s concurring opinion in Matal v. Tam, 137 S. Ct. 1744,
1766 (2017) has no bearing on this analysis.3 The portion of the concurrence cited
by First Resort merely restates the well-known principle from Rosenberger v.
Rector and Visitors of Univ. of Va., 515 U.S. 819, 829 (1995), that viewpoint
discrimination is presumptively invalid. That this concurrence reached a
conclusion regarding viewpoint discrimination in that case prior to determining
3 The panel’s opinion cannot conflict with Justice Kennedy’s concurrence
because a concurrence does not constitute binding precedent. Maryland v. Wilson, 519 U.S. 408, 413 (1997); United States v. Nordic Vill. Inc., 503 U.S. 30, 33 (1992).
Case: 15-15434, 08/02/2017, ID: 10530252, DktEntry: 68, Page 15 of 22
OPP. TO PET. FOR REHEARING; NO. 15-15434 11 n:\cxlit\li2017\120602\01210423.docx
whether the trademarks at issue were commercial speech is immaterial. The
sequence is inconsequential. The panel here independently determined that the
Ordinance only regulates unprotected commercial speech (Opinion at 13-18) and
the Ordinance does not discriminate based on viewpoint (Opinion at 21-27).
III. THE PANEL’S COMMERCIAL SPEECH HOLDING DOES NOT WARRANT FURTHER REVIEW.
First Resort contends that rehearing en banc is warranted because the panel
adopted a sweeping definition of commercial speech that enables suppression of
non-commercial messages. (Pet. at 10-11.) First Resort’s argument misrepresents
both the panel’s opinion and the governing law. Nothing in the panel’s opinion
expands the definition of commercial speech, or places any burden on non-
commercial speech.
The commercial speech doctrine makes clear that “[the] analysis is fact-
driven, due to the inherent ‘difficulty of drawing bright lines that will clearly cabin
commercial speech in a distinct category.’” Greater Balt. Ctr. for Pregnancy
Concerns, Inc. v. Mayor & City Council of Balt., 721 F.3d 264, 284 (4th Cir. 2013)
(quoting City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 419 (1993)).
Under Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 (1983), “[w]here the facts
present a close question, ‘strong support’ that the speech should be characterized as
commercial speech is found where the speech is an advertisement, the speech
refers to a particular product, and the speaker has an economic motivation.”
Hunt v. City of Los Angeles, 638 F.3d 703, 715 (9th Cir. 2011) (quoting Bolger,
463 U.S. at 66–67 and describing the Bolger test).
The panel engaged in the requisite fact-driven analysis. It considered the
text of the Ordinance as well as its express legislative purpose. (Opinion at 15,
17.) In addition, the panel considered the evidentiary record, including that
Case: 15-15434, 08/02/2017, ID: 10530252, DktEntry: 68, Page 16 of 22
OPP. TO PET. FOR REHEARING; NO. 15-15434 12 n:\cxlit\li2017\120602\01210423.docx
First Resort views itself as advertising and participating in a competitive
marketplace for commercially valuable services, views its online advertising as
competing with that of abortion providers for the attention of online viewers, and
concedes that its medical services have monetary value. (Opinion at 18.) The
panel applied these facts, and determined that the regulated speech here satisfied
the Bolger test. (Opinion at 16.) “Because the Ordinance regulates advertising
designed to attract a patient base in a competitive marketplace for commercially
valuable services,” the panel reached the well-founded conclusion that the
Ordinance regulates classic commercial speech. (Opinion at 18.)
The panel further concluded that, contrary to First Resort’s contention here,
the regulated commercial speech is not “inextricably intertwined” with protected
speech. “First Resort’s commercial speech (speech concerning the limited medical
services it provides) would have been easily separated from its fully protected
speech (speech concerning truthful information about pregnancy) on its website.”
(Opinion at 24.) Indeed, the Ordinance explicitly rejects any intent to “regulate,
limit or curtail . . . advocacy.” S.F. Admin. Code § 93.2(10). The panel’s analysis
and conclusion are uncontroversial; they are consistent with well-established first
amendment jurisprudence.
IV. THE PANEL’S DUPLICATION PREEMPTION DECISION DOES NOT WARRANT FURTHER REVIEW.
First Resort contends that rehearing en banc is warranted because the panel’s
duplication preemption analysis presents an important issue of law. (Pet. at 11-
15.)4 But rather than identify or explain the “exceptional importance” of this issue,
4 First Resort does not identify any split or conflict regarding the panel’s
decision not to apply duplication preemption to invalidate the Ordinance. Fed. R. App. P. 35(a) (1).
Case: 15-15434, 08/02/2017, ID: 10530252, DktEntry: 68, Page 17 of 22
OPP. TO PET. FOR REHEARING; NO. 15-15434 13 n:\cxlit\li2017\120602\01210423.docx
First Resort provides a scattershot collection of arguments that are either wrong or
unpersuasive.
First Resort begins by simply restating its argument from its prior briefing,
i.e., in its view, the panel should have applied duplication preemption to invalidate
the Ordinance. (Pet. at 11-14.) The panel was correct to disagree, and the
argument does nothing to establish the exceptional importance of the preemption
question. The panel expressly recognized that it “need not decide that duplication
preemption may never apply to a civil ordinance.” (Opinion at 31.) Instead, after
identifying that the purpose of duplication preemption stems from double-jeopardy
concerns in the criminal law context, and determining that a civil ordinance has
never been invalidated on the basis of duplication preemption, this panel concluded
that the civil nature of the Ordinance “weighs against invalidating it based on
duplication preemption.” (Opinion at 32, emphasis added.)
Importantly, the panel also engaged in a detailed analysis of the Ordinance
versus the FAL, and identified several ways in which the two laws are not
duplicative—the Ordinance is both narrower and broader than the FAL in various
respects, and the enforcement schemes are “entirely different.” (Opinion at 32-33.)
The panel ultimately declined to apply duplication preemption to invalidate the
Ordinance for these two reasons: the Ordinance “does not raise double-jeopardy
concerns and First Resort has not demonstrated that it duplicates state law.”
(Opinion at 33.)
First Resort next tries to tether its “exceptional importance” argument to
Judge Tashima’s suggestion, in a concurring opinion, that this Court certify the
preemption question to the California Supreme Court. (Opinion at 41.) This effort
fares no better. Whether this Ordinance duplicates the FAL is, by definition, a
narrow question confined to this case (and one that the majority conclusively
Case: 15-15434, 08/02/2017, ID: 10530252, DktEntry: 68, Page 18 of 22
OPP. TO PET. FOR REHEARING; NO. 15-15434 14 n:\cxlit\li2017\120602\01210423.docx
answered by reference to the text of the respective statutes). As to the more
general question of whether duplication preemption can theoretically invalidate a
civil ordinance, the infrequency with which Courts have been called upon to
consider duplication preemption in the civil context highlights that the question is
of limited importance. Furthermore, certification is only warranted if the
California Supreme Court’s decision could determine the outcome of the matter.
Flo & Eddie, Inc. v. Pandora Media, Inc., 851 F.3d 950, 954 (9th Cir. 2017)
(citing Cal. R. Ct. 8.548(a)). Here, the panel concluded that the Ordinance and the
FAL “are not coextensive and do not proscribe precisely the same acts [internal
quotations omitted]” (Opinion at 32). This is an independent basis for declining to
apply duplication preemption, which renders the question of whether duplication
preemption can ever invalidate a civil ordinance unnecessary to the outcome here.
Finally, First Resort concludes its argument by alleging that false advertising
is a matter of state concern and warning that “similar ordinances will arise
throughout the state if the Ordinance stands.” (Pet. at 15.) The former proposition
is false, and the latter is both speculative and irrelevant. As Amicus Curiae
Attorney General of California explained, “the California False Advertising Law
has co-existed without conflict, with many local false advertising laws that are
similar to the Ordinance,” including laws from the cities of Oakland, San Diego,
San Jose, Anaheim, Los Angeles, and Fresno, and laws from the counties of Los
Angeles, San Mateo, and Kern. (Br. of Att’y General of Cal. as Amicus Curiae
Supporting Appellees and Affirmance at 10-12, November 24, 2015, Docket 20-2.)
The development of this body of local false advertising law has been
uncontroversial because nothing in the FAL precludes local government entities
from enacting such measures. On the contrary, California Business and
Professions Code section 17534.5 allows for “remedies . . . cumulative to each
Case: 15-15434, 08/02/2017, ID: 10530252, DktEntry: 68, Page 19 of 22
OPP. TO PET. FOR REHEARING; NO. 15-15434 15 n:\cxlit\li2017\120602\01210423.docx
other.” As for First Resort’s warning, it rings hollow. The Ordinance—and any
similar, local ordinances that may be enacted—will be among the many local false
advertising laws that augment, but do not conflict with or duplicate, state law.
Local governments play critical roles in identifying the needs of people within
their geographical jurisdictions, and in enacting laws tailored to address those
needs. See Avery v. Midland Cnty. Tex., 390 U.S. 474, 481 (1968). Additional
laws protecting consumers from false advertising are not a harm to be avoided, but
rather a valuable and necessary part of our system of government.
CONCLUSION
For the foregoing reasons, the Petition for Rehearing En Banc should be
denied.
Dated: August 2, 2017 Respectfully submitted, DENNIS J. HERRERA City Attorney YVONNE R. MERÉ Chief of Complex and Affirmative Litigation CHRISTINE VAN AKEN MATTHEW D. GOLDBERG MOLLIE M. LEE
By: /s/ Matthew D. Goldberg
MATTHEW D. GOLDBERG Deputy City Attorney Attorneys for Defendants-Appellees CITY AND COUNTY OF SAN FRANCISCO
Case: 15-15434, 08/02/2017, ID: 10530252, DktEntry: 68, Page 20 of 22
OPP. TO PET. FOR REHEARING; NO. 15-15434 16 n:\cxlit\li2017\120602\01210423.docx
STATEMENT OF RELATED CASES
There are no related cases pending in this Court.
CERTIFICATE OF COMPLIANCE PURSUANT TO 9TH CIRCUIT RULE 35-4 AND 40-1 FOR CASE NUMBER 15-15434
I hereby certify that pursuant to Circuit Rule 35-4 or 40-1, this opposition to
petition for rehearing en banc has been prepared using proportionately double-
spaced 14-point Times New Roman typeface. According to the “Word Count”
feature in my Microsoft Word for Windows software, this brief contains 4,158
words.
I declare under penalty of perjury that this Certificate of Compliance is true
and correct and that this declaration was executed on August 2, 2017.
DENNIS J. HERRERA City Attorney YVONNE R. MERÉ Chief of Complex and Affirmative Litigation CHRISTINE VAN AKEN MATTHEW D. GOLDBERG MOLLIE M. LEE
By: /s/ Matthew D. Goldberg MATTHEW D. GOLDBERG
Deputy City Attorney Attorneys for Defendants-Appellees CITY AND COUNTY OF SAN FRANCISCO
Case: 15-15434, 08/02/2017, ID: 10530252, DktEntry: 68, Page 21 of 22
OPP. TO PET. FOR REHEARING; NO. 15-15434 17 n:\cxlit\li2017\120602\01210423.docx
CERTIFICATE OF SERVICE
I, MARTINA HASSETT, hereby certify that I electronically filed the
following document with the Clerk of the Court for the United States Court of
Appeals for the Ninth Circuit by using the appellate CM/ECF system on August 2,
2017.
OPPOSITION OF APPELLEES TO APPELLANT’S PETITION FOR REHEARING EN BANC
I certify that all participants in the case are registered CM/ECF users and
that service will be accomplished by the appellate CM/ECF system.
Executed on August 2, 2017, at San Francisco, California.
By: /s/ Martina Hassett
MARTINA HASSETT
Case: 15-15434, 08/02/2017, ID: 10530252, DktEntry: 68, Page 22 of 22