opposition of appellees to appellant’s petition … · petition for rehearing en banc on appeal...

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, of 22

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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


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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


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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


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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


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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



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



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



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.



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.



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.)



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”).



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



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



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).



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



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).



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



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



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



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



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


opposition of appellees to appellant’s petition … · petition for rehearing en banc on appeal...

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