[00:00:01] Speaker 02: Good morning. [00:00:02] Speaker 02: Caleb Dalton on behalf of National Institute of Family and Life Advocates and SVCV Pregnancy Center. [00:00:08] Speaker 02: Judge Rawlinson, I'll do my best to reserve about three minutes for rebuttal. [00:00:11] Speaker 02: We'll see if that happens. [00:00:12] Speaker 04: All right. [00:00:13] Speaker 02: May it please the court. [00:00:15] Speaker 02: Abortion pill reversal is a lawful and lifesaving treatment. [00:00:18] Speaker 02: It occurs only after a conversation and informed consent from a licensed medical professional. [00:00:25] Speaker 02: But the Attorney General is attempting to censor information about that so that that conversation never happens. [00:00:33] Speaker 02: The District Court erred by not stopping the censorship and by denying the preliminary injunction for at least two reasons. [00:00:40] Speaker 02: First, the District Court committed error, legal error, by applying the wrong standard for commercial speech in contradiction of this Court's holdings in INDB.com and Eric's and the Supreme Court's holdings in Central Hudson and Riley. [00:00:54] Speaker 02: Second, the district court erred by taking sides in a scientific debate, something this court warned against in Chamber of Commerce. [00:01:01] Speaker 02: And the California Court of Appeals in Bernard versus Planned Parenthood held is not even subject to the UCL or FAL. [00:01:08] Speaker 02: This court should reverse and remand and instruct the lower court to grant the requested injunction. [00:01:14] Speaker 04: Council, could you specifically state how the district court applied the wrong standard for commercial speech? [00:01:21] Speaker 02: Yes, your honor. [00:01:22] Speaker 02: In two ways, the first error was by not even going to what the Supreme Court and this court instructed in imdb.com, how you look at commercial speech in the first place. [00:01:33] Speaker 02: The first question is, does it propose a commercial transaction? [00:01:37] Speaker 02: The speech at issue here doesn't come close to proposing a commercial transaction. [00:01:40] Speaker 02: My clients don't offer anything for sale. [00:01:44] Speaker 02: They offer free services. [00:01:45] Speaker 02: Some of them don't even offer the services at issue in this case. [00:01:49] Speaker 02: They're simply providing information about it. [00:01:51] Speaker 02: So there's no commercial transaction being proposed. [00:01:53] Speaker 04: So is it your position that absent, and I'm not saying whether or not it was correct that there was a commercial transaction posed, but is it your argument that absent a commercial transaction being posed that there is no commercial speech? [00:02:14] Speaker 02: That's the first question that that's to be asked that some courts have indicated Maybe if you weren't proposing a commercial transaction, but in close cases Let's say the bulger case for example or erics erics wasn't proposing a commercial transaction per se it was information about nutritional supplements, but So your answer to my question is no, it's not limited strictly to [00:02:38] Speaker 04: to proposal of a commercial transaction. [00:02:40] Speaker 02: Not a universal rule. [00:02:41] Speaker 02: There could be close cases. [00:02:43] Speaker 02: But that's the first question that this court held in IMDB.com that you should ask. [00:02:47] Speaker 02: Is it proposing a commercial transaction? [00:02:50] Speaker 02: If it's not even close, you don't even go beyond that question. [00:02:53] Speaker 02: That's what this court did in IMDB.com. [00:02:56] Speaker 02: It didn't even apply the Bolger factors. [00:02:58] Speaker 02: It said, because it's not a close case, you don't even need to go there. [00:03:01] Speaker 03: What do we do about first resort then? [00:03:03] Speaker 03: I mean, I don't take your briefing to suggest that any intervening authority has [00:03:08] Speaker 03: Supreme Court authority has undermined that, so we're bound by it. [00:03:12] Speaker 02: Certainly. [00:03:13] Speaker 02: First Resort's a unique case, and then it went through a really broad myriad of factors, and there's six specific distinguishing factors that make this very much unlike First Resort. [00:03:23] Speaker 02: First of all, there's no employee compensation in there. [00:03:26] Speaker 02: There was economic motive because employees were being given bonuses specifically on their recruitment, so based on their speech, there was an economic motive for that speech. [00:03:36] Speaker 02: The centers here made no concession of economic advantage that wasn't the case and first resort they made a concession of economic advantage. [00:03:44] Speaker 02: Third, there's no competitive marketplace for abortion power reversal that the court and first resort focused a lot on the competitive marketplace for medical services. [00:03:53] Speaker 01: According to the attorney general and his complaint against heartbeat international this is an extremely rare occurrence that a woman regrets their abortion that they go even looking for this there's not a competitive why is that the right level of analysis and by that measure you know Someone selling anybody selling a unique product could claim that it's not Commercial speech, I mean isn't the correct mode of analysis the broader category of medical services [00:04:23] Speaker 02: Not I don't think so your honor because we're talking specifically about the abortion pill reversal speech at issue here We're not talking about advertisements generally for medical services, which is another distinguishing factor So how much does that turn on so you're not asking for any different? [00:04:39] Speaker 03: Relief or analysis with respect to your members and the party who provide the progesterone therapy versus who simply [00:04:51] Speaker 03: Advocate encourage inform people about it, so are you saying that that? [00:04:57] Speaker 03: That a medical provider providing progesterone Therapy just because the person doesn't have to pay for it because it might be covered by insurance Takes it out of the realm of commercial speech. [00:05:07] Speaker 02: No your honor a For-profit medical provider that's advertising that specific service that would be commercial speech. [00:05:14] Speaker 03: What about a non-profit? [00:05:15] Speaker 03: I mean there is there is there's money changing hands. [00:05:18] Speaker 03: It's just not I mean in other words the the [00:05:21] Speaker 03: It would be odd I think and I'm not to draw a line at commercial speech that nonprofits can't engage in commercial speech even if for example They're providing medical services that are that are reimbursed. [00:05:34] Speaker 02: I think that's right Here's an example one way and the other if you'll indulge me one example would be a goodwill for example that sends out a flyer and says Here's three products. [00:05:44] Speaker 02: We have three couches that were donated. [00:05:46] Speaker 02: They're very fancy. [00:05:46] Speaker 02: Here's the price We're selling them for come to our store and buy them [00:05:50] Speaker 02: That's commercial speeds. [00:05:51] Speaker 02: It's advertising a specific product. [00:05:52] Speaker 02: Now, goodwill may be motivated by their own goodwill, right? [00:05:57] Speaker 02: Not by profit motive specifically there, but that's a traditional commercial advertisement. [00:06:02] Speaker 03: So the third party payer makes it not commercial speech? [00:06:06] Speaker 02: So here's the transaction. [00:06:07] Speaker 03: I mean, that is the transaction. [00:06:09] Speaker 03: I'm just talking about the party and the members of NIFLA who are providers. [00:06:15] Speaker 02: All right. [00:06:15] Speaker 02: So Dex Media specifically said the advertisement has to be for your own product. [00:06:20] Speaker 03: That you're selling so our clients aren't selling any product, so that's why goodwill is selling a product it would be I guess with so that would result in a rule to say that the commercial speech would not apply to any Nonprofit provider of medical Services as long as there's a third party payer for it that that seems quite sweeping or are you trying to draw a narrow line? [00:06:48] Speaker 02: I think it's narrower, Your Honor. [00:06:50] Speaker 02: Here's a hypothetical that I think will demonstrate that. [00:06:53] Speaker 02: The hypothetical is that an environmentalist nonprofit, they post on Facebook, just like our clients do, and says a new study has come out that says using paper straws has caused a 5% reduction or 5% increase in marine life in the local park. [00:07:13] Speaker 02: It just so happens that those chapters of the environmentalist organizations give away free straws. [00:07:20] Speaker 02: Now, according to the attorney general's theory, that's economic and proposing an economic transaction because they're promoting free paper straws. [00:07:30] Speaker 02: That can't be the case. [00:07:31] Speaker 02: It's the same thing according to the attorney general if you advertise in any way [00:07:37] Speaker 02: that would then impact your fundraising in some form or another. [00:07:42] Speaker 03: Again, I want to focus on the subject. [00:07:44] Speaker 03: I'm just not sure what to do of the fact that we have seemingly differently situated plaintiffs in this case. [00:07:52] Speaker 03: I mean, as to the provider, why wouldn't under NIFLA their speech, the big NIFLA, the Supreme Court, [00:08:00] Speaker 03: Why wouldn't their speech just be speech incidental to conduct if it's again providers who are? [00:08:07] Speaker 03: Providing information about medical services that they provide Because the providers doing it for free if they were charging it would be for commercial services It would be economically motivated it would fall under central Hudson It would fall under Eric's so a lot does so you're saying a lot really turns on this fact that it is a commercial transaction that money changes hands and [00:08:28] Speaker 02: Absolutely. [00:08:29] Speaker 02: Central Hudson kind of describes the philosophical background behind the whole idea of commercial speech and that being that it's more durable because the speaker has an economic motive to going to gain a profit from it. [00:08:41] Speaker 03: But here the speaker is getting reimbursed for the services they provide again in the case of the subset. [00:08:45] Speaker 02: Yeah, that's actually not the case in our clients for NIFLA and its members. [00:08:51] Speaker 02: They're not charging They're not getting reimbursed even through insurance their their services are completely free for the projects so the people who provide the progesterone That's a an independent third-party pharmacy your honor that that's not our clients. [00:09:03] Speaker 02: They're not selling or getting reimbursed for progesterone at all [00:09:07] Speaker 02: It's completely free. [00:09:08] Speaker 01: Suppose that we think it does make a difference whether the entity is actually providing the service or not. [00:09:16] Speaker 01: What do we do with the fact that you're seeking an injunction on behalf of a group of some entities that do and some entities that don't? [00:09:23] Speaker 01: Neither you nor the Attorney General has suggested any way to break it out, but what would we do if we thought that it made a difference? [00:09:32] Speaker 02: So obviously my position is that both are fully protected. [00:09:36] Speaker 02: I think the one that doesn't provide it is such an easy case. [00:09:41] Speaker 02: It's talking about a party that's posting information. [00:09:45] Speaker 02: They believe it's true, but they're not selling anything. [00:09:47] Speaker 02: They're not providing the service. [00:09:48] Speaker 02: There is no any way, any link to any economic motivation that was central under Central Hudson or under this court's commercial speech precedents. [00:10:00] Speaker 02: So that's the easy case. [00:10:04] Speaker 02: I think the same principle applies when the service is being provided for free like NIFLM members do. [00:10:09] Speaker 02: So we're again talking about a service that's provided completely free. [00:10:13] Speaker 02: But even if it were a close case, and this is where I think Erickson-Bolger are helpful, we don't think you need to apply those. [00:10:19] Speaker 02: But let's say the provider who is offering this as a free service, let's say you consider that a close case, Erickson-Bolger [00:10:27] Speaker 01: Provide the framework and yeah, so I'm really asking I think a civil procedure question not a first amendment question Which is a if we think that it makes a difference? [00:10:37] Speaker 01: And you know some of the entities are entitled to an injunction, but some aren't You asked for one injunction that covers everybody What we do my understanding is that it's on the court's complete discretion to craft an appropriate injunction regardless of what a party asked for [00:10:56] Speaker 02: The injunction can be crafted by the court to address the specific issues in the way the court wishes. [00:11:02] Speaker 02: So, but I do think Eric's does speak to that issue and and Eric specifically when you go to the economic motivation prong requires that it be primary. [00:11:11] Speaker 02: The attorney general didn't dispute that. [00:11:13] Speaker 02: And there's really no dispute that the primary motivation of our clients is not economic at all. [00:11:18] Speaker 02: They're not making money off of this. [00:11:20] Speaker 02: They're nonprofits. [00:11:21] Speaker 02: They're providing this service out of altruism, not out of a profit motive. [00:11:26] Speaker 02: So even if this court were to think it were a close case under Bolger or Eriks, that primary economic motivation requirement that this court held in Eriks is just not present here under the facts of this case. [00:11:37] Speaker 03: Why can't we get past, so we've got a three-part, for a former con law professor, a three-part test that's the first part of a four-part test. [00:11:48] Speaker 03: Why can't we get to the rest of the commercial speech pieces? [00:11:52] Speaker 03: The district court reached it. [00:11:54] Speaker 02: The Bolger factors? [00:11:55] Speaker 03: Beyond the Bolger factors to do the intermediate scrutiny, the Central Hudson scrutiny. [00:12:00] Speaker 02: So you only get there if you first determine that it is commercial speech, and our contention is that it's not. [00:12:06] Speaker 02: So if you were to go there, then, of course, the burden falls on the attorney general to meet intermediate scrutiny. [00:12:12] Speaker 02: And he can't do so here. [00:12:14] Speaker 03: First of all, how much turns on the fact that he doesn't appear to have done so? [00:12:19] Speaker 03: I mean, in terms of just the presentation, it's just positive, Your Honor. [00:12:23] Speaker 03: But that's not not with [00:12:25] Speaker 03: That doesn't prejudice any future. [00:12:27] Speaker 03: I mean, this is here on a preliminary injunction. [00:12:29] Speaker 03: So the attorney general presumably could develop a satisfaction of the central Hudson test if that's what it was on the merits. [00:12:37] Speaker 02: Yes, your honor. [00:12:38] Speaker 02: But on the current record, the attorney general has waived. [00:12:41] Speaker 02: And I think it's unique when the government has that specific burden. [00:12:45] Speaker 02: That's why it's waived. [00:12:47] Speaker 02: The lower court can't just craft a justification that wasn't provided by the attorney general. [00:12:54] Speaker 01: So the Attorney General has suggested, and I guess this was an issue in the other case, but it has suggested that the untrue competition law and false advertising law only apply to commercial conduct, which I guess raises the question of whether the conduct or speech [00:13:18] Speaker 01: Whether your activity is a violation of state law at all. [00:13:25] Speaker 01: And that in turn raises the question of is Pullman abstention appropriate here? [00:13:30] Speaker 01: I mean should we let the state courts tell us whether the state law even applies before we resolve this federal constitutional question? [00:13:40] Speaker 02: It's not, and your honor, there's definitely been a back and forth in footnotes on that particular issue of does this apply, is there a standing issue, and there's not for this reason. [00:13:50] Speaker 02: If you, Susan B. Anthony resolves this question, we don't think the UCL or FAL should apply at all in this case, but the Attorney General has applied it this way, and that's why our clients are, their speech is chilled. [00:14:02] Speaker 03: That's not really as, I don't take this question, I guess I meant just beyond the standing issue. [00:14:07] Speaker 03: Standing is quite liberal, but with respect to abstention, we're on the eve of a trial and subsequent appeals that might establish. [00:14:16] Speaker 03: You've cited state law that suggests that it may not apply to this. [00:14:23] Speaker 03: So why should we weigh into this area if we're about to get an answer? [00:14:31] Speaker 02: Certainly and just just for the record my understanding I I'm not on that part of that case But my understanding this trial has been pushed back to to the spring at some time So okay it may be more time that our clients speech is chilled But not only that Pullman Extension is an appropriate year if you look it hasn't been raised by the attorney general obviously but also the sprint talks sprint and [00:14:54] Speaker 02: versus, I forget the name of it, I think it's a 2012 case where the Supreme Court was addressing abstention, but very clearly admonish the lower courts that they have an obligation to hear the cases that are before them and that younger, or I'm thinking more specifically of younger abstention, but abstention in general is to be used very sparingly. [00:15:14] Speaker 02: What about certification? [00:15:16] Speaker 02: I don't think there's any need for this and specifically why. [00:15:19] Speaker 02: And one of the reasons, the Attorney General harps on that our clients took a year to file this case. [00:15:25] Speaker 02: One of the reasons was we were waiting to see if it would be dismissed in the state court. [00:15:30] Speaker 02: The state court ruled against the defendants on their demur in that case. [00:15:35] Speaker 02: So it is going forward, there already has been a state court ruling saying that the state court, the Attorney General's case can proceed. [00:15:43] Speaker 02: So we already have direction from the state court in this case that they can apply the UCL and FAL in this manner even though we disagree with that. [00:15:52] Speaker 02: That's the direction of the state court in this case already. [00:15:58] Speaker 02: If there are no further questions, I reserve the remainder of my time for rebuttal. [00:16:19] Speaker 00: Good morning, your honors. [00:16:20] Speaker 00: Good morning. [00:16:21] Speaker 00: May it please the court, Erica Connolly for defendant attorney general, Rob Bonta. [00:16:28] Speaker 00: The appellants here has asked for an incredibly broad injunction. [00:16:33] Speaker 00: They have sought to enjoin the attorney general from enforcing California's consumer protection laws, specifically the unfair competition law and the false advertising law against the use by NIFLA [00:16:47] Speaker 00: its members and scv of the terms reverse or reversal of the term of the phrase that apr is safe and effective um in any context and the district court properly rejected that request and this court should affirm don't they face liability under state law in all of those contexts though [00:17:13] Speaker 00: Your honor, I think it's important to first reference what our enforcement action actually alleged in. [00:17:20] Speaker 00: in the state court action. [00:17:23] Speaker 00: Yes, we have addressed reverse and reversal. [00:17:25] Speaker 00: Yes, we have addressed effectiveness. [00:17:27] Speaker 00: And we did not actually bring a claim saying that the statement of safety created liability. [00:17:34] Speaker 00: What we said was the failure to disclose the more serious side effects that are possible with APR, as suggested by the 2019 Cronin study, makes the representations that they make about the [00:17:49] Speaker 03: More minor side effects about progesterone, but I guess I'm reading the complaint and Of course there are the statements that are identified and but then it says as a good pleader would including but not limited to Some of the stuff HBI touts on multiple web pages that initial studies have shown that the success rate for APR is 64 or 68 percent is does the attorney general believe that if [00:18:17] Speaker 03: And they may or may not be the statements at issue here, but the simple reporting out of the fact that there is a study linking to the study would be false or misleading commercial speech. [00:18:30] Speaker 00: Your honor, I think really the issue both in the enforcement action and in this case here is whether the speech is in fact commercial. [00:18:37] Speaker 00: Now, I'll represent. [00:18:38] Speaker 03: Well, this is granting that it's commercial. [00:18:39] Speaker 03: How is that false or misleading if they say that the study says what it says? [00:18:44] Speaker 00: Sorry, Your Honor. [00:18:45] Speaker 00: I misunderstood your question. [00:18:46] Speaker 00: The study does not say 64% to 68%. [00:18:48] Speaker 00: The study says that the overall reversal rate is 48%. [00:18:52] Speaker 00: What the study says is that in certain subsections in oral progesterone administration, it is a 64% success rate that arises out of a population of 31 individuals. [00:19:05] Speaker 00: And then it also says that intramuscular progesterone has a 68% success rate. [00:19:12] Speaker 00: And yet the overall rate for all of the various administrations is 48%. [00:19:18] Speaker 00: What if they said that? [00:19:22] Speaker 03: I mean 48% is in the world of drug efficacy. [00:19:26] Speaker 03: There's lots of drugs that have been approved by the FDA as effective that have lower efficacy rates. [00:19:33] Speaker 00: Your Honor, our position is, though, that the study that even says 48% is not sufficient to even show that, because of the way in which it was conducted and the flaws that are underlying it. [00:19:45] Speaker 00: What it is is a retrospective analysis. [00:19:47] Speaker 00: It's not a randomized control study. [00:19:49] Speaker 00: And even their expert. [00:19:52] Speaker 03: So what's, I guess, as a matter of First Amendment doctrine, why does that matter if they're reporting that a study says what the study says? [00:20:04] Speaker 03: It's truthful. [00:20:05] Speaker 03: I get that it's made me not be the full truth in terms of maybe it's misleading But I guess I've struggled to find the your best case on on that question Your honor I think on that point looking to you the cases that the DC circuit considered Involving have to involving FTC cases where there's a lack of substantiation when we're dealing with commercials like the palm wonderful case or [00:20:29] Speaker 00: Exactly, your honor. [00:20:31] Speaker 00: So I think that's a very good example where a vodka producer was trying to add to its label that certain studies supported that its particular mixture that it wanted to add to the vodka would improve or prevent damage to the DNA that is caused by alcohol. [00:20:51] Speaker 00: They presented to the FTC 112 different studies. [00:20:55] Speaker 00: And then the FTC, excuse me, not the FTC, it was the administrative board that deals with the labeling involving alcohol products. [00:21:03] Speaker 00: But in the course of that, that board conferred with the FDA, determined that most of that evidence was insufficient. [00:21:10] Speaker 00: Those were still studies, but they were case series. [00:21:13] Speaker 00: They had issues where the dosages were not explained. [00:21:16] Speaker 00: It was weak scientific evidence. [00:21:18] Speaker 00: And so the FTC, the TTB at issue in that case, refused to allow Bellion to put that representation on its labels. [00:21:33] Speaker 00: And the DC Circuit affirmed, finding that there was no violation of [00:21:37] Speaker 01: The first amendment because the speech is commercial and when there is insufficient Scientific evidence and that in and that scientific evidence is too weak to establish the claims that are placed in his misleading speech Okay, can I ask you to go back to the antecedent question of whether this is commercial and in particular for the For the niflom members that don't provide the service at all But are just sort of promoting it you know [00:22:05] Speaker 01: the service exists, it's provided by people other than us, we think you should use it. [00:22:11] Speaker 01: How does that qualify as commercial? [00:22:16] Speaker 00: Well, Your Honor, I think the commercial speech inquiry, first I would say the record shows that a lot of the statements that are made even by the entities who don't offer APR are proposing a commercial transaction, which is the medical treatment. [00:22:32] Speaker 00: That is the inquiry at issue here. [00:22:34] Speaker 03: But it's not theirs. [00:22:36] Speaker 00: Well, I will just make one point in the factual record, which is that both of the entities that NIFLA referred to and included in with specific facts in this case have both said they intend to offer APR absent our enforcement action. [00:22:53] Speaker 00: In other words, if this injunction is put into place, they intend to offer this service. [00:22:58] Speaker 00: Now, if they never for any of the entities that don't offer the service at all, [00:23:04] Speaker 00: I would note that there's probably a pre-enforcement standing issue that we flagged in our footnote because the commercial, the UCL and the FAL prohibit business practices and they prohibit commercial speech. [00:23:18] Speaker 00: If they're just offering information more generally, that's not commercial speech. [00:23:23] Speaker 00: It's not something that comes under the UCL or the FAL. [00:23:25] Speaker 01: So it's your view that the entities that don't provide the service and don't intend to provide the service are not subject to enforcement action under state law? [00:23:35] Speaker 00: Your Honor, I think our position is that even if they don't provide the service, they can still be engaging in commercial speech by advertising the service. [00:23:45] Speaker 01: Suppose there's a Second Amendment advocacy organization that runs ad campaigns that say, like, you know, you should protect your, you know, Second Amendment is great. [00:23:55] Speaker 01: You should protect your family by owning a firearm. [00:23:58] Speaker 01: Like, logically, the only way you could do that is by buying a firearm, which would be a commercial transaction. [00:24:04] Speaker 01: But they don't sell firearms. [00:24:06] Speaker 01: They're just promoting the idea of firearms ownership I guess on your theory that that that would be commercial speech No, your honor. [00:24:13] Speaker 00: I think so. [00:24:14] Speaker 01: How is this different? [00:24:16] Speaker 00: Yeah. [00:24:16] Speaker 00: Yes, your honor Let me explain my the the record before the court before the district court and before this court is not as broad as You if you regret your abortion You know [00:24:30] Speaker 00: Let me put this the other way. [00:24:32] Speaker 00: What the evidence before the district court showed is that they are actually advertising a specific service, abortion pill reversal. [00:24:41] Speaker 00: So in the instance that the hypothetical that you're providing, the difference would be as if an advocacy organization said, you should buy this gun because this gun will protect you. [00:24:53] Speaker 00: In our view, that's commercial speech. [00:24:55] Speaker 00: You are advertising that speech. [00:24:56] Speaker 00: And it's even more important in the health care setting. [00:25:00] Speaker 03: What's your case of questions about First Resort and Erics as well, but where is the Supreme Court held that, that advertising someone else's product where you don't have an, I mean, right, if we stipulate, and I think there's some question about whether it was established in the record, there wasn't an economic motive on behalf of the plaintiffs. [00:25:24] Speaker 03: If that's the case, when would that ever be commercial speech? [00:25:29] Speaker 00: Well, let me go back to the first part of your question, which is about this issue of advertising a product that's not your own. [00:25:36] Speaker 00: Bolger itself actually addresses that situation in footnote 14. [00:25:40] Speaker 00: It talks about and cites approvingly, too, an FTC case in which a trade association was advertising eggs and was saying the statement that there was no evidence of impact on customers. [00:25:54] Speaker 03: Well, yeah, that was the Seventh Circuit case from 77, I think. [00:25:58] Speaker 03: But that that case they were it was a trade membership right in other words that there was a trade association they were They were and maybe you're seeing analogies to a trade association here, but then I think we're running into the Issue that judge Miller and I have identified that they're not all engaged in commerce so the logic of the egg case was that the egg sellers all were engaged in commercial transactions, and it simply paid fees to a trade association and [00:26:28] Speaker 03: to do the advertising work for them. [00:26:31] Speaker 03: Does that work when, I think it's undisputed, some or most of NIFLA's members aren't engaged in the provision of progesterone at all? [00:26:43] Speaker 00: I would say some. [00:26:44] Speaker 00: I would not concede that it was most. [00:26:47] Speaker 00: I think that all that it says in the record and the verified complaint is that some do not and some do. [00:26:53] Speaker 00: So I just want to make that point. [00:26:56] Speaker 00: I know I'm being a little bit specific, but just want to make that point. [00:27:00] Speaker 00: But I think that [00:27:03] Speaker 00: When you're talking about, so I think stepping back and looking at the purpose of the commercial speech protections, they first arose in Bigelow v. Virginia. [00:27:13] Speaker 00: And that was because it was truthful commercial speech, and that was the first time that there was protection for commercial speech. [00:27:21] Speaker 00: And the purpose of the commercial speech protection is to ensure that information goes to consumers [00:27:28] Speaker 00: Accurately that's why government entities like and and government officers like the Attorney General can ensure that the flow of Commercial information those were still first party weren't those first party transactions? [00:27:40] Speaker 00: Yes, Your Honor, but when you're talking about something like a medical treatment here, and they are advertising a specific product with what we believe the record shows are false and misleading statements, they are advertising a particular product. [00:27:54] Speaker 00: And in this situation, that is the commercial transaction. [00:27:59] Speaker 00: So in some ways, you don't need to get to Bolger because it's not a close case. [00:28:02] Speaker 00: But even if you did get to Bolger, all of those factors suggest that commercial speech is [00:28:09] Speaker 03: The right outcome here as the district about Bernardo and what's the Attorney General's position on the fact I get I get that it's not a First Amendment case. [00:28:17] Speaker 03: It's a consumer case, but [00:28:19] Speaker 00: It is a First Amendment case as well as a consent case. [00:28:24] Speaker 00: Obviously, it's California State Court. [00:28:27] Speaker 00: But Bernardo, I think, really highlights is the fact-intensive inquiry that is required when you are considering whether speech is commercial or not. [00:28:35] Speaker 03: I took it, I guess, instead to result in an inquiry about whether it's false or misleading, which again is downstream from the commercial threshold. [00:28:43] Speaker 00: Your Honor, if Bernardo first goes through whether the particular websites at issue actually propose a commercial transaction or were informational. [00:28:54] Speaker 03: Because although it's the same, so the analogy would be here if NIFLA had a separate website that said information about APR or progesterone therapy. [00:29:05] Speaker 03: Here's some studies and did not end on that web page with an ask or offer. [00:29:11] Speaker 00: Your honor, I think that would take it out of the commercial speech context and into an informational context. [00:29:19] Speaker 00: The example in Bernardo I think is quite telling. [00:29:23] Speaker 00: There, Planned Parenthood provided a webpage with its stated position on the link between abortion and breast cancer. [00:29:33] Speaker 00: And it provided the studies that opposed its position. [00:29:38] Speaker 03: So what do you do with, this is at page eight of their reply brief, a screenshot. [00:29:44] Speaker 03: Maybe there are a couple of different issues here, but part of it is something on social media that says, a new abortion pill reversal study has been published in a peer review journal. [00:29:53] Speaker 03: Its findings show that reversal success rates were 64 to 68%. [00:29:57] Speaker 03: I mean, how do we slice and dice that when there might be multiple things going on in terms of offers, recommendations, information, [00:30:07] Speaker 03: How do we parse that? [00:30:08] Speaker 03: Because I think the theory behind Bernardo and others is that an organization is entitled to do both. [00:30:15] Speaker 00: Yes, Your Honor. [00:30:15] Speaker 00: But first off, I'll say that in our position, this study doesn't actually say 64% to 68%. [00:30:25] Speaker 03: But leaving that aside, if it is false, the state has not argued that it would satisfy even intermediate scrutiny, and the Supreme Court hasn't [00:30:37] Speaker 03: told us whether non-commercial false speech exactly what level of scrutiny is, so that doesn't win. [00:30:43] Speaker 00: You're right, Your Honor, and I didn't mean to evade your... On the commercial, but yeah, let's talk about the commercial side. [00:30:49] Speaker 00: But to the commercial speech element, first off, I'll note, this particular screenshot comes from Alternatives Pregnancy Center. [00:30:55] Speaker 00: That is the entity that in fact offers this, the APR service. [00:31:01] Speaker 00: And in fact, if you look at the statement underneath that, what they state is, [00:31:06] Speaker 00: The opponent state, if alternatives charged patients for APR services, perhaps this informational post could be construed as proposing a commercial transaction. [00:31:15] Speaker 00: So what they are saying is only the fact that there's no economic motivation does this speech no longer remain commercial. [00:31:23] Speaker 00: But the commercial speech inquiry does not turn on economic motivation. [00:31:27] Speaker 03: Well, I guess that's the question coming to First Resort. [00:31:30] Speaker 03: Why shouldn't we read First Resort the same way we read it in ERIX, which is it was about employee compensation [00:31:36] Speaker 03: but that it reflected a general principle that the primary economic motivation is a case. [00:31:40] Speaker 03: Have you argued that NIFLA's motivation here is primarily economic? [00:31:44] Speaker 00: Your Honor, we have not argued that it is primarily economic, but that is only one of the three factors that are at issue in Bolger. [00:31:52] Speaker 00: And what we have instead is strong showings that the speech is an advertisement for a specific product. [00:31:58] Speaker 00: The fact that there is some economic motivation, we put that in the record, but that it is not necessarily the primary motivation. [00:32:06] Speaker 00: And I'll note, this is on a preliminary injunction record. [00:32:11] Speaker 00: We'll continue to do discovery on that particular issue. [00:32:16] Speaker 00: But I think this court's recent decision in pharmaceutical researchers versus Stouffle, which came out in August, highlights that the commercial speech [00:32:29] Speaker 00: is not going to turn on economic motivation itself. [00:32:33] Speaker 00: That decision, which was about compelled speech under an Oregon statute that required certain pharmaceutical companies to affirmatively disclose their pricing, in a footnote that the court there noted that [00:32:50] Speaker 00: There are many instances where the speech can be compelled without any economic motivation. [00:32:55] Speaker 00: It is in fact speech that could be contrary to the economic motivations of the entity. [00:33:02] Speaker 00: But because it describes a commercial transaction. [00:33:05] Speaker 01: I guess maybe the answer is that [00:33:10] Speaker 01: In your view, I mean, in the ordinary understanding of commercial transaction, a commercial transaction is one in which like there is some exchange. [00:33:18] Speaker 01: It doesn't as a sort of ordinary language matter capture very well the idea of somebody giving something away for free which is what they're saying that they're doing, right? [00:33:34] Speaker 01: So, and I guess is your answer to that just first resort or, [00:33:41] Speaker 00: I don't think it's just first resort. [00:33:42] Speaker 00: I think it's first resort, yes, but I think it's also bolder, which pointed out that, you know, in the situation of where there's speech that proposes this kind of commercial transaction, sorry, let me back up. [00:34:01] Speaker 00: Speech is commercial not only when it proposes a commercial transaction, but when it describes a commercial transaction, that's still full. [00:34:08] Speaker 03: Well, how do you square that with XCOR, where the state was requiring disclosures of matters of public interest, but they were being required to disclose it. [00:34:19] Speaker 03: They didn't have an economic interest to actually summarize it in the way the state wanted. [00:34:25] Speaker 00: Your Honor, it's an interesting question. [00:34:29] Speaker 03: There's a little tension, to be honest, across these line of cases. [00:34:34] Speaker 00: Yes, absolutely. [00:34:36] Speaker 00: We don't think that X-Core is readily distinguishable from the facts of this case, though. [00:34:43] Speaker 00: This is not a situation where anyone is, this is a situation where they are advertising a particular medical treatment. [00:34:51] Speaker 00: And so the underlying core principles of commercial speech is to protect consumers. [00:34:57] Speaker 00: not just to ensure the speech rights of the commercial, of the entity that is advertising. [00:35:05] Speaker 00: And I'll just note, even if the speech is rendered commercial, it still is subject to constitutional protection. [00:35:11] Speaker 03: Right, but I guess the problem is that you haven't made a central Hudson, you haven't [00:35:15] Speaker 03: Presented a central Hudson argument you've left the district court and and and us I think with The duty that we can't undertake usually under heightened scrutiny to do the balancing if we get that far well your honor I don't think that the I think the interest even potentially misleading right yes, I [00:35:35] Speaker 00: You know, I think as the district court correctly held that even if the speech was potentially misleading, intermediate scrutiny was satisfied in part because as this court has acknowledged, the attorney general surely has a substantial government interest in protecting accurate medical information. [00:35:53] Speaker 03: But can we even do that for the state? [00:35:57] Speaker 03: We can do that on a rational basis, but your friends say that if you haven't presented the state's interests, it's not our job to come up with them. [00:36:06] Speaker 00: Your honor I would note that you can affirm on any basis on which the district court held Well any grounds supported by the record, and I think the argument here is you haven't made your record Your honor I believe we have made that record because we have put forward that this speech is an advertisement using that these These statements are advertisements using not on the bolder factors, but if we find it potentially misleading on the central Hudson [00:36:30] Speaker 00: Yes, but Your Honor, I don't believe that there is particular facts that we would need to add into the record to show that we have a substantial government interest in protecting accurate information. [00:36:42] Speaker 03: What about the tailoring? [00:36:43] Speaker 03: Has the state done anything to, if the state, right, there are studies here suggesting this can be quite dangerous in some circumstances, as other medical procedures may be. [00:36:52] Speaker 03: The state hasn't taken any action to prohibit or constrain or actually regulate the provision. [00:36:57] Speaker 03: itself, outside of hazard, outside of addressing the speech. [00:37:02] Speaker 00: Your Honor, we have not, and we have not done anything to regulate the procedure itself. [00:37:10] Speaker 00: That's, I think, a really critical issue in this case. [00:37:13] Speaker 00: There is a difference between the standard of medical evidence that is required to determine whether a particular course of treatment is appropriate for a particular patient in a particular context. [00:37:24] Speaker 00: We are not trying to interfere and are not interfering with that particular determination. [00:37:28] Speaker 03: Isn't that the case? [00:37:29] Speaker 03: person who sees these communications these messages and decides to pursue this treatment We'll have that provider in that conversation. [00:37:42] Speaker 03: That's just the end result of it. [00:37:44] Speaker 03: So if if that requires a higher evidence Standard to regulate that relationship. [00:37:51] Speaker 03: Why would it require a lower evidence to regulate speech about that process? [00:37:57] Speaker 00: And Your Honor, I'm over time, so I'll answer your question, and then I will sit down. [00:38:02] Speaker 00: But what I would say on that point is, first off, advertisements for medical treatments infect the informed consent process. [00:38:13] Speaker 00: And they are the harm that is caused. [00:38:15] Speaker 00: That's recognized by the FTC, as we put in our brief, and under California law, that it's that initial draw-in of an individual that is a harm to them. [00:38:25] Speaker 00: And so what we are saying is, you cannot advertise that a treatment is safe and effective, and that it does something that the scientific evidence does not establish that it does. [00:38:36] Speaker 00: And that is well within the appropriate, the First Amendment-like strictures that govern us. [00:38:44] Speaker 00: Any other? [00:38:45] Speaker 00: If there's no other questions, I'm... Thank you. [00:38:48] Speaker 00: Thank you. [00:38:50] Speaker 00: Your bottle. [00:38:54] Speaker 02: Thank you, Your Honor. [00:38:57] Speaker 02: This court had a few questions regarding economic motive and whether or not that was clearly established in the record. [00:39:03] Speaker 02: I would point the court to paragraph 38 of the complaint. [00:39:06] Speaker 02: This is in the excerpts of record at 1495 as well as 1498. [00:39:11] Speaker 02: In addition, and just to be clear, that's a verified complaint, so it's sworn testimony. [00:39:19] Speaker 02: In addition to the declaration of Heidi Matzke at nine, excerpts of record 2097, [00:39:24] Speaker 02: which establishes that alternatives never charges for any of the services that they offer. [00:39:29] Speaker 03: What's our standard of review for dealing with a First Amendment preliminary injunction fact-finding by the district court? [00:39:37] Speaker 02: It's de novo under Junior Sports Magazine, Your Honor. [00:39:41] Speaker 02: In addition, there were questions about what's the standard for non-commercial false speech. [00:39:45] Speaker 02: I would point this court to United States versus Alvarez. [00:39:48] Speaker 02: The court held non-commercial false speech is fully protected. [00:39:52] Speaker 02: Strict scrutiny applies. [00:39:54] Speaker 02: At bottom in this case, I believe it is your honor. [00:39:58] Speaker 02: At bottom, our clients wish to simply repeat the conclusions of peer reviewed studies and what the attorney general is doing is censoring the ability of nonprofit organizations who make no money off of any of this, their ability to tell women about a potential option that could save their unborn child's life and could turn their life in a new direction. [00:40:20] Speaker 02: The declarations of a Toria Foley, [00:40:24] Speaker 02: and Miss Exondine that are in the record demonstrate that this can really turn a woman's life around when they have this option presented to them. [00:40:33] Speaker 02: And it's something they deserve to have information about. [00:40:36] Speaker 04: Oh, go ahead. [00:40:38] Speaker 01: Can I ask you to go back to First Resort? [00:40:40] Speaker 01: I mean, there is the sort of employee compensation strand to it. [00:40:44] Speaker 01: But there's also, particularly in the discussion of the North Dakota case, Larson, there is sort [00:40:54] Speaker 01: A strand of First Resort that suggests that when you're advertising a medical service that we don't even really look at the third bulger factor. [00:41:08] Speaker 01: What do we do with that suggestion in First Resort? [00:41:12] Speaker 02: I don't think that would be an appropriate reading of First Resort. [00:41:15] Speaker 02: If we read it that way it would conflict with [00:41:17] Speaker 02: central hudson with ericson the entire kind of field of Commercial speech and i don't think that the court's required to read it that way but in the medical space it does seem like some of these cases are inflected by that it there's certainly that implication in first resort particularly and in the north dakota case as well and but reading it that that strictly and that narrowly would conflict [00:41:40] Speaker 02: with the commercial speech doctrines in ERIKS. [00:41:43] Speaker 02: And this court isn't required to. [00:41:45] Speaker 02: When you look to the multi-factor analysis that was at play in First Resort and then how this court handled it in ERIKS and determined that primary economic motivation was still required, this court shouldn't read First Resort so broadly. [00:41:58] Speaker 02: It should read it consistently with the rest of commercial speech doctrine. [00:42:02] Speaker 04: Council, when we're talking about studies, does it matter whether or not the study [00:42:10] Speaker 04: has been accepted as valid in the pertinent scientific community? [00:42:16] Speaker 02: I don't think so, Your Honor. [00:42:19] Speaker 02: When we're talking about the First Amendment and the ability to publish simply the results of studies, especially when we're outside of the commercial speech context in particular. [00:42:29] Speaker 04: What if we're in the commercial speech context? [00:42:32] Speaker 04: Would it matter whether or not the relevant scientific community accepts that study as being valid scientifically? [00:42:40] Speaker 04: No, Your Honor, I'm not even sure how we would determine that, but even... Well, I think there's some evidence in the record that at least some of the organized medical associations don't accept the study as a valid study. [00:42:54] Speaker 04: Is that fair to say that that's in the record? [00:42:58] Speaker 02: Yes, there's a debate between some of the organized medical associations on that issue. [00:43:01] Speaker 04: Which medical associations give their imprimatur to the study? [00:43:07] Speaker 02: uh... appalogue and as well as the canadian analog to that those are both American Association of pro-life OBGYNs it's over seven thousand member professional medical organization and the chamber of commerce this court addressed that issue in chamber of commerce when you have different medical organizations a prop sixty five case [00:43:27] Speaker 02: When you have different medical organizations arguing over that, that's exactly what the First Amendment protects. [00:43:33] Speaker 02: And the Chamber of Commerce case clearly holds that debates on medical issues and scientific issues are protected by the First Amendment. [00:43:40] Speaker 02: The people of California deserve the right to be able to speak about scientific studies that come out without fear that the Attorney General is going to silence them, even send them to jail. [00:43:49] Speaker 04: But the Attorney General isn't saying that, I don't want to paraphrase the case, but they're not saying that you can't have the date [00:43:56] Speaker 04: They're just saying the studies can't be misleading. [00:43:58] Speaker 04: They are saying their interest is to protect a vulnerable population from misleading information. [00:44:08] Speaker 02: Right. [00:44:08] Speaker 02: But for that to be a valid interest under the First Amendment, it has to also be true that it's misleading. [00:44:15] Speaker 02: And that's just simply not the case here. [00:44:17] Speaker 02: When you have a debate about scientific information, the First Amendment requires that we have open discussion, not censorship. [00:44:24] Speaker 04: But something can be objectively misleading regardless of whether or not there is a scientific debate about the procedure. [00:44:33] Speaker 04: Something that's put out about the procedure can be misleading regardless of whether or not [00:44:38] Speaker 04: everyone disagrees about the efficacy of the procedure, if there is misleading information in the communication of the procedure, that is not protected. [00:44:50] Speaker 02: Right. [00:44:51] Speaker 02: Only if you're in the commercial speech context and it's inherently misleading does it then get into that unprotected category. [00:44:58] Speaker 02: But we're not there. [00:44:59] Speaker 02: Our clients are simply repeating the conclusions of peer-reviewed studies. [00:45:03] Speaker 02: And they're not engaging in commercial speech. [00:45:05] Speaker 02: And for that reason, their speech should be protected. [00:45:07] Speaker 02: It is protected by the First Amendment, and we request that this court reverse and remand. [00:45:11] Speaker 04: Well, let me just ask you this. [00:45:13] Speaker 04: So are you saying that if there is a study that everyone agrees is misleading, there's still a First Amendment right to disseminate that information? [00:45:23] Speaker 02: No, Your Honor. [00:45:25] Speaker 02: And that goes to, I think there is certainly, there could be a hard, where do you draw, let's say, for example, there's one study, and it's a small study that said one thing, and there's a body of evidence on the other side. [00:45:37] Speaker 02: Am I saying that that's always fully protected if it's misleading to customers? [00:45:41] Speaker 02: No. [00:45:42] Speaker 02: But we're not anywhere close to that case. [00:45:44] Speaker 04: But you would agree that that's the state's argument that your clients don't have the First Amendment right to disseminate this information because it's misleading information. [00:45:55] Speaker 02: There well their argument is basically even though all the studies point in one direction They just say it's not good enough our opinion is it is good enough and the medical Associations also disagree on whether it's good enough Let me ask you this if we conclude that the district court did not err in determining that these studies were misleading Do you lose? [00:46:18] Speaker 02: No your honor specifically because [00:46:20] Speaker 02: It's not commercial speech. [00:46:22] Speaker 04: So if we agree with the district court that it was commercial speech and if we agree with the district court that that speech was misleading, do you lose? [00:46:31] Speaker 02: Only if it's inherently misleading, not potentially misleading. [00:46:35] Speaker 04: If we agree with the district court that the speech was commercial and that it was inherently misleading, do you lose? [00:46:43] Speaker 02: At that point, yes, I think so. [00:46:45] Speaker 04: I just wanted to see what your position is. [00:46:48] Speaker 04: Thank you. [00:46:48] Speaker 04: Thank you, Your Honor. [00:46:49] Speaker 04: Any other questions? [00:46:51] Speaker 04: All right, thank you, counsel. [00:46:52] Speaker 04: Thank you to both counsel for your helpful arguments. [00:46:55] Speaker 04: The case just argued is submitted for decision by the court.