From today's decision by Judge William K. Session III (D. Vt.) in Nat'l Inst. of Family & Life Advocates v. Clark, which allows plaintiffs' challenge to a Vermont regulation to go forward (denying defendants' motion to dismiss):
Plaintiffs challenge [a] provision[] in Vermont Senate Bill No. 37 …. [that] prohibits "unfair and deceptive" acts in commerce by LSPCs [limited services pregnancy centers], including dissemination of information to the public any "advertising about the services or proposed services performed at that center that is untrue or clearly designed to mislead the public." The subsection on legislative intent explains that "accurate information about the services that a limited-services pregnancy center performs … is essential to enable individuals in this State to make informed decisions about their care."
The Advertising Provision does not explicitly define what it means for an advertisement to be misleading. However, the statement of findings and legislative intent states that some LSPCs "provide confusing and misleading information to pregnant individuals contemplating abortion by leading those individuals to believe that [the LSPCs] offer abortion services and unbiased counseling," and that some LSPCs have promoted "patently false or biased medical claims about abortion." Such misleading advertising is "of special concern to the State because of the time-sensitive and constitutionally protected nature of the decision to continue or terminate a pregnancy." …
Defendants argue that the advertising provision only prohibits false and misleading commercial speech, which is not protected by the First Amendment, and accordingly ask the Court to dismiss Plaintiffs' Complaint. For the following reasons, that request is denied.
The threshold issue is whether the restricted speech is commercial in the first place. "The propriety of distinguishing commercial from noncommercial speech in evaluating a First Amendment claim derives from Supreme Court precedents affording the former only 'a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values.'" Commercial speech is generally defined as "speech that does no more than propose a commercial transaction." Courts have explained that this definition is a "starting point," and try to give effect to "a 'common-sense distinction between commercial speech and other varieties of speech."
