Since When Is False Advertising Free Speech? CPCs and Misleading Information

‘I just wanted to find out if I was pregnant,’ she said to me, recalling a disastrous day in Georgia. ‘My boss sent me there when I told her I was worried; I didn’t know any better. They kept me in there for hours, telling me all kinds of things, wouldn’t even give me a test.’

She shudders, remembering the time she spent in a crisis pregnancy center wanting to know the answer to a very simple question: ‘Am I pregnant?’

Crisis pregnancy centers basically work by entrapping people with false advertising promising reproductive health services and counseling for patients who think they may be pregnant. If that statement sounds a little extreme, a Congressional study noted that 87% of them were found using misleading statements in their advertising and other materials, including listing themselves in the phonebook under abortion services, claiming to provide birth control options, and using names that are similar to those of legitimate reproductive health organisations. That’s just the tip of the iceberg. The goal is to get people in the doors and then shame them into keeping their pregnancies, if they are indeed pregnant.

They subject people to endless pamphlets, videos, and lectures from staff. What they don’t offer, for the most part, is actual reproductive health care. No birth control, no STI testing and treatment, no counseling, and, of course, no abortion. For people who are young, frightened, and struggling, CPCs are a trap, and they’re a terrifying one that’s spreading across the country in ever-greater numbers. Reproductive justice groups are rightly concerned about their rise, and are struggling to find ways to combat them while also working on the ground to provide first line reproductive health services to patients who need them.

Notably, a number of cities have attempted to crack down on false advertising at CPCs, only to have ordinances and other legislation appealed on the grounds that CPCs have a right to ‘free speech.’ Sometimes the result is a ruling in favour of the CPC that weakens or strikes down the original ordinance, allowing it to continue operating with its misleading materials. And, of course, setting a precedent which will be used in other states in the battle on reproductive rights; the Right is very coordinated when it comes to taking pages from each other’s playbooks and spreading information and tactics across the country.

So, are CPCs entitled to free speech? Well, yes, they are. Free speech is a constitutional right for everyone, even people I fervently dislike, and CPCs can say hateful things, including untrue ones, if they want to. While I wish it was illegal to berate terrified young women for not being godly enough or considering termination for an unwanted pregnancy, it unfortunately is not. Conversely, of course, it’s not illegal for me to berate aggressive Right-wingers who harass terrified young women. Fair speech goes both ways and turnabout is fair play; I defend the right of CPCs to be gross and hateful, although I’d note that they probably wouldn’t do the same for me.

So, is false advertising free speech? Uh, no. It’s not. In fact, this is an issue that’s come up in the past and, unsurprisingly, the government feels that making clearly misleading, inaccurate, and false claims in advertising materials is not protected under free speech, and can in fact be prosecuted. That’s one thing the FTC is responsible for; identifying such materials and taking cases to court when it feels this is an appropriate response. The government argues that it has a duty to protect consumers from materials that could trick them into activities they wouldn’t have otherwise engaged in.

So, for example, Toyota isn’t allowed to say that your car will never break down. It can point to reliability records, and it can feature customer testimonials about how much people love their Toyotas, and it can make some statements that might skate on the edge of legality, but it is not permitted to come right out and make a patently false claim that could trick customers into buying a Toyota. Were it to do so, it would be exposed to civil liability (a consumer who buys a Toyota that later breaks down could sue), as well as scrutiny from the government.

Likewise, a CPC shouldn’t be allowed to say that it provides abortion services, because it does not. This is a clearly false claim that would mislead a potential consumer into going to the centre for assistance with terminating an unwanted pregnancy. Thus, listing in the phonebook under ‘abortion services’ and similar tactics can’t be defended as free speech, because the thing about free speech is that while your right to say (almost) whatever you want is protected, you are not actually protected from the consequences of what you are saying.

If you make misleading advertising claims, you’re exercising your right to free speech. But you’re also breaking the law. And them’s the breaks. The law isn’t infringing upon your right; it’s designed to protect consumers, and you’re making a conscious choice to do something that goes against the best interest of consumers and your fellow citizens. CPCs can moan and scream all they like about their ‘free speech’ rights, but I bet members of these organisations would be pretty pissed if rampant unchecked false advertising was allowed anywhere else. Curious indeed that they’re so quick to scuttle under the Constitution when it suits them, and so reluctant to offer the shelter of the same document to anyone else who might need it.