New York’s First Amendment Reversal Pill

New York Attorney General, Letitia James (L) and New York Governor, Kathy Hochul (R)

New York state government came under the scrutiny of the U.S. Supreme Court in 2024 after Financial Services superintendent Maria Vullo pushed Lloyd’s of London and other insurers to cut ties with the National Rifle Association. In a unanimous opinion authored by Justice Sonia Sotomayor, the Court said that “Vullo’s communications with Lloyd’s can be reasonably understood as a threat or as an inducement. Either of those can be coercive.” 
 
The Empire State is at it again, weaponizing New York’s business fraud statutes to bring an enforcement action against 11 crisis pregnancy centers for speaking about “progesterone therapy,” which some studies suggest may be effective in reversing the effects of mifepristone in chemically induced abortions.
 
New York Attorney General Letitia James, who is spearheading the case, has called such centers “fake clinics.”
 
In August, three of those clinics sued in federal court to protect their First Amendment right to speak about progesterone. The court ruled in their favor, issuing a preliminary injunction and writing:
 
“…[T]he ‘very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind through regulating the press, speech, and religion.’ To ‘this end, the government, even with the purest of motives, may not substitute its judgment as to how best to speak for that of speakers and listeners; free and robust debate cannot thrive if directed by the government.’ And this is particularly true ‘in the fields of medicine and public health, where information can save lives.’”
 
Now, the attorney general has appealed to the Second Circuit, and groups like Alliance Defending Freedom are stepping up in defense of crisis pregnancy centers and the First Amendment.
 
The attorney general’s actions certainly seem to constitute content and viewpoint-based discrimination. Perhaps conceding that point, General James argues that progesterone-therapy advocacy constitutes false or misleading commercial speech, despite the fact that, to quote ADF’s brief, the non-profit pregnancy centers’ speech “neither proposes a transaction nor bears any relation to the economic interests of the … plaintiffs or the women they serve….” As such, “the speech is wholly noncommercial and entitled to full First Amendment protection.”
 
As for whether or not advocating for progesterone therapy is effective against mifepristone, reasonable minds may disagree – but that doesn’t change the fact that there is peer-reviewed scientific literature supporting the claim. As the Second Circuit itself has held, “to the extent a speaker or author draws conclusions from non-fraudulent data, based on accurate descriptions of the data and methodology underlying those conclusions, on subjects about which there is legitimate ongoing scientific disagreement,” such statements cannot be deemed false under the First Amendment.
 
It seems reasonable, given New York’s recent track record and James’ outspokenness on the issue, to question whether prosecuting crisis pregnancy centers is politically motivated. But our concern at Protect The 1st is not ideological. It is that we cannot allow the use of our justice system to crack down on disfavored speech – and that would apply just as fervently to pro-choice speech in a red state as pro-life speech in a blue one. We will not stop until everyone in government appreciates that when the First Amendment says “shall make no law” prohibiting free speech, it actually means make no law.

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