A few months ago, Oklahoma enacted a statute (effective Nov. 1) and a corresponding regulation that requires facilities licensed by the state health department to display these signs in their restrooms:
There are many public and private agencies willing and able to help you carry your child to term and assist you and your child after your child is born, whether you choose to keep your child or to place him or her for adoption. The State of Oklahoma strongly urges you to contact them if you are pregnant.
Meantime, in 2015, California enacted a statute requiring all “licensed pregnancy-related clinics” to display notices saying,
California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women. To determine whether you qualify, contact the county social services office at [insert the telephone number].
On Oct. 14, the U.S. Court of Appeals for the 9th Circuit upheld this statute against a First Amendment challenge. Are such statutes constitutional? Or do they violate the First Amendment, because they require businesses to display speech with which they disagree?
In Wooley v. Maynard (1978), the Supreme Court held that a state couldn’t require people to display “Live Free or Die” on their license plates, even when it was clear that the slogan was coming from the government rather than from the driver. That involved a general requirement that all drivers display this slogan, but the logic of the opinion would apply to business-owned cars, and not just to cars owned and driven for nonbusiness purposes. The government generally can’t require people to “use their private property as a ‘mobile billboard’ for the State’s ideological message.” And the court later applied this to nonideological factual statements as well, see Riley v. National Federation for the Blind (1988) (plus, of course, many compelled factual assertions often carry an implied ideological message).
At the same time, the government requires lots of businesses to display lots of information, including about government policies with which the business owner might disagree — posters describing employee rights under antidiscrimination law and labor law, disclosures of potentially toxic materials (including the useless California Prop. 65 warnings), and more. The Supreme Court has never spoken about these requirements directly; it has said that disclosure requirements plausibly aimed at preventing consumers from being misled are generally constitutional, but it hasn’t confronted requirements that are unconnected to any worry about preventing such deception. Yet these posters are generally thought to be constitutional.
The 9th Circuit’s rationale for upholding the California law was that it regulates professional-client speech, which is generally thought to be more subject to regulation than other speech. But the professional-client speech doctrine, to the extent that it has been defined by the courts, seems to focus on professionals who take a client’s affairs in hand, and apply their superior expertise on which the client is relying. So cases such as this don’t tell us that much about business-customer speech more broadly, or even business-employee speech more broadly (plus of course the 9th Circuit decision may be controversial even on its own terms). Some other cases, though, do use the “commercial speech” doctrine — which usually applies to restrictions on commercial advertising — to justify rules that require businesses to inform customers about various attributes of the business’s products or property.
My tentative sense is that the Oklahoma law would be constitutional if it were limited to hospitals and doctor’s offices that provide pregnancy-related care — that would make it much like the California law from a First Amendment perspective. There, it would be a required disclosure related to the professional-client relationship. But I think it’s very hard to justify it as applied to restaurants. Perhaps requirements that restaurants disclose things related to health hazards in their restrooms would be permissible, on the theory that a business could be required to inform customers about the rights, risks, and obligations stemming from the business relationship — but I don’t think the government can force businesses to post the government’s message, a message totally unrelated to the business-customer (or business-employer) relationship, simply because that better spreads the government’s message. I also think the Oklahoma rule is hard to justify as to medical facilities that are totally unrelated to pregnancy-related care, of which there are very many (e.g., dentist’s offices).