Evergreen Ass'n v. City of New York
2014 U.S. App. LEXIS 1003
| 2d Cir. | 2014Background
- Local Law 17 requires pregnancy services centers to disclose status, government message, and services; it defines PSCs via two definitions (with/without on-site medical services) and uses objective factors to signal appearance of a licensed facility.
- The statute imposes civil penalties and enforcement by sealing facilities for repeated violations; it also includes confidentiality provisions independent of the disclosures.
- The district court preliminarily enjoined Local Law 17 as unconstitutional and vague; plaintiffs challenged the law as violating First Amendment rights.
- The Court holds the statute severable, striking only the offending First Amendment provisions, and remands for further proceedings.
- Plaintiffs seek relief on First Amendment grounds; the City defends the disclosures as narrowly tailored to public health and consumer protection.
- Dissent argues the PSC appearance definition is inherently vague and enables arbitrary enforcement and that the entire statute should be invalidated.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Vagueness of PSC definition | PCCNY et al.—definition vague; invites arbitrary enforcement | Severability preserves rest of law; appearance standard provides notice | Not impermissibly vague; severance allowed |
| Appropriate level of scrutiny for disclosures | Disclosures are compelled speech and protected; strict scrutiny applies | Disclosures may use intermediate scrutiny | Status disclosure survives under strict/intermediate scrutiny; Government Message and Services Disclosure fail |
| Severability and scope of enjoinment | If parts unconstitutional, entire statute should be enjoined | Court should sever invalid parts and leave rest intact | Portions infringing First Amendment rights severed; statute remanded for proceedings |
| Effect of Government Message and Services Disclosure | Disclosures compel protest or advocacy on contested issues | Disclosures necessary to inform consumers | Government Message and Services Disclosure are not sufficiently tailored and invalid |
Key Cases Cited
- Alliance for Open Soc’y Int’l, Inc. v. U.S. Agency for Intl. Dev., 651 F.3d 218 (2d Cir. 2011) (standard for preliminary injunction; Government interests; irreparable harm)
- Riley v. Nat’l Fed. of the Blind of N.C., Inc., 487 U.S. 781 (U.S. 1988) (solicitor disclosure narrows tailoring; compelled speech analysis)
- Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm. of N.Y., 447 U.S. 557 (U.S. 1980) (central test for commercial speech scrutiny)
- Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626 (U.S. 1985) (compelled disclosures; standard for commercial or informational disclosures)
- Centro Tepeyac v. Montgomery County, 722 F.3d 184 (4th Cir. 2013) (analysis of appearance vs. status disclosures; severability context)
- Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753 (U.S. 1994) (state interest in protecting access to reproductive health facilities)
- Green Party of Conn. v. Garfield, 616 F.3d 189 (2d Cir. 2010) (narrow tailoring and overbreadth considerations)
- United States v. Schneiderman, 968 F.2d 1564 (2d Cir. 1992) (guidelines vs. vagueness; examples provide notice)