First Resort, Inc. v. Dennis Herrera, 860 F.3d 1263

Background

First Resort is a nonprofit limited‑services pregnancy center (LSPC) that provides free pregnancy testing, ultrasounds, and counseling, advertises online to women searching for abortion/contraception services, but neither provides nor refers for abortion or emergency contraception.
San Francisco enacted the Pregnancy Information Disclosure and Protection Ordinance (Ch. 93 §§ 93.1–93.5) to prohibit LSPCs from making untrue or misleading statements (including by omission) about pregnancy‑related services they provide or purportedly provide; enforcement is civil and allows notice and a 10‑day cure period and penalties up to $500 per violation.
First Resort sued, alleging First Amendment (content/viewpoint), vagueness, Equal Protection, and state‑law preemption claims; district court granted summary judgment for the City on remaining claims; First Resort appealed.
The Ninth Circuit majority held the Ordinance facially and as‑applied valid: it targets unprotected false or misleading commercial speech, is not unconstitutionally vague (claim waived and failed on merits), does not engage in viewpoint discrimination, and survives equal‑protection review under rational‑basis scrutiny.
On preemption, the majority rejected duplication preemption by California’s False Advertising Law (Cal. Bus. & Prof. Code § 17500), finding the Ordinance narrower in scope and civil (no double‑jeopardy issue); Judge Tashima concurred in part but argued the preemption question should be certified to the California Supreme Court.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does the Ordinance regulate protected speech or only unprotected false/misleading commercial speech?	First Resort: its ads are noncommercial or protected speech, so ordinance is content‑based and strict scrutiny applies.	City: ordinance targets false/misleading commercial advertising by LSPCs soliciting clientele, a category of unprotected commercial speech.	Held: speech is commercial (advertising for services, fundraising ties); false/misleading commercial speech is unprotected—Ordinance valid.
Vagueness — facial challenge	First Resort: Ordinance is vague about what conduct is prohibited and who is punished.	City: findings, definitions, cure‑notice and enforcement provisions give sufficient clarity; claim waived on appeal.	Held: challenge waived for failure to replead; merits fail because Ordinance, read as whole, provides adequate notice.
Viewpoint discrimination / Equal Protection	First Resort: Ordinance targets anti‑abortion LSPCs and burdens speakers based on viewpoint/identity.	City: ordinance applies based on services offered (not ideology) and furthers consumer protection, health, fiscal interests; classification rational.	Held: Not viewpoint discrimination; Equal Protection subject to rational basis and ordinance survives.
State preemption by Cal. Bus. & Prof. Code § 17500 (FAL)	First Resort: Ordinance duplicates and is preempted by statewide false advertising law.	City: FAL and ordinance are not coextensive (scope and remedies differ); because ordinance is civil and narrower, no duplication preemption.	Held: Majority rejects duplication preemption; concurrence would certify the question to California Supreme Court.

Key Cases Cited

Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557 (government may regulate false or misleading commercial speech)
Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 (test factors for commercial speech classification)
United Foods, Inc. v. United States, 533 U.S. 405 (commercial speech defined as proposing a commercial transaction)
Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (viewpoint discrimination doctrine)
O'Brien v. United States, 391 U.S. 367 (illicit legislative motive not dispositive for a facially valid statute)
Hill v. Colorado, 530 U.S. 703 (limits on facial vagueness attacks based on hypothetical applications)
Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483 (rational basis review and legislative tailoring across classes)
American Academy of Pain Mgmt. v. Joseph, 353 F.3d 1099 (9th Cir.) (medical service advertisements qualify as commercial speech)
Hunt v. City of L.A., 638 F.3d 703 (9th Cir.) (applying Bolger factors; commercial speech analysis is fact‑driven)
Rubin v. City of Santa Monica, 308 F.3d 1008 (9th Cir.) (rational‑basis review when no fundamental right is burdened)
Fireman’s Fund Ins. Co. v. City of Lodi, 302 F.3d 928 (9th Cir.) (discussing state‑law duplication preemption analysis)