Yelp urges Ninth Circuit to revive suit against Texas AG over crisis pregnancy center labeling

(CN) — The Ninth Circuit Court of Appeals heard oral arguments Wednesday in Yelp’s challenge to the dismissal of its First Amendment lawsuit filed against Texas Attorney General Ken Paxton.

The often controversial Republican attorney general had threatened to sue, and later did sue, the ratings and reviews website after it began attaching warnings to its pages for crisis pregnancy centers — clinics that that counsel pregnant women and don’t provide abortions. The warning notified Yelp users that the centers “typically provide limited medical services and may not have licensed medical professionals onsite.”

The warnings went up in 2022, shortly after Texas’ strict ban on abortion went into effect.

Yelp sued Paxton in federal court in California in 2023. The company claims “when Yelp detects that consumers may be deceived when they search for information about local businesses on Yelp, Yelp provides additional information to help mitigate the potential for deception. That is what happened here. Yelp learned that some crisis pregnancy centers — businesses that offer pregnancy-related counseling, but not abortion services or referrals to abortion providers — were leading users seeking abortion care away from medical providers to anti- abortion counseling services.”

In February, a federal judge dismissed Yelp’s lawsuit, citing the 1971 U.S. Supreme Court ruling Younger v. Harris, which found that federal courts can’t hear civil rights tort claims brought by someone who is being prosecuted for a related matter in state court.

Paxton’s suit against Yelp, filed in a Texas state court a day after Yelp’s lawsuit, was also dismissed. An appeal is set to be heard next week.

On Wednesday, Yelp attorney James Sigel, a partner at Davis Wright Tremaine, told a three-judge Ninth Circuit panel that Yelp’s complaint qualified for an exception under Younger , because Paxton’s prosecution was brought “in bad faith” after only a cursory investigation, was “objectively meritless” and was done in retaliation against Yelp for its CEO’s public support of abortion access. At very least, he argued, Yelp’s lawsuit should be allowed to proceed to the discovery phase, to allow Yelp to gather evidence that Paxton had in fact acted in bad faith.

In its brief, Yelp pointed to a press release put out by Paxton’s staff following his lawsuit, in which he accused Yelp’s CEO of trying “rally the business community behind the pro-abortion cause.”

“This conduct is part of a broader pattern aimed at deterring private companies from expressing and advancing viewpoints Paxton rejects,” Yelp wrote in its brief.

The panel appeared skeptical of Sigel’s argument.

“You want the federal court to enjoin the attorney general from prosecuting that case or pursuing that case,” said U.S. Circuit Judge Daniel Bress, a Donald Trump appointee. “That’s a difficult one. It seems to me if you win on this, we’re gonna have cases filed every week in federal court saying, ‘I don’t like what that the attorney general is doing in that state.’”

The other two judges, U.S. Circuit Judges Danielle Forrest and Mark Bennett, both Trump appointees as well, appeared to agree.

“How do we keep the bad faith exception limited?” Forrest asked.

Sigel answered that the “bad faith” standard is one that rarely could be met.

“There are not many circumstances where a prosecutor would bring a suit that is objectively meritless,” Sigel said — but that was exactly what Paxton had done. “These are exceptional circumstances.”

Principal Deputy Solicitor General Lanora Pettit argued Yelp hadn’t been able to prove Paxton had acted in bad faith, and that the federal courts had no business getting involved in a state action.

“This should be litigated in Texas,” Pettit said. “Our federal system depends on the notion that federal and state sovereigns are their own.”

As to the warning labels Yelp attached to pages about crisis pregnancy centers, Pettit said they were misleading — at least for some of the centers.

“They made a generalized statement about a spectrum of businesses, and put it on every single business,” Petit said. One of those businesses complained to Paxton’s office, hence the investigation. “The district court acknowledged it was a thin investigation, but not a nonexistent one.”

She also pointed out: “When crisis pregnancy centers were holding themselves out as abortion clinics, the attorney general prosecuted them.”

As to Paxton’s press release, Pettit argued the statement about the Yelp’s CEO’s views on abortion were taken out of context. What Paxton was saying, Petit said, was that “the Yelp CEO has a right to say whatever he wanted to about abortion. With that said, he cannot lie about those facilities.”

The panel took the arguments under submission.

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