Greater Baltimore Center v. Mayor and City Council
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 1:10-cv-00760-MJG. [999143276]. [11-1111, 11-1185]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1111
GREATER
BALTIMORE
INCORPORATED,
CENTER
FOR
PREGNANCY
CONCERNS,
Plaintiff – Appellee,
and
ST. BRIGID’S ROMAN CATHOLIC CONGREGATION INCORPORATED;
ARCHBISHOP WILLIAM E. LORI, as successor to Archbishop
Edwin F. O’Brien, Archbishop of Baltimore, and his
successor in office, a corporation sole,
Plaintiffs,
v.
MAYOR AND CITY COUNCIL OF BALTIMORE; STEPHANIE RAWLINGSBLAKE, Mayor of Baltimore, in her Official Capacity; OXIRIS
BARBOT, Baltimore City Health Commissioner,
Defendants – Appellants,
and
OLIVIA FARROW; BALTIMORE CITY HEALTH DEPARTMENT,
Defendants.
-----------------------------TAUNYA LOVELL BANKS, Jacob A. France Professor of Equality
Jurisprudence, University of Maryland School of Law; C.
CHRISTOPHER BROWN, Associate Professor Emeritus of Law,
University of Maryland School of Law; ERWIN CHEMERINSKY,
Dean and Distinguished Professor of Law, University of
California, Irvine School of Law; ROBERT J. CONDLIN,
Professor of Law, University of Maryland School of Law;
NORMAN DORSEN, Frederick I. and Grace A. Stokes Professor
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of Law, New York University School of Law; LEIGH GOODMARK,
Associate Professor of Law, University of Baltimore School
of Law; STEVEN P. GROSSMAN, Dean Julius Isaacson Professor
of Law, University of Baltimore School of Law; MARTIN
GUGGENHEIM, Fiorello LaGuardia Professor of Clinical Law,
New York University School of Law; DEBORAH HELLMAN,
Professor of Law and Jacob France Research Professor,
University of Maryland School of Law; MARGARET E. JOHNSON,
Assistant Professor of Law, University of Baltimore School
of Law; KENNETH LASSON, Professor of Law, University of
Baltimore School of Law; SYLVIA A. LAW, Elizabeth K.
Dollard Professor of Law, Medicine and Psychiatry, New York
University School of Law; SUSAN PAULA LEVITON, Professor of
Law,
University
of
Maryland
School
of
Law;
AUDREY
MCFARLANE, Professor of Law, University of Baltimore School
of Law; PAULA A. MONOPOLI, Professor of Law, University of
Maryland School of Law; BURT NEUBORNE, Inez Milholland
Professor of Civil Liberties, New York University School of
Law; JOHN T. NOCKLEBY, Professor of Law, Loyola Law School;
HELEN L. NORTON, Associate Professor of Law, University of
Colorado School of Law; DAVID A.J. RICHARDS, Edwin D. Webb
Professor of Law, New York University School of Law;
ELIZABETH J. SAMUELS, Professor of Law, University of
Baltimore School of Law; ELIZABETH M. SCHNEIDER, Rose L.
Hoffer Professor of Law, Brooklyn Law School; JANA B.
SINGER, Professor of Law, University of Maryland School of
Law; BARBARA ANN WHITE, Professor of Law, University of
Baltimore School of Law; TOBIAS BARRINGTON WOLFF, Professor
of Law, University of Pennsylvania Law School; DIANE L.
ZIMMERMAN, Samuel Tilden Professor of Law Emerita, New York
University School of Law; INTERNATIONAL MUNICIPAL LAWYERS
ASSOCIATION; AMERICAN MEDICAL WOMEN’S ASSOCIATION; ROBERT
BLUM; WILLARD CATES, JR.; CHESAPEAKE REGIONAL CHAPTER OF
THE SOCIETY FOR ADOLESCENT HEALTH AND MEDICINE; ERIC LEVEY;
MATERNAL
AND
CHILD
HEALTH
ACCESS;
NADINE
PEACOCK;
PHYSICIANS FOR REPRODUCTIVE CHOICE AND HEALTH; MARK SEIGEL;
LAURIE SCHWAB ZABIN; EVA MOORE; CATHOLICS FOR CHOICE; DC
ABORTION FUND; DIANA DEGETTE; DONNA EDWARDS; LAW STUDENTS
FOR REPRODUCTIVE JUSTICE; CAROLYN MALONEY; MARYLAND CHAPTER
FOR THE NATIONAL ORGANIZATION FOR WOMEN; NARAL PRO-CHOICE
AMERICA; NARAL PRO-CHOICE MARYLAND; NATIONAL ABORTION
FEDERATION; NATIONAL ADVOCATES FOR PREGNANT WOMEN; NATIONAL
ASIAN PACIFIC AMERICAN WOMEN’S FORUM; PLANNED PARENTHOOD OF
MARYLAND;
MIKE
QUIGLEY;
RELIGIOUS
COALITION
FOR
REPRODUCTIVE CHOICE; SISTERSONG WOMEN OF COLOR REPRODUCTIVE
JUSTICE COLLECTIVE; LOUISE SLAUGHTER; JACKIE SPEIER; WHOLE
WOMAN’S HEALTH OF BALTIMORE; WOMEN’S LAW CENTER OF
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MARYLAND, INCORPORATED; HUMAN RIGHTS
ROSS, Professor; ELIJAH CUMMINGS,
WATCH;
SUSAN
DELLER
Amici Supporting Appellants,
PREGNANCY
CARE
ORGANIZATIONS
CARE
NET;
HEARTBEAT
INTERNATIONAL, INCORPORATED; NATIONAL INSTITUTE OF FAMILY
AND LIFE ADVOCATES; ROCKA-MY-BABY PREGNANCY CRISIS CENTER;
BOWIE CROFTON PREGNANCY CLINIC, INCORPORATED; CARE NET
PREGNANCY CENTER OF FREDERICK; CARE NET PREGNANCY CENTER OF
SOUTHERN MARYLAND; LAUREL PREGNANCY CENTER; ROCKVILLE
PREGNANCY CENTER, INCORPORATED; AMERICAN CENTER FOR LAW AND
JUSTICE; AMERICAN ASSOCIATION OF PRO-LIFE OBSTETRICIANS AND
GYNECOLOGISTS; CHRISTIAN MEDICAL & DENTAL ASSOCIATIONS;
CATHOLIC MEDICAL ASSOCIATION; HELEN M. ALVARE, Associate
Professor of Law, George Mason University School of Law;
ROBERT JOHN ARAUJO, S.J., John Courtney Murray, S.J.
University Professor, Loyola University of Chicago School
of Law; ROBERT F. COCHRAN, JR., Louis D. Brandeis Professor
of Law, Pepperdine University School of Law; DAVID DEWOLF,
Professor, Gonzaga University School of Law; DWIGHT G.
DUNCAN, Professor of Law, University of Massachusetts
Dartmouth School of Law; JOHN C. EASTMAN, Henry Salvatori
Professor of Law & Community Service, former Dean, Chapman
University School of Law; SCOTT T. FITZGIBBON, Professor,
Boston College Law School; RICHARD W. GARNETT, Associate
Dean and Professor of Law, Notre Dame Law School; BRADLEY
P. JACOB, Associate Professor, Regent University School of
Law; DREW L. KERSHEN, Earl Sneed Centennial Professor of
Law, University of Oklahoma College of Law; LYNNE MARIE
KOHM, John Brown McCarty Professor of Family Law, Regent
University School of Law; RICHARD S. MYERS, Professor of
Law, Ave Maria School of Law; MICHAEL STOKES PAULSEN,
Distinguished University Chair and Professor, University of
St. Thomas School of Law; ROBERT J. PUSHAW, James Wilson
Endowed Professor of Law, Pepperdine University School of
Law; MICHAEL SCAPERLANDA, Professor of Law, Gene & Elaine
Edwards Family Chair in Law, The University of Oklahoma
College of Law; GREGORY C. SISK, Pio Cardinal Laghi
Distinguished Chair in Law and Professor, University of St.
Thomas School of Law; O. CARTER SNEAD, Professor of Law,
Notre Dame Law School; RICHARD STITH, Professor of Law,
Valparaiso University School of Law; TIMOTHY J. TRACEY,
Assistant Professor of Law, Ave Maria School of Law; LYNN
D. WARDLE, Bruce C. Hafen Professor of Law, J. Reuben Clark
Law School, Brigham Young University; THE NATIONAL LEGAL
FOUNDATION,
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Amici Supporting Appellees.
No. 11-1185
ST. BRIGID’S ROMAN CATHOLIC CONGREGATION INCORPORATED;
ARCHBISHOP WILLIAM E. LORI, as successor to Archbishop
Edwin F. O’Brien, Archbishop of Baltimore, and his
successor in office, a corporation sole,
Plaintiffs – Appellants,
and
GREATER
BALTIMORE
INCORPORATED,
CENTER
FOR
PREGNANCY
CONCERNS,
Plaintiff,
v.
MAYOR AND CITY COUNCIL OF BALTIMORE; STEPHANIE RAWLINGSBLAKE, Mayor of Baltimore, in her Official Capacity; OXIRIS
BARBOT, Baltimore City Health Commissioner,
Defendants – Appellees,
and
OLIVIA FARROW; BALTIMORE CITY HEALTH DEPARTMENT,
Defendants.
-----------------------------HELEN M. ALVARE, Associate Professor of Law, George Mason
University School of Law; AMERICAN CENTER FOR LAW AND
JUSTICE; AMERICAN ASSOCIATION OF PRO-LIFE OBSTETRICIANS AND
GYNECOLOGISTS; ROBERT JOHN ARAUJO, S.J., John Courtney
Murray, S.J. University Professor, Loyola University of
Chicago School of Law; BOWIE CROFTON PREGNANCY CLINIC,
INCORPORATED; CARE NET PREGNANCY CENTER OF FREDERICK; CARE
NET PREGNANCY CENTER OF SOUTHERN MARYLAND; CHRISTIAN
MEDICAL
&
DENTAL
ASSOCIATIONS;
CATHOLIC
MEDICAL
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ASSOCIATION; ROBERT F. COCHRAN, JR., Louis D. Brandeis
Professor of Law, Pepperdine University School of Law;
DAVID DEWOLF, Professor, Gonzaga University School of Law;
DWIGHT
G.
DUNCAN,
Professor
of
Law,
University
of
Massachusetts Dartmouth School of Law; JOHN C. EASTMAN,
Henry Salvatori Professor of Law & Community Service,
former Dean, Chapman University School of Law; SCOTT T.
FITZGIBBON, Professor, Boston College Law School; RICHARD
W. GARNETT, Associate Dean and Professor of Law, Notre Dame
Law School; HEARTBEAT INTERNATIONAL, INCORPORATED; BRADLEY
P. JACOB, Associate Professor, Regent University School of
Law; DREW L. KERSHEN, Earl Sneed Centennial Professor of
Law, University of Oklahoma College of Law; LYNNE MARIE
KOHM, John Brown McCarty Professor of Family Law, Regent
University School of Law; LAUREL PREGNANCY CENTER; RICHARD
S. MYERS, Professor of Law, Ave Maria School of Law;
NATIONAL INSTITUTE OF FAMILY AND LIFE ADVOCATES; MICHAEL
STOKES
PAULSEN,
Distinguished
University
Chair
and
Professor, University of St. Thomas School of Law;
PREGNANCY CARE ORGANIZATIONS CARE NET; ROBERT J. PUSHAW,
James
Wilson
Endowed
Professor
of
Law,
Pepperdine
University School of Law; ROCKA-MY-BABY PREGNANCY CRISIS
CENTER; ROCKVILLE PREGNANCY CENTER, INCORPORATED; MICHAEL
SCAPERLANDA, Professor of Law, Gene & Elaine Edwards Family
Chair in Law, The University of Oklahoma College of Law;
GREGORY C. SISK, Pio Cardinal Laghi Distinguished Chair in
Law and Professor, University of St. Thomas School of Law;
O. CARTER SNEAD, Professor of Law, Notre Dame Law School;
RICHARD STITH, Professor of Law, Valparaiso University
School of Law; TIMOTHY J. TRACEY, Assistant Professor of
Law, Ave Maria School of Law; LYNN D. WARDLE, Bruce C.
Hafen Professor of Law, J. Reuben Clark Law School, Brigham
Young University; THE NATIONAL LEGAL FOUNDATION,
Amici Supporting Appellants,
TAUNYA LOVELL BANKS, Jacob A. France Professor of Equality
Jurisprudence, University of Maryland School of Law; C.
CHRISTOPHER BROWN, Associate Professor Emeritus of Law,
University of Maryland School of Law; ERWIN CHEMERINSKY,
Dean and Distinguished Professor of Law, University of
California, Irvine School of Law; ROBERT J. CONDLIN,
Professor of Law, University of Maryland School of Law;
NORMAN DORSEN, Frederick I. and Grace A. Stokes Professor
of Law, New York University School of Law; LEIGH GOODMARK,
Associate Professor of Law, University of Baltimore School
of Law; STEVEN P. GROSSMAN, Dean Julius Isaacson Professor
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of Law, University of Baltimore School of Law; MARTIN
GUGGENHEIM, Fiorello LaGuardia Professor of Clinical Law,
New York University School of Law; DEBORAH HELLMAN,
Professor of Law and Jacob France Research Professor,
University of Maryland School of Law; MARGARET E. JOHNSON,
Assistant Professor of Law, University of Baltimore School
of Law; KENNETH LASSON, Professor of Law, University of
Baltimore School of Law; SUSAN PAULA LEVITON, Professor of
Law, University of Maryland School of Law; SYLVIA A. LAW,
Elizabeth K. Dollard Professor of Law, Medicine and
Psychiatry, New York University School of Law; AUDREY
MCFARLANE, Professor of Law, University of Baltimore School
of Law; PAULA A. MONOPOLI, Professor of Law, University of
Maryland School of Law; BURT NEUBORNE, Inez Milholland
Professor of Civil Liberties, New York University School of
Law; JOHN T. NOCKLEBY, Professor of Law, Loyola Law School;
HELEN L. NORTON, Associate Professor of Law, University of
Colorado School of Law; DAVID A.J. RICHARDS, Edwin D. Webb
Professor of Law, New York University School of Law;
ELIZABETH M. SCHNEIDER, Rose L. Hoffer Professor of Law,
Brooklyn Law School; ELIZABETH J. SAMUELS, Professor of
Law, University of Baltimore School of Law; JANA B. SINGER,
Professor of Law, University of Maryland School of Law;
BARBARA ANN WHITE, Professor of Law, University of
Baltimore School of Law; TOBIAS BARRINGTON WOLFF, Professor
of Law, University of Pennsylvania Law School; DIANE L.
ZIMMERMAN, Samuel Tilden Professor of Law Emerita, New York
University School of Law; INTERNATIONAL MUNICIPAL LAWYERS
ASSOCIATION; AMERICAN MEDICAL WOMEN’S ASSOCIATION; MATERNAL
AND CHILD HEALTH ACCESS; PHYSICIANS FOR REPRODUCTIVE CHOICE
AND HEALTH; CHESAPEAKE REGIONAL CHAPTER OF THE SOCIETY FOR
ADOLESCENT HEALTH AND MEDICINE; ROBERT BLUM; WILLARD CATES,
JR.; ERIC LEVEY; NADINE PEACOCK; MARK SEIGEL; LAURIE SCHWAB
ZABIN; EVA MOORE; NARAL PRO-CHOICE MARYLAND; NARAL PROCHOICE AMERICA; CATHOLICS FOR CHOICE; DC ABORTION FUND; LAW
STUDENTS
FOR
REPRODUCTIVE
JUSTICE;
NATIONAL
ABORTION
FEDERATION; MARYLAND CHAPTER FOR THE NATIONAL ORGANIZATION
FOR WOMEN; NATIONAL ADVOCATES FOR PREGNANT WOMEN; NATIONAL
ASIAN PACIFIC AMERICAN WOMEN’S FORUM; PLANNED PARENTHOOD OF
MARYLAND; RELIGIOUS COALITION FOR REPRODUCTIVE CHOICE;
SISTERSONG WOMEN OF COLOR REPRODUCTIVE JUSTICE COLLECTIVE;
WHOLE WOMAN’S HEALTH OF BALTIMORE; WOMEN’S LAW CENTER OF
MARYLAND, INCORPORATED; DIANA DEGETTE; DONNA EDWARDS;
CAROLYN MALONEY; MIKE QUIGLEY; LOUISE SLAUGHTER; JACKIE
SPEIER; HUMAN RIGHTS WATCH; SUSAN DELLER ROSS, Professor;
ELIJAH CUMMINGS,
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Amici Supporting Appellees.
Appeals from the United States District Court for the District
of Maryland, at Baltimore.
Marvin J. Garbis, Senior District
Judge. (1:10-cv-00760-MJG)
ARGUED:
December 6, 2012
Decided:
July 3, 2013
Before TRAXLER, Chief Judge, and WILKINSON, NIEMEYER, MOTZ,
KING, SHEDD, DUNCAN, AGEE, KEENAN, WYNN, FLOYD, and THACKER,
Circuit Judges.
No. 11-1111 vacated and remanded, and No. 11-1185 affirmed, by
published opinion.
Judge King wrote the majority opinion, in
which Chief Judge Traxler and Judges Motz, Duncan, Keenan, Wynn,
Floyd, and Thacker joined.
Judge Wilkinson wrote a dissenting
opinion.
Judge Niemeyer wrote a dissenting opinion, in which
Judges Wilkinson, Shedd, and Agee joined.
ARGUED: Suzanne Sangree, CITY OF BALTIMORE LAW DEPARTMENT,
Baltimore, Maryland, for Mayor and City Council of Baltimore,
Stephanie Rawlings-Blake, Mayor of Baltimore, in her Official
Capacity, and Oxiris Barbot, Baltimore City Health Commissioner.
David
William
Kinkopf,
GALLAGHER
EVELIUS
&
JONES,
LLP,
Baltimore, Maryland, for Greater Baltimore Center for Pregnancy
Concerns,
Incorporated,
St.
Brigid’s
Roman
Catholic
Congregation, Incorporated, Archbishop William E. Lori.
ON
BRIEF: Stephanie Toti, Special Assistant City Solicitor, CENTER
FOR REPRODUCTIVE RIGHTS, New York, New York, for Mayor and City
Council
of
Baltimore,
Stephanie
Rawlings-Blake,
Mayor
of
Baltimore, in her Official Capacity, and Oxiris Barbot,
Baltimore City Health Commissioner.
Peter J. Basile, FERGUSON,
SHETELICH & BALLEW, PA, Baltimore, Maryland; Steven G. Metzger,
GALLAGHER EVELIUS & JONES, LLP, Baltimore, Maryland; Mark L.
Rienzi, COLUMBUS SCHOOL OF LAW, Catholic University of America,
Washington, D.C., for Greater Baltimore Center for Pregnancy
Concerns,
Incorporated,
St.
Brigid’s
Roman
Catholic
Congregation, Incorporated, Archbishop William E. Lori.
Maria
T. Vullo, PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP, New
York, New York, for Amici Curiae Law Professors in Support of
Mayor and City Council of Baltimore, Stephanie Rawlings-Blake,
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Mayor of Baltimore, in her Official Capacity, and Oxiris Barbot,
Baltimore City Health Commissioner.
Douglas W. Baruch, FRIED,
FRANK, HARRIS, SHRIVER & JACOBSON LLP, Washington, D.C.; Janice
Mac Avoy, Alexander T. Korn, FRIED, FRANK, HARRIS, SHRIVER &
JACOBSON LLP, New York, New York, for International Municipal
Lawyers Association, Amicus Curiae in Support of Mayor and City
Council
of
Baltimore,
Stephanie
Rawlings-Blake,
Mayor
of
Baltimore, in her Official Capacity, and Oxiris Barbot,
Baltimore City Health Commissioner.
Simona G. Strauss, Melissa
D. Schmidt, SIMPSON THACHER & BARTLETT LLP, Palo Alto,
California; Jayma M. Meyer, SIMPSON THACHER & BARTLETT LLP, New
York, New York, for Amici Curiae Public Health Advocates in
Support of Mayor and City Council of Baltimore, Stephanie
Rawlings-Blake, Mayor of Baltimore, in her Official Capacity,
and Oxiris Barbot, Baltimore City Health Commissioner. Kimberly
A. Parker, Zaid A. Zaid, Lesley Fredin, WILMER CUTLER PICKERING
HALE AND DORR LLP, Washington, D.C., for Catholics for Choice,
DC Abortion Fund, Donna Edwards, Maryland Chapter for the
National Organization for Women, Naral Pro-Choice America, Naral
Pro-Choice Maryland, National Abortion Federation, National
Advocates for Pregnant Women, National Asian Pacific American
Women's Forum, Planned Parenthood of Maryland, Mike Quigley,
Religious Coalition for Reproductive Choice, Louise Slaughter,
Jackie Speier, Whole Woman’s Health of Baltimore, Women's Law
Center of Maryland, Incorporated, Elijah Cummings, Amici Curiae
in Support of Mayor and City Council of Baltimore, Stephanie
Rawlings-Blake, Mayor of Baltimore, in her Official Capacity,
and Oxiris Barbot, Baltimore City Health Commissioner. Anna R.
Franzonello, Mailee R. Smith, Mary E. Harned, Denise M. Burke,
AMERICANS UNITED FOR LIFE, Washington, D.C., for Pregnancy Care
Organizations Care Net, Heartbeat International, Incorporated,
National Institute of Family and Life Advocates, Rocka-My-Baby
Pregnancy
Crisis
Center,
Bowie
Crofton
Pregnancy
Clinic,
Incorporated, Care Net Pregnancy Center of Frederick, Care Net
Pregnancy Center of Southern Maryland, Laurel Pregnancy Center,
and Rockville Pregnancy Center, Incorporated, Amici Curiae in
Support of Greater Baltimore Center for Pregnancy Concerns,
Incorporated,
St.
Brigid’s
Roman
Catholic
Congregation,
Incorporated, Archbishop William E. Lori.
Colby M. May, James
Matthew Henderson, Sr., Tiffany N. Barrans, AMERICAN CENTER FOR
LAW & JUSTICE, Washington, D.C.; Cecilia N. Heil, Erik M.
Zimmerman, AMERICAN CENTER FOR LAW & JUSTICE, Virginia Beach,
Virginia; Carly F. Gammill, AMERICAN CENTER FOR LAW & JUSTICE,
Franklin, Tennessee, for American Center for Law and Justice,
Amicus Curiae in Support of Greater Baltimore Center for
Pregnancy Concerns, Incorporated, St. Brigid’s Roman Catholic
Congregation, Incorporated, Archbishop William E. Lori. Matthew
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S. Bowman, ALLIANCE DEFENDING FREEDOM, Washington, D.C.; Samuel
B. Casey, David B. Waxman, JUBILEE CAMPAIGN-LAW OF LIFE PROJECT,
Washington,
D.C.,
for
American
Association
of
Pro-Life
Obstetricians and Gynecologists, Christian Medical & Dental
Associations, and Catholic Medical Association, Amici Curiae in
Support of Greater Baltimore Center for Pregnancy Concerns,
Incorporated,
St.
Brigid’s
Roman
Catholic
Congregation,
Incorporated, Archbishop William E. Lori.
John C. Eastman,
CENTER FOR CONSTITUTIONAL JURISPRUDENCE, Chapman University
School of Law, Orange, California; David T. Raimer, Noel J.
Francisco, JONES DAY, Washington, D.C., for Amici Curiae
Professors in Support of Greater Baltimore Center for Pregnancy
Concerns,
Incorporated,
St.
Brigid’s
Roman
Catholic
Congregation, Incorporated, Archbishop William E. Lori.
Steven
W. Fitschen, THE NATIONAL LEGAL FOUNDATION, Virginia Beach,
Virginia; John P. Tuskey, BINGHAM AND LOUGHLIN, P.C., Mishawaka,
Indiana, for The National Legal Foundation, Amicus Curiae in
Support of Greater Baltimore Center for Pregnancy Concerns,
Incorporated,
St.
Brigid’s
Roman
Catholic
Congregation,
Incorporated, Archbishop William E. Lori.
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KING, Circuit Judge:
Invoking the First Amendment, the district court fully and
permanently
Ordinance
requiring
disclaimers
abortions
enjoined
or
that
enforcement
limited-service
they
certain
do
not
of
City
pregnancy
provide
birth-control
a
or
Baltimore
centers
make
services.
of
to
referrals
The
post
for
injunction
emanated from the court’s award of summary judgment to plaintiff
Greater Baltimore Center for Pregnancy Concerns, Incorporated,
on its claim that the Ordinance is facially invalid under the
Free Speech Clause.
See O’Brien v. Mayor of Balt., 768 F. Supp.
2d 804, 812-17 (D. Md. 2011).
Crucially, however, the summary
judgment decision was laden with error, in that the court denied
the
defendants
basic
rules
of
essential
civil
discovery
procedure.
and
otherwise
disregarded
We
therefore
vacate
the
judgment and remand for further proceedings, without comment on
how this matter ultimately should be resolved. 1
1
To be clear, we vacate and remand in the appeal (No. 111111) noted by defendants Mayor and City Council of Baltimore;
Stephanie Rawlings-Blake, in her official capacity as Mayor of
Baltimore; and Oxiris Barbot, in her official capacity as
Baltimore City Health Commissioner. We affirm, however, in the
cross-appeal (No. 11-1185) of St. Brigid’s Roman Catholic
Congregation Incorporated and Archbishop William E. Lori,
contesting the district court’s ruling that they lack standing
to be co-plaintiffs with the Greater Baltimore Center for
Pregnancy Concerns. See O’Brien, 768 F. Supp. 2d at 811-12. On
initial review by a three-judge panel of our Court, the majority
affirmed both the district court’s summary judgment decision and
its standing ruling.
See Greater Balt. Ctr. for Pregnancy
(Continued)
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I.
A.
The challenged Ordinance — City of Baltimore Ordinance 09252 — was passed by the City Council on November 23, 2009, and
approved by the Mayor on December 4, 2009.
See J.A. 25-28. 2
The
Ordinance applies to limited-service pregnancy centers, defined
as “any person”:
(1)
whose primary purpose
related services; and
(2)
who:
(I)
is
to
provide
pregnancy-
for a fee or as a free service,
provides information about pregnancyrelated services; but
(II) does not provide or refer for:
(A)
(B)
Id.
at
abortions; or
nondirective and
control services.
25-26.
Under
the
comprehensive
Ordinance,
“[a]
birth-
limited-service
pregnancy center must provide its clients and potential clients
Concerns,
The panel
grant of
Pregnancy
Cir. Aug.
Inc. v. Mayor of Balt., 683 F.3d 539 (4th Cir. 2012).
opinion was subsequently vacated, however, with the
rehearing en banc.
See Greater Balt. Ctr. for
Concerns, Inc. v. Mayor of Balt., No. 11-1111(L) (4th
15, 2012).
2
Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in these appeals.
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with a disclaimer substantially to the effect that the center
does not provide or make referral for abortion or birth-control
services.”
Id. at 26.
The disclaimer is to be given by way of
one or more signs that are “written in English and Spanish,”
“easily
readable,”
and
“conspicuously
posted
in
the
center’s
waiting room or other area where individuals await service.”
Id.
By an implementing Regulation of the Baltimore City Health
Department,
nondirective
and
comprehensive
birth-control
services are defined as “birth-control services which only a
licensed healthcare professional may prescribe or provide.”
39-40. 3
J.A.
provides
or
The
refers
Regulation
for
specifies
some
that,
birth-control
if
a
services,
See
“center
it
may
indicate on the disclaimer sign what birth-control services it
does provide and/or refer for.”
Id. at 40.
Additionally, the
Regulation authorizes a center to “indicate on the disclaimer
sign that the sign is required by Baltimore City ordinance.”
Id.
3
The Joint Appendix contains the original version of the
Regulation, adopted on July 15, 2010, which indicated that
nondirective and comprehensive birth-control services “may also
include other birth-control services.” J.A. 39. That language
was deleted from the Regulation on September 27, 2010, after
being deemed problematic in the course of this litigation.
Otherwise, there are no substantive differences between the
original and superseding versions of the Regulation.
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The
Filed: 07/03/2013
Ordinance
vests
Pg: 13 of 102
enforcement
powers
in
the
Baltimore
City Health Commissioner, who, upon “learn[ing] that a pregnancy
center
written
is
in
violation
notice
of
[the
ordering
the
Ordinance],”
center
to
must
correct
the
“issue
a
violation
within 10 days of the notice or within any longer period that
the Commissioner specifies in the notice.”
J.A. 26.
If a
center fails to comply with a violation notice, the Commissioner
may issue an environmental or a civil citation pursuant to the
Baltimore City Code.
“pursu[e]
any
other
Id. at 27.
civil
action authorized by law.”
or
The Commissioner may also
criminal
remedy
or
enforcement
Id.
B.
This
42
U.S.C.
constitutionality
of
action
§ 1983
the
—
—
was
Ordinance
challenging
initiated
in
the
the
District of Maryland on March 29, 2010, by the Greater Baltimore
Center for Pregnancy Concerns (the “Center”), together with St.
Brigid’s Roman Catholic Congregation and then-Archbishop Edwin
F. O’Brien.
The plaintiffs’ Complaint names as defendants the
Mayor and City Council of Baltimore; Stephanie Rawlings-Blake,
in
her
official
capacity
as
Mayor
of
Baltimore;
and
Olivia
Farrow, in her official capacity as then-Acting Baltimore City
Health Commissioner (collectively, the “City”).
of the parties have been succeeded:
13
Since then, two
now-Cardinal O’Brien by
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Archbishop William E. Lori, and Farrow by Baltimore City Health
Commissioner Oxiris Barbot. 4
1.
The Complaint reflects that the Center qualifies under the
Ordinance as a limited-service pregnancy center, in that it “has
as its primary purpose providing pregnancy-related services and
provides information about pregnancy-related services as a free
service”; “does not refer for or provide abortions”; and “does
not refer for, or provide information regarding birth control,
other than natural family planning and abstinence.”
¶¶ 25-26.
Complaint
The Center offers pregnancy-related services at two
locations in Baltimore, including a space owned by St. Brigid’s
and
the
Archbishop.
Id.
¶¶ 10,
16-18.
According
to
the
Complaint, the plaintiffs share sincerely held religious beliefs
that cause them to oppose abortion and certain forms of birth
control.
Id. ¶¶ 40-41, 43-44.
The Complaint alleges that the
Ordinance violates the First Amendment rights of free speech,
free
assembly,
Fourteenth
Maryland’s
and
Amendment
statutory
free
exercise
guarantee
“conscience
4
of
of
religion,
equal
clause,”
see
plus
the
protection
and
Md.
Code
Ann.,
The plaintiffs consented to dismiss without prejudice
their claims against an additional defendant, the Baltimore City
Health Department.
See O’Brien, 768 F. Supp. 2d at 808 n.5.
Meanwhile, the City voluntarily refrained from enforcing the
Ordinance prior to the entry of the district court’s judgment.
14
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Health-Gen.
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§ 20-214(a)(1)
Pg: 15 of 102
(providing,
inter
alia,
that
“[a]
person may not be required to . . . refer to any source for[]
any
medical
procedure
pregnancy”).
that
results
in
. . .
termination
of
The Ordinance is attached to the Complaint as its
sole exhibit.
On June 4, 2010, before the City even had answered the
Complaint and when there were four days remaining for it to do
so, the plaintiffs filed a motion for partial summary judgment
under
Rule
56
Specifically,
of
the
the
Federal
plaintiffs
Rules
sought
of
Civil
judgment
Procedure.
on
their
free
speech, free assembly, and equal protection claims, contending
that
the
applied
Ordinance
to
them.
is
unconstitutional
The
plaintiffs
on
insisted
its
face
that
and
the
as
strict
scrutiny standard applies and cannot be satisfied, because the
Ordinance
termed
fosters
“pro-life
viewpoint
pregnancy
discrimination
centers”
and
against
what
unjustifiably
compels
only those centers to engage in government-mandated speech.
plaintiffs
portrayed
the
Ordinance-mandated
sign
as
they
The
ensuring
that every conversation at a limited-service pregnancy center
begins with the subject of abortion, and conveying the morally
offensive message that abortion is available elsewhere and might
be considered a good option.
The plaintiffs supported their summary judgment motion with
an affidavit of Carol Clews, the Center’s Executive Director,
15
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corroborating
Complaint.
2010).
law,
Filed: 07/03/2013
several
of
Pg: 16 of 102
the
factual
allegations
in
the
See J.A. 29-31 (the “Clews Affidavit” of June 3,
The Clews Affidavit asserted that, “[i]f not required by
the
Center
would
not
post
the
Baltimore City Ordinance 09-252.”
disclaimer
Id. at 30.
compelled
by
The plaintiffs
also proffered an excerpt from the “Journal of the City Council”
reflecting that the Council rejected proposed amendments to the
Ordinance
e.g.,
aimed
pregnancy
adoptions.
at
expanding
centers
its
that
disclosure
refer
for
requirements
abortions
but
to,
not
Id. at 296-99.
On June 8, 2010, the City filed a motion to dismiss the
Complaint in its entirety, pursuant to Federal Rule of Civil
Procedure
12(b)(6),
for
failure
to
state
a
claim
upon
which
relief can be granted, or alternatively to dismiss the claims of
St. Brigid’s and the Archbishop, under Rule 12(b)(1), for lack
of standing.
The City characterized the Ordinance as a consumer
protection regulation, referring to evidence in the Ordinance’s
legislative
record
showing
that
limited-service
pregnancy
centers often engage in deceptive advertising to attract women
seeking abortion and comprehensive birth-control services, and
then use delay tactics to impede the women from accessing those
services.
According
to
the
City,
limited-service
pregnancy
centers thereby pose a threat to public health, in that the
risks and costs of abortion increase as a woman advances through
16
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her pregnancy, and that delays in access to the birth control of
a woman’s choice can leave the woman vulnerable to unintended
pregnancy and sexually transmitted diseases.
The
parties’
respective
dispositive
motions
prompted
the
district court to enter a Scheduling Order specifying deadlines
for
further
related
submissions.
In
compliance
with
the
Scheduling Order, the plaintiffs filed a response to the City’s
motion to dismiss on July 2, 2010; the City submitted a reply
concerning its dismissal motion, combined with a response to the
plaintiffs’ motion for summary judgment, on July 16, 2010; and
the
plaintiffs
filed
a
reply
with
respect
to
their
summary
judgment motion on July 23, 2010.
2.
a.
The City’s July 16, 2010 submission included four pieces of
evidence
from
the
Ordinance’s
legislative
record
that
had
previously been referenced in the City’s motion to dismiss.
The
first such piece of evidence was a July 2006 report prepared for
Congressman
Health
Henry
Information
Resource Centers.”
A.
Waxman
Provided
entitled
by
“False
Federally
and
Funded
Misleading
Pregnancy
See J.A. 413-30 (the “Waxman Report”).
The
Waxman Report concerned pro-life pregnancy centers referred to
as “pregnancy resource centers,” and it recited, in pertinent
part, that
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[p]regnancy resource centers often mask their pro-life
mission in order to attract “abortion-vulnerable
clients.” This can take the form of advertising under
“abortion services” in the yellow pages or obscuring
the fact that the center does not provide referrals to
abortions in the text of an advertisement.
Some
centers
purchase
advertising
on
internet
search
engines under keywords that include “abortion” or
“abortion clinics.”
Other advertisements represent
that the center will provide pregnant teenagers and
women with an understanding of all of their options.
For example, “Option Line,” a joint venture of
[national
umbrella
organizations]
Heartbeat
International and Care Net, is a 24-hour telephone
hotline that connects pregnant teenagers and women
with pregnancy resource centers in their communities.
The main page of Option Line’s website states at the
top, “Pregnant?
Need Help?
You Have Options,” but
does not reveal that both Heartbeat International and
Care Net represent only pro-life centers or that only
non-abortion options will be counseled.
Id. at 417-18 (footnotes omitted).
Otherwise, the Waxman Report
focused on information that was provided over the telephone by
federally funded pregnancy resource centers in fifteen states to
investigators posing as pregnant seventeen-year-old girls.
The City’s second piece of evidence from the Ordinance’s
legislative history — a January 2008 report of the NARAL ProChoice Maryland Fund entitled “The Truth Revealed:
Maryland
Crisis Pregnancy Center Investigations” — was premised on visits
by investigators to “crisis pregnancy centers” or “CPCs” all
located in Maryland.
See J.A. 326-412 (the “Maryland Report”).
The Maryland Report’s findings included the following:
Maryland Crisis Pregnancy Centers attract clients with
their advertisements offering free pregnancy tests and
“pregnancy options counseling.”
This is a very
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appealing offer for women in a vulnerable time in
their lives.
After providing free urine pregnancy
tests (the kind available at any drug store), women
are counseled with only negative information about the
option of abortion.
They are given wildly inaccurate
information about the physical and mental health risks
associated with abortion, and informed only about the
joys of parenting and adoption. If a client continues
to consider abortion, she is given false information
about abortion service availability and encouraged to
delay her decision.
CPCs that offer ultrasounds and
[sexually transmitted infection] testing are able to
delay clients further through appointment wait times,
while
also
gaining
a
sense
of
authority
and
credibility in their client’s eyes as a medical
service provider.
However, CPCs are not medical
centers. They are operated by volunteers who are, in
general, poorly trained in women’s reproductive health
issues and well trained in anti-choice propaganda.
Id. at 334.
The City’s third and fourth pieces of evidence from the
Ordinance’s legislative record consisted of written testimony.
Tori McReynolds recounted that, sixteen years earlier, when she
was
a
sixteen-year-old
girl
who
needed
to
know
if
she
was
pregnant, her mother arranged for her to visit a limited-service
pregnancy center in central Maryland that “was listed in the
phone book under ‘Abortion Counseling.’”
omitted).
J.A. 261 (emphasis
McReynolds produced a urine sample for a pregnancy
test “and was told that it would take about 45 minutes to know
the result.”
Id.
During the waiting period, a woman at the
center subjected McReynolds to anti-abortion propaganda.
McReynolds
testified:
“I
felt
tricked;
I
was
a
Id.
frightened
teenager expecting a discussion about my options and instead I
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was bullied by an opinionated adult twice my age.
. . .
Had my
mother and I seen a sign at that reception desk informing us
that we could not get referrals for abortion or birth control,
we would have simply moved on.”
Dr.
Jodi
Kelber-Kaye
Id.
of
the
University
of
Maryland,
Baltimore County, testified that, “[a]s an educator of collegeaged women,” she had “heard countless stories from students who
go [to limited-service pregnancy centers], assuming they will
get a full range of services and counseling and wind up feeling
harassed, coerced, and misinformed.”
J.A. 273.
Dr. Kelber-Kaye
also said she was “distressed by the existence of centers that,
on purpose, appear to be medical facilities and are not staffed
by licensed medical personnel, nor even licensed counselors.”
Id.
“Simply put,” Kelber-Kaye concluded, “there should be truth
in advertising and, like all consumer products, limited-service
pregnancy centers need to be kept honest about what services
they actually provide.”
Id.
b.
In addition to discussing the foregoing evidence, the City
asserted in its July 16, 2010 submission that the plaintiffs’
summary judgment request was premature, in that the City had not
been afforded the opportunity to conduct discovery or to fully
20
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develop
expert
Filed: 07/03/2013
testimony
on
key
Pg: 21 of 102
factual
issues. 5
The
City
contended that discovery was needed to test the veracity of the
plaintiffs’
allegations
refute their claims.
submitted
an
and
to
develop
evidence
tending
to
Pursuant to former Rule 56(f), the City
affidavit
of
Special
Assistant
City
Solicitor
Stephanie Toti, identifying issues that required discovery.
See
J.A. 41-43 (the “Rule 56(f) Affidavit” of July 16, 2010); see
also Fed. R. Civ. P. 56(f) (2010) (providing that, “[i]f a party
opposing the motion [for summary judgment] shows by affidavit
that, for specified reasons, it cannot present facts essential
to justify its opposition, the court may,” inter alia, “deny the
motion” or “order a continuance to enable . . . discovery to be
undertaken”). 6
The Rule 56(f) Affidavit specified that the City needed “to
conduct
discovery
concerning
the
advertising
that
the
[plaintiff] Center and other limited-service pregnancy centers
employ, [to] demonstrate its deceptive character.”
The
Affidavit
also
deemed
discovery
necessary
“to
J.A. 42.
develop
5
In accordance with Federal Rule of Civil Procedure
26(d)(1), the City was constrained to respond to the plaintiffs’
summary judgment motion without the benefit of discovery because
the parties had not yet conferred as required by Rule 26(f).
6
By amendment that took effect on December 1, 2010, former
Rule 56(f) was carried forward into subdivision (d) without
substantial change.
21
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factual
Filed: 07/03/2013
support
for
[the
Pg: 22 of 102
City’s]
argument
that
the
services
offered by [the Center] are a form of commerce, and, therefore,
the disclaimer required by the Ordinance is commercial speech,
subject only to rational basis scrutiny — not strict scrutiny.”
Id.
Additionally,
“require[d]
provide
Affidavit
opportunity
to
support
the
the
factual
advertising
the
by
for
maintained
develop
limited-service
expert
propositions
the
City
testimony
to
that
deceptive
centers
pregnancy
public health in a variety of ways.”
that
threatens
Id. at 41.
The Affidavit
explained that one potential expert, Dr. Laurie Schwab Zabin,
had “agreed to provide [the City] with a declaration detailing
the
harms
that
can
result
from
delays
in
women’s
abortion or comprehensive birth control services.”
access
to
Id. at 42.
Dr. Zabin had not completed her declaration, however, and was
then abroad on vacation.
The
Rule
potential
56(f)
expert,
Id.
Affidavit
Dr.
Robert
further
Blum,
disclosed
had
that
already
another
provided
a
declaration to the City, which the City in turn included in its
July 16, 2010 submission to the district court.
(the “Blum Affidavit” of June 17, 2010).
See J.A. 44-46
In his Affidavit, Dr.
Blum, the Director of the Johns Hopkins University Urban Health
Institute,
confirmed
that
“[p]ublic
health
is
advanced
when
individuals are provided with complete and accurate information
about their health care options and the availability of health
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care services.
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Pg: 23 of 102
This is especially true for women who are facing
unintended pregnancies or seeking to control their fertility.”
Id. at 45.
The Blum Affidavit elaborated:
Women seeking family planning services or pregnancyrelated care are at a disadvantage relative to service
providers in two ways.
First, providers possess more
information than consumers. Second, providers possess
more power than consumers.
As a result, full
disclosure of what services a provider is offering, as
well as what biases underlie the provision of those
services, is needed to ensure that consumers are not
deceived or taken advantage of; consumers are able to
make fully informed, autonomous decisions about family
planning or pregnancy-related care; and consumers have
timely access to the services they seek.
Id. at 45-46.
“serves
According to the Blum Affidavit, the Ordinance
important
public
health
goals”
by
“provid[ing]
women
with key information they need to make decisions about where to
go
for
reproductive
health
care.”
Id.
at
45.
The
City
indicated that the Blum Affidavit was representative of evidence
it sought to develop during discovery proceedings.
3.
The state of the evidentiary record was discussed during a
motions hearing conducted by the district court on August 4,
2010.
See
J.A.
47-141.
The
City
reiterated
its
need
for
discovery to counter the plaintiffs’ summary judgment motion,
and
it
requested
the
opportunity
to
submit
the
Ordinance’s
entire legislative record so that the court could “review all of
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it and not just the portions that” were included in the City’s
submission of July 16, 2010.
Id. at 127.
For their part, the plaintiffs maintained that no discovery
was warranted, in that the district court could apply strict
scrutiny and “strike [the Ordinance] down on its face.”
90.
J.A.
In that regard, the plaintiffs asserted that the court
could “very clearly rule as a facial matter,” looking solely to
the Ordinance, its legislative history, and the pertinent case
law.
Id.
According to the plaintiffs, the court would need to
consider their as-applied challenge only if it rejected their
facial
challenge,
circumscribed.
and
even
then
discovery
could
be
See id. at 90-92 (explaining that the breadth of
any discovery, including discovery into the plaintiff Center’s
operations, “might depend on how wide [the court] feels [the
Ordinance is] not facially invalid”).
The
district
court
indicated
its
agreement
with
the
plaintiffs that discovery was unnecessary for a facial review of
the Ordinance.
See J.A. 108.
The court assured the City,
however, that discovery would be authorized before the court
engaged in any as-applied analysis.
Id. at 130.
In the court’s
words, “if what [the Center] did is relevant in this case [the
City] will have the discovery . . . .
But . . . I don’t see
where we would advance the ball one way or the other on the
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facial challenge by knowing what these particular people did.”
Id.
Following
Ordinance’s
the
motions
entire
hearing,
legislative
the
record,
City
filed
including
the
written
opinions provided to the City Council by the City Solicitor and
Acting
Health
vouching
for
Commissioner
its
prior
legality
and
to
the
Ordinance’s
efficacy.
See
passage
J.A.
207-08
(October 23, 2009 letter from City Solicitor George A. Nilson
advising
that,
because
the
Ordinance
“merely
requires
the
disclosure of truthful, non-misleading information relevant to a
woman’s decision to seek services at a particular location[, it]
does not violate the 1st Amendment right to freedom of speech”);
id.
at
209
(October
21,
2009
memorandum
of
Acting
Health
Commissioner Olivia D. Farrow supporting the Ordinance because
“[i]t
is
imperative
that
all
Baltimore
City
women
have
the
ability to obtain factual and timely advice on all available
health care options”).
Meanwhile, in response to the district
court’s inquiry during the motions hearing about whether the
plaintiffs might ever refer for abortion (e.g., in the case of
incest), the plaintiffs submitted an official statement of the
Catholic Church “affirm[ing] the moral evil of every procured
abortion.”
Id. at 178.
The court thereafter issued its summary
judgment decision and permanent injunction without allowing the
City any discovery.
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C.
1.
By its summary judgment decision of January 28, 2011, the
district court determined that, because the City had submitted
and relied upon materials beyond the plaintiffs’ Complaint —
i.e.,
the
legislative
record
of
the
Ordinance
—
it
was
appropriate to treat the City’s motion to dismiss as a crossmotion for summary judgment.
See O’Brien, 768 F. Supp. 2d at
809-10 (citing Fed. R. Civ. P. 12(d) (“If, on a motion under
Rule
12(b)(6)
. . . ,
matters
outside
the
pleadings
are
presented to and not excluded by the court, the motion must be
treated as one for summary judgment under Rule 56.”)).
court
then
characterizing
rebuffed
it
the
as
an
City’s
improper
request
for
“attempt
The
discovery,
to
generate
justifications for the Ordinance following its enactment.”
Id.
at 810 (citing United States v. Virginia, 518 U.S. 515, 533
(1996)).
In the court’s view, its duty was to “examine whether
the Ordinance, on its face, is subject to, and satisfies, the
applicable level of scrutiny” — an assessment confined to “the
evidence relied on by the Baltimore City Council at the time the
Ordinance was passed.”
Id.
Focusing on the plaintiffs’ free speech claim and turning
to
the
question
of
the
applicable
standard
for
its
facial
review, the district court rejected the City’s contention that
26
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rational
basis
Filed: 07/03/2013
scrutiny
Pg: 27 of 102
applies
because
directed at misleading commercial speech.
Supp.
2d
at
specific
court
813-14.
In
characteristics
referred
to
as
doing
of
the
so,
the
the
is
See O’Brien, 768 F.
the
court
plaintiff
“CENTER.”
Ordinance
For
looked
Center,
example,
to
the
which
the
the
court
observed that
[t]he overall purpose of the advertisements, services,
and information offered by the CENTER is not to
propose a commercial transaction, nor is it related to
the CENTER’s economic interest. The CENTER engages in
speech relating to abortion and birth-control based on
strongly held religious and political beliefs rather
than commercial interests or profit motives.
The
notion that human life must be respected and protected
absolutely from the moment of conception is a central
tenet of the CENTER’s belief system.
Id. at 813 (internal quotation marks omitted).
The court deemed
it insignificant that “[t]he CENTER offers services that have
value in the commercial marketplace,” given that “the offering
of
free
services
such
as
pregnancy
tests
and
sonograms
in
furtherance of a religious mission fails to equate with engaging
in a commercial transaction.”
Indeed,
the
court
likened
Id. at 813-14 (footnote omitted).
the
free
services
provided
by
the
Center with “sacramental wine, communion wafers, prayer beads,
[and] other objects with commercial value” offered by churches
to
their
congregants.
Id.
at
814.
Tying
the
former
to
commercial speech, the court warned, would “subject [the latter]
to diminished constitutional protection.”
27
Id.
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In
any
Filed: 07/03/2013
event,
the
Pg: 28 of 102
district
court
concluded
that
strict
scrutiny would apply even if “the CENTER’s speech includes some
commercial
elements,”
inextricably
speech.’”
Nat’l
because
intertwined
any
with
commercial
otherwise
speech
fully
“‘is
protected
O’Brien, 768 F. Supp. 2d at 814 (quoting Riley v.
Fed’n
(1988)).
of
the
Blind
of
N.C.,
Inc.,
487
U.S.
781,
796
The court explained that “[t]he dialogue between a
limited-service pregnancy center and an expectant mother begins
when the client or prospective client enters the waiting room of
the center,” and that the presence of an Ordinance-mandated sign
(as “a stark and immediate statement about abortion and birthcontrol”) would alter the course of the center’s communications
with its clients and prospective clients.
Id.
“At the very
least,” according to the court, “a disclaimer conspicuous to
anyone visiting the CENTER regarding the lack of abortion and
birth-control services, mandates the inclusion of a government
message
concurrent,
and
intertwined
delivery of fully protected speech.”
As
an
additional
reason
to
with,
[the
CENTER’s]
Id.
apply
strict
scrutiny,
the
district court declared that the City “enacted the Ordinance out
of
disagreement
birth-control,”
form
of
with
Plaintiffs’
thereby
engaging
content-based
viewpoints
in
“a
discrimination.”
on
abortion
particularly
See
and
offensive
O’Brien,
768
F.
Supp. 2d at 814-16 (citing Rosenberger v. Rector & Visitors of
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Pg: 29 of 102
the Univ. of Va., 515 U.S. 819, 829 (1995) (“The government must
abstain
from
regulating
speech
when
the
specific
motivating
ideology or the opinion or perspective of the speaker is the
rationale for the restriction.”)).
because
“the
Ordinance
is
The court reasoned that,
applicable
only
to
those
who
will
never provide or refer for abortion or [certain] birth-control
services,” it must have been discriminatorily aimed at “those
with strict moral or religious qualms regarding abortion and
birth-control.”
Id.
at
815.
Again
raising
the
specific
characteristics of the plaintiff Center, the court emphasized
that “[t]he CENTER’s viewpoint, formed on the basis of sensitive
religious,
moral,
and
political
beliefs,
is
the
overarching
reason for its stark refusal to perform or refer for abortions
and certain types of birth-control.”
Applying
strict
scrutiny,
Id.
the
district
court
recognized
that the City was obliged to demonstrate that the Ordinance is
“‘narrowly
interest.’”
tailored
to
promote
a
compelling
[G]overnment
O’Brien, 768 F. Supp. 2d at 816 (quoting United
States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813 (2000)).
On the “compelling interest” question, the court noted that the
Ordinance’s
the
depth
service
legislative
and
severity
pregnancy
record
of
centers
was
the
and
“uneven
problem
deceptive
when
relating
demonstrating
to
limited-
advertising.”
Id.
Nevertheless, the court “assume[d], for purposes of discussion,
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that
Doc: 160
the
Filed: 07/03/2013
Ordinance
was
Pg: 30 of 102
enacted
in
response
governmental interest.”
Id. at 817.
appropriate
the
court
short
of
falls
because
considerably
standard.”
a
compelling
Such an assumption was
concluded
meeting
to
that
the
“the
Ordinance
‘narrowly
tailored’
Id.
There were two grounds for the district court’s ruling on
the
narrow
provide
tailoring
a
pregnancy
‘carve-out’
centers
practices”;
irrespective
center
issue.
of
presents
provision
which
rather,
how
First,
“[t]he
do
for
not
and
O’Brien,
Ordinance
those
engage
disclaimer
forthcoming
itself.”
“the
in
any
transparent
F.
not
limited-service
requirement
768
does
deceptive
is
a
Supp.
2d
imposed
pregnancy
at
817.
Second, “[i]n lieu of the disclaimer mandate of the Ordinance,
[the City] could use or modify existing regulations governing
fraudulent advertising to combat deceptive advertising practices
by limited-service pregnancy centers,” or it “could enact a new
content-neutral
advertising
ordinance
applicable
to
noncommercial entities that directly ameliorate [its] concerns
regarding deceptive advertising.”
Having
resolved
that
the
Id.
Ordinance
is
not
narrowly
tailored, the district court summarized “that the Ordinance does
not meet the strict scrutiny standard,” and, thus, “Plaintiffs
are entitled to summary judgment with regard to their Freedom of
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O’Brien, 768 F. Supp. 2d at 817. 7
Speech claim.”
The court
entered its permanent injunction three days later, prohibiting
“any action to enforce Baltimore City Ordinance 09-252” on the
premise that the Ordinance is facially unconstitutional.
See
O’Brien v. Mayor of Balt., No. 1:10-cv-00760 (D. Md. Jan. 31,
2011), ECF No. 35.
2.
Notably,
judgment
although
decision
referred
the
to
it
claims
throughout
and
its
contentions
summary
of
the
“Plaintiffs,” the district court ruled early therein that St.
Brigid’s and the Archbishop lack standing to be co-plaintiffs
with
the
Center.
See
O’Brien,
768
F.
Supp.
2d
at
811-12.
Specifically, the court determined that St. Brigid’s and the
Archbishop
could
not
make
the
requisite
showing
of
existence of a concrete and particularized injury in fact.”
“the
Id.
at 811 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992) (outlining the three elements of standing, including “an
injury in fact” that is “concrete and particularized,” as well
as “actual or imminent” (internal quotation marks omitted))).
The
court
explained
that
—
because
7
St.
Brigid’s
and
the
In view of its summary judgment award on the free speech
claim, the district court deemed the Complaint’s other claims to
be moot and dismissed them without prejudice. See O’Brien, 768
F. Supp. 2d at 817-18 (addressing free assembly, free exercise,
equal protection, and Maryland conscience clause claims).
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Archbishop simply allow the Center to use a portion of their
facilities free of charge, and do not themselves operate any
limited-service
pregnancy
center
—
they
are
not
subject
to
either the requirements or penalties set forth in the Ordinance.
Id.
Moreover,
the
court
found
“speculative,
at
best,
the
contention that a sign required by the Ordinance on the CENTER’s
wall
will
be
attributed
to
the
landlord.”
Id.
at
812
(elaborating that “the sign refers to the services provided by
the CENTER and would have no reference to the owner of the
building in which the CENTER operates”).
Accordingly, the district court granted in part the City’s
dismissal motion, dismissing the claims made by St. Brigid’s and
the Archbishop for lack of standing.
2d at 812.
the
Nevertheless, the court permitted St. Brigid’s and
Archbishop
curiae
and
See O’Brien, 768 F. Supp.
to
participate
persisted
collectively.
in
in
the
referring
proceedings
to
the
as
amicus
“Plaintiffs”
Id.
D.
The parties timely noted these cross-appeals, invoking our
jurisdiction under 28 U.S.C. § 1291.
City’s
appeal,
we
vacate
the
As explained below, in the
district
court’s
judgment
and
remand for further proceedings on the claims asserted by the
Center.
In the cross-appeal of St. Brigid’s and the Archbishop,
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we affirm the court’s dismissal of their claims for lack of
standing.
II.
The City points to a multitude of flaws in the summary
judgment decision, going so far as to contend that we should
direct a final judgment in the City’s favor.
We refrain today
from
Center’s
evaluating
the
ultimate
merits
of
the
claims,
however, focusing instead on the preliminary errors made by the
district court as it rushed to summary judgment.
Those errors
include the court’s denial to the City of essential discovery,
its refusal to view in the City’s favor what evidence there is,
and its verboten factual findings, many premised on nothing more
than its own supposition.
In these circumstances, it is fitting
to simply vacate and remand for properly conducted proceedings.
A.
Chief among its errors was the district court’s award of
summary judgment to the Center without allowing the City any
discovery.
As
a
general
proposition,
“summary
judgment
appropriate only after ‘adequate time for discovery.’”
is
Evans v.
Techs. Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir.
1996)
(quoting
Celotex
Corp.
(1986)).
Discovery
is
proceeding
prior
v.
summary
to
usually
Catrett,
essential
judgment
33
477
U.S.
in
because
a
317,
322
contested
“[a]
party
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asserting that a fact . . . is genuinely disputed must support
the assertion by,” inter alia, “citing to particular parts of
materials
in
the
record,
including
depositions,
documents,
electronically stored information, affidavits or declarations,
stipulations . . . , admissions, interrogatory answers, or other
materials.”
very
nature,
Fed. R. Civ. P. 56(c)(1)(A).
the
summary
judgment
existence of an adequate record.”
Obviously, “by its
process
presupposes
the
Doe v. Abington Friends Sch.,
480 F.3d 252, 257 (3d Cir. 2007).
A district court therefore
“must refuse summary judgment ‘where the nonmoving party has not
had the opportunity to discover information that is essential to
[its] opposition.’”
2008)
(alteration
Nader v. Blair, 549 F.3d 953, 961 (4th Cir.
in
original)
(quoting
Anderson
v.
Liberty
Lobby, Inc., 477 U.S. 242, 250 n.5 (1986)).
We review for abuse of discretion a district court’s denial
of discovery prior to ruling on a summary judgment motion.
See
Nguyen v. CNA Corp., 44 F.3d 234, 242 (4th Cir. 1995).
“Of
course, a district court by definition abuses its discretion
when it makes an error of law.”
Rice v. Rivera, 617 F.3d 802,
811 (4th Cir. 2010) (internal quotation marks omitted).
Here,
the district court’s rationale for denying the City its right to
discovery was patently erroneous.
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1.
The City took “the proper course” when it filed the Rule
56(f)
Affidavit,
“stating
that
it
could
not
properly
oppose
. . . summary judgment without a chance to conduct discovery.”
See Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214,
244 (4th Cir. 2002) (internal quotation marks omitted) (deeming
summary judgment award premature where, inter alia, court made
its
award
only
six
weeks
significant discovery).
should
be
liberally
after
complaint
was
filed,
before
Such a request is “broadly favored and
granted
because
the
rule
is
designed
to
safeguard non-moving parties from summary judgment motions that
they cannot adequately oppose.”
Raby v. Livingston, 600 F.3d
552, 561 (5th Cir. 2010) (internal quotation marks omitted);
accord Harrods Ltd., 302 F.3d at 245 n.18.
It is no justification for the district court’s denial of
discovery that the court first converted the City’s motion to
dismiss into a cross-motion for summary judgment.
There are two
requirements for a proper Rule 12(d) conversion.
The first is
that “all parties be given some indication by the court that it
is
treating
the
12(b)(6)
motion
as
a
motion
for
summary
judgment”; such notice exists, e.g., “[w]hen a party is aware
that material outside the pleadings is before the court.”
Gay
v. Wall, 761 F.2d 175, 177 (4th Cir. 1985) (alterations and
internal
quotation
marks
omitted).
35
Here,
the
court
deemed
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conversion appropriate because the City had submitted and relied
upon
materials
plaintiffs’
that
the
court
—
Complaint
believed
specifically,
legislative record of the Ordinance.
court
to
12(b)(6),
precedent,
the
however,
legislative
to
that
history
be
beyond
portions
the
of
the
The City had alerted the
“[f]or
of
an
purposes
of
ordinance
is
Rule
not
a
matter beyond the pleadings but is an adjunct to the ordinance
which
may
be
considered
by
the
court
as
a
matter
of
law.”
Anheuser-Busch, Inc. v. Schmoke, 63 F.3d 1305, 1312 (4th Cir.
1995), vacated on other grounds, 517 U.S. 1206, readopted with
modifications by 101 F.3d 325 (4th Cir. 1996).
Even more damaging to the district court’s summary judgment
decision, the second requirement for proper conversion of a Rule
12(b)(6)
motion
is
that
the
parties
first
reasonable opportunity for discovery.”
(internal
quotation
marks
omitted);
“be
afforded
a
Gay, 761 F.2d at 177
accord
E.I.
du
Pont
de
Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 450 (4th Cir.
2011)
(relying
indicated
reasonable
that
on
Gay
for
conclusion
parties
had
not
discovery,”
court
had
would
that,
because
“opportunity
have
erred
dismissal motion to one for summary judgment).
to
by
record
conduct
converting
Indeed, Rule
12(d) itself prescribes the same discovery required by our case
law.
See Fed. R. Civ. P. 12(d) (instructing that, when a Rule
12(b)(6) motion is treated as a summary judgment motion, “[a]ll
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parties must be given a reasonable opportunity to present all
the material that is pertinent to the motion”).
2.
Despite
the
foregoing
authorities,
the
district
court
denied the City discovery on the theory that, because the Center
was pursuing a facial challenge to the Ordinance, discovery was
not warranted.
In the First Amendment context, there are two
ways for a plaintiff to mount a facial challenge to a statute.
First,
the
plaintiff
may
demonstrate
“that
no
set
of
circumstances exists under which [the law] would be valid, or
that
the
[law]
lacks
any
plainly
legitimate
sweep.”
United
States v. Stevens, 130 S. Ct. 1577, 1587 (2010) (citations and
internal quotation marks omitted).
Second, the plaintiff may
show that the law is “overbroad [because] a substantial number
of its applications are unconstitutional, judged in relation to
the
statute’s
plainly
legitimate
quotation marks omitted).
sweep.”
Id.
(internal
In this case, however, the district
court did not fairly examine whether the Ordinance is invalid in
all or even a substantial number of its applications.
Rather,
the district court merely accepted the Center’s description of
itself,
and
then
assumed
that
all
limited-service
pregnancy
centers share the Center’s self-described characteristics.
In
effect,
Ordinance’s
by
application
focusing
to
the
37
almost
Center,
exclusively
the
on
district
the
court
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conducted an as-applied analysis, rather than a facial review.
But to properly employ an as-applied analysis, the court was
obliged to first afford the City discovery.
See Richmond Med.
Ctr. for Women v. Herring, 570 F.3d 165, 172 (4th Cir. 2009) (en
banc) (explaining that as-applied challenges, i.e., those “based
on a developed factual record and the application of a statute
to a specific person,” entail “case-by-case analyses”).
The
court acknowledged as much during its August 4, 2010 motions
hearing, when it recognized that discovery proceedings would be
necessary to properly evaluate an as-applied challenge to the
Ordinance.
did
is
See J.A. 130 (promising that “if what [the Center]
relevant
discovery”);
see
in
this
also
id.
case
at
[the
127-28
City]
will
have
the
(explaining
that
the
plaintiffs would not presently be entitled to summary judgment
“if I’m concerned about what their individual status is”).
Furthermore, the City was also entitled to discovery as a
precursor to any true facial analysis.
the
Center’s
facial
challenge,
the
In the circumstances of
district
court
could
not
properly evaluate the Ordinance’s validity in all or most of its
applications
without
evidence
concerning
the
distinctive
characteristics of Baltimore’s various limited-service pregnancy
centers.
Cf. Free Speech Coal., Inc. v. Att’y Gen. of the U.S.,
677 F.3d 519, 538 (3d Cir. 2012) (concluding that the district
court erred in dismissing a First Amendment facial claim without
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the factual record needed to “intelligently weigh the legitimate
versus problematic applications of the [challenged statutes]”).
Thus, regardless of the type of analysis utilized — facial or
—
as-applied
the
court
abused
its
discretion
by
failing
to
recognize and honor the City’s right to discovery.
3.
The
district
restricting
its
court
further
analysis
to
abused
the
its
discretion
legislative
record
by
and
dismissing the City’s discovery request as a forbidden postenactment effort to justify the Ordinance.
The court relied on
the Supreme Court’s decision in United States v. Virginia, 518
U.S.
515,
533
(1996),
justification
cannot
litigation.”
The
for
be
the
proposition
“invented
City,
however,
post
sought
that
hoc
in
only
the
City’s
response
to
to
augment
the
record with evidence to support its existing justification — not
to invent a new one.
have
routinely
legislative
As we have previously observed, “courts
admitted
record
or
challenged regulations.”
evidence
explain
the
. . .
stated
to
supplement
interests
a
behind
11126 Balt. Blvd. v. Prince George’s
Cnty., Md., 886 F.2d 1415, 1425 (4th Cir. 1989), vacated on
other grounds, 496 U.S. 901 (1990).
Although “‘supplemental’
materials cannot sustain regulations where there is no evidence
in the pre-enactment legislative record,” id., that simply is
not the case here.
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B.
In addition to indefensibly denying the City discovery, the
district court flouted the well-known and time-tested summary
judgment standard.
appropriate
only
Under that standard, summary judgment is
if,
as
Rule
56
is
currently
written,
“the
movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
It is elementary that, when a court
considers a summary judgment motion, “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to
be
drawn
Moreover,
in
his
“the
favor.”
judge’s
Liberty
function
is
Lobby,
not
477
himself
U.S.
to
at
255.
weigh
the
evidence and determine the truth of the matter but to determine
whether there is a genuine issue for trial.”
Id. at 249; see
also Redd v. N.Y. State Div. of Parole, 678 F.3d 166, 174 (2d
Cir. 2012) (“The court’s role in deciding a motion for summary
judgment is to identify factual issues, not to resolve them.”
(emphasis and internal quotation marks omitted)); PHP Healthcare
Corp. v. EMSA Ltd. P’ship, 14 F.3d 941, 944 n.3 (4th Cir. 1993)
(“By
definition,
genuine
issue
no
are
findings
possible
of
material
in
granting
facts
that
summary
were
in
judgment.”
(internal quotation marks omitted)).
We review an award of summary judgment de novo, guided by
the same legal principles that were applicable below.
40
See News
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& Observer Publ’g Co. v. Raleigh-Durham Airport Auth., 597 F.3d
570, 576 (4th Cir. 2010).
Heeding those principles, we conclude
that summary judgment was inappropriate on the present record.
1.
The district court’s denial of discovery and failure to
adhere to the summary judgment standard marred its assessment
of, inter alia, the City’s contention that the Ordinance targets
misleading commercial speech and thus is subject to rational
basis (rather than strict) scrutiny.
standard
generally
applies
to
While the strict scrutiny
content-based
regulations,
including compelled speech, see Turner Broad. Sys., Inc. v. FCC,
512
U.S.
where
622,
the
641-42
speech
requirements
aimed
(1994),
at
at
less-demanding
issue
is
misleading
standards
commercial.
commercial
apply
Disclosure
speech
need
only
survive rational basis scrutiny, by being “reasonably related to
the
State’s
interest
in
preventing
deception
of
consumers.”
Zauderer v. Office of Disciplinary Counsel of the Supreme Court,
471 U.S. 626, 651 (1985) (explaining that, “because disclosure
requirements
interests
trench
than
disclaimers
do
might
much
flat
be
more
narrowly
prohibitions
appropriately
on
on
an
advertiser’s
speech,
required
warnings
in
order
or
to
dissipate the possibility of consumer confusion or deception”
(alterations
and
internal
quotation
41
marks
omitted));
accord
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Milavetz, Gallop & Milavetz, P.A. v. United States, 130 S. Ct.
1324, 1339-40 (2010). 8
a.
Although
it
may
not
ultimately
prove
meritorious,
the
City’s commercial speech theory should not have been so easily
dismissed by the district court.
Under that theory, a limited-
service pregnancy center
proposes a commercial transaction every time it offers
to provide commercially valuable goods and services,
such as pregnancy testing, sonograms, or options
counseling, to a consumer. Such an offer may take the
form of an advertisement in the phone book, on the
internet, or on a sign above the [center’s] door. It
may also take the form of an oral solicitation from a
[center] staff member to a consumer. The City Council
received evidence that many [centers] intentionally
mislead consumers about the scope of services they
offer to obtain the patronage of those seeking
abortion and comprehensive birth control services.
The Ordinance regulates a [center’s] offer to provide
services to consumers by making clear that the offer
does not include abortion and comprehensive birth
control services.
Reply Br. of Appellants 9-10 (citations omitted).
8
While
disclosure
requirements
aimed
at
misleading
commercial speech are subject to the rational basis test,
“restrictions on nonmisleading commercial speech regarding
lawful activity must withstand intermediate scrutiny — that is,
they must ‘directly advanc[e]’ a substantial governmental
interest and be ‘n[o] more extensive than is necessary to serve
that interest.’”
Milavetz, 130 S. Ct. at 1339 (alterations in
original) (quoting Cent. Hudson Gas & Elec. Corp. v. Pub. Serv.
Comm’n of N.Y., 447 U.S. 557, 566 (1980)).
Because the City
contends that the Ordinance regulates misleading commercial
speech, our focus is on the potential applicability of rational
basis scrutiny.
42
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The
threshold
regulated
analysis
Filed: 07/03/2013
by
is
question
the
presented
Ordinance
fact-driven,
Pg: 43 of 102
is
is
to
due
actually
the
whether
the
speech
commercial.
That
inherent
“difficulty
of
drawing bright lines that will clearly cabin commercial speech
in a distinct category.”
See City of Cincinnati v. Discovery
Network, Inc., 507 U.S. 410, 419 (1993).
On one occasion, in
Central Hudson Gas & Electric Corp. v. Public Service Commission
of
New
York,
“expression
the
Supreme
related
Court
solely
to
speaker and its audience.”
defined
the
commercial
economic
speech
interests
447 U.S. 557, 561 (1980).
of
as
the
But the
Court has noted that commercial speech is “usually defined as
speech that does no more than propose a commercial transaction.”
United States v. United Foods, Inc., 533 U.S. 405, 409 (2001);
see also Bd. of Trs. of the State Univ. of N.Y. v. Fox, 492 U.S.
469,
473-74
(1989)
(pronouncing
“propose
a
commercial
transaction” to be “the test for identifying commercial speech”
(emphasis added)).
a
commercial
The Court has also described the proposal of
transaction
—
e.g.,
“‘I
will
sell
you
the
X
prescription drug at the Y price,’” Va. State Bd. of Pharmacy v.
Va. Citizens Consumer Council, 425 U.S. 748, 761 (1976) — as
“the core notion of commercial speech.”
Bolger v. Youngs Drug
Prods. Corp., 463 U.S. 60, 66 (1983).
The City insists that
limited-service
the
“propose
pregnancy
a
center
commercial
advertising
transaction”
43
easily
test.
See
satisfies
Br.
of
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Appellants 22 (“When a [center] proposes that a woman patronize
its
establishment
valuable
goods
for
and
the
purpose
services[,]
of
obtaining
. . .
it
commercially
is
proposing
a
commercial transaction.”).
Nevertheless,
even
where
speech
“cannot
be
characterized
merely as proposals to engage in commercial transactions,” the
speech may
yet
be
classification
as
deemed
commercial;
commercial
presents a closer question.”
or
in
that
event,
noncommercial
“proper
speech
. . .
Bolger, 463 U.S. at 66; see also
Adventure Commc’ns, Inc. v. Ky. Registry of Election Fin., 191
F.3d 429, 440 (4th Cir. 1999) (“In the abstract, the definition
of commercial speech appears to be fairly straightforward, if
somewhat
circular:
transaction.
definition
internal
appeals
whether
In
is
not
quotation
have
it
is
speech
practice,
always
marks
gleaned
speech
is
that
however,
a
simple
From
factors
commercial:
a
commercial
application
matter.”
omitted)).
“three
proposes
to
(1)
this
(citations
Bolger,
consider
is
of
courts
in
the
and
of
deciding
speech
an
advertisement; (2) does the speech refer to a specific product
or service; and (3) does the speaker have an economic motivation
for the speech.”
U.S. Healthcare, Inc. v. Blue Cross of Greater
Phila., 898 F.2d 914, 933 (3d Cir. 1990) (citing Bolger, 463
U.S.
at
66-67);
accord,
e.g.,
Spirit
Airlines,
Inc.
v.
U.S.
Dep’t of Transp., 687 F.3d 403, 412 (D.C. Cir. 2012); United
44
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States v. Benson, 561 F.3d 718, 725 (7th Cir. 2009); Adventure
Commc’ns, 191 F.3d at 440-41.
these
characteristics
. . .
conclusion
. . .
that
While “[t]he combination of all
provides
[speech
is]
strong
properly
support
for
characterized
the
as
commercial speech,” Bolger, 463 U.S. at 67, it is not necessary
that each of the characteristics “be present in order for speech
to be commercial,” id. at 67 n.14.
Here, the district court abruptly concluded, “[u]nder both
Bolger and Central Hudson,” that “the speech regulated by the
Ordinance is not commercial speech.”
at 813.
O’Brien, 768 F. Supp. 2d
Focusing on the plaintiff Center, the court reasoned
that “[t]he overall purpose of the advertisements, services, and
information offered by the CENTER is not to propose a commercial
transaction,
interest.”
nor
Id.
is
it
related
to
the
CENTER’s
economic
Rather, the court determined, “[t]he CENTER
engages in speech relating to abortion and birth-control based
on strongly held religious and political beliefs rather than
commercial interests or profit motives.”
Id. (citing official
statement of Catholic Church).
Ruling
thusly,
the
district
court
accepted
as
fact
the
Center’s assertion that its motives are entirely religious or
political.
But that assertion was not at all undisputed.
Thus,
discovery is needed to substantiate, inter alia, whether the
Center possesses economic interests apart from its ideological
45
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motivations.
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Such discovery is “especially important” where, as
here, “the relevant facts are exclusively in the control of the
[summary judgment movant]” or the “case involves complex factual
questions about intent and motive.”
See Harrods Ltd., 302 F.3d
at 247. 9
In any event, the potential commercial nature of speech
does not hinge solely on whether the Center has an economic
motive,
as
even
Bolger
does
not
preclude
classification
of
speech as commercial in the absence of the speaker’s economic
motivation.
See 463 U.S. at 67 n.14.
Because the Ordinance
compels a disclaimer, the “lodestars in deciding what level of
scrutiny to apply . . . must be the nature of the speech taken
9
Even though the Center has averred that it does not charge
women for its services, inquiring into the Center’s potential
profit motives may not be a futile endeavor.
We know that
nonprofit entities with religious or political motives can
engage in commerce.
See Camps Newfound/Owatonna, Inc. v. Town
of Harrison, Me., 520 U.S. 564, 573 (1997) (“Even though
petitioner’s camp does not make a profit, it is unquestionably
engaged in commerce, not only as a purchaser, but also as a
provider of goods and services.” (citations omitted)); Va.
Vermiculite, Ltd. v. W.R. Grace & Co.-Conn., 156 F.3d 535, 541
(4th Cir. 1998) (explaining that nonprofit land preservation
organization’s acceptance of land donation “was fundamentally
commercial”).
Furthermore, although outwardly the Center
appears to be driven by religious purposes only, certain
operational intricacies may prove otherwise.
For example, as
another court observed in a similar case at the preliminary
injunction stage, if the Center were “referring women to prolife doctors in exchange for ‘charitable’ contributions, the
analysis could change.”
See Evergreen Ass’n, Inc. v. City of
N.Y., 801 F. Supp. 2d 197, 206 n.5 (S.D.N.Y. 2011).
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as a whole and the effect of the compelled statement thereon.”
Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781,
796 (1988).
Amendment
In other words, context matters.
free
speech
perspective,
that
From a First
context
includes
the
viewpoint of the listener, for “[c]ommercial expression not only
serves the economic interest of the speaker, but also assists
consumers
and
furthers
the
societal
interest
possible dissemination of information.”
in
the
fullest
See Cent. Hudson, 447
U.S. at 561-62; see also Va. State Bd. of Pharmacy, 425 U.S. at
756
(“Freedom
of
speech
presupposes
a
willing
speaker.
But
where a speaker exists . . . the protection afforded is to the
communication,
to
its
source
and
to
its
recipients
both.”
(footnote omitted)).
The Supreme Court of North Dakota employed just such an
analysis in Fargo Women’s Health Organization, Inc. v. Larson,
381
N.W.2d
176
(N.D.),
cert.
denied,
476
U.S.
1108
(1986).
There, the plaintiffs alleged that the defendant Help Clinic,
“through false and deceptive advertising and related activity,
misleads persons into believing that abortions are conducted at
the clinic with the intent of deceptively luring those persons
to the clinic to unwittingly receive anti-abortion propaganda.”
Id. at 177.
The trial court entered a preliminary injunction
barring
deceptive
“all
advertising
and
practices,” and the Help Clinic appealed.
47
related
Id.
solicitation
Notwithstanding
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the
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Help
Filed: 07/03/2013
Clinic’s
commercial
speech
assertion
because
no
Pg: 48 of 102
“that
its
financial
communication
charges
are
is
not
assessed
against persons receiving services from the clinic,” the state
supreme
court
deemed
commercial speech.
the
clinic’s
Id. at 180-81.
advertisements
to
be
The court explained that
“the degree, if any, that monies are received by the Help Clinic
from its clients [is not] dispositive [of the commercial speech
issue].”
that
Id. at 180.
“the
Help
It was “[m]ore important[]” to the court
Clinic’s
advertisements
are
placed
in
a
commercial context and are directed at the providing of services
rather than toward an exchange of ideas.”
Id. at 181.
“In
effect,” the court concluded, “the Help Clinic’s advertisements
constitute
patronage
promotional
the
preliminary
and
which
Id. 10
the
solicited,
through
constitute classic examples of commercial speech.”
to
is
services
that
contrast
clinic
of
in
In
of
advertising
injunction
at
respect
issue
in
Larson, our review today is of a permanent injunction entered in
10
The Larson decision, though certainly not binding here,
illuminates the potential inefficacy of the analogy drawn by the
district
court
between
the
Center’s
free
services
and
“sacramental wine, communion wafers, prayer beads, [and] other
objects with commercial value” offered by churches to their
congregants.
See O’Brien, 768 F. Supp. 2d at 814.
Unlike the
latter, the former are alleged by the City to be the subject of
advertisements “placed in a commercial context,” “directed at
the providing of services rather than toward an exchange of
ideas,” and designed to solicit patronage of the Center.
See
Larson, 381 N.W.2d at 181.
48
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the
Doc: 160
absence
of
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a
fully
Pg: 49 of 102
developed
record.
Without
all
the
pertinent evidence — including evidence concerning the Center’s
economic motivation (or lack thereof) and the scope and content
of its advertisements — we cannot properly analyze the speech
regulated by the Ordinance.
Cf. Milavetz, 130 S. Ct. at 1344-45
(Thomas, J., concurring in part and concurring in the judgment)
(“[B]ecause
no
record
evidence
of
Milavetz’s
advertisements
exists to guide our review, we can only speculate about the ways
in
which
the
[disclosure
Milavetz’s speech.”).
requirement]
might
be
applied
to
Put succinctly, the district court should
have likewise refrained from immediately deciding the commercial
speech issue. 11
11
Although discovery is needed before this matter can be
fairly decided, the existing record is not devoid of relevant
evidence.
For example, the Maryland Report included in the
Ordinance’s legislative record contains an online advertisement
for Option Line, the “live contact center” co-established by
national umbrella organizations Heartbeat International and Care
Net that “provides 24/7 assistance to women and girls seeking
information about pregnancy resources.”
J.A. 381.
The
advertisement
states,
inter
alia,
that
Option
Line’s
“consultants will connect you to nearby pregnancy centers that
offer the following services”:
“Free pregnancy tests and
pregnancy
information”;
“Abortion
and
Morning
After
Pill
information, including procedures and risks”; “Medical services,
including
STD
tests,
early
ultrasounds
and
pregnancy
confirmation”; and “Confidential pregnancy options.”
Id.
(emphasis omitted). The City characterizes the advertisement as
deceptive, because it “does not indicate that the ‘medical
services’ and ‘confidential pregnancy options’ offered by the
centers
exclude
abortion
and
comprehensive
birth
control
services.”
Br. of Appellants 8.
Additionally, the City
connects the advertisement to the plaintiff Center and several
(Continued)
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b.
The district court’s hasty decision cannot be excused by
its ruling that any commercial speech regulated by the Ordinance
“‘is
inextricably
intertwined
with
otherwise
speech,’” thus triggering strict scrutiny.
fully
See O’Brien, 768 F.
Supp. 2d at 814 (quoting Riley, 487 U.S. at 796).
decision
addressed
the
constitutionality
protected
of
The Riley
North
Carolina’s
“requirement that professional fundraisers disclose to potential
donors, before an appeal for funds, the percentage of charitable
contributions collected during the previous 12 months that were
actually turned over to charity.”
487 U.S. at 795.
Defending
that statutory provision, the State argued that it “regulates
only
commercial
speech
because
professional
fundraiser’s
contribution.”
Id.
it
profit
relates
from
only
the
to
the
solicited
The Supreme Court assumed “that such speech
in the abstract is indeed merely ‘commercial,’” but concluded
that
the
speech
loses
“its
commercial
character
when
it
is
inextricably intertwined with otherwise fully protected speech,”
i.e., the informative and persuasive aspects of the fundraiser’s
solicitation.
Id. at 796.
other Baltimore limited-service pregnancy centers, in that each
is an affiliate of Heartbeat International or Care Net.
See
J.A. 228, 241.
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Equating
Baltimore’s
Pg: 51 of 102
Ordinance
with
the
statutory
requirement at issue in Riley, the district court relied on its
own speculative finding that “[t]he dialogue between a limitedservice pregnancy center and an expectant mother begins when the
client
or
center.”
prospective
client
enters
the
waiting
See O’Brien, 768 F. Supp. 2d at 814.
court prematurely
and
perhaps
inaccurately
room
of
the
Furthermore, the
characterized
that
disclaimer as “a stark and immediate statement about abortion
and birth-control,” i.e., a declaration that abortion and birth
control are morally acceptable options.
Id.
Significantly, discovery could refute the district court’s
factual
assumptions.
commercial
speech
aspects
are
not
Discovery
of
a
might
also
limited-service
“inextricably
that
pregnancy
intertwined”
protected noncommercial speech.
show
with
any
center’s
its
fully
See Hunt v. City of L.A., 638
F.3d 703, 715 (9th Cir. 2011) (“[W]here the two components of
speech
can
be
easily
separated,
they
are
not
‘inextricably
intertwined.’” (citing Fox, 492 U.S. at 473-74 (concluding that
commercial
speech
aspect
of
“Tupperware
parties”
was
not
inextricably intertwined with noncommercial instruction on home
economics))).
demonstrate
center]
from
noncommercial
That
that
is,
“[n]othing
conveying,
or
messages,
and
a
fully
in
the
the
record
[Ordinance]
audience
nothing
51
developed
in
from
the
could
prevents
hearing,
nature
of
[a
. . .
things
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requires them to be combined with commercial messages.”
Fox, 492 U.S. at 474.
See
In those circumstances, the rational
basis test would be the applicable one.
2.
The
concluding
district
that
discrimination
strict
—
scrutiny.
court
the
further
Ordinance
the
court’s
See
Sons
is
erred
an
in
exercise
additional
of
precipitately
of
basis
Confederate
viewpoint
for
Veterans,
applying
Inc.
v.
Comm’r of the Va. Dep’t of Motor Vehicles, 288 F.3d 610, 616 n.4
(4th
Cir.
2002)
(“The
Supreme
Court
has
indicated
that
a
viewpoint-based restriction of private speech rarely, if ever,
will withstand strict scrutiny review.” (citing R.A.V. v. City
of St. Paul, Minn., 505 U.S. 377, 395-96 (1992))).
court
merely
surmised
that
the
Ordinance
That is, the
must
have
been
discriminatorily aimed at pregnancy centers “with strict moral
or
religious
qualms
regarding
abortion
and
birth-control,”
premised on its assumption that only those centers would never
provide or refer for abortion or birth control.
768 F. Supp. 2d at 815.
See O’Brien,
But see Madsen v. Women’s Health Ctr.,
Inc., 512 U.S. 753, 762-63 (1994) (explaining, in declining to
apply strict scrutiny to “an injunction that restricts only the
speech
of
antiabortion
protestors,”
that
“the
fact
that
the
injunction covered people with a particular viewpoint does not
itself render the injunction content or viewpoint based”).
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The district court failed to view the legislative record in
the
light
most
favorable
to
the
City,
and
thus
to
credit
evidence for summary judgment purposes that the Ordinance was
enacted to counteract deceptive advertising and promote public
health.
may
be
Moreover, the court ignored the possibility that there
limited-service
pregnancy
centers
with
no
“moral
or
religious qualms regarding abortion and birth-control,” and who
refrain
from
providing
or
referring
for
abortion
or
birth
control for other reasons.
Finally, applying strict scrutiny, the district court erred
by
determining
that
the
Ordinance
is
not
narrowly
tailored
because “a less restrictive alternative would serve the [City’s]
purpose.”
See United States v. Playboy Entm’t Grp., Inc., 529
U.S. 803, 813 (2000).
Even if strict scrutiny proves to be the
applicable standard, the City must be accorded the opportunity
to
develop
interest
evidence
and
narrow
relevant
to
tailoring
issues,
evidence
substantiating
promoting
public
the
health,
as
the
efficacy
well
as
compelling
governmental
including,
inter
of
the
evidence
alia,
Ordinance
in
disproving
the
effectiveness of purported less restrictive alternatives to the
Ordinance’s disclaimer.
See id. at 816 (“When a plausible, less
restrictive
is
alternative
offered
to
a
content-based
speech
restriction, it is the Government’s obligation to prove that the
alternative will be ineffective to achieve its goals.”).
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C.
In
sum,
under
the
Federal
Rules
of
Civil
Procedure
and
controlling precedent, it was essential to the City’s opposition
to the Center’s summary judgment motion — and to a fair and
proper exercise of judicial scrutiny — for the district court to
have awaited discovery and heeded the summary judgment standard.
Meanwhile,
injuries
the
court
that
the
could
have
Ordinance
enjoining its enforcement.
averted
may
any
inflict
constitutional
by
preliminarily
See Fed. R. Civ. P. 65; see also,
e.g., Newsom ex rel. Newsom v. Albemarle Cnty. Sch. Bd., 354
F.3d
249,
entitled
261
to
(4th
a
Cir.
2003)
preliminary
(concluding
injunction
on
that
his
Newsom
First
was
Amendment
overbreadth claim, while cautioning that “our holding, like any
ruling
on
different
a
preliminary
resolution
of
injunction,
Newsom’s
does
claims
not
on
a
preclude
more
a
fully
developed record”).
The district court in Centro Tepeyac v. Montgomery County,
another
Maryland
pregnancy
center-compelled
proceeded in just that measured fashion.
456 (D. Md. 2011).
disclosure
case,
See 779 F. Supp. 2d
Mindful that the record was undeveloped and
the County therefore unprepared to show otherwise, the court
accepted
at
the
preliminary
injunction
stage
that
strict
scrutiny applied to the challenged disclosure requirement.
See
id.
not
at
462-68.
Importantly,
54
however,
the
court
did
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foreclose
Filed: 07/03/2013
the
possibility
that
Pg: 55 of 102
evidence
adduced
in
future
discovery proceedings might render lesser scrutiny appropriate,
e.g.,
if
the
County’s
commercial speech.
to
resolve
the
Resolution
See id. at 463.
motion
before
it,
were
shown
to
regulate
Employing strict scrutiny
the
court
preliminarily
enjoined one portion of the Resolution’s disclosure requirement
(that “the Montgomery County Health Officer encourages women who
are or may be pregnant to consult with a licensed health care
provider”), but not the other (that “the Center does not have a
licensed medical professional on staff”).
See id. at 469-72.
In doing so, the court credited the County’s asserted compelling
interest in preserving public health, and deemed “the record
. . . at least colorable at this stage to suggest that the [nonenjoined
portion
of
the
disclosure
tailored to meet the interest.”
requirement]
Id. at 471.
is
narrowly
The court further
concluded that the County was unlikely to prove narrow tailoring
of
the
enjoined
articulating
speech,”
and
alternatives.
portion
particular
also
of
the
concern
that
noting
several
disclosure
it
requirement,
constituted
possible
less
“unneeded
restrictive
Id. at 468-69 & n.9, 471.
Today, alongside this opinion, we issue a separate opinion
in which we affirm the Centro Tepeyac preliminary injunction
decision, concluding that “the district court acted well within
its discretion” and “commend[ing] the court for its careful and
55
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restrained analysis.”
Pg: 56 of 102
See Centro Tepeyac v. Montgomery Cnty.,
No. 11-1314(L), slip op. at 3, 18 (4th Cir. July __, 2013) (en
banc).
Our good dissenting colleagues overplay Centro Tepeyac,
repeatedly
Amendment
invoking
issues
it
as
presented
the
ultimate
herein.
word
See,
on
e.g.,
the
post
First
at
81
(Niemeyer, J., dissenting) (characterizing our remand of this
case for discovery on the commercial speech issue as “curious”
in view of our affirmance of “the district court’s conclusion in
Centro
Tepeyac
that
a
similar
Montgomery
County,
Maryland
provision compelled noncommercial speech”); id. at 98 (asserting
that Centro Tepeyac “hold[s]” that the County is not entitled to
discovery
on
the
alternatives);
effectiveness
id.
at
101
of
purported
(citing
Centro
less
restrictive
Tepeyac
for
the
proposition that City of Baltimore Ordinance 09-252, “[o]n its
face, . . . is overbroad and unconstitutional”).
The dissenters
thereby ignore crucial differences between that case and this
one — most significantly, that Centro Tepeyac involves a mere
preliminary injunction decision, rather than a final judgment
bestowing permanent injunctive relief on the basis of a summary
judgment award.
As the Supreme Court has instructed, where a preliminary
injunction
is
under
an
interlocutory
examination,
determining
whether the district court abused its discretion “is the extent
of our appellate inquiry.”
See Doran v. Salem Inn, Inc., 422
56
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Pg: 57 of 102
U.S. 922, 934 (1975), followed by Giovani Carandola, Ltd. v.
Bason, 303 F.3d 507, 521 (4th Cir. 2002) (“We make no prediction
as to the outcome at trial but simply hold, as the Supreme Court
did [in Doran], that ‘[i]n these circumstances, and in the light
of existing case law, we cannot conclude that the District Court
abused
its
discretion
by
granting
preliminary
injunctive
relief.’” (second alteration in original) (quoting Doran, 422
U.S. at 934)).
Faithful to the abuse-of-discretion standard, we
are obliged to affirm in Centro Tepeyac because the district
court “applied a correct preliminary injunction standard, made
no clearly erroneous findings of material fact, and demonstrated
a firm grasp of the legal principles pertinent to the underlying
dispute.”
See slip op. at 18.
Neither the district court’s
Centro Tepeyac decision — nor ours in that case — settles the
constitutional questions posed; rather, both leave those issues
to
be
decided
on
a
more
fully
developed
record
in
properly
conducted proceedings.
Consistently with Centro Tepeyac, we conclude herein that
the
district
court
erred
by
entering
a
permanent
injunction
without allowing discovery or adhering to the applicable summary
judgment
standard.
Despite
this
prudent,
restrained,
and
—
above all — evenhanded ruling, the dissenters accuse us of all
manner of improprieties.
on
the
one
hand,
as
Most disappointingly, they depict us,
pro-choice
57
zealots
who
have
engaged
in
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“gratuitous shaping of the issues” and “become seduced by [our]
own elaboration of abortion policy.”
Post at 81-82 (Niemeyer,
J., dissenting); see also post at 74 (Wilkinson, J., dissenting)
(“In strongly implying that the Ordinance will survive First
Amendment
scrutiny,
the
majority
has
established
that will bite the very hands that feed it.
a
principle
For compelled
speech can serve a pro-life agenda for elected officials as well
as a pro-choice one.”).
On the other hand, we are reproached for “an amorous affair
with litigation,” an “enchantment with extended procedures,” and
an “infatuation with discovery,” as well as for “opin[ing] on
various points of civil procedure” when we could be discussing
“the dangers of state-compelled speech.”
(Wilkinson, J., dissenting).
the
Center
litigants
from
are
The dissenters would wholly exempt
fundamental
both
Post at 62, 68, 71
subject
procedures
and
to
entitled.
which
And,
all
civil
though
the
dissenters candidly acknowledge that “the district court engaged
hypothetically
from
time
to
time
in
discussion
about
the
potential relevance of facts,” they unhesitatingly endorse the
court’s summary judgment decision.
dissenting).
supposition
Indeed,
on
the
the
Post at 82 (Niemeyer, J.,
dissenters
district
court’s,
freely
layer
admitting
of
their
no
own
other
conclusion than that the Ordinance should be enjoined against
all Baltimore limited-service pregnancy centers for all time.
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We, however, are not so dismissive of the Federal Rules of
Civil Procedure, which, as the Supreme Court has underscored,
“are
designed
to
further
Constitution guarantees.”
460, 465 (2000).
be
expected,
the
due
process
of
law
that
the
Nelson v. Adams USA, Inc., 529 U.S.
Esteem for our bedrock procedural rules should
rather
than
ridiculed.
And
it
is
particularly
appropriate here, where because of the ready availability of
preliminary
injunctive
relief,
there
simply
is
no
need
to
abridge the City’s due process rights in favor of the Center’s
free speech guarantee. 12
12
It bears noting that the dissenters find it necessary to
distort our decision in an effort to refute it.
For example,
they erroneously say that we “fail[] to recognize that the
challenge addressed by the district court was the plaintiffs’
facial challenge,” and that we “recharacterize[] the proceeding
as an as-applied challenge” just so we can “identify questions
of fact to support [our] remand.”
Post at 79 (Niemeyer, J.,
dissenting); see also post at 71-72 (Wilkinson, J., dissenting)
(asserting that, in “a tragedy for free expression,” we insist
the district court “undertook an as-applied analysis”).
In
reality, we amply discuss the facial/as-applied distinction,
ultimately concluding that “regardless of the type of analysis
utilized — facial or as-applied — the court abused its
discretion by failing to recognize and honor the City’s right to
discovery.” Supra Part II.A.2.
The dissenters also incorrectly assert that we “fail[] to
recognize the scrutiny applicable to regulations that compel
speech,” going so far as to claim that we “do[] not even discuss
‘compelled speech.’”
Post at 78-79 (Niemeyer, J., dissenting)
(citing Turner Broad. Sys., 512 U.S. at 641-42). But see supra
Part II.B.1 (explaining that, “[w]hile the strict scrutiny
standard
generally
applies
to
content-based
regulations,
including compelled speech, less-demanding standards apply where
the speech at issue is commercial” (also citing Turner Broad.
(Continued)
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Notwithstanding
the
Pg: 60 of 102
dissenters’
unfair
and
characterization, our ruling today is simply this:
court
improperly
otherwise
flouted
denied
the
City
the
Federal
essential
Rules
of
overwrought
the district
discovery
Civil
and
Procedure.
Sys., 512 U.S. at 641-42)).
Even so, the dissenters concede
that the Ordinance regulates both commercial and noncommercial
speech, but surmise that enough noncommercial speech is
implicated to render the Ordinance facially unconstitutional.
See post at 92-93 (Niemeyer, J., dissenting) (contending that
any “commercial motive” of the plaintiff Center is irrelevant,
because the Ordinance “reaches beyond this one pregnancy center
and imposes the requirement of a disclaimer sign on every
speaker — commercial or not — who provides information ‘for a
fee or as a free service’”).
But see Stevens, 130 S. Ct. at
1587 (explaining that, to prove overbreadth, a plaintiff may
show that “a substantial number of [a statute’s] applications
are unconstitutional, judged in relation to the statute’s
plainly legitimate sweep” (internal quotation marks omitted));
Bolger,
463
U.S.
at
67
n.14
(declining
to
preclude
classification of speech as commercial in absence of speaker’s
economic motivation).
Finally, we note that the dissenters also distort the
existing record, repeatedly asserting that “the City’s stated
interest
[is]
in
prohibiting
[limited-service]
pregnancy
centers, as a health concern, from misrepresenting information
about abortions.”
Post at 77 (Niemeyer, J., dissenting); see
also id. at 83, 93-94, 100, 101.
To be sure, the record
includes allegations that such centers provide misinformation
about abortion (e.g., that it causes breast cancer).
The City
has clearly and consistently articulated its position, however,
that the Ordinance is aimed at the pregnancy center practice of
employing
deceptive
advertising
to
attract
women
seeking
abortion and comprehensive birth-control services, and then
using delay tactics to impede the women from accessing those
services.
The City has not asserted, as the dissenters claim,
that the Ordinance is intended “to remedy misrepresentations
being made by these pregnancy centers about abortion.” See id.
at 100.
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Consequently,
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we
vacate
the
Pg: 61 of 102
judgment
and
remand
for
further
proceedings.
III.
Nevertheless, we affirm the district court’s ruling that
St.
Brigid’s
and
the
Archbishop
lack
standing
plaintiffs in this action with the Center.
Supp. 2d at 811-12.
to
be
co-
See O’Brien, 768 F.
We do so having carefully considered the
contentions made by St. Brigid’s and the Archbishop in their
cross-appeal, and having reviewed the dismissal of their claims
de novo.
See Benham v. City of Charlotte, N.C., 635 F.3d 129,
134 (4th Cir. 2011) (“The issue of standing to sue is a legal
question that we assess de novo.”).
IV.
Pursuant to the foregoing, we vacate the district court’s
judgment against the City and remand for such other and further
proceedings
court’s
as
may
dismissal
Archbishop
for
be
of
lack
appropriate.
the
of
claims
standing,
We
of
affirm,
St.
leaving
however,
Brigid’s
only
the
and
the
the
Center’s
claims for resolution on remand.
No. 11-1111 VACATED AND REMANDED
No. 11-1185 AFFIRMED
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WILKINSON, Circuit Judge, dissenting:
In
a
case
noncommercial
concerning
organizations
a
to
law
that
convey
a
requires
private,
government-authored
message, one would expect to find at least some acknowledgement
of the dangers of state-compelled speech.
the
majority’s
opinion
in
vain
for
any
But one will search
such
recognition.
Instead, the majority opts to opine on various points of civil
procedure, apparently oblivious to the fact that litigation is
not an end in itself, but a means of vindicating the substantive
values underlying our legal order, among which I had hitherto
supposed were the freedoms of conscience and belief.
Those freedoms are at the heart of this case, though one
would never know it from the majority’s opinion, which glosses
over the impact of the Baltimore Ordinance on the right of the
plaintiff Center not to be compelled by the state to express a
message at odds with its most intimate beliefs.
Today it is the
Center; tomorrow it is who knows what speaker and who can guess
what view.
Because the majority fails to respect the Center’s
right not to utter a state-sponsored message that offends its
core moral and religious principles, and because it launches a
litigious fusillade aimed at smothering the Center’s right to
simple silence, I respectfully dissent.
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I.
A.
Given the dearth of discussion about the evils of compelled
speech in the majority opinion, it is worth pausing to consider
what is at stake when government forces private individuals or
organizations
to
speak
on
its
behalf.
We
now
take
it
for
granted that “[i]f there is any fixed star in our constitutional
constellation,
it
prescribe
what
religion,
or
is
that
shall
other
be
no
official,
orthodox
matters
of
in
high
or
politics,
opinion
or
petty,
nationalism,
force
confess by word or act their faith therein.”
can
citizens
to
W. Va. State Bd.
of Educ. v. Barnette, 319 U.S. 624, 642 (1943).
Regrettably,
this constitutional star was not always so fixed.
In fact, the
Supreme
Court
children
to
had
earlier
required
declared
the
Court
flag-salute
in
flag-salute
school
In
the
daily
that
Minersville School District v. Gobitis, 310 U.S. 586 (1940).
for
a
law
in
opinion
in
a
ceremony
his
participate
upheld
Gobitis,
ceremony
an
Justice
essential
Frankfurter
means
of
fostering “[n]ational unity,” which, in turn, he regarded as
“the basis of national security.”
of
a
compelled
flag
salute
Id. at 595.
protested,
When opponents
Justice
Frankfurter
retorted that forced salutes helped to inculcate “that unifying
sentiment without which there can ultimately be no liberties,
civil or religious.”
Id. at 597.
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In
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confusing
mere
Pg: 64 of 102
statism
with
patriotism,
Justice
Frankfurter also posited a cramped conception of the freedom of
speech.
Specifically, he denied that the right to speak entails
a right not to speak.
this
view
even
as
In a lone dissent, Frankfurter reaffirmed
the
Court
reversed
course
compulsory flag-salute laws unconstitutional.
and
declared
So long as a law
“suppresses no belief nor curbs it,” he insisted -- so long as
it permits individuals to “believe what they please, avow their
belief and practice it,” leaving “[a]ll channels of affirmative
free expression . . . open” -- it does not violate the freedom
of speech guaranteed by the First Amendment.
Barnette, 319 U.S.
at 664 (Frankfurter, J., dissenting).
Justice
Frankfurter’s
opinions
in
the
flag-salute
mark a singular blot on a long and storied career.
cases
He simply
failed to grasp a truth that had been “well known to the framers
of the Bill of Rights,” id. at 633 (majority opinion): that
“[t]he right to speak and the right to refrain from speaking are
complementary components of the broader concept of ‘individual
freedom of mind,’” Wooley v. Maynard, 430 U.S. 705, 714 (1977)
(quoting Barnette, 319 U.S. at 637).
Because government can
infringe this freedom not only through naked censorship but by
compelling
individuals
to
utter
words
that
the
state
wishes
uttered, courts must scrutinize both kinds of regulation with
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the same skepticism.
state.
Pg: 65 of 102
No American is the mere mouthpiece of the
That is the enduring lesson of the flag-salute cases.
B.
It is a lesson the majority has failed to learn.
perfunctorily
“generally”
acknowledges
subject
to
that
strict
laws
compelling
scrutiny,
maj.
While it
speech
op.
at
41,
are
it
follows Justice Frankfurter in downplaying the impact of such
laws on the individuals who are compelled to speak.
majority
apparently
organizations
like
the
sees
it,
Center
the
to
make
Ordinance
nothing
more
As the
requires
than
an
anodyne factual statement identifying the services they do not
provide, without having to condone those services.
See maj. op.
at 51-52.
But the majority utterly fails to appreciate the nature of
the Center’s beliefs.
The Center has “sincerely held” “moral,
ideological, political, and religious beliefs” that abortion and
at least some forms of birth control are profoundly wrong and
thus are not to be chosen.
Complaint ¶¶ 43, 40.
The Ordinance
requires the Center to state that it “does not provide or make
referral for abortion or birth-control services.”
J.A. 26.
conflict
the
between
the
Center’s
beliefs
and
The
mandated
disclosure is thus plain: where the Center wishes to guide women
toward alternatives to abortion and birth control, the Ordinance
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requires it to indicate at the outset that those services are
readily available, just not at the Center itself.
The flag-salute ceremony may not have compelled Jehovah’s
Witnesses to affirm the American flag as an idol or the United
States as a deity in so many words, but from their perspective,
that was the import of the ritual.
The same is true here.
Although the Ordinance does not compel the Center to explicitly
countenance
abortion
and
birth
control,
it
does
compel
the
Center to present them as viable options -- which, of course, is
precisely
what
the
Center
denies
they
are.
Putting
aside
altogether the matter of abortion, about which people of good
will may and do differ, imagine any of us being told by the
state to renounce ourselves in such a basic way.
Echoing
Justice
Frankfurter’s
rejoinder
to
the
Jehovah’s
Witnesses in the flag-salute cases, the City responds by noting
that pregnancy centers remain free to express their disapproval
of
abortion
disclaimer.
and
birth
control
alongside
the
mandatory
But the Supreme Court rightly found this response
unavailing in Barnette, and it is no more persuasive here.
In
each case, the speaker is put in the position of having to
explain a statement made in its voice but not from its heart.
Only
because
the
Ordinance
compels
the
Center
to
mention
abortion and birth control in the first place must it start from
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a stance of opposing those options, rather than from one of
simply advocating alternatives like adoption and abstinence.
Compelled speech can be all the more pernicious because of
its context.
So it is here.
Whether or not the Ordinance is
technically viewpoint-discriminatory, this much can be said: it
compels
groups
that
oppose
abortion
to
utter
a
government-
authored message without requiring any comparable disclosure -or
indeed
Seventy
any
years
disclosure
after
at
the
all
--
from
flag-salute
abortion
cases,
it
providers.
should
be
axiomatic that the First Amendment prohibits the government from
dictating the terms of private expression, let alone in such a
one-sided manner.
Faced with the inadequacy of its reasons, the
majority responds with only noise, making believe it has somehow
been accused of various “improprieties,” maj. op. at 57, and
“zealous” pro-choice views, id., when the only issue in reality
is that the grand neutrality at the heart of the First Amendment
has been compromised.
right
to
Those who support most firmly a woman’s
reproductive
choice
should
find
it
the
most
disheartening that the court’s First Amendment jurisprudence is
trampling expressive privacy and marching backward through time.
II.
The
nothing
majority
more
than
would
a
have
us
believe
cut-and-dried
67
that
procedural
it
has
issued
ruling,
merely
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ordering “essential discovery” into a few key factual questions
in the case.
Maj. op. at 33.
Don’t be fooled.
The majority is
conducting an amorous affair with litigation that is anything
but benign.
For the infatuation here is indiscriminate.
The
majority neglects to pose the most relevant question: whether
its enchantment with extended procedures will serve to vindicate
the
assertion
Perhaps
it
obvious.
of
a
evades
constitutional
this
question
right
or
because
to
the
suffocate
answer
it.
is
so
By bringing the full brunt of the litigative process
to bear on the Center, the majority is imposing a high price on
the
Center
(and
by
extension
any
speaker)
for
attempting
to
vindicate its free-speech rights.
Most
troubling,
the
majority
has
licensed
a
fishing
expedition into the Center’s motivations and operations on the
off
chance
activity.
speech
that
it
might
turn
up
some
vaguely
“commercial”
The majority appears to recognize that the Center’s
clearly
lies
far
from
“the
core
notion
of
commercial
speech,” since none of its advertisements propose a commercial
transaction.
Maj. op. at 43 (quoting Bolger v. Youngs Drug
Prods. Corp., 463 U.S. 60, 66 (1983)); see United States v.
United
Foods,
Inc.,
533
U.S.
405,
409
(2001)
(noting
that
commercial speech is “usually defined as speech that does no
more than propose a commercial transaction”).
Nevertheless, the
majority
to
believes
that
“discovery
68
is
needed
substantiate,
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alia,
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whether
the
Center
Pg: 69 of 102
possesses
apart from its ideological motivations.”
economic
interests
Maj. op. at 45-46.
Not even the City had the temerity to second-guess the Center’s
motives
in
this
way.
And
yet,
the
majority
displays
no
compunction about doing so, subjecting the Center to intrusive
and
burdensome
discovery
based
on
a
few
far-fetched
hypotheticals regarding “the Center’s potential profit motives”
and its “operational intricacies.”
Maj. op. at 46 n.9.
Ordering discovery on this tenuous a basis would entail
delays and costs even in the ordinary case.
But the delays and
costs are especially onerous where, as here, the party that is
subjected to discovery has so plainly suffered a violation of
its constitutional rights.
By encouraging the City to pry into
every corner of the Center’s operations, the majority heavily
penalizes
this
organization
for
attempting
to
defend
its
constitutional rights, a penalty that will only dissuade future
victims of constitutional violations -- and especially those who
hold to the Center’s persuasion -- from bringing suit in the
first place.
Where discovery should be a means of vindicating
constitutional rights, the majority converts it into a process
that strangles them.
The majority’s approach also excuses the City’s rush to
regulate the Center’s speech, rather than consider other ways of
achieving
the
purposes
underlying
69
the
Ordinance.
There
has
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never been any dispute that the Ordinance forces organizations
like the Center to communicate a message they would otherwise
never utter.
Given the dangers of compelled speech, this kind
of mandated disclosure should be a last resort, not a first
recourse.
See Riley v. Nat’l Fed’n of the Blind of N.C., Inc.,
487 U.S. 781, 800 (1988) (noting “the First Amendment directive
that
government
compelling
not
dictate
necessity,
and
the
then,
content
only
of
by
speech
means
absent
precisely
tailored”).
Thus, before enacting the Ordinance, the City should at
least
have
considered
less
restrictive
alternatives
and
indicated why those alternatives would be ineffective.
And yet,
the
239-page
City
legislative
points
to
history
not
a
single
submitted
as
portion
part
of
of
the
this
litigation
indicating that it ever took these elementary steps.
192-430.
See J.A.
What testimony was delivered and evidence presented
before the City Council appears to have focused on the City’s
interest in enacting the Ordinance rather than the question of
whether the Ordinance was a narrowly tailored means of serving
that
interest.
statement
of
Especially
legislative
telling
findings
is
the
indicating
restrictive alternatives would come up short.
lack of such alternatives.
suggest themselves.
absence
of
why
any
less
This is not for a
As the district court noted, many
See O’Brien v. Mayor & City Council of
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Balt., 768 F. Supp. 2d 804, 817 (D. Md. 2011).
Posting warning
signs in its own voice outside the Center, undertaking a public
information
effort
of
its
own,
or
applying
the
anti-fraud
provisions in state law are all alternatives that the City now
seems eager to reject but nowhere indicates it ever considered
or tried.
Without ever having contemplated these options, the City
now asserts that they will prove ineffective, and based on that
bald assertion, the majority unlocks the doors of discovery.
The lesson of the majority’s ruling for other legislative bodies
is
clear:
compel
speech
before
considering
less
restrictive
alternatives, and you will be granted discovery to prove why
those alternatives are ineffective after the fact.
the
notion
encouraging
that
compelled
legislatures
to
speech
adopt
should
the
be
most
offensive option rather than the least.
a
This upends
last
resort,
constitutionally
In this respect as
well, the majority renders litigation a threat to liberty rather
than its safeguard.
The majority’s infatuation with discovery is compounded by
its
similarly
misguided
affection
for
as-applied
challenges.
Although the district court construed the Center’s claim as a
facial challenge, the majority insists it actually undertook an
as-applied
analysis.
See
maj.
op.
at
37-38.
But
this
conclusion, aside from being incorrect, is a tragedy for free
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expression.
For it means that, even if the Center ultimately
prevails
its
on
First
Amendment
claim,
other
centers
with
similar moral or religious beliefs will each have to bring their
own suits challenging the Ordinance as applied to them.
a war of attrition.
This is
By requiring every pregnancy center to
bring its own as-applied challenge and to submit to separate
investigation,
will
the
majority
dramatically
increase
invites
the
piecemeal
costs
for
vindicating their First Amendment rights.
litigation
the
that
centers
of
Free speech should
never be held hostage to this kind of duplicative and intrusive
litigation.
The majority responds by doubling down on the virtues of
extended litigation.
It pens a final ode to discovery, maj. op.
at 59, again ignoring the question of when that discovery serves
a salutary purpose and when it simply chokes off constitutional
rights as it does here.
This is by no means to suggest that
affording
discovery
the
constitutional
government
case.
discover the obvious.
But
one
is
does
inappropriate
not
need
in
every
discovery
to
Here, the infringement of the Center’s
free-speech rights is patent and profound, and the alternatives
to a mandatory disclaimer are myriad.
I recognize that the
Center’s views on the issues surrounding abortion rights are
controversial.
But the First Amendment is not needed to protect
speech that elicits broad popular approbation.
72
“The test of
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[freedom’s] substance is the right to differ as to things that
touch the heart of the existing order.”
642.
Barnette, 319 U.S. at
If there was ever a case for entering judgment in order to
forestall government action that threatens to deter disfavored
speakers from defending their First Amendment rights, this case
is it.
Indeed, the Supreme Court has only recently reiterated the
“basic
First
prohibits
say.”
the
Amendment
principle
government
from
that
telling
freedom
people
of
what
speech
they
must
Agency for Int’l Development v. Alliance for Open Society
Int’l, Inc., No. 12-10, slip op. at 6 (U.S. June 20, 2013)
(internal
quotation
marks
omitted).
Even
when
direct
appropriations are involved, the government may not control an
organization’s
core
program being funded.
message
outside
of
the
confines
of
the
See id. at 15 (holding that a government
requirement that “compels as a condition of federal funding the
affirmation of a belief that by its nature cannot be confined
within the scope of the Government program. . . . violates the
First Amendment”).
Here, of course, funding conditioned upon
speech is not at issue.
Compelled speech becomes all the more
invasive when it is simply commanded without any corresponding
benefit to the recipient.
The recipient of public funds at
least theoretically has some choice about whether to accept the
aid with its attendant conditions.
73
Id. at 7.
In the instant
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case, the Center gains no benefit and has no choice but to
speak, and the coercion is complete.
III.
To my good colleagues in the majority, all I can say is,
“Be careful what you wish for.”
In strongly implying that the
Ordinance will survive First Amendment scrutiny, the majority
has established a principle that will bite the very hands that
feed it.
For compelled speech can serve a pro-life agenda for
elected officials as well as a pro-choice one.
Cf. Planned
Parenthood Minn., N.D., S.D. v. Rounds, 686 F.3d 889 (8th Cir.
2012)
(en
banc).
It
is
easy
to
imagine
legislatures
with
different ideological leanings from those of the Baltimore City
Council
enacting
measures
that
require
organizations
like
Planned Parenthood to post a statement in their waiting rooms
indicating what services they do not provide.
Indeed, after
today’s decision, I would expect a flurry of such measures.
When this court finally confronts a pro-life analogue of
the Baltimore Ordinance, it will face a dilemma.
Either it will
uphold the measure, in which case it will simply confirm what
today’s decision suggests: that the government does have the
power
after
politics,
all
to
nationalism,
“prescribe
religion,
what
or
shall
other
be
matters
orthodox
of
in
opinion
[and to] force citizens to confess by word or act their faith
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therein.”
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Pg: 75 of 102
Barnette, 319 U.S. at 642.
Or it will invalidate the
measure, in which case the First Amendment will have ceased to
function
as
disputes,
a
but
neutral
will
arbiter
instead
of
have
our
become
nation’s
a
tool
ideological
to
serve
the
policy predilections of the judges who happen to be applying it
in
any
given
case.
Either
way,
we
will
have
warped
First
Amendment doctrine beyond recognition, and we shall have but
ourselves to blame.
IV.
Compelled
speech
can
get
tricky
quickly.
The
state
possesses a broad police power to regulate for the health and
safety of its citizens, which includes the authority to require
the disclosure of limited amounts of accurate information.
See,
e.g., Zauderer v. Office of Disciplinary Counsel of the Supreme
Court of Ohio, 471 U.S. 626, 650-53 (1985).
Compelled speech is
thus
Centro
not
an
Montgomery
all-or-nothing
Cnty.,
No.
11-1314
(Wilkinson, J., concurring).
us,
the
state
statements
that
generally
conflict
define who we are.
matter.
(4th
See
Cir.
Tepeyac
2013)
(en
v.
banc)
But as the flag-salute cases teach
may
with
not
force
beliefs
individuals
so
profound
to
utter
that
they
How to balance the state’s responsibility to
protect its citizens with the individual’s interest in staying
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true
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to
Filed: 07/03/2013
conscience
is
a
Pg: 76 of 102
perennial
question
that
will
prove
vexing in many cases.
This case, however, is not vexing.
The Baltimore Ordinance
demands that organizations like the Center affirm a proposition
they vehemently deny.
It is, moreover, a law in search of a
problem about which the City and majority speculate but cannot
identify.
The City made no attempt to try or even consider
alternative approaches that would have allowed it to achieve its
purposes without compelling the Center to say a word.
Wherever
the First Amendment might draw the line between state regulation
and
individual
conscience,
this
law
crosses
it.
To
the
infirmities of the law, the majority adds burdens beyond measure
on freedom of the mind.
I respectfully dissent.
76
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NIEMEYER, Circuit Judge, dissenting:
Baltimore
City
Ordinance
09-252
mandates
that
pregnancy
centers that do not offer abortions or refer for abortions must
post one or more signs in their waiting rooms, stating that they
“do[] not provide or make referral for abortion or birth-control
services.”
On
the
plaintiffs’
assertion
that
such
a
sign
requires them to speak contrary to their moral and religious
beliefs, the district court held, as a matter of law, (1) that
the ordinance, on its face, compels speech that is not content
neutral; (2) that such compelled speech is subject to strict
scrutiny; and (3) that the ordinance is not narrowly tailored to
serve the City’s stated interest in prohibiting such pregnancy
centers, as a health concern, from misrepresenting information
about abortions.
It thus found the ordinance unconstitutional.
A ruling of this kind does not implicate a need to have
discovery
of
factual
circumstances,
as
the
majority
opinion
orders, because every point on which the district court’s ruling
depended was a question of law that construed the ordinance on
its face and assessed its scope against well-established First
Amendment principles.
court’s
order
and
In determining to vacate the district
remand
the
addresses a case not before us.
fundamental respects.
77
case,
the
majority
opinion
The opinion fails in three
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First,
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it
fails
to
Pg: 78 of 102
address
the
actual
holding
of
the
district court insofar as the district court applied established
legal
principles
ordinance
was
to
conclude,
as
a
unconstitutional.
matter
of
that
the
it
Rather,
law,
dismisses
the
district court’s ruling as “laden with error,” pointing to a
raft
of
circumstantial
necessary
legal
factual
propositions,
questions,
and
irrelevant
concluding
that
to
the
the
legal
issues therefore cannot be resolved by summary judgment.
Second and more fundamentally, it fails to recognize the
scrutiny
applicable
to
regulations
that
compel
speech
--
regulations that require a person to say that with which the
person would not otherwise say and might well disagree.
Such
regulations are among the most pernicious invasions of First
Amendment rights, and for that reason, they are subject to “the
most exacting scrutiny.”
Turner Broadcasting Sys., Inc. v. FCC,
512 U.S. 622, 641-42 (1994).
regulate
compel
what
people
persons
to
have
speak
the
Although distinct from laws that
chosen
speaker
would
not
otherwise
content of the speech.”
N.C.,
Inc.,
487
“content-based,”
Broadcasting,
U.S.
it
512
say,
government’s
invasive of our most basic freedom.
a
to
Id.
make
regulations
message
are
that
equally
“Mandating speech that
necessarily
alters
the
See Riley v. Nat’l Fed. of the Blind of
781,
is
U.S.
795
subject
at
(1988).
to
642.
78
strict
And
because
scrutiny.
Indeed,
it
is
Turner
“[c]ontent-based
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[speech] regulations are presumptively invalid.”
R.A.V. v. City
of St. Paul, 505 U.S. 377, 382 (1992) (emphasis added).
The
majority opinion not only fails to recognize these principles,
it
does
not
even
discuss
“compelled
speech.”
Rather,
it
implies, by its silence on the subject, that compelled speech or
content-based
speech,
when
including
potentially
commercial
speech, is subject to a relaxed level of scrutiny, a position
never countenanced by the Supreme Court.
And
third,
addressed
by
challenge.
it
the
In
fails
to
district
an
effort
recognize
court
to
was
that
the
identify
the
challenge
plaintiffs’
questions
of
facial
fact
to
support its remand, the opinion ignores the issue presented -i.e.,
whether
a
facial
review
would
render
the
ordinance
unconstitutional -- and recharacterizes the proceeding as an asapplied challenge.
With that erroneous maneuver, it concludes
that facts need to be developed to conduct such an as-applied
challenge.
analysis,
Ante, at 38 (“But to properly employ an as-applied
the
discovery”).
court
was
obliged
to
first
afford
the
City
To be sure, the complaint challenged the ordinance
both facially and as-applied, but the plaintiffs argued before
the district court that on Count I (violation of free speech),
the court could rule on the ordinance “as a facial matter.”
And
in its opinion, the district court accepted this, repeating that
in
the
plaintiffs’
claims
against
79
the
City,
the
plaintiffs
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“contend[ed]
Filed: 07/03/2013
that
the
Pg: 80 of 102
Ordinance
[was]
facially
invalid.”
O’Brien v. Mayor & City Council of Baltimore, 768 F. Supp. 2d
804, 808 (D. Md. 2011).
The court then proceeded to address the
case as a facial challenge, stating, “In the instant case, the
Court
must
examine
whether
the
Ordinance,
on
its
face,
is
subject to, and satisfies, the applicable level of scrutiny.”
Id. at 810 (emphasis added).
Thus, to conclude that the district court’s holding was
“laden with error,” ante, at 10, the majority opinion itself is
error-laden, giving the governing core principles the back of
the hand and broadening, by recharacterization, the issues so as
to be able to conclude that the City should have been given the
opportunity to engage in discovery, even as to subjects that
would
be
irrelevant
or
unnecessary
decided by the district court.
opinion,
which
supposition
about
is
some
what
to
the
legal
questions
It is apparent that the majority
50
typewritten
pregnancy
centers
pages,
that
do
roams
not
in
offer
abortion have said to their clients; about whether their advice
could have been commercial in nature; and about the facts that
might
have
groups
in
been
their
misrepresented,
stated
policy
as
positions.
majority opinion quotes at length:
suggests
the
pregnancy
centers
identified
by
For
pro-choice
example,
the
(1) the Waxman report, which
“often
mask
their
pro-life
mission” to mislead pregnant women; (2) the report of the NARAL
80
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Pro-Choice
Maryland
Fund
inaccurate
information”
Pg: 81 of 102
that
pregnancy
centers
about
abortion;
(3)
give
the
“wildly
legislative
testimony of a woman who stated she had “felt tricked” by a
pregnancy
center
16
years
before;
and
(4)
the
legislative
testimony of a professor who stated that she was “distressed by
the existence of centers” that misrepresent their mission.
The
majority
the
sets
forth
no
similar
evidence
provided
by
plaintiffs, yet it relies on the City’s claimed need to respond
to the plaintiffs’ facts.
In its gratuitous shaping of the issues, the majority also
devotes
pages
to
speculation
about
whether
the
ordinance
regulates commercial speech or noncommercial speech -- failing
to recognize that, on its face, the ordinance regulates both.
The majority’s position is curious in view of the fact that it
has today affirmed the district court’s conclusion in Centro
Tepeyac
that
a
similar
Montgomery
County,
Maryland
provision
compelled noncommercial speech and that any commercial speech
was intertwined with regulated noncommercial speech.
See Centro
Tepeyac v. Montgomery Cnty., ___ F.3d ___, No. 11-1314(L), at
___ (4th Cir. June ___, 2013) (en banc) (observing that the
district
court
principles”).
“demonstrated
a
firm
grasp
of
all
legal
Here, in contrast, the majority concludes that
resolution of the question must be “fact-driven.”
“Without
the
the
pertinent
evidence
81
--
It states,
including
evidence
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concerning the Center’s economic motivation (or lack thereof)
and the scope and content of its advertisements -- we cannot
properly analyze the speech regulated by the Ordinance.”
at 49.
252
Ante,
But this speculation is irrelevant because Ordinance 09-
regulates
addresses
all
both
commercial
persons
who
and
provide
noncommercial
pregnancy
speech
services
and
without
providing abortions or referring for abortions.
Were our court grappling with the abortion issue itself,
the
majority’s
something.
fulsome
and
overstated
facts
might
mean
But the case before us presents the much narrower
question about the scope of the ordinance on its face.
appears
that
elaboration
the
of
majority
abortion
has
policy
become
from
seduced
the
by
viewpoint
It
its
own
of
some
interested groups, thereby blinding it from the narrow legal
issue raised by the terms of the ordinance.
The district court, on the other hand, correctly focused on
the relevant legal issue and, in a reasoned fashion, supported
its holding by analyzing the ordinance’s language.
To be sure,
the district court engaged hypothetically from time to time in
discussion
about
the
potential
relevance
of
facts,
but
it
quickly left them, recognizing that the well-established First
Amendment
principles
on
which
it
relied
resolution of the issue as a matter of law.
provided
for
a
As it stated, “In
the instant case, the Court must examine whether the Ordinance,
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on its face, is subject to, and satisfies, the applicable level
of scrutiny.”
O’Brien, 768 F. Supp. 2d at 810 (emphasis added).
And from the language of the ordinance, it concluded that the
strict-scrutiny standard applied and that the ordinance did not
meet that standard.
Nowhere did the district court consider or
decide an as-applied review.
I respectfully submit that under the well-established First
Amendment
City
principles
Ordinance
scrutiny.
relating
09-252
to
compelled
on
its
cannot,
speech,
face,
Baltimore
withstand
strict
The ordinance is content-based, telling a person, not
otherwise regulated, what to say to a client, even though the
person may disagree with the speech and would not otherwise say
what is commanded.
The mandate is imposed on all pregnancy
centers not providing or referring for abortion, whether they
are commercial or noncommercial or whether they provide services
for free or for a fee.
interest
in
Although the City may have a compelling
prohibiting
the
misrepresentation
of
information
about abortion, as it claims, the ordinance on its face does not
prohibit
misrepresentation.
Indeed,
it
mandates
speech
regardless of whether the pregnancy center misrepresents or not.
These
statutorily
conclusion
that
unconstitutional.
based
the
observations
ordinance
is
lead
overbroad
to
and
the
legal
therefore
To reach that conclusion does not require
discovery of the circumstantial facts about how the ordinance
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might apply in any given circumstance.
I conclude that the
majority’s decision to remand for the development of irrelevant
facts is simply misguided.
The district court’s decision should be affirmed.
I
By
way
Ordinance
of
background,
09-252
in
the
December
City
2009,
of
Baltimore
regulating
all
enacted
pregnancy
centers that provide pregnancy related services for free or for
a fee and that either do not provide abortions or refer for
abortions.
The ordinance requires each one of those centers to
post one or more signs in its waiting room stating that the
center “does not provide or make referral for abortion or birthcontrol services.”
The legislative record indicates that the President of the
Baltimore
City
Ordinance
09–252)
groups.
Those groups complained that some pregnancy clinics
provide
Council
inaccurate
spokesperson
for
public statement:
after
introduced
meeting
information
the
City
Bill
with
to
President
the
advocacy
abortions.
explained
A
in
a
Women need to know up front what
to expect when they go into these centers.”
to
about
future
“The bill deals with whether women are told
up front what the facts are.
presented
(the
abortion-rights
women
Council
09–0406
City
Council
84
stated
The “Bill Synopsis”
that
the
Bill
was
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“introduced because of the ‘importance of choice.’”
And the
Baltimore City Health Department backed the Bill, based on the
“purpose
of
the
bill
to
require
limited-service
pregnancy
centers to provide accurate information about available services
to clients and potential clients.”
(Emphasis added).
The Bill
was enacted in November and became law on December 4, 2009.
In March 2010, before any enforcement of Ordinance 09–252,
the Archbishop of Baltimore, St. Brigid’s Roman Catholic Church,
and the Greater Baltimore Center for Pregnancy Concerns, Inc.
(“the Pregnancy Center”) commenced this action against the Mayor
and City Council of Baltimore, challenging the constitutionality
of the ordinance and alleging that it violates the Free Speech
and
Free
Assembly
Clauses
of
the
First
Amendment,
the
Free
Exercise Clause of the First Amendment, the Equal Protection
Clause of the Fourteenth Amendment, and the Conscience Clause in
Maryland Code Ann., Health–Gen. § 20–214(a).
The
complaint
alleges
that
the
Pregnancy
Center
is
a
“limited-service pregnancy center,” as defined in Ordinance 09–
252, operating in Baltimore City from two locations.
provides
testing;
free
services
classes
in
to
pregnant
prenatal
women,
such
development,
as
The Center
pregnancy
post-pregnancy
parenting, and life skills; Bible studies; and material support
for
women
through
its
“Hannah’s
Cupboard”
program,
including
diapers, formula, baby and maternity clothes, toys, and books.
85
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It
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also
Filed: 07/03/2013
provides
women
with
Pg: 86 of 102
information
on
“abstinence
and
natural family planning, which are recognized forms of birth
control,” but does not provide referrals for abortions or other
methods
of
birth
control,
asserting
that
“[b]ased on moral and religious beliefs.”
it
does
not
do
so
The Pregnancy Center
does not charge its clients for its services.
The
complaint
alleges
that
Ordinance
09–252
specifically
targets pro-life pregnancy centers such as the Pregnancy Center
and thus “regulates communications at the Pregnancy Center that
are personal, moral, religious, and political.”
that
“[b]y
requiring
a
disclaimer
that
the
It also states
Center
does
not
provide or refer for abortions, the Ordinance compels Plaintiffs
to deliver the implied message that these services are available
elsewhere
legitimize
beliefs.
and
such
should
be
services,
considered,”
in
violation
thus
of
appearing
the
to
plaintiffs’
The complaint objects to the ordinance’s requirement
that the Pregnancy Center “post a sign saying that it does not
provide birth-control services,” when in fact it does “in the
form of education about abstinence and natural family planning.”
The plaintiffs seek a declaratory judgment that the ordinance is
unconstitutional on its face and/or as applied to them and an
injunction prohibiting the ordinance’s enforcement.
Some two
months after they filed their complaint, but before the City
filed its answer, the plaintiffs also filed a motion for partial
86
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summary
Filed: 07/03/2013
judgment
on
Pg: 87 of 102
their
free
speech
and
that
the
equal
plaintiffs’
protection
claims.
The
City
argued
summary
judgment
request was premature in that the City had not been afforded the
opportunity
to
conduct
discovery
testimony on key factual issues.
or
to
fully
develop
expert
The City contended that it
needed “to conduct discovery concerning the advertising that the
Pregnancy
Center
and
other
limited-service
pregnancy
centers
employ . . . [to] demonstrate its deceptive character.”
The
City also asked for discovery “to develop factual support for
[the City’s] argument that the services offered by [the Center]
are a form of commerce, and, therefore, the disclaimer required
by the Ordinance is commercial speech, subject only to rational
basis scrutiny -- not strict scrutiny.”
for
“the
opportunity
to
develop
Finally, the City asked
expert
testimony
to
provide
factual support for the propositions that deceptive advertising
by limited-service pregnancy centers threatens public health in
a variety of ways.”
Following a hearing on the motion for summary judgment, as
well as on other motions, the district court entered an order
dated January 28, 2011, denying the City’s request for further
discovery on the ground that it was not necessary to the issue
being
summary
decided;
judgment
granting
on
its
the
Pregnancy
free
speech
87
Center’s
claim;
and
motion
for
entering
a
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judgment permanently enjoining the enforcement of the ordinance.
In granting summary judgment to the Pregnancy Center, the court
held that Ordinance 09-252 was unconstitutional based on its
legal conclusions that the ordinance compelled speech; that it
was content-based and therefore subject to strict scrutiny; and
that
it
was
not
narrowly
tailored
interest in enacting the ordinance.
to
fit
the
City’s
stated
O’Brien, 768 F. Supp. 2d at
812-14, 816-17.
II
This is not a hard case, and the First Amendment analysis
is straightforward.
For
a
ordinance
facial
and
are
challenge,
“careful
we
look
not
to
to
go
the
face
beyond
[its]
of
the
facial
requirements and speculate about ‘hypothetical’ or ‘imaginary’
cases.”
Wash. State Grange v. Wash. State Republican Party, 552
U.S. 442, 449-50 (2008).
application
of
the
But the assessment may consider the
regulation
to
others,
not
just
to
the
plaintiffs, to determine whether there are conceivable instances
of overbreadth.
Fox,
492
facial
statute
U.S.
review
and
applications
See Bd. of Trustees of State Univ. of N.Y. v.
469,
483-84
under
the
determine
are
(1989).
First
whether
Thus,
when
Amendment,
‘a
unconstitutional,
88
we
substantial
judged
in
conducting
“construe
a
the
number
of
its
relation
to
the
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statute’s plainly legitimate sweep.’”
Preston v. Leake, 660
F.3d 726, 739 (4th Cir. 2011) (quoting United States v. Stevens,
559 U.S. 460, 130 S. Ct. 1577, 1587 (2010)).
Ordinance
09–252
targets
“limited-service
pregnancy
centers,” which are defined as “any person”
(1) whose primary purpose
related services; and
is
to
provide
pregnancy-
(2) who:
(i) for a fee or
information
about
but
as a free service, provides
pregnancy-related
services;
(ii) does not provide or refer for:
(A) abortions; or
(B) nondirective
control services.
and
comprehensive
birth-
Baltimore City Health Code § 3–501 (emphasis added).
ordinance,
its
“[a]
clients
limited-service
and
pregnancy
potential
clients
center
with
Under the
must
a
provide
disclaimer
substantially to the effect that the center does not provide or
make
referral
§ 3-502(a).
for
abortion
or
birth-control
services.”
Id.
This disclaimer must be made through one or more
“easily readable” signs that are “conspicuously posted in the
center’s waiting room” and written in English and Spanish. Id.
§ 3–502(b).
The
failure
to
comply
with
the
terms
of
the
ordinance is punishable by a citation carrying a maximum civil
penalty of $150. Id. § 3-506(a).
89
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On its face, Ordinance 09-252 compels speech.
A pregnancy
center that does not provide or refer for abortions must post
the sign containing the mandated language.
A pregnancy center
is thus required to participate in the City’s effort to tell
pregnant
women
that
abortions
are
available
elsewhere
as
a
presumably acceptable alternative, regardless of the moral and
religious beliefs of the center.
As
a
“[m]andating
matter
speech
of
logic
that
a
and
Supreme
speaker
would
Court
not
necessarily alters the content of the speech.”
at 795.
precedent,
otherwise
make
Riley, 487 U.S.
Accordingly, compelled speech must be addressed as “a
content-based regulation of speech.”
Id. (citing Miami Herald
Publ’g Co. v. Tornillo, 418 U.S. 241, 256 (1974)).
Of course, a
content-based speech regulation is subject to the “most exacting
scrutiny,” the strict scrutiny standard.
Turner Broadcasting,
512 U.S. at 642; Riley, 487 U.S. at 796; see also United States
v.
Playboy
Indeed,
Entm’t
strict
Group,
scrutiny
Inc.,
applies
529
even
U.S.
in
803,
cases
813
(2000).
where
the
compelled disclosure is limited to factually accurate or nonideological statements.
Riley, 487 U.S. at 797-98; Hurley v.
Irish-Am. Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557,
573 (1995) (“[The] general rule that the speaker has the right
to tailor the speech, applies not only to expressions of value,
opinion, or endorsement, but equally to statements of fact”).
90
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In an effort to avoid strict scrutiny of Ordinance 09-252,
the City contends that the ordinance compels only commercial
speech and therefore is subject to a lower level of scrutiny.
Commercial speech is defined as “expression related solely to
the
economic
interests
of
the
speaker
and
its
audience.”
Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y.,
447 U.S. 557, 561 (1980).
The hallmark of commercial speech is
that it “does no more than propose a commercial transaction.”
Bolger
v.
(internal
Youngs
Drug
citation
Prods.
and
Corp.,
quotation
463
marks
U.S.
60,
66
omitted).
(1983)
In
some
circumstances, speech may be classified as commercial even when
it “cannot be characterized merely as proposals to engage in
commercial transactions.”
that
advertisements
Id.; see also id. at 67-68 (holding
discussing
the
health
benefits
of
contraceptives were commercial speech); Wag More Dogs, LLC v.
Cozart,
F.3d
359,
370
outdoor
business’
680
mural
was
(4th
Cir.
commercial
2012)
speech
(holding
where
that
business
conceded that the mural was advertising, the mural included part
of
the
business’
logo,
and
the
business
“had
an
economic
motivation for displaying the painting”).
But speech does not
“retain[]
it
its
commercial
character
when
is
intertwined with otherwise fully protected speech.”
U.S. at 796.
91
inextricably
Riley, 487
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Here, the enacted text forecloses the City’s argument that
the
ordinance
ordinance
targets
imposes
regardless
of
a
only
commercial
disclosure
economic
speech
requirement
motivation.
The
on
because
all
the
speakers,
ordinance
applies
wholesale to any person who “for a fee or as a free service”
provides
information
about
pregnancy.
The
ordinance
thus
imposes its disclosure requirement wholly indifferent to whether
the
speaker
“propos[es]
a
commercial
transaction.”
Central
Hudson, 447 U.S. at 562; see also Centro Tepeyac v. Montgomery
Cnty, 779 F. Supp. 2d 456, 463-65 (D. Md. 2011) (noting that
similar provisions applying to persons who provide services for
free “cannot rely on commercial speech cases”), affirmed, Centro
Tepeyac, ___ F.3d at ___, No. 11-1314(L), at 11-12.
In
a
scrutiny,
similar
the
effort
majority
to
avoid
maintains
the
application
that
strict
commercial
the
of
speech
inquiry is “fact-driven” and that therefore “discovery is needed
to
substantiate
.
.
.
whether
the
Center
possesses
interests apart from its ideological motivations.”
46.
But
this
approach
is
flawed.
The
economic
Ante, at 45-
Pregnancy
Center’s
motivation for its provision of free information is irrelevant
to the inquiry of whether the ordinance, on its face, compels
noncommercial speech.
The ordinance reaches beyond this one
pregnancy center and imposes the requirement of a disclaimer
sign
on
every
speaker
--
commercial
92
or
not
--
who
provides
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information
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“for
a
fee
or
Pg: 93 of 102
as
a
free
service.”
The
plain
language of the ordinance focuses not on the economic motive of
the person, but on the content of the person’s speech.
therefore
untenable
for
the
majority
to
assert
It is
that
the
commercial motive of this pregnancy center is a relevant fact
yet to be determined.
Thus,
as
a
noncommercial,
content-based
regulation,
the
ordinance is subject to strict scrutiny, see Centro Tepeyac, 779
F.
Supp.
2d
provision,
at
that
468
(holding,
“strict
with
scrutiny
respect
applies”),
to
a
similar
affirmed,
Centro
Tepeyac, ___ F.3d at ___, No. 11-1314(L), at 12, and “[c]ontentbased [speech] regulations are presumptively invalid,” R.A.V.,
505 U.S. at 382.
The City bears the burden of rebutting the
presumption of invalidity.
at 816-17.
See Playboy Entm’t Group, 529 U.S.
Indeed, “[i]t is rare that a regulation restricting
speech because of its content will ever be permissible.”
818.
Id. at
The City can, nonetheless, rebut the presumption if it is
able to show that the ordinance is “narrowly tailored to promote
a compelling Government interest.”
it
must
show
that
the
Id. at 813.
ordinance
is
the
And to do this,
least
alternative to serve the government’s purpose.
restrictive
Id.; Ashcroft v.
ACLU, 542 U.S. 656, 666 (2004).
The
interest
City
in
maintains
assuring,
that
as
a
it
has
health
93
a
compelling
concern,
that
government
pregnancy
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centers
do
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not
misrepresent
Pg: 94 of 102
information
about
abortion,
a
concern that it grounds in the Waxman Report and the report of
the NARAL Pro-Choice Maryland Fund.
It also contends that the
ordinance narrowly addresses this concern by requiring pregnancy
centers to post the mandated sign in their waiting rooms.
The district court accepted the City’s stated interest in
the ordinance as a compelling one and elected to assess the
question of whether the ordinance was narrowly tailored to serve
that
interest.
I
too
would
bypass
any
inquiry
about
the
sufficiency of the City’s stated government interest and address
the
question
of
whether
it
is
narrowly
tailored.
If
the
ordinance is not narrowly tailored to serve the City’s stated
interest, then it must be invalidated as unconstitutional.
The
inquiry
into
whether
Ordinance
tailored is a purely legal question:
meets
the
‘narrowly
tailored’
question of law . . . .”
09-252
is
narrowly
“Whether [a] regulation
requirement
is
of
course
a
United States v. Doe, 968 F.2d 86, 88
(D.C. Cir. 1992); see also Vill. of Schaumburg v. Citizens for a
Better Env’t, 444 U.S. 620, 634 (1980) (whether an ordinance is
overbroad is “a question of law that involved no dispute about
the characteristics of” the plaintiff).
A statute is narrowly
tailored only “if it targets and eliminates no more than the
exact source of the ‘evil’ it seeks to remedy.”
Schultz, 487 U.S. 474, 485 (1988).
94
Frisby v.
“Broad prophylactic rules in
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the
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area
of
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free
Pg: 95 of 102
expression
are
suspect.
Precision
of
regulation must be the touchstone in an area so closely touching
our most precious freedoms.”
NAACP v. Button, 371 U.S. 415, 438
(1963) (citations omitted).
A regulation is not narrowly tailored when, among other
things,
(1)
it
does
not
advance
the
purported
compelling
interest, e.g., Meyer v. Grant, 486 U.S. 414, 426 (1988); (2) it
is overinclusive, e.g., Simon & Schuster, Inc. v. Members of the
N.Y. State Crime Victims Bd., 502 U.S. 105, 121–23 (1991); or
(3)
the
government
has
other,
less
speech-restrictive
alternatives available, e.g., Playboy Entm’t Group, 529 U.S. at
816–17.
Ordinance 09–252 fails under all three tests.
First, the ordinance does not target the stated government
interest of eliminating false advertising.
It does not even
mention false advertising, and its substance does not address
it.
Second, the ordinance is overinclusive because it applies
equally
to
pregnancy
centers
regardless
of
whether
they
advertise and, if they advertise, regardless of whether they
engage in false advertising.
See FEC v. Mass. Citizens for
Life, Inc., 479 U.S. 238, 265 (1986) (stating that for a law to
be narrowly tailored “government must curtail speech only to the
degree necessary to meet the particular problem at hand” and
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“must avoid infringing on speech that does not pose the danger
that has prompted regulation”).
Third,
several
alternatives
to
address
the
problems
purportedly targeted by the ordinance are available and would
impose a lesser burden on speech.
could speak with its own voice.
Most obviously, the City
It might, for example, use its
own resources to undertake public education campaigns addressing
the alleged dangers of pregnancy centers or, more generally,
promoting consultations with physicians for pregnant women.
Cf.
44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 507 (1996)
(“It is perfectly obvious that alternative forms of regulation
that would not involve any restriction on speech would be more
likely
to
achieve
temperance. . . .
the
State’s
[E]ducational
goal
campaigns
of
promoting
focused
on
the
problems of excessive, or even moderate, drinking might prove to
be more effective”).
This is the same alternative that the
district court found available in Centro Tepeyac, 779 F. Supp.
2d at 469 n.9, to support in part its finding that a similar
provision
was
likely
unconstitutional
and
that
this
court
affirmed in Centro Tepeyac, ___ F.3d at ___, No. 11-1314(L) at
13-14.
As another alternative, the City could produce a document
or
website
listing
local
pregnancy
services are available at each.
96
centers
and
noting
what
See Riley, 487 U.S. at 800
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(“[T]he
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State
may
itself
Pg: 97 of 102
publish
the
detailed
financial
disclosure forms it requires professional fundraisers to file.
This procedure would communicate the desired information to the
public without burdening a speaker with unwanted speech”).
And
as
yet
another
alternative,
the
City
could
always
pursue the option of prosecuting violations of its criminal and
civil laws that proscribe false or deceptive advertising.
See
Riley, 487 U.S. at 800; see also Nefedro v. Montgomery Cnty.,
996 A.2d 850, 863 (Md. 2010) (holding that fraud laws were a
less restrictive alternative to a law prohibiting remuneration
for fortune-telling).
That the City resorted to speech restrictions before trying
these or other less restrictive alternatives is more than enough
to
render
the
ordinance
unconstitutional.
See
Thompson
v.
Western States Med. Ctr., 535 U.S. 357, 373 (2002) (“If the
First Amendment means anything, it means that regulating speech
must be a last -- not first -- resort”).
The additional discovery ordered by the majority would not
eliminate or even mitigate these narrow-tailoring problems.
The
ordinance’s infirmity in this regard is apparent on its face.
Cf. Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S. 115, 129
(1989)
(affirming
injunction
where
district
the
court’s
pre-enactment
grant
record
of
preliminary
contained
“no
legislative findings that would justify us in concluding that
97
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there is no constitutionally acceptable less restrictive means,
short of a total ban, to achieve the Government’s interest”);
Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250, 1274
(11th Cir. 2005) (invalidating content-based sign regulation on
appeal
from
the
denial
of
a
preliminary
injunction
because
“[t]he First Amendment questions . . . [were] purely legal” and
“only minimally intertwined with the facts”).
Tellingly,
the
majority
does
not
dispute
the
fact
that
discovery would not be needed to determine whether the language
of the ordinance advances the stated government interest or is
overinclusive
--
two
of
the
three
ordinance not narrowly tailored.
ways
that
can
render
an
But it nonetheless states that
the City “must be accorded the opportunity to develop evidence
disproving
the
effectiveness
of
purported
alternatives to the Ordinance’s disclaimer.”
Centro
Tepeyac,
___
F.3d
at
___,
No.
less
restrictive
Ante, at 53; cf.
11-1314(L),
at
13-14
(holding to the contrary with respect to a similar provision).
It is remarkable that this is discovery that the City never
requested.
Finally, the majority adds the careless declaration that:
[T]he City must be accorded the opportunity to develop
evidence relevant to the compelling governmental
interest and narrow tailoring issues, including, inter
alia, evidence substantiating the efficacy of the
Ordinance in promoting public health.
98
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Ante, at 53.
Pg: 99 of 102
This declaration of loosely mixed principles is,
as it stands, irrelevant to any issue, but it appears mostly to
collapse
two
scrutiny.
First,
compelling
respect
the
that,
court
claimed
that
a
the
the
government
government
governmental
to
district
burdens
interest
majority
assumed
that
compelling
was
in
to
to
in
speech.
had
that
a
With
the
appropriately
prohibiting
misrepresentation of information about abortion.
no issue of fact to resolve.
strict
advance
recognize
government
interest
under
required
mandating
fails
the
has
the
Thus, there is
Second, the government had the
burden to show that its regulation of speech -- i.e., mandating
the
posting
of
a
sign
with
specific
content
in
pregnancy
centers’ waiting rooms -- was narrowly tailored to serve the
compelling
governmental
interest.
As
to
this,
the
majority
fails to recognize that that issue was a question of law.
Village of Schaumburg, 444 U.S. at 634; Doe, 968 F.2d at 88.
See
To
resolve such a question of law, all that need be done is an
analysis of the statute’s language to determine if it “targets
and eliminates no more than the exact source of the ‘evil’ it
seeks to remedy.”
Frisby, 487 U.S. at 485.
In short, to respond to the self-evident proposition that
discovery
majority
criticizes
is
not
needed
fabricates
the
fact
dissenting
in
resolving
issues
where
opinions,
99
questions
none
stating,
of
exist
“The
law,
and
the
then
dissenters
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would wholly exempt the Center from fundamental procedures to
which all civil litigants are both subject and entitled.”
at 58.
Ante,
Indeed, it inflates the postured balloon, suggesting
even a constitutional issue in denying discovery.
See ante, at
59 (“We, however, are not so dismissive of the Federal Rules of
Civil Procedure, which, as the Supreme Court has underscored,
‘are
designed
to
further
the
Constitutional guarantees’”).
due
process
of
law
that
the
The majority’s drama about its
role in protecting the Federal Rules of Civil Procedure and the
U.S. Constitution does not, however, advance its argument that
it
can
ignore
questions
of
the
law,
reality
that
questions
the
that
district
do
not
court
on
discovery
need
ruled
to
resolve.
III
At bottom, we have a City ordinance that targets, on its
face and by design, all pregnancy centers that do not provide
abortions or do not refer clients for abortions.
Purportedly to
remedy misrepresentations being made by these pregnancy centers
about abortion, the ordinance requires each center to put a sign
in
its
waiting
alternative
center
is
might
room
not
hold
announcing
provided
the
to
at
view
the
that
considered as an alternative at all.
100
clients
that
center,
abortion
even
the
abortion
though
should
not
such
be
Such an approach invades
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the
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most
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fundamental
freedom
Pg: 101 of 102
of
speech,
mandating
that
the
pregnancy centers speak a message with which they profoundly
disagree.
Even though the City may have a compelling interest
in preventing misrepresentations about abortion, it is not free
to
impose
a
requirement
misrepresent.
of
speech
on
those
who
do
not
Ordinance 09-252 mandates the antidote on all
persons who refuse to provide or refer for abortion, regardless
of
whether
they
have
misrepresented
or
are
misrepresenting
abortion information.
On its face, the ordinance is overbroad
and unconstitutional.
See Centro Tepeyac, 779 F. Supp. 2d at
468-69 (holding similar provision likely not narrowly tailored),
affirmed, Centro Tepeyac, ___ F.3d at ___, No. 11-1314(L), at
13-14.
The
majority,
however,
refuses
to
consider
the
legal
questions raised by the Pregnancy Center’s facial challenge and
reaches, in its far-ranging opinion, irrelevant and ideological
facts
about
a
case
not
presented
judgment was inappropriate.
district
court
decided
as
properly
a
unconstitutional.
matter
conclude
that
summary
I disagree and conclude that the
recognized
of
to
law
the
and
issues
that
could
be
found
the
ordinance
That legal analysis is not a difficult one
101
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and, I submit, readily leads to the district court’s conclusion.
Accordingly, I would affirm. ∗
Judges Wilkinson, Shedd, and Agee have asked me to show
them as joining this opinion.
∗
While I dissent from the court’s remand, I concur in its
judgment that the Archbishop and St. Brigid’s Catholic Church
lack standing to challenge the ordinance.
102
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