Centro Tepeyac v. Montgomery County ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1314
CENTRO TEPEYAC,
Plaintiff – Appellee,
v.
MONTGOMERY COUNTY; MONTGOMERY COUNTY COUNCIL, in its
capacity as the Montgomery County Board of Health,
Defendants – Appellants,
and
MONTGOMERY COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES;
MARC HANSEN, Acting County Counsel,
Defendants.
No. 11-1336
CENTRO TEPEYAC,
Plaintiff – Appellant,
v.
MONTGOMERY COUNTY; MONTGOMERY COUNTY COUNCIL, in its
capacity as the Montgomery County Board of Health,
Defendants – Appellees,
and
MONTGOMERY COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES;
MARC HANSEN, Acting County Counsel,
Defendants.
Appeals from the United States District Court for the District
of Maryland, at Greenbelt. Deborah K. Chasanow, Chief District
Judge. (8:10-cv-01259-DKC)
ARGUED: December 6, 2012 Decided: July 3, 2013
Before TRAXLER, Chief Judge, and WILKINSON, NIEMEYER, MOTZ,
KING, GREGORY, SHEDD, DUNCAN, AGEE, DAVIS, KEENAN, WYNN, FLOYD,
and THACKER, Circuit Judges.
Affirmed by published opinion. Judge King wrote the majority
opinion, in which Chief Judge Traxler and Judges Wilkinson,
Motz, Gregory, Duncan, Davis, Keenan, Wynn, Floyd, and Thacker
joined. Judge Wilkinson wrote a concurring opinion. Judge
Niemeyer wrote a dissenting opinion, in which Judges Shedd and
Agee joined.
ARGUED: Clifford Lee Royalty, COUNTY ATTORNEY’S OFFICE,
Rockville, Maryland, for Appellants/Cross-Appellees. Mark L.
Rienzi, COLUMBUS SCHOOL OF LAW, CATHOLIC UNIVERSITY OF AMERICA,
Washington, D.C., for Appellee/Cross-Appellant. ON BRIEF: Marc
P. Hansen, County Attorney, Edward B. Lattner, Chief, Division
of Human Resources & Appeals, COUNTY ATTORNEY’S OFFICE,
Rockville, Maryland, for Appellants/Cross-Appellees. Steven H.
Aden, Matthew S. Bowman, M. Casey Mattox, ALLIANCE DEFENSE FUND,
Washington, D.C.; Robert Destro, COLUMBUS SCHOOL OF LAW,
CATHOLIC UNIVERSITY OF AMERICA, Washington, D.C.; John R. Garza,
GARZA, REGAN & ASSOCIATES, Rockville, Maryland; Robert Michael,
SHADOAN, MICHAEL & WELLS LLP, Rockville, Maryland, for
Appellee/Cross-Appellant.
2
KING, Circuit Judge:
These cross-appeals demand our review of the district
court’s decision to preliminarily enjoin enforcement of one
portion of a Montgomery County Resolution requiring limited
service pregnancy resource centers to post signs disclosing
(1) that “the Center does not have a licensed medical
professional on staff,” and (2) that “the Montgomery County
Health Officer encourages women who are or may be pregnant to
consult with a licensed health care provider.” See Centro
Tepeyac v. Montgomery Cnty., 779 F. Supp. 2d 456, 469-72 (D. Md.
2011). The injunction encompasses the second statement
compelled by the Resolution, but not the first one — leaving no
party to this dispute fully satisfied. Because the district
court acted well within its discretion, however, we affirm its
decision. 1
1
These appeals were initially heard by a three-judge panel
of our Court. The panel majority affirmed the district court’s
preliminary injunction decision with respect to the Resolution-
mandated second statement, but reversed as regards the first.
See Centro Tepeyac v. Montgomery Cnty., 683 F.3d 591 (4th Cir.
2012). The panel opinion was subsequently vacated, however,
with the grant of rehearing en banc. See Centro Tepeyac v.
Montgomery Cnty., No. 11-1314(L) (4th Cir. Aug. 15, 2012).
3
I.
A.
On February 2, 2010, the Montgomery County Council, acting
as the Montgomery County Board of Health, adopted the Resolution
at issue, No. 16-1252. See J.A. 198-200. 2 The Resolution
applies to limited service pregnancy resource centers, defined
therein as
an organization, center, or individual that:
(A) has a primary purpose to provide pregnancy-
related services;
(B) does not have a licensed medical
professional on staff; and
(C) provides information about pregnancy-related
services, for a fee or as a free service.
Id. at 199. The Resolution requires each such center to “post
at least 1 sign in the Center” making the specified disclosures,
i.e., that “the Center does not have a licensed medical
professional on staff,” and that “the Montgomery County Health
Officer encourages women who are or may be pregnant to consult
with a licensed health care provider.” Id. The sign must be
“written in English and Spanish,” “easily readable,” and
“conspicuously posted in the Center’s waiting room or other area
where individuals await service.” Id.
2
Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in these appeals.
4
The Resolution relays the County Council’s finding,
following a December 1, 2009 public hearing, “that requiring a
disclaimer for certain pregnancy resource centers is necessary
to protect the health of County residents.” J.A. 198.
Explaining that finding, the Resolution identifies the Council’s
“concern [as being] that clients may be misled into believing
that a Center is providing medical services when it is not,” and
that “[c]lients could therefore neglect to take action (such as
consulting a doctor) that would protect their health or prevent
adverse consequences, including disease, to the client or the
pregnancy.” Id.
The Montgomery County Department of Health and Human
Services is charged with “investigat[ing] each complaint
alleging a violation of [the Resolution] and tak[ing]
appropriate action, including issuing a civil citation when
compliance cannot be obtained otherwise.” J.A. 200. Prior to a
citation, however, the Department must “issue a written notice
ordering the Center to correct the violation within either” “10
days of the notice” or “a longer period that the Department
specifies in the notice.” Id. Where there are “repeated
violations” of the Resolution, “[t]he County Attorney may file
an action in a court with jurisdiction to enjoin [those]
violations.” Id.
5
B.
On May 19, 2010, Centro Tepeyac initiated this 42 U.S.C.
§ 1983 action in the District of Maryland, claiming that the
Resolution is unconstitutional as applied and on its face, under
both the First and Fourteenth Amendments. The Complaint
identifies Centro Tepeyac as a not-for-profit corporation
operating a limited service pregnancy resource center located in
the Silver Spring area of Montgomery County. See Complaint
¶¶ 11, 45-47. According to the Complaint, Centro Tepeyac “does
not charge women for its services,” which include “pregnancy
testing, referral services, and confidential discussion of
pregnancy options,” plus “information on parenting,” “post-
abortion guidance,” and “practical support in the form of
diapers, baby clothes and other needed items.” Id. ¶¶ 12-13.
The Complaint asserts that Centro Tepeyac “does not refer or
provide for abortion” or birth-control services other than
“abstinence and natural family planning.” Id. ¶ 14. The
Complaint also alleges, inter alia, that the Resolution is
discriminatorily “aimed at pro-life pregnancy resource centers”
such as Centro Tepeyac, and that the Resolution forces Centro
Tepeyac “to suggest that [it is] not qualified to discuss
pregnancy options or to provide help to pregnant women.” Id.
¶¶ 30, 50. Attached as exhibits to the Complaint are a
declaration of Centro Tepeyac’s Executive Director corroborating
6
several of the Complaint’s factual allegations; an unofficial
version of the Resolution; a press release issued by the
Montgomery County Council announcing its adoption of the
Resolution; and miscellaneous documents, including portions of
the Resolution’s legislative record.
The Complaint seeks preliminary and permanent injunctions
barring enforcement of the Resolution, as well as monetary
damages and litigation costs. With the Complaint, Centro
Tepeyac filed a memorandum in support of its request for a
preliminary injunction. In response, on June 3, 2010, the four
defendants — including Montgomery County and the County Council
(together, the “County”) — submitted an opposition to the
preliminary injunction request, combined with a motion to
dismiss the Complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim upon which
relief can be granted. The sole exhibit to the County’s
submission was a copy of the Resolution as adopted. Thereafter,
on June 10, 2010, Centro Tepeyac filed a freestanding motion for
a preliminary injunction. The district court conducted a
motions hearing on July 23, 2010, and issued its preliminary
injunction decision on March 15, 2011.
In these interlocutory cross-appeals, the County contests
the district court’s decision to the extent that it enjoins
enforcement of the Resolution’s compelled pronouncement that
7
“the Montgomery County Health Officer encourages women who are
or may be pregnant to consult with a licensed health care
provider.” See Centro Tepeyac, 779 F. Supp. 2d at 471-72.
Meanwhile, Centro Tepeyac challenges the decision insofar as it
leaves in place the Resolution’s requirement for limited service
pregnancy resource centers to disclose that “the Center does not
have a licensed medical professional on staff.” See id. We
possess jurisdiction over these appeals pursuant to 28 U.S.C.
§ 1292(a)(1) (providing, in pertinent part, that “the courts of
appeals shall have jurisdiction of appeals from . . .
[i]nterlocutory orders of the district courts . . . granting,
continuing, modifying, refusing or dissolving injunctions”). 3
II.
A.
We review for abuse of discretion the district court’s
preliminary injunction decision. See Dewhurst v. Century
3
Also by its March 15, 2011 decision, the district court
granted in part the defendants’ Rule 12(b)(6) motion, dismissing
Centro Tepeyac’s First and Fourteenth Amendment claims against
the Montgomery County Department of Health and Human Services
and County Attorney Marc Hansen. See Centro Tepeyac, 779 F.
Supp. 2d at 461. The court refused, however, to dismiss the
same claims as to the remaining two defendants, whom we refer to
as the “County.” See id. at 461-69. Apparently recognizing the
limits of our jurisdiction over these interlocutory appeals, the
parties do not challenge the disposition of the Rule 12(b)(6)
motion.
8
Aluminum Co., 649 F.3d 287, 290 (4th Cir. 2011). As we have
expounded,
[t]he decision to issue or deny a preliminary
injunction is committed to the sound discretion of the
trial court. That decision will not be disturbed on
appeal unless the record shows an abuse of that
discretion, regardless of whether the appellate court
would, in the first instance, have decided the matter
differently.
Quince Orchard Valley Citizens Ass’n v. Hodel, 872 F.2d 75, 78
(4th Cir. 1989). In conducting our assessment, “we review the
district court’s factual findings for clear error and review its
legal conclusions de novo.” Pashby v. Delia, 709 F.3d 307, 319
(4th Cir. 2013). We may find an abuse of discretion if the
court “appl[ied] an incorrect preliminary injunction standard,”
“rest[ed] its decision on a clearly erroneous finding of a
material fact,” or “misapprehend[ed] the law with respect to
underlying issues in litigation.” Quince Orchard Valley, 872
F.2d at 78 (internal quotation marks omitted). Simply put,
however, the court committed no such error here.
First of all, the district court recognized the principle
that “[a] preliminary injunction is an extraordinary remedy.”
Centro Tepeyac, 779 F. Supp. 2d at 469 (internal quotation marks
omitted); see Direx Israel, Ltd. v. Breakthrough Med. Corp., 952
F.2d 802, 811 (4th Cir. 1991) (“Federal decisions have uniformly
characterized the grant of interim relief as an extraordinary
remedy involving the exercise of a very far-reaching power,
9
which is to be applied only in the limited circumstances which
clearly demand it.” (alteration and internal quotation marks
omitted)). The court also appropriately employed the
preliminary injunction standard recently spelled out by the
Supreme Court in Winter v. Natural Resources Defense Council,
Inc., 555 U.S. 7 (2008). Under the Winter standard, the movant
“must establish [1] that he is likely to succeed on the merits,
[2] that he is likely to suffer irreparable harm in the absence
of preliminary relief, [3] that the balance of equities tips in
his favor, and [4] that an injunction is in the public
interest.” 555 U.S. at 20.
Assessing the merits of Centro Tepeyac’s claims, pertinent
to the first Winter factor, the district court focused on the
First Amendment theory “that the Resolution requires [Centro
Tepeyac] to say something it might not otherwise say” and thus
constitutes a content-based regulation of speech. See Centro
Tepeyac, 779 F. Supp. 2d at 462 & n.5 (citing Riley v. Nat’l
Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 795 (1988)
(“Mandating speech that a speaker would not otherwise make
necessarily alters the content of the speech.”)). The court
observed that content-based speech regulations ordinarily are
subject to strict scrutiny, but that lesser degrees of scrutiny
may apply where the speech at issue is, inter alia, commercial
or professional. See id. at 462-68; see also, e.g., Turner
10
Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642 (1994) (explaining
that “[l]aws that compel speakers to utter or distribute speech
bearing a particular message are [generally] subject to the
[most exacting scrutiny]”); Zauderer v. Office of Disciplinary
Counsel of the Supreme Court, 471 U.S. 626, 651 (1985)
(recognizing that disclosure requirements aimed at misleading
commercial speech need only survive rational basis scrutiny, by
being “reasonably related to the State’s interest in preventing
deception of customers”); Cent. Hudson Gas & Elec. Corp. v. Pub.
Serv. Comm’n of N.Y., 447 U.S. 557, 566 (1980) (concluding that
restrictions on nonmisleading commercial speech concerning
lawful activity must withstand intermediate scrutiny, by
“directly advanc[ing]” a “substantial” governmental interest and
being “no[] more extensive than is necessary to serve that
interest”); Moore-King v. Cnty. of Chesterfield, Va., 708 F.3d
560, 569 (4th Cir. 2013) (“Under the professional speech
doctrine, the government can license and regulate those who
would provide services to their clients for compensation without
running afoul of the First Amendment.”).
Because it could not determine otherwise on the undeveloped
record before it, the district court was constrained to accept
that the speech regulated by the Resolution is neither
commercial nor professional. In that regard, the court observed
that the County had not yet “taken any definite position as to
11
whether the Resolution regulates commercial speech,” and that
there currently was “no indication that [Centro Tepeyac] is
acting out of economic interest.” Centro Tepeyac, 779 F. Supp.
2d at 463. The court also noted that, “[e]ven if some aspects
of [Centro Tepeyac’s] speech were categorized as commercial, the
facts alleged suggest that such commercial speech would at least
be ‘intertwined with [fully protected] speech,’” in any event
triggering strict scrutiny. Id. at 464 n.7 (quoting Riley, 487
U.S. at 796). Further, the court deemed it impossible to rule
“at this stage that the Resolution is merely a regulation of a
profession with incidental effects on speech.” Id. at 467.
Thus applying strict scrutiny, the district court proceeded
to analyze whether “the Resolution is ‘1) narrowly tailored to
2) promote a compelling government interest.’” Centro Tepeyac,
779 F. Supp. 2d at 468 (quoting PSINet, Inc. v. Chapman, 362
F.3d 227, 233 (4th Cir. 2004)). Starting with the compelling
interest question, the court determined that “[i]t may be that
the government has a compelling interest in ensuring that its
citizenry are able to obtain needed medical care,” and that
“[t]he interest in ensuring patients obtain appropriate medical
care might fall within the ambit of the state’s broader interest
in preserving public health.” Id. (citing, inter alia,
Varandani v. Bowen, 824 F.2d 307, 311 (4th Cir. 1987)
(recognizing, in the due process context, “the government’s
12
compelling interest in assuring safe health care for the
public”)).
Nevertheless, the district court also concluded, with
regard to narrow tailoring, that the County had “not shown,
based on the facts alleged in the complaint, that the second
portion of the disclaimer required by the Resolution, which
‘encourages women who are or may be pregnant to consult with a
licensed health care provider,’” is narrowly tailored to promote
the County’s compelling interest. Centro Tepeyac, 779 F. Supp.
2d at 468 (citing United States v. Playboy Entm’t Grp., Inc.,
529 U.S. 803, 813 (2000) (“If a less restrictive alternative
would serve the Government’s purpose, the legislature must use
that alternative.”)). The court was particularly concerned
that, in light of the first compelled statement (that “the
Center does not have a licensed medical professional on staff”),
the second statement may constitute “unneeded speech,” because
the County’s interest in ensuring that women will not forgo
medical treatment “might be satisfied once women were aware that
[a pregnancy resource center does] not staff a medical
professional.” Id. Additionally, the court noted that “several
options less restrictive than compelled speech could be used to
encourage pregnant women to see a licensed medical
professional,” citing as examples that the County “could post
notices [in its own facilities] encouraging women to see a
13
doctor” or “launch a public awareness campaign.” Id. at 469
n.9.
On the other hand, the district court ruled that “the
record is at least colorable at this stage to suggest that [the
first portion of the Resolution-mandated disclaimer] is narrowly
tailored to meet the [County’s stated] interest.” Centro
Tepeyac, 779 F. Supp. 2d at 471. The court explained that the
first compelled statement merely notifies patients “that a
licensed medical professional is not on staff,” “does not
require any other specific message,” and “in neutral language
states the truth.” Id. Moreover, the court indicated that the
existing evidence was altogether inadequate to demonstrate that
less restrictive alternatives proposed by Centro Tepeyac “would
be at least as effective in achieving the legitimate purpose
that the [Resolution] was enacted to serve.” See Reno v. ACLU,
521 U.S. 844, 874 (1997).
Consequently, the district court determined that Centro
Tepeyac had failed to satisfy its burden of showing, as to the
initial factor of the Winter preliminary injunction standard,
that the Resolution’s first compelled statement “will fail to
survive strict scrutiny review.” Centro Tepeyac, 779 F. Supp.
2d at 471; cf. Beal v. Stern, 184 F.3d 117, 130 (2d Cir. 1999)
(“We are not prepared to find on this record that appellants
have shown a clear likelihood of success on the merits of either
14
[First Amendment] claim. As to narrow tailoring, we simply do
not have sufficient evidence to determine whether means chosen
by the [government] are substantially broader than necessary.”).
But because Centro Tepeyac had demonstrated likely success on
the merits of its First Amendment claim with respect to the
second compelled statement, the court continued its Winter
analysis with respect to that portion of the Resolution.
Addressing the second Winter factor (the likelihood of
irreparable harm), the district court acknowledged that, “‘in
the context of an alleged violation of First Amendment rights, a
plaintiff’s claimed irreparable harm is inseparably linked to
the likelihood of success on the merits of plaintiff’s First
Amendment claim.’” Centro Tepeyac, 779 F. Supp. 2d at 471(quoting WV Ass’n of Club Owners & Fraternal Servs., Inc. v.
Musgrave, 553 F.3d 292, 298 (4th Cir. 2009)); see Newsom ex rel.
Newsom v. Albemarle Cnty. Sch. Bd., 354 F.3d 249, 261 (4th Cir.
2003) (“[T]he Supreme Court has explained that ‘loss of First
Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury.’” (quoting Elrod
v. Burns, 427 U.S. 347, 373 (1976))). Recognizing that there
was “no reason to depart from the ordinary rule in this case,”
the district court ruled that Centro Tepeyac had “shown
irreparable harm.” Centro Tepeyac, 779 F. Supp. 2d at 471.
15
The district court jointly considered the third and fourth
Winter factors (the balance of equities and the public
interest), invoking precedent deeming those “factors established
when there is a likely First Amendment violation.” See Centro
Tepeyac, 779 F. Supp. 2d at 471-72. That precedent counsels
that “a state is in no way harmed by issuance of a preliminary
injunction which prevents the state from enforcing restrictions
likely to be found unconstitutional. If anything, the system is
improved by such an injunction.” Giovani Carandola, Ltd. v.
Bason, 303 F.3d 507, 521 (4th Cir. 2002) (internal quotation
marks omitted). It also teaches that “upholding constitutional
rights surely serves the public interest.” Id.Having concluded that Centro Tepeyac satisfied each of the
four Winter factors with respect to the second compelled
statement, the district court enjoined enforcement of that
portion of the Resolution only. The court specified that the
County “will be enjoined from enforcing the Resolution’s
requirement that [limited service pregnancy resource centers]
post a sign indicating that ‘the Montgomery County Health
Officer encourages women who are or may be pregnant to consult
with a licensed health care provider.’” Centro Tepeyac, 779 F.
Supp. 2d at 472. That is, consistent with its determination
that the second compelled statement likely is not narrowly
tailored because it constitutes “unneeded speech,” the court
16
prohibited the County from requiring any center (and not merely
Centro Tepeyac) to make such disclosure. See United States v.
Stevens, 130 S. Ct. 1577, 1587 (2010) (instructing that facial
invalidation is appropriate where “no set of circumstances
exists under which [the law] would be valid, or [where the law]
lacks any plainly legitimate sweep,” and, alternatively, where
“a substantial number of [the law’s] applications are
unconstitutional, judged in relation to the [law’s] plainly
legitimate sweep” (citations and internal quotation marks
omitted)). 4
4
Additionally, the district court considered and rejected
Centro Tepeyac’s contention that the Resolution should be
preliminarily enjoined for being unconstitutionally vague. See
Centro Tepeyac, 779 F. Supp. 2d at 470 (recognizing that “[a]
potentially vague law that interferes with First Amendment
rights deserves greater scrutiny ‘because of its obvious
chilling effect on free speech’” (quoting Reno, 521 U.S. at
872)). The court determined that, although “[a] regulation may
be deemed impermissibly vague if it ‘fails to provide people of
ordinary intelligence a reasonable opportunity to understand
what conduct it prohibits,’” id. (quoting Hill v. Colorado, 530
U.S. 703, 732 (2000)), Centro Tepeyac’s allegation of undefined
phrases in the Resolution (such as “has a primary purpose” and
“medical-related services”) was insufficient to establish
vagueness, id. at 470-71. As the court explained, “[a] failure
by a statute to define all of its terms does not necessarily
render it impermissibly vague.” Id. at 471 (citing Rose v.
Locke, 423 U.S. 48, 50 (1975) (“Even trained lawyers may find it
necessary to consult legal dictionaries, treatises, and judicial
opinions before they may say with any certainty what some
statutes may compel or forbid.”)). The court emphasized that,
“[e]ven when a regulation implicates the First Amendment,
‘perfect clarity and precise guidance have never been
required.’” Id. (quoting Ward v. Rock Against Racism, 491 U.S.
781, 794 (1989)).
17
In these circumstances, we cannot say that the district
court in any way abused its discretion. The 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. Indeed, we commend the court for its careful and
restrained analysis.
B.
Our good dissenting colleagues — who condemn the district
court’s decision not to enjoin the first compelled statement —
clearly “would, in the first instance, have decided the matter
differently”; that is no justification, however, for reversal.
See Quince Orchard Valley, 872 F.2d at 78. 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 U.S. 922, 934
(1975). The dissenters simply fail to grasp that controlling
principle when they suggest that our affirmance herein is
incompatible with today’s separate opinion in another Maryland
pregnancy center-compelled disclosure case — a case that, unlike
this one, came before us only after the district court entered a
permanent injunction on the basis of a summary judgment award.
See Greater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor of
18
Balt., No. 11-1111(L), slip op. at 60-61 (4th Cir. July __,
2013) (en banc) (explaining that, because “the district court
improperly denied the City essential discovery and otherwise
flouted the Federal Rules of Civil Procedure . . . , we vacate
the judgment and remand for further proceedings”).
Meanwhile, the dissenters search in vain for a legal error
to call an abuse of discretion. First, invoking the Supreme
Court’s decision in Riley, the dissenters assert that the
district court erred “by dividing its assessment of the
Resolution and approving one sentence but not the other.” Post
at 28 (Niemeyer, J., dissenting). Riley, however, is irrelevant
to the question of whether a court may evaluate separately the
constitutionality of two parts of a disclosure requirement. See
Riley, 487 U.S. at 796 (addressing different issue of “what
level of scrutiny to apply” where compelled speech is commercial
but “inextricably intertwined with otherwise fully protected
speech”). Furthermore, upon careful consideration, the district
court soundly determined “that there is nothing in the
Resolution to dispel [Maryland’s] ordinary presumption of
severability.” Centro Tepeyac, 779 F. Supp. 2d at 470 (citing
Montrose Christian Sch. Corp. v. Walsh, 770 A.2d 111, 129 (Md.
2001), for the proposition that, “[u]nder Maryland law, there is
a strong presumption that if a portion of an enactment is found
to be invalid, the intent of the legislative body is that such
19
portion be severed” (alterations and internal quotation marks
omitted)).
The dissenters also posit that the district court’s narrow
tailoring rulings on the first and second compelled statements
were inconsistent, in that “the court appropriately tested the
second sentence’s constitutionality against a range of less-
restrictive alternatives” that “applied equally to” the first.
Post at 28. In doing so, the dissenters obscure the court’s
primary reason for its second-compelled-statement ruling: that
the first compelled statement appeared to render the second
“unneeded speech.” Centro Tepeyac, 779 F. Supp. 2d at 468.
Finally, the dissenters assert that the district court
erroneously deemed the first compelled statement to be narrowly
tailored solely because it is “‘neutral’” and “‘true.’” See
post at 29. But the court’s actual reasoning was this:
As discussed above, the interest in public health and
access to medical care may be described as compelling.
And, the record is at least colorable at this stage to
suggest that the disclaimer is narrowly tailored to
meet the interest: only requiring those [limited
service pregnancy resource centers] to post a notice
that a licensed medical professional is not on staff.
It does not require any other specific message and in
neutral language states the truth.
Centro Tepeyac, 779 F. Supp. 2d at 471. The district court’s
reasoning is entirely consistent with the principle, recognized
by the court, see id. at 468, that “[a]ction taken to remedy an
‘evil’ will be considered ‘narrowly tailored if it targets and
20
eliminates no more than the exact source of the evil it seeks to
remedy.’” Columbia Union Coll. v. Clarke, 159 F.3d 151, 157 n.2
(4th Cir. 1998) (quoting Frisby v. Schultz, 487 U.S. 474, 485
(1988)). Accordingly, there is no merit to the dissenters’ view
that the court “misapprehend[ed] the law with respect to
underlying issues in litigation.” See Quince Orchard Valley,
872 F.2d at 78 (internal quotation marks omitted).
III.
Pursuant to the foregoing, we affirm the preliminary
injunction decision rendered by the district court.
AFFIRMED
21
WILKINSON, Circuit Judge, concurring:
I concur in Judge King’s opinion affirming the district
court’s decision to preliminarily enjoin the second disclaimer
mandated by the Montgomery County Resolution but not the first.
Compelled speech is not an all-or-nothing matter, and this case
illustrates why. Because the dangers of compelled speech are
real and grave, courts must be on guard whenever the state seeks
to force an individual or private organization to utter a
statement at odds with its most fundamental beliefs. See
Greater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor & City
Council of Balt., No. 11-1111 (4th Cir. 2013) (en banc)
(Wilkinson, J., dissenting). But in exercising its broad police
power to regulate for the health and safety of its citizens, the
state must also enjoy some leeway to require the disclosure of
the modicum of accurate information that individuals need in
order to make especially important medical and personal
decisions.
The first disclosure mandated by the Montgomery County
Resolution -- that a center “does not have a licensed medical
professional on staff” -- falls within the bounds of the state’s
authority to safeguard its citizens’ welfare. It requires the
centers merely to state both briefly and accurately the
professional credentials of their staff rather than to present
abortion and birth control as viable options right at the outset
22
of their personal interactions with their clients and
notwithstanding their beliefs to the contrary. And it relies on
the common-sense notion that pregnant women should at least be
aware of the qualifications of those who wish to counsel them
regarding what is, among other things, a medical condition.
Pregnancy can be a time of great joy and anticipation --
for both parents. But it can also be a time of apprehension and
medical anxiety. I thus do not think it remiss for the state to
require organizations like Centro Tepeyac to provide a scrap of
accurate medical information to pregnant women at what can be a
fraught moment, information that can neutrally assist with their
search for licensed medical care.
My esteemed colleagues on both sides of this question
insist upon seeing the Baltimore Pregnancy Center case and the
Centro Tepeyac case as the same, but they decidedly are not. In
the Baltimore case, the Center was forced to convey an
ideologically freighted message, one directly referencing
abortion in a manner directly contrary to the Center’s views.
In the Centro Tepeyac case, the required disclosure involved a
scintilla of manifestly neutral and medically accurate
information in a manner likely to reach the intended recipient.
While my dissenting colleague complains that other sources, such
as “internet sites, bookstores, or houses of worship . . . are
left unregulated,” a woman would be far less likely to turn to
23
these sources under the impression that she would find there
personal interaction with a “licensed medical professional.”
Post at 36.
For pregnancy centers like those in Baltimore and Centro
Tepeyac, opposition to abortion and support for healthy
pregnancies are core values. Seen in this light, the compelled
speech in Baltimore involves the state imprinting its ideology
on an unwilling speaker. The compelled speech in Centro Tepeyac
involves the de minimis exercise of the basic state
responsibility to protect the health of its citizens, nowhere
more so than in periods of possible confusion and stress.
This distinction makes all the difference. In Wooley v.
Maynard, 430 U.S. 705, 715 (1977), the Court quite explicitly
noted that state action “which forces an individual . . . to be
an instrument for fostering public adherence to an ideological
point of view” was unacceptable under the First Amendment. And
W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943),
rested on the principle that the state cannot press ideological
speech onto the lips of nonconforming individuals. The state
tried to do exactly this in the Baltimore case, but it did not
overstep in the upheld disclosure here.
These two cases underscore the drawbacks of addressing in
stark absolutes a problem that is one of degree and gradation.
The fact that litigants bring before courts a set of strongly
24
competing interests and strenuously opposing views does not mark
the perspective of either side as illegitimate. On a problem
this difficult, courts should not fall off the cliff in either
direction.
For these reasons, I think the first disclaimer mandated by
the Resolution is permissible. And for the reasons given by the
district court, I also agree with its decision to preliminarily
enjoin the second disclaimer as an unconstitutional form of
compelled speech.
25
NIEMEYER, Circuit Judge, dissenting:
The Montgomery County Council enacted, at the urging of
pro-choice groups, Resolution 16-1252, requiring pregnancy
centers that provide pregnancy advice but not medical services
to display a sign on their premises, stating that “the Center
does not have a licensed medical professional on staff” and “the
Montgomery County Health Officer encourages women who are or may
be pregnant to consult with a licensed health care provider.”
All of the pregnancy centers in Montgomery County that provide
abortions have licensed medical professionals on staff. The
Resolution addressed the County Council’s concern that clients
of pregnancy centers without licensed medical professionals are
being “misled into believing that a Center is providing medical
services when it is not.”
Centro Tepeyac is a nonprofit pregnancy center that
provides information about pregnancy and other services to
pregnant women. The center does not, however, provide
abortions, comprehensive birth control, or other medical
services, nor does it have any licensed medical professional on
staff. Shortly after Resolution 16-1252 was enacted, Centro
Tepeyac commenced this action challenging the law under the
First Amendment.
In its assessment of the Resolution, the district court
appropriately noted that the entire mandated message was
26
compelled speech and was therefore content-based. Centro
Tepeyac v. Montgomery Cnty., 779 F. Supp. 2d 456, 462 (D. Md.
2011). Recognizing that commercial speech is subject to a lower
level of scrutiny, the court found that Resolution 16-1252
applied at least in part to noncommercial speech and therefore
was subject to strict scrutiny. Id. at 463-65. In applying
strict scrutiny to the entire mandated speech, the court said,
“[I]t cannot be said as a matter of law that the entire
Resolution was narrowly tailored to promote [the County’s
compelling government interest in preserving public health].”
Id. at 468.
As far as this analysis went, the district court applied
established First Amendment jurisprudence. But then it
abandoned that course when it divided the mandated speech and
assessed each sentence independently. As to the first sentence,
the court found that it was narrowly tailored to serve the
government’s interest in public health and therefore was likely
constitutional, explaining that “[i]t does not require any other
specific message [than to announce that a licensed medical
professional is not on staff] and in neutral language states the
truth.” Centro Tepeyac, 779 F. Supp. 2d at 471. As to the
second sentence, it found that it was “unneeded” to serve the
government interest, was not “the least restrictive means of
achieving [the] relevant government interest,” and therefore was
27
likely unconstitutional. Id. at 468-69. The court backed up
its assessment of the second sentence by listing “several
options less restrictive than compelled speech.” Id. at 469
n.9.
Surprisingly, the majority affirms the district court’s
analysis and judgment, concluding that the court “demonstrated a
firm grasp of the legal principles pertinent to the underlying
dispute.” Ante, at 18. But, by dividing its assessment of the
Resolution and approving one sentence but not the other, the
district court effectively and impermissibly rewrote the message
compelled by the Resolution, reducing it to a form that the
court believed would make it constitutional. Compounding the
error, the district court engaged in something novel to First
Amendment jurisprudence -- a selective application of strict
scrutiny -- which is inappropriate. See Riley v. Nat’l Fed’n of
the Blind of N.C., Inc., 487 U.S. 781, 796 (1988) (“[W]e cannot
parcel out the speech, applying one test to one phrase and
another test to another phrase”). One need only consider the
district court’s entire opinion to see the infirmity. Whereas
the court appropriately tested the second sentence’s
constitutionality against a range of less-restrictive
alternatives, it did not do so for the first. In fact, the
alternatives identified by the district court applied equally to
both sentences. Rather than recognize this basic inconsistency,
28
the majority affirms the analysis without explanation. Finally,
the majority approves the inappropriate reasons given by the
district court for upholding the first sentence -- that it was
“neutral” and “true” -- without providing any legal
justification.
With its affirmance, the majority places itself in a
curious position in view of its holding today in Greater
Baltimore Center for Pregnancy Concerns, Inc. v. Mayor & City
Council of Baltimore, F.3d , No. 11-1111(L) (4th Cir. July
__, 2013) (en banc). In Greater Baltimore Center, the majority
concluded that the plaintiffs had not demonstrated, as a matter
of law, that an ordinance compelling certain pregnancy centers
to post a sign stating that the center did not provide or refer
for abortion was unconstitutional, because facts as to the
applicability of the ordinance and its effect were either
disputed or factually undeveloped. The record in Greater
Baltimore Center contained the full legislative history. Yet,
in this case, where the Resolution mandates similarly, although
less explicitly, that the pregnancy center post a sign about the
limitations of its services, the majority affirms the district
court’s conclusion that the order is likely unconstitutional as
a matter of law, based on the same record that existed in
Greater Baltimore Center.
29
By affirming the district court’s decision, the majority
effectively approves novel and erroneous First Amendment
principles. It upholds the ruling that one sentence of the
compelled speech is likely unconstitutional while the other is
likely constitutional, even though both are mandated and are
subject to strict scrutiny. It also approves an analysis that
is internally inconsistent. If the second sentence was not
narrowly tailored because it was not the least restrictive means
of serving the County’s interests, so must the first sentence
not be the least restrictive means available, as the
alternatives identified by the district court applied equally to
both sentences. And finally, the majority approves the totally
new and legally inappropriate reasons given by the district
court for finding that the first sentence satisfied the
narrowly-tailored test -- that the mandated speech was “neutral”
and “true.”
As does the majority, I would affirm the district court’s
conclusion that Resolution 16-1252 compelled speech; that it is
subject to strict scrutiny; and that, as a whole, it is not
narrowly tailored to serve the government’s asserted compelling
interests. But I would also conclude that even if the first
sentence were considered independently, it is unconstitutional
for the same reasons that the whole message and the second
sentence taken alone are unconstitutional. In my view, the
30
district court “misapprehend[ed] the law” with respect to (1)
its authority to parse the compelled message and (2) its
conclusion that the first sentence was narrowly tailored. See
Quince Orchard Valley Citizens Ass’n, Inc. v. Hodel, 872 F.2d
75, 78 (4th Cir. 1989). Because of these legal errors, its
ruling amounted to an abuse of discretion. See id.I
As a matter of background, Centro Tepeyac is a Montgomery
County nonprofit corporation that provides information and
services to pregnant women, including free pregnancy tests,
diapers, baby clothes, parenting assistance, and confidential
conversations about pregnancy options. Critically, Centro
Tepeyac does not provide abortions, comprehensive birth control,
or any other medical services, and it does not, therefore, have
licensed medical professionals on staff. It commenced this
action challenging Resolution 16-1252, contending that the
Resolution compels it to speak in a manner that it would not
otherwise choose to speak and therefore violates its First and
Fourteenth Amendment rights.
Resolution 16-1252 requires that all pregnancy centers,
defined as those (1) having “a primary purpose to provide
pregnancy-related services”; (2) not having “a licensed medical
professional on staff”; and (3) providing “information about
31
pregnancy-related services, for a fee or as a free service,”
conspicuously display a sign, stating that “the Center does not
have a licensed medical professional on staff” and “the
Montgomery County Health Officer encourages women who are or may
be pregnant to consult with a licensed health care provider.” A
violation of the Resolution is punishable as a Class A civil
violation.
II
At the outset, I agree with the district court and the
majority that the entire Resolution, as well as the second
sentence alone, likely violates Centro Tepeyac’s First Amendment
rights. I would go further and conclude additionally that when
the first sentence is considered alone, it also violates Centro
Tepeyac’s First Amendment rights.
All agree that the first sentence compels speech and that
it is subject to strict scrutiny. But then, in determining
whether the first sentence was narrowly tailored, the district
court accepted as compelling the County’s stated interest in
addressing its concern “that clients may be misled into
believing that a Center is providing medical services when it is
not” and concluded:
As discussed above, the interest in public health and
access to medical care may be described as compelling.
And, the record is at least colorable at this stage to
32
suggest that the disclaimer is narrowly tailored to
meet the interest: only requiring those [pregnancy
centers] to post a notice that a licensed medical
professional is not on staff. It does not require any
other specific message and in neutral language states
the truth.
Centro Tepeyac, 779 F. Supp. 2d at 471 (emphasis added). This
conclusion about how the first sentence is narrowly tailored is
undoubtedly inconsistent with First Amendment principles.
The first reason the district court gave -- that the
required speech “does not require any other specific message” --
is merely a positive evaluation about the content of the speech,
essentially concluding that a pregnancy center should not find
it troubling to speak the message. But this overlooks that
Centro Tepeyac does indeed object to being compelled to speak
this mandated statement, for reasons relating to its mission.
The record also shows that several other pregnancy centers
likewise objected to the mandated sign during hearings on the
Resolution. More specific to First Amendment jurisprudence, the
court overlooked the fact that mandating speech is a content-
based restriction on speech that infringes freedom by merely
denying the regulated pregnancy centers’ right to not speak at
all. See Riley, 487 U.S. at 796-97 (“[T]he First Amendment
guarantees ‘freedom of speech,’ a term necessarily comprising
the decision of both what to say and what not to say”). “[T]he
government, even with the purest of motives, may not substitute
33
its judgment as to how best to speak for that of speakers and
listeners.” Id. at 791.
The second reason the district court gave for finding the
first sentence was narrowly tailored was that the mandated
speech speaks “the truth” in neutral language. But this is also
not a legitimate or sufficient justification for compelling
speech. As the Supreme Court stated, “[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,” Hurley v. Irish-American Gay, Lesbian, &
Bisexual Group of Boston, 515 U.S. 557, 573 (1995), even if the
compelled statements are factually accurate, see Riley, 487 U.S.
at 797-98.
In addition to its flawed analysis of the first sentence,
the district court made another First Amendment error. It
failed to address the available alternatives to compelling
speech. This is a curious omission, given that the court ably
identified alternatives that rendered the second sentence
unconstitutional. See Centro Tepeyac, 779 F. Supp. 2d at 469
n.9. In fact, the very same available alternatives to the
second sentence also apply to the first. This alone should
require reversal of the district court’s conclusion. See
Thompson v. Western States Med. Ctr., 535 U.S. 357, 373 (2002)
34
(“If the First Amendment means anything, it means that
regulating speech must be a last -- not first -- resort”).
At bottom, it is clear that the district court failed to
apply the proper First Amendment analysis.
A correct assessment of whether the Resolution, including
the first sentence of the mandated speech, was narrowly tailored
is a question of law. See Village 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). And any casual
assessment of the first sentence leads inevitably to the
conclusion that it is not narrowly tailored and therefore is
unconstitutional.
First, Resolution 16-1252 (and its first sentence) is
overinclusive in that it applies to pregnancy centers regardless
of whether they accurately represent whether they have a
licensed medical professional on staff. See FEC v. Mass.
Citizens for Life, Inc., 479 U.S. 238, 265 (1986) (stating that
the “government must curtail speech only to the degree necessary
to meet the particular problem at hand” and “must avoid
infringing on speech that does not pose the danger that has
prompted regulation”).
Second, the first sentence is underinclusive, posing
special problems in the First Amendment context because it
35
“raises serious doubts about whether the government is in fact
pursuing the interest it invokes, rather than disfavoring a
particular speaker or viewpoint.” Brown v. Entm’t Merchants
Ass’n, 131 S. Ct. 2729, 2740 (2011); see also City of Ladue v.
Gilleo, 512 U.S. 43, 51 (1994) (“[A]n exemption from an
otherwise permissible regulation of speech may represent a
governmental attempt to give one side of a debatable public
question an advantage in expressing its views to the people”
(internal quotation marks omitted)). In this case, centers like
Centro Tepeyac are singled out for disfavored treatment while
many other sources that pregnant women may consult for advice --
internet sites, bookstores, or houses of worship -- are left
unregulated, regardless of whether the advice they give comes
from a “licensed medical professional.” Where, as here, the
government seeks to burden speech in the name of some public
interest, it must “demonstrate its commitment to advancing this
interest by applying its prohibition evenhandedly.” Fla. Star
v. B.J.F., 491 U.S. 524, 540 (1989).
Third, there are several available alternatives to
compelling speech. Both the available alternatives on which the
district court relied to find the second sentence
unconstitutional, as well as others not considered by the
district court, reflect Resolution 16-1252’s
unconstitutionality. First, Montgomery County could speak with
36
its own voice. 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 the State’s goal of promotion temperance. . . .
[E]ducational campaigns focused on the problems of excessive, or
even moderate, drinking might prove to be more effective”).
As another alternative, the County could produce a document
or website listing local pregnancy centers and noting whether
medical professionals are available at each. See Riley, 487
U.S. at 800 (“[T]he State may itself 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 County could always
pursue the option of prosecuting violations of laws against
practicing medicine without a license or laws proscribing false
or deceptive advertising. See Riley, 487 U.S. at 800; see also
Nefedro v. Montgomery Cnty., 996 A.2d 850, 863-64 (Md. 2010)
37
(holding that fraud laws were a less restrictive alternative to
a law prohibiting remuneration for fortune telling).
Without first trying these or similar options, the County
could not have adopted a speech-restrictive strategy. See
Thompson, 535 U.S. at 373.
The majority affirms the district court’s analysis without
recognizing or justifying its erroneous application of First
Amendment law. Rather, it abdicates, noting that the court
demonstrated “a firm grasp of the legal principles.”
Because I conclude that Resolution 16-1252 is
unconstitutional on its face, I would affirm the district
court’s conclusion that the second sentence of the mandated
speech was likely unconstitutional and reverse its conclusion
that the first sentence could be separated from the second
sentence. Additionally, I would reverse the district court’s
finding that the first sentence was narrowly tailored.
Judges Shedd and Agee have asked me to show them as joining
this opinion.
38