Greater Baltimore Center for Pregnancy Concerns, Inc. v. Mayor of Baltimore

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-2325
GREATER BALTIMORE CENTER FOR PREGNANCY CONCERNS,
INCORPORATED,
fiel
Plaintiff - Appellee,
and
ST. BRIGID’S ROMAN CATHOLIC CONGREGATION INCORPORATED;
ARCHBISHOP EDWIN F. O’BRIEN, ARCHBISHOP OF BALTIMORE AND
HIS SUCCESSORS IN OFFICE, A CORPORATION SOLE,
Plaintiffs,
v.
MAYOR AND CITY COUNCIL OF BALTIMORE; STEPHANIE RAWLINGS-
BLAKE, Mayor of Baltimore, in her Official Capacity; LEANA S. WEN, M.D., in
her official capacity as Baltimore City Health Commissioner,
Defendants - Appellants,
and
OLIVIA FARROW, Esq., Acting Baltimore City Health Commissioner, in her
official capacity; BALTIMORE CITY HEALTH DEPARTMENT; OXIRIS
BARBOT,
Defendants,
------------------------------
INTERNATIONAL MUNICIPAL LAWYERS ASSOCIATION; PUBLIC
HEALTH ADVOCATES; THE INFORMATION SOCIETY PROJECT AT YALE
LAW SCHOOL; NARAL PRO-CHOICE MARYLAND; NARAL PRO-CHOICE
AMERICA; CATHOLICS FOR CHOICE; BALTIMORE ABORTION FUND;
DC ABORTION FUND, (“DCAF”); NATIONAL ABORTION FEDERATION;
MARYLAND CHAPTER FOR THE NATIONAL ORGANIZATION FOR
WOMEN; PLANNED PARENTHOOD OF MARYLAND; RELIGIOUS
COALITION FOR REPRODUCTIVE CHOICE; WHOLE WOMAN’S HEALTH
OF BALTIMORE; WOMEN’S LAW CENTER OF MARYLAND,
INCORPORATED; THE HONORABLE CHRISTOPHER VAN HOLLEN, JR.;
THE HONORABLE ELIJAH CUMMINGS,
Amici Supporting Appellant,
EBONY HARRIS; ETHAN TAYLOR; LINDA HOLLIDAY; NICOLE
HOWARD; DESTINIE JACKSON; JENNERA SMALLS; AMERICAN CENTER
FOR LAW AND JUSTICE; NATIONAL AND LOCAL PREGNANCY CARE
ORGANIZATIONS; DEMOCRATS FOR LIFE OF AMERICA;
INSTITUTIONAL RELIGIOUS FREEDOM ALLIANCE; CHRISTIAN LEGAL
SOCIETY; NATIONAL INSTITUTE OF FAMILY AND LIFE ADVOCATES;
HEARTBEAT INTERNATIONAL; NATIONAL LEGAL FOUNDATION;
STATE OF WEST VIRGINIA; STATE OF ALABAMA; STATE OF
ARKANSAS; STATE OF KANSAS; STATE OF MICHIGAN; STATE OF
NEBRASKA; STATE OF OHIO; STATE OF SOUTH CAROLINA; STATE OF
TEXAS; STATE OF UTAH; DR. KESTEN C. GREEN; LAW PROFESSORS;
ETHICS & RELIGIOUS LIBERTY COMMISSION; INTERNATIONAL
SOCIETY FOR KRISHNA CONSCIOUSNESS, INCORPORATED;
ARCHDIOCESE OF BALTIMORE,
Amici Supporting Appellee.
Appeal 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: October 24, 2017 Decided: January 5, 2018
Before WILKINSON, DUNCAN, and AGEE, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge
Duncan and Judge Agee joined.
2
ARGUED: Suzanne Sangree, BALTIMORE CITY LAW DEPARTMENT, Baltimore,
Maryland, for Appellants. David William Kinkopf, GALLAGHER EVELIUS & JONES
LLP, Baltimore, Maryland, for Appellee. ON BRIEF: Molly R. Duane, Autumn C.
Katz, Stephanie Toti, CENTER FOR REPRODUCTIVE RIGHTS, New York, New
York, for Appellants. Peter J. Basile, FERGUSON, SHETELICH & BALLEW, PA,
Baltimore, Maryland; Steven G. Metzger, Anatoly Smolkin, GALLAGHER EVELIUS &
JONES LLP, Baltimore, Maryland; Mark L. Rienzi, THE BECKET FUND FOR
RELIGIOUS LIBERTY, Washington, D.C., for Appellee. Simona G. Strauss, P. Casey
Mathews, Palo Alto, California, Veronica R. Jordon-Davis, SIMPSON THACHER &
BARTLETT LLP, New York, New York, for Amicus Public Health Advocates. Douglas
W. Baruch, Washington, D.C., Janice Mac Avoy, Jennifer L. Colyer, Andrew B.
Cashmore, Leigh G. Rome, FRIED, FRANK, HARRIS, SHRIVER & JACOBSON LLP,
New York, New York, for Amicus International Municipal Lawyers Association.
Priscilla Joyce Smith, YALE LAW SCHOOL, Brooklyn, New York, for Amicus The
Information Society Project at Yale Law School. Kimberly A. Parker, Lesley Fredin,
Washington, D.C., Paloma Naderi, WILMER CUTLER PICKERING HALE AND
DORR LLP, Boston, Massachusetts, for Amici NARAL Pro-Choice Maryland, NARAL
Pro-Choice America, Baltimore Abortion Fund, Catholics for Choice, DC Abortion Fund,
Maryland Chapter for the National Organization for Women, National Abortion
Federation, Planned Parenthood of Maryland, Religious Coalition for Reproductive
Choice, Whole Woman’s Health of Baltimore, Incorporated, Women’s Law Center of
Maryland, The Honorable Christopher Van Hollen, Jr., and The Honorable Elijah
Cummings. Andrea Picciotti-Bayer, THE CATHOLIC ASSOCIATION, McLean,
Virginia; Jack Ryan Terziu, Baltimore, Maryland, for Amici Ebony Harris, Ethan Taylor,
Linda Holliday, Nicole Howard, Destinie Jackson, and Jennera Smalls. Edward L. White
III, Erik M. Zimmerman, Ann Arbor, Michigan, Frances J. Manion, Geoffrey R. Surtees,
AMERICAN CENTER FOR LAW AND JUSTICE, New Hope, Kentucky, for Amicus
American Center for Law and Justice. Anna F. Paprocki, Deanna M. Wallace,
AMERICANS UNITED FOR LIFE, Arlington, Virginia, for Amicus National and Local
Pregnancy Care Organizations. Thomas C. Berg, Religious Liberty Appellate Clinic,
UNIVERSITY OF ST. THOMAS SCHOOL OF LAW, Minneapolis, Minnesota;
Kimberlee Wood Colby, Christian Legal Society, CENTER FOR LAW AND
RELIGIOUS FREEDOM, Springfield, Virginia, for Amici Democrats for Life of
America, Institutional Religious Freedom Alliance, and Christian Legal Society. Kevin
H. Theriot, Elissa M. Graves, Scottsdale, Arizona, David A. Cortman, ALLIANCE
DEFENDING FREEDOM, Lawrenceville, Georgia, for Amici National Institute of
Family and Life Advocates and Heartbeat International. Frederick W. Claybrook, Jr.,
CLAYBROOK LLC, Washington, D.C.; Steven W. Fitschen, THE NATIONAL LEGAL
FOUNDATION, Virginia Beach, Virginia, for Amicus National Legal Foundation.
Patrick Morrisey, Attorney General, Elbert Lin, Solicitor General, Thomas M. Johnson,
Jr., Deputy Solicitor General, Erica N. Peterson, Assistant Attorney General, OFFICE OF
THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for
3
Amicus State of West Virginia. Steven T. Marshall, Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF ALABAMA, Montgomery, Alabama, for Amicus State of
Alabama. Leslie Rutledge, Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF ARKANSAS, Little Rock, Arkansas, for Amicus State of Arkansas.
Derek Schmidt, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF
KANSAS, Topeka, Kansas, for Amicus State of Kansas. Bill Schuette, Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF MICHIGAN, Lansing,
Michigan, for Amicus State of Michigan. Douglas J. Peterson, Attorney General,
OFFICE OF THE ATTORNEY GENERAL OF NEBRASKA, Lincoln, Nebraska, for
Amicus State of Nebraska. Michael DeWine, Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF OHIO, Columbus, Ohio, for Amicus State of Ohio. Alan
Wilson, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH
CAROLINA, Columbia, South Carolina, for Amicus State of South Carolina. Ken
Paxton, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF TEXAS,
Austin, Texas, for Amicus State of Texas. Sean D. Reyes, Attorney General, OFFICE
OF THE ATTORNEY GENERAL OF UTAH, Salt Lake City, Utah, for Amicus State of
Utah. Blaine H. Evanson, Daniel Nowicki, GIBSON, DUNN & CRUTCHER LLP, Los
Angeles, California, for Amicus Dr. Kesten C. Green. C. Kevin Marshall, David T.
Raimer, Catherine Maggio Schmucker, JONES DAY, Washington, D.C., for Amici Law
Professors. Daniel P. Collins, Adam P. Barry, MUNGER, TOLLES & OLSON LLP, Los
Angeles, California, for Amici Ethics & Religious Liberty Commission, International
Society for Krishna Consciousness, Incorporated, and Archdiocese of Baltimore.
4
WILKINSON, Circuit Judge:
A Baltimore City ordinance requires pregnancy clinics that do not offer or refer
for abortions to disclose that fact through signs posted in their waiting rooms. The district
court held that the law, as applied to appellee, the Greater Baltimore Center for
Pregnancy Concerns, Inc., violates the First Amendment’s Free Speech Clause. We
affirm. The City has considerable latitude in regulating public health and deceptive
advertising. But Baltimore’s chosen means here are too loose a fit with those ends, and in
this case compel a politically and religiously motivated group to convey a message
fundamentally at odds with its core beliefs and mission.
I.
A.
The Greater Baltimore Center for Pregnancy Concerns is a non-profit Christian
organization committed to “providing alternatives to abortion to women who find
themselves in the midst of an unplanned pregnancy.” J.A. 360. Operating from rent-free
space provided by a Catholic Church, the Center provides pregnant women with free
services, including counseling, bible study, pregnancy tests, sonograms, and education on
child care, life skills, and abstinence. It also provides free prenatal vitamins, diapers,
clothing, books, and other assistance. The Center does not charge for its goods or
services. In keeping with its religious mission, the Center does not provide or refer for
abortions. That fact is clearly stated in a “Commitment of Care” pamphlet available in the
Center’s waiting room. J.A. 362, 375.
5
The Center advertises its pregnancy-related services, but does not expressly
broadcast its religious opposition to abortion in those ads. For example, a 2010 campaign
on Baltimore buses touted “FREE Abortion Alternatives,” “FREE Confidential Options
Counseling,” “FREE Pregnancy Tests,” and “FREE Services.” J.A. 698. A 2013 spread
in the local Penny Saver advertised, among other things, “Pre-natal development
information,” “Information about procedures and risks of abortion,” “Bible Study,” and
“Post Abortion Counseling & Education.” J.A. 693. The Center is also affiliated with two
pro-life umbrella organizations, Care Net and Heartbeat International, which refer women
to their affiliates through national call centers and websites.
Concerned that women seeking abortions might be misled into visiting pro-life
pregnancy centers and delaying the abortion, the Mayor and City Council of Baltimore
enacted Ordinance 09-252 on December 4, 2009. The ordinance requires any “limited-
service pregnancy center” to post a disclaimer in its waiting room notifying clients that it
“does not provide or make referral for abortion or birth-control services.” See Balt. City
Health Code §§ 3-501 to 3-506 (2010). Under the ordinance, a “limited-service
pregnancy center” means any entity “whose primary purpose is to provide pregnancy-
related services” and which “provides information about pregnancy-related services,” but
“does not provide or refer for” abortions or “nondirective and comprehensive” birth
control. Id. at § 3-501. The required signs must be “conspicuously posted” and “easily
readable” in English and Spanish. Id. at § 3-502(b).
In the event of a violation, the ordinance authorizes Baltimore City’s Health
Commissioner to issue a notice directing an offending pregnancy center to correct the
6
violation. Id. at § 3-503. Failure to comply is punishable by the issuance of a $150
citation. Id. at § 3-506; Balt., Md. City Code Art. I, §§ 40-14, 41-14.
B.
The Center filed suit against the City Council, Mayor Stephanie Rawlings-Blake,
and acting Health Commissioner Olivia Farrow in the District of Maryland on March 29,
2010. The suit, brought under 42 U.S.C. § 1983, sought to enjoin enforcement of the
ordinance for violating the Center’s First Amendment rights to free speech, assembly,
and free religious exercise; the Fourteenth Amendment’s guarantee of equal protection;
and Maryland law’s so-called “conscience clause,” Md. Code Ann., Health-Gen. § 20-
214. The Center filed a motion for partial summary judgment on First Amendment
grounds supported by an affidavit from its executive director, and the City responded
with a motion to dismiss for failure to state a claim. The City also filed a Rule 56(f)
affidavit informing the district court that it believed additional discovery was necessary to
resolve the case.
The district court granted summary judgment for the Center. It held that the
ordinance violated the Free Speech Clause because it was not narrowly tailored to
accomplish a compelling government interest. O’Brien v. Mayor & City Council of
Baltimore, 768 F. Supp. 2d 804, 808 (D. Md. 2011). A panel of this court affirmed that
decision on appeal. Greater Baltimore Ctr. for Pregnancy Concerns, Inc. v. Mayor &
City Council of Baltimore, 683 F.3d 539 (4th Cir. 2012).
Rehearing the case en banc, the court vacated the district court’s judgment and
remanded for further proceedings. Greater Baltimore Ctr. for Pregnancy Concerns, Inc.
7
v. Mayor & City Council of Baltimore, 721 F.3d 264 (4th Cir. 2013) (en banc). The court
concluded that discovery was needed to determine the Center’s economic motivation, the
scope and content of its advertisements, the effect of the ordinance, and “evidence
substantiating the efficacy of the Ordinance in promoting public health, as well as
evidence disproving the effectiveness of purported less restrictive alternatives to the
Ordinance’s disclaimer.” Id. at 285-88.
On remand, the parties conducted extensive discovery and filed cross-motions for
summary judgment. The City objected to some discovery limitations below, but does not
raise that issue on appeal. As it acknowledges, “[t]he evidence that the City was able to
gather through discovery is more than sufficient” to decide this case. Appellant Opening
Br. 17.
The district court held that the ordinance, as applied to the Center, violated the
First Amendment right to freedom of speech. J.A. 1243. First, it concluded “that the
Ordinance is a content-based regulation that regulates noncommercial speech, or, at the
least, that the Center’s commercial and professional speech is intertwined with its
noncommercial speech, and [the ordinance] is thus subject to strict scrutiny.” J.A. 1256.
Second, the district court determined that the record failed to demonstrate that the
ordinance furthers a compelling government interest because “there is insufficient
evidence to demonstrate that deception actually takes place and that health harms are in
fact being caused by delays resulting from deceptive advertising.” J.A. 1280. Finally, the
court concluded that the ordinance is not narrowly tailored because it applies to
8
pregnancy centers “regardless of whether they advertise nonfraudulently or do not
advertise at all.” J.A. 1286.
This appeal followed. We review the grant of a motion for summary judgment de
novo. See Desmond v. PNGI Charles Town Gaming, L.L.C., 564 F.3d 688, 691 (4th Cir.
2009). Summary judgment is appropriate where there is no genuine dispute of material
fact and “the moving party is entitled to judgment as a matter of law.” Couch v. Jabe, 679
F.3d 197, 200 (4th Cir. 2012).
II.
We must first consider what level of scrutiny applies to the ordinance.
In general, “[l]aws that compel speakers to utter or distribute speech bearing a
particular message are subject to . . . rigorous scrutiny.” Turner Broad. Sys., Inc. v.
F.C.C., 512 U.S. 622, 642 (1994). However, the City contends that a relatively relaxed
level of scrutiny applies because the regulation is a routine exercise of the state’s police
power that targets commercial speech, or alternatively that targets professional speech.
A.
The ordinance, as applied to the Center, does not regulate commercial speech.
As we explained in our prior en banc decision, “commercial speech is ‘usually
defined as speech that does no more than propose a commercial transaction.’” Greater
Baltimore Ctr., 721 F.3d at 284 (quoting United States v. United Foods, Inc., 533 U.S.
405, 409 (2001)). However, because “application of this definition is not always a simple
matter,” Adventure Commc’ns, Inc. v. Ky. Registry of Election Fin., 191 F.3d 429, 440
(4th Cir. 1999), some speech outside this “core notion” may also be deemed commercial.
9
Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 66 (1983). Courts rely on three factors
to identify such commercial speech: “(1) is the 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.” Greater Baltimore Ctr., 721 F.3d at 285 (citing U.S.
Healthcare, Inc. v. Blue Cross of Greater Phila., 898 F.2d 914, 933 (3d Cir. 1990)).
Because of the “difficulty of drawing bright lines that will clearly cabin
commercial speech,” the inquiry is fact-intensive. City of Cincinnati v. Discovery
Network, Inc., 507 U.S. 410, 419 (1993). It is also one in which “context matters.”
Greater Baltimore Ctr., 721 F.3d at 286. That is why this court remanded this case for
discovery to determine, among other things, “evidence concerning the Center’s economic
motivation (or lack thereof) and the scope and content of its advertisements.” Id.
The ordinance, as applied to the Center, does not regulate speech that “propose[s]
a commercial transaction.” United Foods, 533 U.S. at 409. Nothing in the record suggests
that the Center proposes any transactions in the waiting room where the disclaimer would
appear. Even if pregnancy-related services are discussed there, the Center collects no
remuneration of any kind, including referral fees from physicians. A morally and
religiously motivated offering of free services cannot be described as a bare “commercial
transaction.”
The City contends that the ordinance regulates commercial speech because the
Center advertises its services, some of which have commercial value in other contexts.
But that fact alone does not suffice to transform the Center’s ideological and religious
advocacy into commercial activity.
10
First, it is not clear that the ordinance directly regulates the Center’s
“advertisement.” Greater Baltimore Ctr., 721 F.3d at 285. The City analogizes this case
to First Resort, Inc. v. Herrera, 80 F. Supp. 3d 1043 (N.D. Cal. 2015), aff’d, 860 F.3d
1263 (9th Cir. 2017), and Fargo Women’s Health Org., Inc. v. Larson, 381 N.W.2d 176(N.D. 1986), in which courts applied commercial speech doctrine to suits involving
allegedly misleading advertisements by pregnancy centers. But both those suits involved
laws that directly regulated misleading advertising itself. See First Resort, 80 F. Supp. 3d
at 1047 (applying an ordinance that “prohibit[ed] the use of false or misleading
advertising”); Larson, 381 N.W.2d at 177 (applying “the North Dakota false advertising
law, Chapter 51–12, N.D.C.C.”). While motivated by similar concerns, the ordinance
here requires a waiting-room disclosure without any effect on advertising qua
advertising. Indeed, the Baltimore ordinance applies to pregnancy centers regardless of
whether they advertise at all.
Second, the record gives no indication that the Center harbors an “economic
motivation.” Greater Baltimore Ctr., 721 F.3d at 285. Again, the Center is a non-profit
organization whose clearest motivation is not economic but moral, philosophical, and
religious. It provides free services and collects no fees. And after extensive discovery, the
only evidence the City can muster in support of its contention that the Center is
economically motivated is its assertion that the Center’s “fundraising efforts . . . depend
on its ability to attract clients.” Appellant Opening Br. 29. That may or may not be true.
But the City’s evidence is speculative at best. Without more, the relationship here
11
between clinic patronage and fundraising is too attenuated to amount to “economic
motivation.”
We do not foreclose the possibility that another facility in different circumstances
could engage in commercial speech. But with a “fully developed record” now before us,
Greater Baltimore Ctr., 721 F.3d at 286, we agree with the district court. The ordinance,
as applied to this Center, does not regulate commercial speech.
B.
Nor does the ordinance, as applied to the Center, regulate professional speech. 1
“The power of government to regulate the professions is not lost whenever the
practice of a profession entails speech.” Lowe v. SEC, 472 U.S. 181, 228 (1985) (White,
J., concurring in the judgment). But at the same time, “individuals [do not] simply
abandon their First Amendment rights when they commence practicing a profession.”
Stuart v. Camnitz, 774 F.3d 238, 247 (4th Cir. 2014). Thus, “[w]hen the First
Amendment rights of a professional are at stake, the stringency of review . . . slides along
a continuum from public dialogue on one end to regulation of professional conduct on the
other.” Id. at 248 (internal quotation marks omitted).
Because the state has a strong interest in supervising the ethics and competence of
those professions to which it lends its imprimatur, this sliding-scale review applies to
1
Contrary to the Center’s arguments, the City did not forfeit this argument by
failing to advance a professional speech theory earlier. The professional speech issue was
fully briefed, analyzed, and decided on remand to the district court. There is no bar to
considering it here.
12
traditional occupations, such as medicine or accounting, which are subject to
comprehensive state licensing, accreditation, or disciplinary schemes. See e.g., Stuart,
774 F.3d 238 (doctors); Accountant’s Soc’y of Va. v. Bowman, 860 F.2d 602 (4th Cir.
1988) (accountants). More generally, the doctrine may apply where “the speaker is
providing personalized advice in a private setting to a paying client.” Moore-King v. Cty.
of Chesterfield, Va., 708 F.3d 560, 569 (4th Cir. 2013).
The Center fits none of these characteristics of a professional speaker. In
Maryland, pregnancy centers are not required to be licensed or otherwise subject to a
state regulatory scheme. 2 There is no medical or professional board that certifies the
Center’s employees, nor any disciplinary panel that regulates their conduct. Although the
Center has a volunteer “medical director” who is a licensed physician, she is “very
rarely” on site and does not meet directly with clients. J.A. 921. Simply put, no one in the
Greater Baltimore Center is practicing a “profession” in the traditional sense
contemplated by our First Amendment jurisprudence.
Nor does the Center fit the more general criteria laid out in Moore-King. Although
the Center “provid[es] personalized advice in a private setting,” 708 F.3d at 569, and
2
The lack of a licensing scheme distinguishes this case from a recent Ninth Circuit
decision analyzing a California clinic disclosure law under the rubric of professional
speech. See Nat’l Inst. of Family & Life Advocates v. Harris, 839 F.3d 823 (9th Cir.
2016), cert. granted sub nom., Nat’l Inst. of Family & Life Advocates v. Becerra, No. 16-
1140 (U.S. Nov. 13, 2017). In that case, the court applied the professional speech
doctrine only to compelled disclosures in clinics licensed by the state. Id. at 839. The
Ninth Circuit did not reach the question of whether the doctrine applied to disclosures
required in unlicensed pregnancy centers like the one at issue here. Id. at 843.
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describes its patrons as “clients,” J.A. 827, none of those clients are “paying,” 708 F.3d at
569. Again, the Center does not charge for its services. “The mere fact that [a pregnancy
center] provides its program participants with the promise of confidentiality does not
transform its message into professional speech.” Tepeyac v. Montgomery Cty., 5 F. Supp.
3d 745, 761 (D. Md. 2014).
With no record of comprehensive state regulation or paying clients before us, we
cannot say that the ordinance regulates professional speech.
C.
Because the commercial speech and professional speech doctrines are inapplicable
in this case, the Baltimore ordinance’s compulsion “to utter or distribute speech bearing a
particular message” receives heightened scrutiny. Turner Broad. Sys., 512 U.S. at 642.
As a result, the ordinance calls for more searching review than the relaxed standards
advocated by the City.
The essentially factual nature of the compelled disclaimer does not diminish the
need for rigorous review. Because a statement’s factuality “does not divorce the speech
from its moral or ideological implications,” Stuart, 774 F.3d at 246, a person’s right to
refrain from speaking “applies . . . equally to statements of fact the speaker would rather
avoid,” Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 573
(1995).
The compelled speech at issue here raises particularly troubling First Amendment
concerns. At bottom, the disclaimer portrays abortion as one among a menu of morally
equivalent choices. While that may be the City’s view, it is not the Center’s. The message
14
conveyed is antithetical to the very moral, religious, and ideological reasons the Center
exists. Its avowed mission is to “provid[e] alternatives to abortion.” J.A. 360. Its “pro-life
Christian beliefs permeate all that the Center does.” J.A. 354. Its staff and volunteers are
trained “in encouraging women not to have an abortion.” J.A. 366. Of course, this
mission gives the Center no license at all to lie to women, and, indeed, there is no such
suggestion here. But it does provide some latitude in how to broach a sensitive topic. The
Center currently explains its opposition to abortion in its “Commitment of Care”
pamphlets. But it does so on its own terms. None of that changes the fact that the
ordinance forces the Center to utter in its own waiting room words at odds with its
foundational beliefs and with the principles of those who have given their working lives
to it.
The classic First Amendment violation has always been thought to involve an
outright prohibition by the state of certain speech. See, e.g., Cohen v. California, 403
U.S. 15 (1971) (holding that a state may not prosecute someone for wearing a jacket
bearing the words “Fuck the Draft”); Near v. Minnesota, 283 U.S. 697 (1931) (holding
that a state may not exercise a prior restraint on publishing a newspaper). But over time,
adjunct First Amendment rights have emerged, which in their own way have become as
significant for expressive liberty as the right not to be silenced by a disapproving public
entity. One of those adjunct rights is the right to listen. See Rossignol v. Voorhaar, 316
F.3d 516, 522 (4th Cir. 2003) (observing that the First Amendment “protects both a
speaker’s right to communicate information and ideas to a broad audience and the
intended recipients’ right to receive that information and those ideas”). Another is the
15
right to express oneself through conduct. See Tinker v. Des Moines Indep. Cmty. Sch.
Dist., 393 U.S. 503 (1969) (holding that a public school may not, without evidence of
substantial disruption, punish students for wearing armbands protesting the Vietnam
War). Yet another is the right not to utter political and philosophical beliefs that the state
wishes to have said. See W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642
(1943) (holding that a public school cannot compel students to perform the pledge of
allegiance). These adjunct rights have become crucial to speech freedoms because,
without them, states can bend individuals to their own beliefs and use compelled speech
as a weapon to run its ideological foes into the ground. Preserving some distance between
the state and the message is thus the aim of preventing banned speech and compelled
speech alike, and it is what gives the right in this case its fundamental character.
III.
We now consider whether the Baltimore ordinance satisfies heightened scrutiny.
“[E]xacting First Amendment scrutiny” requires that compelled disclosures be “narrowly
tailored” to achieve a “weighty” government interest. Riley v. Nat’l Fed’n of the Blind of
N. Carolina, Inc., 487 U.S. 781, 798 (1988). “A statute is narrowly tailored if it targets
and eliminates no more than the exact source of the ‘evil’ it seeks to remedy.” Frisby v.
Schultz, 487 U.S. 474, 485 (1988).
The City’s interests are plainly important. Baltimore’s stated goals in enacting the
ordinance were to address allegedly deceptive advertising and to prevent health risks that
can accompany delays in seeking to end a pregnancy. States must have ample room to
regulate deceptions and health risks. Courts have long recognized those sorts of aims as
16
weighty. See, e.g., Maryland v. Universal Elections, Inc., 729 F.3d 370, 376-77 (4th Cir.
2013) (“promoting disclosure to avoid misleading [consumers]”); Varandani v. Bowen,
824 F.2d 307, 311 (4th Cir. 1987) (“assuring safe health care for the public”). Where
there is solid evidence of such dangers, courts will not hesitate to give government the
deference it is due.
However, as the district court found, “there is insufficient evidence to demonstrate
that deception actually takes place and that health harms are in fact being caused by
delays resulting from deceptive advertising.” J.A. 1280. The City’s only support for its
contention that women might have read a bus ad mentioning “abortion alternatives” to
mean “abortion services” is a reported increase in phone calls to the Center’s hotline from
“abortion minded callers.” J.A. 705. After seven years of litigation and a 1,295-page
record before us, the City does not identify a single example of a woman who entered the
Greater Baltimore Center’s waiting room under the misimpression that she could obtain
an abortion there. What the record does show is affirmative advocacy of abortion
alternatives by a lawful non-profit group. None of the public advocacy of alternatives,
however, suggests that the Center would provide help or assistance in obtaining an
abortion. Truthful affirmative assertions are not, without more, misleading.
Additionally, scrutiny of means creates difficulties with the City’s view. It is
scrutiny of means that helps identify the point on the spectrum where valid disclosures
slip silently into the realm of impermissible compelled speech. Particularly troubling in
this regard is (1) that the ordinance applies solely to speakers who talk about pregnancy-
related services but not to speakers on any other topic; and (2) that the ordinance compels
17
speech from pro-life pregnancy centers, but not other pregnancy clinics that offer or refer
for abortion. It is well established that “[t]he government may not regulate . . . based on
hostility—or favoritism—towards the underlying message expressed.” R.A.V. v. City of
St. Paul, Minn., 505 U.S. 377, 386 (1992). A speech edict aimed directly at those
pregnancy clinics that do not provide or refer for abortions is neither viewpoint nor
content neutral. Especially in this context, content-based regulation “raises the specter
that the government may effectively drive certain ideas or viewpoints from the
marketplace.” Simon & Schuster, Inc. v. Members of New York State Crime Victims Bd.,
502 U.S. 105, 116 (1991). We do not begrudge the City its viewpoint. But neither may
the City disfavor only those who disagree.
Further, there are serious questions here as to narrow tailoring. First, we are
unpersuaded that the City could not pursue its goals through less restrictive means. As the
Supreme Court has noted in compelled speech cases, the government itself may
“communicate the desired information to the public without burdening a speaker with
unwanted speech.” Riley, 487 U.S. at 800. In this case, that would mean informing
citizens about the scope of services offered at various facilities through a public
advertising campaign. See Evergreen Ass’n, Inc. v. City of N.Y., 740 F.3d 233, 250 (2d
Cir. 2014) (noting that “the City can communicate this message through an advertising
campaign”); Centro Tepeyac v. Montgomery Cty., 722 F.3d 184, 190 (4th Cir. 2013) (en
banc) (stating that the government had “several options less restrictive than compelled
speech,” such as “launch[ing] a public awareness campaign” (internal quotation marks
omitted)). The City could also pursue its goals through the direct application of laws
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against misleading advertising. See First Resort, 80 F. Supp. 3d at 1047; Larson, 381
N.W.2d at 177; cf. Riley, 487 U.S. at 800 (“Alternatively, the State may vigorously
enforce its antifraud laws . . . .”).
Second, and more fundamentally, there is only a loose fit between the compelled
disclosure at issue and the purported ills identified by the government. “[W]hen [laws]
affect First Amendment rights they must be pursued by means that are neither seriously
underinclusive nor seriously overinclusive.” Brown v. Entm’t Merchants Ass’n, 564 U.S.
786, 805 (2011). Baltimore seeks to combat deceptive advertising and consequent delays
in abortion services. In that respect the ordinance is quite overinclusive. It applies to
pregnancy centers without regard to whether their advertising is misleading, or indeed
whether they advertise at all. As illustrated by Larson and First Resort, the direct
application of laws prohibiting misleading advertising might provide a better fit for the
problems about which the City is concerned. See First Resort, 80 F. Supp. 3d 1043;
Larson, 381 N.W.2d 176.
There are, in short, too many problems with the City’s case. The dangers of
compelled speech in an area as ideologically sensitive and spiritually fraught as this one
require that the government not overplay its hand. Without proving the inefficacy of less
restrictive alternatives, providing concrete evidence of deception, or more precisely
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targeting its regulation, the City cannot prevail. The Baltimore ordinance, as applied to
the Center, fails to satisfy heightened First Amendment scrutiny. 3
IV.
The abortion debate in our country has a long and bitter history. Vast disagreement
on the merits has led both sides to retributive speech restrictions and compulsions. See,
e.g., Stuart, 774 F.3d at 242. To be sure, states must have room for reasonable regulation.
But there is a limit to how much they can dictate core beliefs. This court has in the past
struck down attempts to compel speech from abortion providers. Id. And today we do the
same with regard to compelling speech from abortion foes. We do so in belief that earnest
advocates on all sides of this issue should not be forced by the state into a corner and
required essentially to renounce and forswear what they have come as a matter of deepest
conviction to believe.
Weaponizing the means of government against ideological foes risks a grave
violation of one of our nation’s dearest principles: “that no official, high or petty, can
prescribe what shall be orthodox in politics, nationalism, religion, or other matters of
3
Our holding does not conflict with the Ninth Circuit’s decision in Harris. See
839 F.3d 823, cert. granted, No. 16-1140 (U.S. Nov. 13, 2017). The law at issue in that
case involved two compelled disclosures. First, the law in Harris required licensed clinics
to post a notice informing women of the availability of state-sponsored services,
including abortion, and a phone number to call for more information. Id. at 830. The
content of that disclaimer—and, because it only applied to licensed facilities, the scrutiny
which it received—was markedly different from the Baltimore ordinance. Second, the
law in Harris required unlicensed pregnancy centers to post a notice stating that their
facilities are not licensed by the state. Id. Because the compelled message did not
mention abortion, the burden on the speaker—and therefore the First Amendment
analysis—was different in kind.
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opinion or force citizens to confess by word or act their faith therein.” Barnette, 319 U.S.
at 642. It may be too much to hope that despite their disagreement, pro-choice and pro-
life advocates can respect each other’s dedication and principle. But, at least in this case,
as in Stuart, it is not too much to ask that they lay down the arms of compelled speech
and wield only the tools of persuasion. The First Amendment requires it.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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