Centro Tepeyac v. Montgomery County, No. 11-1314 and No. 11-1336

Decided: June 27, 2012

Plaintiff, Centro Tepeyac (“Tepeyac”), a nonprofit corporation that provides pregnancy services but does not refer for or provide abortions, sought a declaratory judgment that Montgomery County Resolution No. 16-1252 (“the resolution”) is unconstitutional, and preliminary and permanent injunctive relief against its enforcement.

The resolution requires limited service pregnancy resource centers to display a sign containing the following statements:

(1)  “the Center does not have a licensed medical professional on staff” and
(2)  “the Montgomery County Health Officer encourages women who are or may be pregnant to consult with a licensed health care provider”

Plaintiff contends that this form of compelled speech is a violation of its First and Fourteenth Amendment rights. The District Court denied Tepeyac’s motion for a preliminary injunction as to statement (1), but granted the motion as to statement (2), concluding that statement (1) would pass strict scrutiny, but that statement (2) compelled unneeded speech, and thus, was not “the least restrictive means of achieving a relevant government interest.” Both parties appealed.

The Appellate Court, based on its reasoning in Greater Baltimore Center for Pregnancy Concerns, Inc. v. Mayor and City Council of Baltimore, ____ F.3d ____, No. 11-1111 (4th Cir. June 27, 2012), affirmed the District Court’s entry of preliminary injunction as to statement (2), and reversed its denial of preliminary injunction as to statement (1).

Applying strict scrutiny, the Appellate Court, like the lower court, found that statement (2) was not narrowly tailored, and thus, did not survive such scrutiny. The Appellate Court disagreed with the lower court as to statement (1); however, stating that while statement (1) is a neutral and fact-based disclosure, and thus “imposes a comparatively less severe First Amendment burden, it still amounts to an impermissible government control of speech.”

The Court noted several reasons why statement (1) could not withstand strict scrutiny. The requirement that the statement be posted conspicuously on the wall gives potential clients the impression that the pregnancy center is not to be trusted, or that it provides services inferior to those offered by medical professionals. Furthermore, the county is compelling Tepeyac, an unwilling speaker, to express that view. Statement (1) is also severely under inclusive, raising doubt that the government is actually pursuing the interest involved, as opposed to disfavoring a particular speaker or viewpoint. The county does nothing to regulate other sources for pregnancy consultation, such as the Internet, bookstores, or houses of worship, and, as such, fails “to demonstrate its commitment to advancing [the invoked interest] by applying its prohibition evenhandedly.” Furthermore, the goals of the statement (1) disclosure can be achieved through less speech-restrictive means.

In summary, the Appellate Court affirmed that portion of the District Court’s order that grants Tepeyac’s motion for a preliminary injunction and reverses that portion that denies Tepeyac’s requested preliminary injunction.

Judge King wrote separately in dissent noting that decisions by the lower court regarding injunction requests should be given deference and reversed only where the record shows an abuse of discretion. King did not agree with the majority that the District Court abused its discretion in this case.

Furthermore, King did not agree with the majority’s view that statement (1) conveys the subjective message that the pregnancy center is not to be trusted, or that it provides services inferior to medical professionals. Instead, King would attribute the statement its plain and ordinary meaning.

Additionally, King did not agree with the majority’s view that statement (1) was under inclusive and viewpoint discriminatory, such that it was not narrowly tailored enough to pass strict scrutiny. King pointed out that the majority gave no indication that its suggestions for less restrictive alternatives would actually be less restrictive or as effective as the mandated statements.

In summary, Judge King found that the District Court did not abuse its discretion and thus would affirm the ruling, recognizing that the lower court should be given deference, and that injunction requests are extraordinary remedies to be granted only in limited circumstances.

Full Opinion

-Kassandra Moore

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