Greater Baltimore Center v. Mayor and City Council, Nos. 11-1111 and 11-1185

Decided: June 27, 2012

Archbishop Edward F. O’Brien, St. Brigid’s Roman Catholic Congregation, Inc., and the Greater Baltimore Center for Pregnancy Concerns, Inc. (“the Pregnancy Center”) sued the Mayor and City Council of Baltimore, challenging the constitutionality of the City’s Ordinance 09-252, which requires that “limited-service pregnancy centers” post signs disclaiming that they “do[] not provide or make referral for abortion or birth control services.  The complaint alleged that the ordinance, both facially and as applied, violates the plaintiffs’ free speech, free exercise, and equal protection rights under the First and Fourteenth Amendments to the Constitution, as well as the plaintiffs’ rights under the Conscience Clause of Maryland’s health law.

The district court granted summary judgment to the Pregnancy Center on its freedom of speech count, dismissed the Archbishop and St. Brigid’s as plaintiffs for lack of standing, and dismissed the remaining counts without prejudice, in view of its free speech ruling.  The court held that the disclaimer is “a form of compelled speech” that “alters the course of a [pregnancy] center’s communication with a client or prospective client about abortion and birth-control” and “is based, at least in part, on disagreement with the viewpoint of the speaker.”

The disclaimer required by the City’s Ordinance 09-252 must be made through at least one “easily readable” signs conspicuously posted in the waiting room, in both English and Spanish.  Failure to comply carries a civil penalty of $150.  The ordinance was the end-result of the City Council President meeting with abortion rights advocacy groups, which complained that some pregnancy clinics provide inaccurate information about abortions.  The Pregnancy Center is a “limited-service pregnancy center” encompassed by the Ordinance which provides services to pregnant women.  The Center provides information on abstinence and natural family planning, but does not provide information about abortions.  Additionally, the Pregnancy Center does not charge for its services and its employees sign a statement affirming his or her Christian faith and belief that abortion is immoral.

Archbishop O’Brien of Baltimore is a corporate entity which owns the property on which the Pregnancy Center operates one of its locations and St. Brigid’s Church operates.  Before enforcement of the ordinance, the Archbishop, St. Brigid’s, and the Pregnancy Center commenced this action. The complaint alleges that the Pregnancy Center does not provide or refer abortions based on moral and religious beliefs and that the Ordinance specifically targets pro-life organizations.  The complaint also states that requiring a disclaimer that the center does not provide or refer abortions compels plaintiffs to deliver the implied message that these services are available elsewhere and should be considered.  Finally, the complaint objects to the Ordinance’s requirements that the Pregnancy Center post a sign saying it does not provide birth control services.  Plaintiffs seek a declaratory judgment that the Ordinance is unconstitutional on its fact and/or as applied and an injunction prohibiting enforcement.  The court entered a permanent injunction barring enforcement.  Both parties appealed. For the following reasons, the Fourth Circuit affirmed.

The plaintiff’s cross-appeal challenged the district court’s dismissal of the Archbishop and St. Brigid’s for lack of standing.  The district court reasoned that Archbishop and St. Brigid’s are not required to comply with the ordinance, thus they did not suffer a “concrete and particularized” injury.  The Archbishop and St. Brigid’s argue that the district court ignored they injury they suffer as a result of the ordinance’s infringement of their right to freedom of speech, as they own the property in which the Pregnancy Center is located.  Although the Ordinance does require some speech, its mandate only applies to the space operated by the Pregnancy Center and only patrons of the Center would see the signs.  Ideological injuries of the sort claimed here, without more, are insufficient to support standing.  Furthermore, it is unlikely that the Archbishop or St. Brigid’s would face liability if the Pregnancy Center violated the ordinance.  Accordingly, the district court’s ruling that the Archbishop and St. Brigid’s lack standing to challenge the ordinance was upheld.

The City contended that the district court erred in applying strict scrutiny to the ordinance, as the ordinance constitutes commercial speech and thus is subject to a lower level of scrutiny — an assessment of whether the disclosure requirements are reasonably related to the State’s interest.  Alternatively, the City argues that the speech mandated is analogous to election-law disclosures or abortion-regulation disclosures, both of which are evaluated at a lower level than strict scrutiny.  The Pregnancy Center argued that this is a content-based regulation that is subject to strict scrutiny.  Commercial speech is “expression related solely to the economic interests of the speaker and its audience.” Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 561 (1980).  Nonetheless, speech is not commercial when it is intertwined with otherwise fully protected speech.  The ordinance at issue targets speech regarding the provision of “free services.”  There is no indication that the Pregnancy Center is motivated by economic interest, but rather engages in ideologically-driven speech that has long been afforded the highest levels of First Amendment protection.

The City does not address what commercial transaction is proposed by the Pregnancy Center’s speech or what economic interest motivates the Pregnancy Center, but would rather define commercial speech as including speech that offers services with commercial value.  Such a definition would encompass nearly every charitable organization.  The Fourth Circuit agreed with the district court that pregnancy centers do not engage in commercial speech and their speech cannot be denied full protection of strict scrutiny.

As to the City’s second argument, that the ordinance is analogous to the disclosure requirements on abortion providers and in campaign finance.  Such cases, however, differ from the instant case, therefore the cases are inapplicable.  Abortion providers faced mandatory disclosures on the speech of licensed medical professionals; the regulations were upheld because they implicated a physician’s right not to speak only as part of the practice of medicine.   In contrast, pregnancy centers do not practice medicine, are not staffed by licensed professionals, and do not require informed consent.  Campaign finance laws also differ from the instant case as such regulations are less likely to be content- or viewpoint-based and power a lower risk of impacting the speaker’s message, while the ordinance is content-based.  Accordingly, the district court properly held that the ordinance is subject to strict scrutiny.

Content-based regulations are presumptively invalid, but the City can rebut the presumption if it is able to show that the ordinance is narrowly tailored to promote a compelling government interest, such that the ordinance is the least restrictive alternative.  The City believes it can satisfy strict scrutiny, arguing that the city has an interest in countering the “deceptive business practices” of certain pregnancy centers and in protecting the health of pregnant women and ensuring that pregnant women who seek abortions have prompt access to medical services.  While the City does in fact have a considerable interest in promoting the general health and well-being of its citizens, there is no “actual problem” in need of solving which would constitute a compelling interest.  The record establishes only isolated instances of misconduct by pregnancy centers generally and none by the Pregnancy Center itself.  The City’s claim of its compelling interest is also called into question by its selective pursuit of its interest – the ordinance does not focus on or reach a significant number of sources that pregnant women likely consult, such as books, websites, religious leaders, etc., and thus is underinclusive.  Finally, the City has done nothing other than pass this Ordinance in an effort to protect its interests.

Furthermore, the ordinance is not narrowly tailored to serve the City’s interest, as it is does not advance the purported compelling interests, it is overinclusive, and the government has other, less speech-restrictive alternatives available.  Such alternatives include the notion that the City could speak with its own voice, produce a document or website listing local pregnancy centers and what services are available at each, and prosecuting violations of its criminal and civil laws that proscribe deceptive advertising and deceptive statements made by pregnancy centers.

Neither the district court nor the Fourth Circuit rested on the City’s failure to demonstrate a compelling government interest.  Instead, both courts found that the Ordinance is not narrowly tailored to promote the City’s interests, the Ordinance is invalid, in violation of the First Amendment presumption that speakers, rather than the government, know best what to say and how to say it.

The City finally contends that the district court abused its discretion in converting its motion to dismiss into a motion for summary judgment without giving it prior notice and allowing it discovery and in dismissing the plaintiffs’ remaining counts without prejudice.  Converting the City’s 12(b)(6) motion into a motion for summary judgment did not deny the City an opportunity to press its claim that the complaint failed to state a claim upon which relief could be granted, but rather simply gave recognition to the fact that the court would be looking at the case more broadly.  The plaintiffs’ summary judgment motion put the City on notice that the court would be considering matters beyond the complaint and the City should file a response to that motion.   Indeed, the City did submit matters outside the complaint and its motion to dismiss for consideration by the court.  Furthermore, additional discovery was unnecessary, as it could not eliminate the narrow tailoring problems.  Additional discovery was also unnecessary to show that the pregnancy centers engage in commercial speech, as the district court found that the law on its face regulated protected speech.  The City’s final contention, that the district court abused its discretion in dismissing the Pregnancy Center’s remaining counts without prejudice, rather than with prejudice, lacks merit.

For the foregoing reasons, the Fourth Circuit affirmed the district court’s ruling.

Circuit Judge King dissented, arguing that the district court improperly denied the City essential discovery, refused to view in the City’s favor what evidence there was, and made untoward findings of fact premised upon nothing more than supposition.  Additionally, the court discounted the real possibility that the Ordinance targeted only commercial speech.  King emphasized that several pregnancy centers were using questionable tactics to delay women from obtaining abortions.  The City Council concluded that the Ordinance was the best measure to prevent the dangers posed to public health.

The Pregnancy Center moved for summary judgment on its free speech and equal protection claims two months after service of the Complaint and a mere four days before the City’s response was due.  At that point, no party had initiated discovery, prompting the City to seek dismissal of the complaint.  Additionally, the City averred that it could not adequately oppose the Pregnancy Center’s motion for summary judgment without first conducting discovery.  Specifically, the City desired the opportunity to develop factual support for the argument that pregnancy centers engaged in deceptive advertising.

Summary judgment is appropriate only after adequate time for discovery, which is essential in a contested proceeding, as it lets a party show that relevant facts are undisputed.  At minimum, a court must refuse summary judgment where the nonmoving party has not had the opportunity to discover information essential to its case.  The City appropriately filed a declaration averring that it could not oppose summary judgment without discovery.  Such declarations are broadly favored and should be liberally granted.  In the instant case, the district court decided that the City’s discovery requests were insincere and considered itself constrained to base its decision on the evidence relied on by the City at the time the Ordinance was passed.

The district court legally erred in denying discovery prior to converting the City’s motion to dismiss into a request for summary judgment.  The majority states that the City was on notice that the court would be considering matters beyond the complaint.  However, once a party is notified, it must be afforded a reasonable opportunity for discovery before a Rule 12(b)(6) motion may be converted and summary judgment granted.  The district court’s justification for refusing to authorize discovery rested on an erroneous perception that further factual development was not important.  While a summary judgment motion may be decided without further discovery where a facial challenge may be resolved as a question of law, such circumstances are extremely limited.  In this situation, the court did not conduct a facial analysis of the constitutionality of the Ordinance, thus denying discovery was improper.  The plaintiffs could have facially challenged the Ordinance by demonstrating that the law is unconstitutional in all applications or by showing that the law is overbroad because a substantial number of applications are unconstitutional.  The district court only concluded that the Ordinance’s application o the provision of free services was unconstitutional and failed to address a substantial number of other applications.  Instead, the district court and the majority of the Fourth Circuit conducted as-applied assessments.  Accordingly, the City was unquestionably entitled to conduct discovery.

In declining the City’s discovery requests, the district court failed to conduct the analysis that was essential to properly decide the appropriate level of judicial scrutiny.  The Supreme Court has recently explained that commercial speech is typically defined as speech that does no more than propose a commercial transaction.  However, the distinction between commercial and noncommercial speech is a close question, thus a court should consider: (1) whether the speech is an advertisement; (2) whether the speech refers to a specific product or service; and (3) whether the speaker has an economic motivation for the speech.  In the instant case, the speech targeted by the Ordinance satisfies the first two considerations, as the speech is advertisement for a service.  The majority concludes that the third consideration is absent because the Pregnancy Center does not charge for its services.  However, the district court and the majority simply accept the Pregnancy Center’s unsupported assertion that its motives are entirely religious or political.  Discovery could have ascertained whether the Pregnancy Center did in fact have economic interests in the speech to be regulated.

Because the Ordinance compels a disclaimer, courts should consider the nature of the speech regulated taken as a whole and the effect of the compelled disclaimer.  In Fargo Women’s Health Org., Inc. v. Larson, 381 N.W.2d 176 (N.D. 1986), cert. denied, 476 U.S. 1108 (1986), a pregnancy clinic’s advertising were found to constitute commercial speech in the overall context of the speech.  Here, the district court completely failed to consider the full context of the speech in deciding that “even if the Center’s speech ‘includes some commercial elements, strict scrutiny would nonetheless apply,’ since any commercial element was ‘inextricably intertwined with otherwise fully protected speech.’”   The district court’s conclusion that the speech at issue blended commercial and noncommercial, without the benefit of discovery, was erroneous.  Where the commercial and noncommercial components can be separate, they are not “inextricably intertwined.”  The Ordinance merely requires a disclosure that the center does not provide or make referrals for abortion or birth-control services, but would allow a pregnancy center to express its disapproval alongside the disclaimer.  In sum, discovery proceedings at the very least could have yielded the degree of entanglement between commercial and noncommercial speech.

The district court also improperly characterized the City’s request for discovery as “an attempt to generate justifications for the Ordinance following its enactment.”  In fact, the City merely sought to augment the record with evidence to support its existing justification.  Supplementing the record in this fashion is permissible, thus there was no legitimate reason for the district court to deny discovery.

Furthermore, the district court’s conclusion that the Ordinance is not viewpoint neutral— the alternative basis for applying strict scrutiny — is incorrect.  The record validates the City’s contention that the Ordinance was enacted to curtail deceptive advertising, not because the City wanted to suppress the Pregnancy Center’s speech.

Even if all of the foregoing rationales are incorrect, the district court’s award of summary judgment must be vacated because there are genuine issues of material fact regarding the issues of compelling interests and narrow tailoring.  The City had an obligation to deal with existing public health problems without addressing the likelihood of deception from every possible source of information available to pregnant women.  The majority asserts that the City had other options available, such as placing warnings on its own websites or providing public service information, rather than target the Pregnancy Center’s speech.  The majority directs its criticisms towards the City’s first identified compelling interest, protecting the public from deceptive business practices, with barely any discussion of the second interest — ensuring that individuals who seek abortions or birth-control services have prompt access to those services. The City undoubtedly has a compelling interest in defending a woman’s right to obtain information and medical care in connection with her pregnancy and submitted the declaration of a Dr. Blum in support of such interest.  The Blum declaration was never referenced by the district court, but on appeal must be viewed in the light most favorable to the City.  Dr. Blum’s evidence alone created a genuine issue of material fact to survive summary judgment.

Additionally, the disclosure required by the Ordinance is not overbroad and performs the important function of deterring actual corruption and avoiding the appearance of corruption with the added advantage of promoting speech by making more information available to the public.  If the Ordinance outlined exactly what pregnancy centers must say in advertisements, the Ordinance would then be considered overbroad.  The majority also argues that the disclaimer is overinclusive because it applies even to pregnancy centers whose speech is entirely truthful.  However, the Ordinance applies equally to all pregnancy centers and exempting certain centers could undermine the efficacy of the overall scheme.

Finally, the majority suggests that the Ordinance is not the least restrictive means of preventing deceptive advertising.  However, the City has never been afforded a meaningful opportunity to explore alternatives to the disclaimer.  The Pregnancy Center did not propose any least restrictive alternatives until it replied concerning its own summary judgment request.  While the City has argued that that other less restrictive alternatives are ineffective or less effective, the City has not been afforded an opportunity to adduce evidence with respect to the alternatives, thus there is a genuine issue of material fact as to narrow tailoring. Because there are several genuine issues of material fact, the district court improperly granted summary judgment.

Full Opinion

-Michelle Theret

Like us on Facebook!
Facebook By Weblizar Powered By Weblizar
Contact Information


South Carolina Law Review
701 Main Street, Suite 401
Columbia, SC 29208