Greater Baltimore Center for Pregnancy Concerns, Inc. v. Mayor of Baltimore, 879 F.3d 101

Background

Greater Baltimore Center for Pregnancy Concerns is a nonprofit Christian pregnancy center that provides free counseling and services, does not charge fees, and does not provide or refer for abortions; it posts a "Commitment of Care" pamphlet stating its stance.
Baltimore City Ordinance 09-252 requires "limited-service pregnancy centers" that do not provide or refer for abortion or comprehensive contraception to post conspicuous bilingual waiting-room disclaimers stating that they do not provide or make referrals for abortion or birth-control services; violations carry fines and enforcement by the Health Commissioner.
The Center sued under 42 U.S.C. § 1983 seeking to enjoin enforcement on First Amendment and other grounds; the district court granted summary judgment for the Center, the Fourth Circuit panel affirmed, an en banc Fourth Circuit remanded for discovery, and after discovery the district court again held the ordinance unconstitutional as applied to the Center.
The district court found the ordinance content-based and subject to strict scrutiny, concluded the City failed to show deception or health harms, and held the law not narrowly tailored because it applied irrespective of whether advertising was misleading or even used.
On appeal, the Fourth Circuit reviewed de novo and addressed whether the ordinance regulated commercial or professional speech (arguing for relaxed review) or compelled ideological speech (requiring heightened scrutiny), then applied heightened scrutiny to the ordinance as applied to the Center and affirmed the district court.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the ordinance regulates commercial speech	Center: not commercial — offers free services, no fees, not proposing transactions	City: centers advertise services and fundraising depends on attracting clients, so commercial	Held: Not commercial as applied; no economic motivation and waiting-room disclosure not an ad regulation
Whether the ordinance regulates professional speech	Center: not professional — not licensed, no state regulatory scheme, volunteers, no paying clients	City: regulation of clinic conduct and information is within professional-regulation scope	Held: Not professional as applied; no comprehensive licensing or disciplinary scheme and clients not paying
Level of scrutiny for compelled waiting-room disclaimer	Center: compulsion of ideological speech; strict or heightened scrutiny applies	City: police-power public-health measure, so relaxed scrutiny (commercial/professional) should apply	Held: Heightened scrutiny applies to compelled ideological speech; factual disclaimers can still implicate ideology
Whether the ordinance survives heightened scrutiny (narrow tailoring/compelling interest)	Center: City failed to show deception or health harms, and ordinance is under- and over-inclusive; less restrictive means available	City: important interests in preventing deception and health harms from delayed abortions; disclaimer advances those interests	Held: Ordinance fails heightened scrutiny as applied — insufficient evidence of deception/harms, viewpoint/content-based targeting of anti-abortion centers, and less-restrictive alternatives available

Key Cases Cited

Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622 (compelled-speech scrutiny principle)
Riley v. Nat’l Fed’n of the Blind of N. Carolina, Inc., 487 U.S. 781 (compelled disclosures must be narrowly tailored to weighty interests)
Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557 (right not to be forced to convey message of others)
W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (government cannot compel affirmation of belief)
R.A.V. v. City of St. Paul, Minn., 505 U.S. 377 (government may not regulate speech based on hostility or favoritism toward message)
Brown v. Entm’t Merchants Ass’n, 564 U.S. 786 (laws affecting First Amendment rights must not be underinclusive or overinclusive)
United States v. United Foods, Inc., 533 U.S. 405 (definition of commercial speech as proposal of a commercial transaction)
Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 (factors for distinguishing commercial from noncommercial speech)
Greater Baltimore Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Council of Baltimore, 721 F.3d 264 (4th Cir. en banc remand instructing further factual development)
Stuart v. Camnitz, 774 F.3d 238 (discussing continuum between professional regulation and public dialogue)