Lead Opinion
No. 11-1111 vacated and remanded, and No. 11-1185 affirmed, by published opinion. Judge KING wrote the majority opinion, in which Chief Judge TRAXLER and Judges MOTZ, DUNCAN, KEENAN, WYNN, FLOYD, and THACKER joined. Judge WILKINSON wrote a dissenting
Invoking the First Amendment, the district court fully and permanently enjoined enforcement of a City of Baltimore Ordinance requiring limited-service pregnancy centers to post disclaimers that they do not provide or make referrals for abortions or certain birth-control services. The injunction emanated from the court’s award of summary judgment to plaintiff Greater Baltimore Center for Pregnancy Concerns, Incorporated, on its claim that the Ordinance is facially invalid under the Free Speech Clause. See O’Brien v. Mayor of Balt,
I.
A.
The challenged Ordinance — City of Baltimore Ordinance 09-252 — was passed by the City Council on November 23, 2009, and approved by the Mayor on December 4, 2009. See J.A. 25-28.
(1) whose primary purpose is to provide pregnancy-related services; and
(2) who:
(I) for a fee or as a free service, provides information about pregnancy-related services; but
(II) does not provide or refer for:
(A) abortions; or
(B) nondirective and comprehensive birth-control services.
Id. at 25-26. Under the Ordinance, “[a] limited-service pregnancy center must provide its clients and potential clients with a disclaimer substantially to the effect that the center does not provide or make referral for abortion or birth-control services.” Id. at 26. The disclaimer is to be given by way of one or more signs that are “written in English and Spanish,” “easily readable,” and “conspicuously posted in the center’s waiting room or other area where individuals await service.” Id.
By an implementing Regulation of the Baltimore City Health Department, nondi-
The Ordinance vests enforcement powers in the Baltimore City Health Commissioner, who, upon “learn[ing] that a pregnancy center is in violation of [the Ordinance],” must “issue a written notice ordering the center to correct the violation within 10 days of the notice or within any longer period that the Commissioner specifies in the notice.” J.A. 26. If a center fails to comply with a violation notice, the Commissioner may issue an environmental or a civil citation pursuant to the Baltimore City Code. Id. at 27. The Commissioner may also “pursu[e] any other civil or criminal remedy or enforcement action authorized by law.” Id.
B.
This 42 U.S.C. § 1983 action — challenging the constitutionality of the Ordinance — was initiated in the District of Maryland on March 29, 2010, by the Greater Baltimore Center for Pregnancy Concerns (the “Center”), together with St. Brigid’s Roman Catholic Congregation and then-Archbishop Edwin F. O’Brien. The plaintiffs’ Complaint names as defendants the Mayor and City Council of Baltimore; Stephanie Rawlings-Blake, in her official capacity as Mayor of Baltimore; and Olivia Farrow, in her official capacity as then-Acting Baltimore City Health Commissioner (collectively, the “City”). Since then, two of the parties have been succeeded: now-Cardinal O’Brien by Archbishop William E. Lori, and Farrow by Baltimore City Health Commissioner Oxiris Barbot.
1.
The Complaint reflects that the Center qualifies under the Ordinance as a limited-service pregnancy center, in that it “has as its primary purpose providing pregnancy-related services and provides information about pregnancy-related services as a free service”; “does not refer for or provide abortions”; and “does not refer for, or provide information regarding birth control, other than natural family planning and abstinence.” Complaint ¶¶ 25-26. The Center offers pregnancy-related services at two locations in Baltimore, including a space owned by St. Brigid’s and the Archbishop. Id. ¶¶ 10, 16-18. According to the Complaint, the plaintiffs share sincerely held religious beliefs that cause them to oppose abortion and certain forms of birth control. Id. ¶¶ 40-41, 43-44. The Complaint alleges that the Ordinance violates the First Amendment rights of free
On June 4, 2010, before the City even had answered the Complaint and when there were four days remaining for it to do so, the plaintiffs filed a motion for partial summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Specifically, the plaintiffs sought judgment on their free speech, free assembly, and equal protection claims, contending that the Ordinance is unconstitutional on its face and as applied to them. The plaintiffs insisted that the strict scrutiny standard applies and cannot be satisfied, because the Ordinance fosters viewpoint discrimination against what they termed “pro-life pregnancy centers” and unjustifiably compels only those centers to engage in government-mandated speech. The plaintiffs portrayed the Ordinance-mandated sign as ensuring that every conversation at a limited-service pregnancy center begins with the subject of abortion, and conveying the morally offensive message that abortion is available elsewhere and might be considered a good option.
The plaintiffs supported their summary judgment motion with an affidavit of Carol Clews, the Center’s Executive Director, corroborating several of the factual allegations in the Complaint. See J.A. 29-31 (the “Clews Affidavit” of June 3, 2010). The Clews Affidavit asserted that, “[i]f not required by law, the Center would not post the disclaimer compelled by Baltimore City Ordinance 09-252.” Id. at 30. The plaintiffs also proffered an excerpt from the “Journal of the City Council” reflecting that the Council rejected proposed amendments to the Ordinance aimed at expanding its disclosure requirements to, e.g., pregnancy centers that refer for abortions but not adoptions. Id. at 296-99.
On June 8, 2010, the City filed a motion to dismiss the Complaint in its entirety, pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief can be granted, or alternatively to dismiss the claims of St. Brigid’s and the Archbishop, under Rule 12(b)(1), for lack of standing. The City characterized the Ordinance as a consumer protection regulation, referring to evidence in the Ordinance’s legislative record showing that limited-service pregnancy centers often engage in deceptive advertising to attract women seeking abortion and comprehensive birth-control services, and then use delay tactics to impede the women from accessing those services. According to the City, limited-service pregnancy centers thereby pose a threat to public health, in that the risks and costs of abortion increase as a woman advances through her pregnancy, and that delays in access to the birth control of a woman’s choice can leave the woman vulnerable to unintended pregnancy and sexually transmitted diseases.
The parties’ respective dispositive motions prompted the district court to enter a Scheduling Order specifying deadlines for further related submissions. In compliance with the Scheduling Order, the plaintiffs filed a response to the City’s motion to dismiss on July 2, 2010; the City submitted a reply concerning its dismissal motion, combined with a response to the plaintiffs’ motion for summary judgment, on July 16, 2010; and the plaintiffs filed a reply with respect to their summary judgment motion on July 23, 2010.
a.
The City’s July 16, 2010 submission included four pieces of evidence from the Ordinance’s legislative record that had previously been referenced in the City’s motion to dismiss. The first such piece of evidence was a July 2006 report prepared for Congressman Henry A. Waxman entitled “False and Misleading Health Information Provided by Federally Funded Pregnancy Resource Centers.” See J.A. 413-30 (the “Waxman Report”). The Waxman Report concerned pro-life pregnancy centers referred to as “pregnancy resource centers,” and it recited, in pertinent part, that
[p]regnancy resource centers often mask their pro-life mission in order to attract “abortion-vulnerable clients.” This can take the form of advertising under “abortion services” in the yellow pages or obscuring the fact that the center does not provide referrals to abortions in the text of an advertisement. Some centers purchase advertising on internet search engines under keywords that include “abortion” or “abortion clinics.” Other advertisements represent that the center will provide pregnant teenagers and women with an understanding of all of their options. For example, “Option Line,” a joint venture of [national umbrella organizations] Heartbeat International and Care Net, is a 24-hour telephone hotline that connects pregnant teenagers and women with pregnancy resource centers in their communities. The main page of Option Line’s website states at the top, “Pregnant? Need Help? You Have Options,” but does not reveal that both Heartbeat International and Care Net represent only pro-life centers or that only non-abortion options will be counseled.
Id. at 417-18 (footnotes omitted). Otherwise, the Waxman Report focused on information that was provided over the telephone by federally funded pregnancy resource centers in fifteen states to investigators posing as pregnant seventeen-year-old girls.
The City’s second piece of evidence from the Ordinance’s legislative history — a January 2008 report of the NARAL Pro-Choice Maryland Fund entitled “The Truth Revealed: Maryland Crisis Pregnancy Center Investigations” — was premised on visits by investigators to “crisis pregnancy centers” or “CPCs” all located in Maryland. See J.A. 326-412 (the “Maryland Report”). The Maryland Report’s findings included the following:
Maryland Crisis Pregnancy Centers attract clients with their advertisements offering free pregnancy tests and “pregnancy options counseling.” This is a very appealing offer for women in a vulnerable time in their lives. After providing free urine pregnancy tests (the kind available at any drug store), women are counseled with only negative information about the option of abortion. They are given wildly inaccurate information about the physical and mental health risks associated with abortion, and informed only about the joys of parenting and adoption. If a client continues to consider abortion, she is given false information about abortion service availability and encouraged to delay her decision. CPCs that offer ultrasounds and [sexually transmitted infection] testing are able to delay clients further through appointment wait times, while also gaining a sense of authority and credibility in their client’s eyes as a medical service provider. However, CPCs are not medical centers. They are operated by volunteers who are, in general, poorly trained in women’s re*275 productive health issues and well trained in anti-choice propaganda.
Id. at 334.
The City’s third and fourth pieces of evidence from the Ordinance’s legislative record consisted of written testimony. Tori McReynolds recounted that, sixteen years earlier, when she was a sixteen-year-old girl who needed to know if she was pregnant, her mother arranged for her to visit a limited-service pregnancy center in central Maryland that “was listed in the phone book under ‘Abortion Counseling.’ ” J.A. 261 (emphasis omitted). McReynolds produced a urine sample for a pregnancy test “and was told that it would take about 45 minutes to know the result.” Id. During the waiting period, a woman at the center subjected McReynolds to anti-abortion propaganda. Id. McReynolds testified: “I felt tricked; I was a frightened teenager expecting a discussion about my options and instead I was bullied by an opinionated adult twice my age.... Had my mother and I seen a sign at that reception desk informing us that we could not get referrals for abortion or birth control, we would have simply moved on.” Id.
Dr. Jodi Kelber-Kaye of the University of Maryland, Baltimore County, testified that, “[a]s an educator of college-aged women,” she had “heard countless stories from students who go [to limited-service pregnancy centers], assuming they will get a full range of services and counseling and wind up feeling harassed, coerced, and misinformed.” J.A. 273. Dr. Kelber-Kaye also said she was “distressed by the existence of centers that, on purpose, appear to be medical facilities and are not staffed by licensed medical personnel, nor even licensed counselors.” Id. “Simply put,” Kelber-Kaye concluded, “there should be truth in advertising and, like all consumer products, limited-service pregnancy centers need to be kept honest about what services they actually provide.” Id.
b.
In addition to discussing the foregoing evidence, the City asserted in its July 16, 2010 submission that the plaintiffs’ summary judgment request was premature, in that the City had not been afforded the opportunity to conduct discovery or to fully develop expert testimony on key factual issues.
The Rule 56(f) Affidavit specified that the City needed “to conduct discovery concerning the advertising that the [plaintiff] Center and other limited-service pregnancy centers employ, [to] demonstrate its
The Rule 56(f) Affidavit further disclosed that another potential expert, Dr. Robert Blum, had already provided a declaration to the City, which the City in turn included in its July 16, 2010 submission to the district court. See J.A. 44-46 (the “Blum Affidavit” of June 17, 2010). In his Affidavit, Dr. Blum, the Director of the Johns Hopkins University Urban Health Institute, confirmed that “[p]ublic health is advanced when individuals are provided with complete and accurate information about their health care options and the availability of health care services. This is especially true for women who are facing unintended pregnancies or seeking to control their fertility.” Id. at 45. The Blum Affidavit elaborated:
Women seeking family planning services or pregnancy-related care are at a disadvantage relative to service providers in two ways. First, providers possess more information than consumers. Second, providers possess more power than consumers. As a result, full disclosure of what services a provider is offering, as well as what biases underlie the provision of those services, is needed to ensure that consumers are not deceived or taken advantage of; consumers are able to make fully informed, autonomous decisions about family planning or pregnancy-related care; and consumers have timely access to the services they seek.
Id. at 45-46. According to the Blum Affidavit, the Ordinance “serves important public health goals” by “providing] women with key information they need to make decisions about where to go for reproductive health care.” Id. at 45. The City indicated that the Blum Affidavit was representative of evidence it sought to develop during discovery proceedings.
3.
The state of the evidentiary record was discussed during a motions hearing conducted by the district court on August 4, 2010. See J.A. 47-141. The City reiterated its need for discovery to counter the plaintiffs’ summary judgment motion, and it requested the opportunity to submit the Ordinance’s entire legislative record so that the court could “review all of it and not just the portions that” were included in the City’s submission of July 16, 2010. Id. at 127.
For their part, the plaintiffs maintained that no discovery was warranted, in that the district court could apply strict scrutiny and “strike [the Ordinance] down on its face.” J.A. 90. In that regard, the plaintiffs asserted that the court could “very clearly rule as a facial matter,” looking solely to the Ordinance, its legislative history, and the pertinent case law. Id. According to the plaintiffs, the court would need to consider their as-applied challenge only if it rejected their facial challenge,
The district court indicated its agreement with the plaintiffs that discovery was unnecessary for a facial review of the Ordinance. See J.A. 108. The court assured the City, however, that discovery would be authorized before the court engaged in any as-applied analysis. Id. at 130. In the court’s words, “if what [the Center] did is relevant in this case [the City] will have the discovery.... But ... I don’t see where we would advance the ball one way or the other on the facial challenge by knowing what these particular people did.” Id.
Following the motions hearing, the City filed the Ordinance’s entire legislative record, including written opinions provided to the City Council by the City Solicitor and Acting Health Commissioner prior to the Ordinance’s passage vouching for its legality and efficacy. See J.A. 207-08 (October 23, 2009 letter from City Solicitor George A. Nilson advising that, because the Ordinance “merely requires the disclosure of truthful, non-misleading information relevant to a woman’s decision to seek services at a particular location!, it] does not violate the 1st Amendment right to freedom of speech”); id. at 209 (October 21, 2009 memorandum of Acting Health Commissioner Olivia D. Farrow supporting the Ordinance because “[i]t is imperative that all Baltimore City women have the ability to obtain factual and timely advice on all available health care options”). Meanwhile, in response to the district court’s inquiry during the motions hearing about whether the plaintiffs might ever refer for abortion (e.g., in the case of incest), the plaintiffs submitted an official statement of the Catholic Church “affirming] the moral evil of every procured abortion.” Id. at 178. The court thereafter issued its summary judgment decision and permanent injunction without allowing the City any discovery.
C.
1.
By its summary judgment decision of January 28, 2011, the district court determined that, because the City had submitted and relied upon materials beyond the plaintiffs’ Complaint — i.e., the legislative record of the Ordinance — it was appropriate to treat the City’s motion to dismiss as a cross-motion for summary judgment. See O’Brien,
Focusing on the plaintiffs’ free speech claim and turning to the question of the applicable standard for its facial review, the district court rejected the City’s contention that rational basis scrutiny applies because the Ordinance is directed at misleading commercial speech. See O’Brien,
[t]he overall purpose of the advertisements, services, and information offered by the CENTER is not to propose a commercial transaction, nor is it related to the CENTER’S economic interest. The CENTER engages in speech relating to abortion and birth-control based on strongly held religious and political beliefs rather than commercial interests or profit motives. The notion that human life must be respected and protected absolutely from the moment of conception is a central tenet of the CENTER’S belief system.
Id. at 813 (internal quotation marks omitted). The court deemed it insignificant that “[t]he CENTER offers services that have value in the commercial marketplace,” given that “the offering of free services such as pregnancy tests and sonograms in furtherance of a religious mission fails to equate with engaging in a commercial transaction.” Id. at 813-14 (footnote omitted). Indeed, the court likened the free services provided by the Center with “sacramental wine, communion wafers, prayer beads, [and] other objects with commercial value” offered by churches to their congregants. Id. at 814. Tying the former to commercial speech, the court warned, would “subject [the latter] to diminished constitutional protection.” Id.
In any event, the district court concluded that strict scrutiny would apply even if “the CENTER’S speech includes some commercial elements,” because any commercial speech “ ‘is inextricably intertwined with otherwise fully protected speech.’” O’Brien,
As an additional reason to apply strict scrutiny, the district court declared that the City “enacted the Ordinance out of disagreement with Plaintiffs’ viewpoints on abortion and birth-control,” thereby engaging in “a particularly offensive form of content-based discrimination.” See O’Brien,
Applying strict scrutiny, the district court recognized that the City was obliged to demonstrate that the Ordinance is “ ‘narrowly tailored to promote a compelling [GJovernment interest/ ” O’Brien,
There were two grounds for the district court’s ruling on the narrow tailoring issue. First, “the Ordinance does not provide a ‘carve-out’ provision for those limited-service pregnancy centers which do not engage in any deceptive practices”; rather, “[t]he disclaimer requirement is imposed irrespective of how forthcoming and transparent a pregnancy center presents itself.” O’Brien,
Having resolved that the Ordinance is not narrowly tailored, the district court summarized “that the Ordinance does not meet the strict scrutiny standard,” and, thus, “Plaintiffs are entitled to summary judgment with regard to their Freedom of Speech claim.” O’Brien,
2.
Notably, although it referred throughout its summary judgment decision to the claims and contentions of the “Plaintiffs,” the district court ruled early therein that St. Brigid’s and the Archbishop lack standing to be co-plaintiffs with the Center. See O’Brien,
Accordingly, the district court granted in part the City’s dismissal motion, dismissing the claims made by St. Brigid’s and the Archbishop for lack of standing. See O’Brien,
D.
The parties timely noted these cross-appeals, invoking our jurisdiction under 28 U.S.C. § 1291. As explained below, in the City’s appeal, we vacate the district court’s judgment and remand for further proceedings on the claims asserted by the Center. In the cross-appeal of St. Brigid’s and the Archbishop, we affirm the court’s dismissal of their claims for lack of standing.
II.
The City points to a multitude of flaws in the summary judgment decision, going so far as to contend that we should direct a final judgment in the City’s favor. We refrain today from evaluating the ultimate merits of the Center’s claims, however, focusing instead on the preliminary errors made by the district court as it rushed to summary judgment. Those errors include the court’s denial to the City of essential discovery, its refusal to view in the City’s favor what evidence there is, and its verboten factual findings, many premised on nothing more than its own supposition. In these circumstances, it is fitting to simply vacate and remand for properly conducted proceedings.
A.
Chief among its errors was the district court’s award of summary judgment to the Center without allowing the City any discovery. As a general proposition, “summary judgment is appropriate only after ‘adequate time for discovery.’ ” Evans v. Techs. Applications & Serv. Co.,
We review for abuse of discretion a district court’s denial of discovery prior to ruling on a summary judgment motion.
1.
The City took “the proper course” when it filed the Rule 56(f) Affidavit, “stating that it could not properly oppose ... summary judgment without a chance to conduct discovery.” See Harrods Ltd. v. Sixty Internet Domain Names,
It is no justification for the district court’s denial of discovery that the court first converted the City’s motion to dismiss into a cross-motion for summary judgment. There are two requirements for a proper Rule 12(d) conversion. The first is that “all parties be given some indication by the court that it is treating the 12(b)(6) motion as a motion for summary judgment”; such notice exists, e.g., “[wjhen a party is aware that material outside the pleadings is before the court.” Gay v. Wall,
Even more damaging to the district court’s summary judgment decision, the second requirement for proper conversion of a Rule 12(b)(6) motion is that the parties first “be afforded a reasonable opportunity for discovery.” Gay,
2.
Despite the foregoing authorities, the district court denied the City discovery on the theory that, because the Center was pursuing a facial challenge to the Ordi
In effect, by focusing almost exclusively on the Ordinance’s application to the Center, the district court conducted an as-applied analysis, rather than a facial review. But to properly employ an as-applied analysis, the court was obliged to first afford the City discovery. See Richmond Med. Ctr. for Women v. Herring,
Furthermore, the City was also entitled to discovery as a precursor to any true facial analysis. In the circumstances of the Center’s facial challenge, the district court could not properly evaluate the Ordinance’s validity in all or most of its applications without evidence concerning the distinctive characteristics of Baltimore’s various limited-service pregnancy centers. Cf. Free Speech Coal., Inc. v. Att’y Gen. of the U.S.,
3.
The district court further abused its discretion by restricting its analysis to the legislative record and dismissing the City’s discovery request as a forbidden post-enactment effort to justify the Ordinance. The court relied on the Supreme Court’s decision in United States v. Virginia,
B.
In addition to indefensibly denying the City discovery, the district court flouted the well-known and time-tested summary judgment standard. Under that standard, summary judgment is appropriate only if, as Rule 56 is currently written, “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). It is elementary that, when a court considers a summary judgment motion, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Liberty Lobby,
We review an award of summary judgment de novo, guided by the same legal principles that were applicable below. See News & Observer Publ’g Co. v. Raleigh-Durham Airport Auth.,
1.
The district court’s denial of discovery and failure to adhere to the summary judgment standard marred its assessment of, inter alia, the City’s contention that the Ordinance targets misleading commercial speech and thus is subject to rational basis (rather than strict) scrutiny. While the strict scrutiny standard generally applies to content-based regulations, including compelled speech, see Turner Broad. Sys., Inc. v. FCC,
Although it may not ultimately prove meritorious, the City’s commercial speech theory should not have been so easily dismissed by the district court. Under that theory, a limited-service pregnancy center
proposes a commercial transaction every time it offers to provide commercially valuable goods and services, such as pregnancy testing, sonograms, or options counseling, to a consumer. Such an offer may take the form of an advertisement in the phone book, on the internet, or on a sign above the [center’s] door. It may also take the form of an oral solicitation from a [center] staff member to a consumer. The City Council received evidence that many [centers] intentionally mislead consumers about the scope of services they offer to obtain the patronage of those seeking abortion and comprehensive birth control services. The Ordinance regulates a [center’s] offer to provide services to consumers by making clear that the offer does not include abortion and comprehensive birth control services.
Reply Br. of Appellants 9-10 (citations omitted).
The threshold question presented is whether the speech regulated by the Ordinance is actually commercial. That analysis is fact-driven, due to the inherent “difficulty of drawing bright lines that will clearly cabin commercial speech in a distinct category.” See City of Cincinnati v. Discovery Network, Inc.,
Nevertheless, even where speech “cannot be characterized merely as proposals to engage in commercial transactions,” the speech may yet be deemed commercial; in that event, “proper classification as commercial or noncommercial speech ... presents a closer question.” Bolger,
Here, the district court abruptly concluded, “[u]nder both Bolger and Central Hudson,” that “the speech regulated by the Ordinance is not commercial speech.” O’Brien,
Ruling thusly, the district court accepted as fact the Center’s assertion that its motives are entirely religious or political. But that assertion was not at all undisputed. Thus, discovery is needed to substantiate, inter alia, whether the Center possesses economic interests apart from its ideological motivations. Such discovery is “especially important” where, as here, “the relevant facts are exclusively in the control of the [summary judgment movant]” or the “case involves complex factual questions about intent and motive.” See Harrods Ltd.,
In any event, the potential commercial nature of speech does not hinge solely on whether the Center has an economic motive, as even Bolger does not preclude classification of speech as eom-
The Supreme Court of North Dakota employed just such an analysis in Fargo Women’s Health Organization, Inc. v. Larson,
In contrast to the preliminary injunction at issue in Larson, our review today is of a permanent injunction entered in the absence of a fully developed record. Without all the pertinent evidence — including evidence concerning the Center’s economic motivation (or lack thereof) and the scope and content of its advertisements — we cannot properly analyze the speech regulated by the Ordinance. Cf. Milavetz,
b.
The district court’s hasty decision cannot be excused by its ruling that any commercial speech regulated by the Ordinance “ ‘is inextricably intertwined with otherwise fully protected speech,’ ” thus triggering strict scrutiny. See O’Brien,
Equating Baltimore’s Ordinance with the statutory requirement at issue in Riley, the district court relied on its own speculative finding that “[t]he dialogue between a limited-service pregnancy center and an expectant mother begins when the client or prospective client enters the waiting room of the center.” See O’Brien,
Significantly, discovery could refute the district court’s factual assumptions. Discovery might also show that any commercial aspects of a limited-service pregnancy center’s speech are not “inextricably intertwined” with its fully protected noncommercial speech. See Hunt v. City of L.A.,
2.
The district court further erred in precipitately concluding that the Ordinance is an exercise of viewpoint discrimination— the court’s additional basis for applying strict scrutiny. See Sons of Confederate Veterans, Inc. v. Comm’r of the Va. Dep’t of Motor Vehicles,
The district court failed to view the legislative record in the light most favorable to the City, and thus to credit evidence for summary judgment purposes that the Ordinance was enacted to counteract deceptive advertising and promote public health. Moreover, the court ignored the possibility that there may be limited-service pregnancy centers with no “moral or religious qualms regarding abortion and birth-control,” and who refrain from providing or referring for abortion or birth control for other reasons.
Finally, applying strict scrutiny, the district court erred by determining that the Ordinance is not narrowly tailored because “a less restrictive alternative would serve the [City’s] purpose.” See United States v. Playboy Entm’t Grp., Inc.,
C.
In sum, under the Federal Rules of Civil Procedure and controlling precedent, it was essential to the City’s opposition to the Center’s summary judgment motion— and to a fair and proper exercise of judicial
The district court in Centro Tepeyac v. Montgomery County, another Maryland pregnancy center-compelled disclosure case, proceeded in just that measured fashion. See
Today, alongside this opinion, we issue a separate opinion in which we affirm the Centro Tepeyac preliminary injunction decision, concluding that “the district court acted well within its discretion” and “commend[ing] the court for its careful and restrained analysis.” See Centro Tepeyac v. Montgomery Cnty., No. 11-1314(L),
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.,
Consistently with Centro Tepeyac, we conclude herein that the district court erred by entering a permanent injunction without allowing discovery or adhering to the applicable summary judgment standard. Despite this prudent, restrained, and — above all — evenhanded ruling, the dissenters accuse us of all manner of improprieties. Most disappointingly, they depict us, on the one hand, as pro-choice zealots who have engaged in “gratuitous shaping of the issues” and “become seduced by [our] own elaboration of abortion policy.” Post at 299 (Niemeyer, J., dissenting); see also post at 296 (Wilkinson, J., dissenting) (“In strongly implying that the Ordinance will survive First Amendment scrutiny, the majority has established a principle that will bite the very hands that feed it. For compelled speech can serve a pro-life agenda for elected officials as well as a pro-choice one.”).
On the other hand, we are reproached for “an amorous affair with litigation,” an “enchantment with extended procedures,” and an “infatuation with discovery,” as well as for “opin[ing] on various points of civil procedure” when we could be discussing “the dangers of state-compelled speech.” Post at 292, 294, 295 (Wilkinson, J., dissenting). The dissenters would wholly exempt the Center from fundamental procedures to which all civil litigants are both subject and entitled. And, though the dissenters candidly acknowledge that “the district court engaged hypothetically from time to time in discussion about the potential relevance of facts,” they unhesitatingly endorse the court’s summary judgment decision. Post at 299 (Niemeyer, J., dissenting). Indeed, the dissenters freely layer their own supposition on the district court’s, admitting of no other conclusion than that the Ordinance should be enjoined against all Baltimore limited-service pregnancy centers for all time.
We, however, are not so dismissive of the Federal Rules of Civil Procedure, which, as the Supreme Court has underscored, “are designed to further the due process of law that the Constitution guarantees.” Nelson v. Adams USA, Inc.,
Notwithstanding the dissenters’ unfair and overwrought characterization, our ruling today is simply this: the district court improperly denied the City essential discovery and otherwise flouted the Federal Rules of Civil Procedure. Consequently, we vacate the judgment and remand for further proceedings.
III.
Nevertheless, we affirm the district court’s ruling that St. Brigid’s and the Archbishop lack standing to be co-plaintiffs in this action with the Center. See O’Brien,
Pursuant to the foregoing, we vacate the district court’s judgment against the City and remand for such other and further proceedings as may be appropriate. We affirm, however, the court’s dismissal of the claims of St. Brigid’s and the Archbishop for lack of standing, leaving only the Center’s claims for resolution on remand.
No. 11-1111 VACATED AND REMANDED
No. 11-1185 AFFIRMED
Notes
. To be clear, we vacate and remand in the appeal (No. 11-1111) noted by defendants Mayor and City Council of Baltimore; Stephanie Rawlings-Blake, in her official capacity as Mayor of Baltimore; and Oxiris Barbot, in her official capacity as Baltimore City Health Commissioner. We affirm, however, in the cross-appeal (No. 11-1185) of St. Brigid’s Roman Catholic Congregation Incorporated and Archbishop William E. Lori, contesting the district court’s ruling that they lack standing to be co-plaintiffs with the Greater Baltimore Center for Pregnancy Concerns. See O’Brien,
. Citations herein to "J.A. _” refer to the contents of the Joint Appendix filed by the parties in these appeals.
.The Joint Appendix contains the original version of the Regulation, adopted on July 15, 2010, which indicated that nondirective and comprehensive birth-control services "may also include other birth-control services.” J.A. 39. That language was deleted from the Regulation on September 27, 2010, after being deemed problematic in the course of this litigation. Otherwise, there are no substantive differences between the original and superseding versions of the Regulation.
.The plaintiffs consented to dismiss without prejudice their claims against an additional defendant, the Baltimore City Health Department. See O'Brien,
. In accordance with Federal Rule of Civil Procedure 26(d)(1), the City was constrained to respond to the plaintiffs’ summary judgment motion without the benefit of discovery because the parties had not yet conferred as required by Rule 26(f).
. By amendment that took effect on December 1, 2010, former Rule 56(f) was carried forward into subdivision (d) without substantial change.
. In view of its summary judgment award on the free speech claim, the district court deemed the Complaint’s other claims to be moot and dismissed them without prejudice. See O’Brien,
. While disclosure requirements aimed at misleading commercial speech are subject to the rational basis test, “restrictions on non-misleading commercial speech regarding lawful activity must withstand intermediate scrutiny — that is, they must ‘directly advanc[e]‘ a substantial governmental interest and be 'n[o] more extensive than is necessary to serve that
. Even though the Center has averred that it does not charge women for its services, inquiring into the Center’s potential profit motives may not be a futile endeavor. We know that nonprofit entities with religious or political motives can engage in commerce. See Camps Newfound/Owatonna, Inc. v. Town of Harrison, Me.,
. The Larson decision, though certainly not binding here, illuminates the potential inefficacy of the analogy drawn by the district court between the Center's free services and “sacramental wine, communion wafers, prayer beads, [and] other objects with commercial value” offered by churches to their congregants. See O'Brien,
. Although discovery is needed before this matter can be fairly decided, the existing record is not devoid of relevant evidence. For example, the Maryland Report included in the Ordinance’s legislative record contains an online advertisement for Option Line, the "live contact center” co-established by national umbrella organizations Heartbeat International and Care Net that "provides 24/7 assistance to women and girls seeking information about pregnancy resources.” J.A. 381. The advertisement states, inter alia, that Option Line’s "consultants will connect you to nearby pregnancy centers that offer the following services”: "Free pregnancy tests and pregnancy information”; "Abortion and Morning After Pill information, including procedures and risks”; "Medical services, including STD tests, early ultrasounds and pregnancy confirmation”; and "Confidential pregnancy options.” Id. (emphasis omitted). The City characterizes the advertisement as deceptive, because it “does not indicate that the 'medical services' and ‘confidential pregnancy options' offered by the centers exclude abortion and comprehensive birth control services.” Br. of Appellants 8. Additionally, the City connects the advertisement to the plaintiff Center and several other Baltimore limited-service pregnancy centers, in that each is an affiliate of Heartbeat International or Care Net. See J.A. 228, 241.
. It bears noting that the dissenters find it necessary to distort our decision in an effort to refute it. For example, they erroneously say that we ' ‘fail[ ] to recognize that the challenge addressed by the district court was the plaintiffs' facial challenge,” and that we "re-characterize[ ] the proceeding as an as-applied challenge” just so we can "identify questions of fact to support [our] remand.” Post at 298 (Niemeyer, J., dissenting); see also post at 296 (Wilkinson, J., dissenting) (asserting that, in "a tragedy for free expression,” we insist the district court "undertook an as-applied analysis”). In reality, we amply discuss the facial/as-applied distinction, ultimately concluding that "regardless of the type of analysis utilized — facial or as-applied — the court abused its discretion by failing to recognize and honor the City's right to discovery.” Supra Part II.A.2.
The dissenters also incorrectly assert that we "fail[] to recognize the scrutiny applicable to regulations that compel speech,” going so far as to claim that we "do[ ] not even discuss 'compelled speech.' " Post at 298 (Niemeyer, J., dissenting) (citing Turner Broad. Sys.,
Finally, we note that the dissenters also distort the existing record, repeatedly asserting that "the City’s stated interest [is] in prohibiting [limited-service] pregnancy centers, as a health concern, from misrepresenting information about abortions.” Post at 297 (Niemeyer, J., dissenting); see also id. at 300, 303-04, 306, 307. To be sure, the record includes allegations that such centers provide misinformation about abortion (e.g., that it causes breast cancer). The City has clearly and consistently articulated its position, however, that the Ordinance is aimed at the pregnancy center practice of employing deceptive advertising to attract women seeking abortion and comprehensive birth-control services, and then using delay tactics to impede the women from accessing those services. The City has not asserted, as the dissenters claim, that the Ordinance is intended “to remedy misrepresentations being made by these pregnancy centers about abortion.” See id. at 307.
Dissenting Opinion
dissenting:
In a case concerning a law that requires private, noncommercial organizations to convey a government-authored message, one would expect to find at least some acknowledgement of the dangers of state-compelled speech. But one will search the majority’s opinion in vain for any such recognition. Instead, the majority opts to opine on various points of civil procedure, apparently oblivious to the fact that litigation is not an end in itself, but a means of vindicating the substantive values underlying our legal order, among which I had hitherto supposed were the freedoms of conscience and belief.
Those freedoms are at the heart of this case, though one would never know it from the majority’s opinion, which glosses over the impact of the Baltimore Ordinance on the right of the plaintiff Center not to be compelled by the state to express a message at odds with its most intimate beliefs. Today it is the Center; tomorrow it is who knows what speaker and who can guess what view. Because the majority fails to respect the Center’s right not to utter a state-sponsored message that offends its core moral and religious principles, and because it launches a litigious fusillade aimed at smothering the Center’s right to simple silence, I respectfully dissent.
I.
A.
Given the dearth of discussion about the evils of compelled speech in the majority opinion, it is worth pausing to consider what is at stake when government forces private individuals or organizations to speak on its behalf. We now take it for granted that “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” W. Va. State Bd. of Educ. v. Barnette,
In confusing mere statism with patriotism, Justice Frankfurter also posited a cramped conception of the freedom of speech. Specifically, he denied that the right to speak entails a right not to speak. In a lone dissent, Frankfurter reaffirmed
Justice Frankfurter’s opinions in the flag-salute cases mark a singular blot on a long and storied career. He simply failed to grasp a truth that had been “well known to the framers of the Bill of Rights,” id. at 633,
B.
It is a lesson the majority has failed to learn. While it perfunctorily acknowledges that laws compelling speech are “generally” subject to strict scrutiny, maj. op. at 283, it follows Justice Frankfurter in downplaying the impact of such laws on the individuals who are compelled to speak. As the majority apparently sees it, the Ordinance requires organizations like the Center to make nothing more than an anodyne factual statement identifying the services they do not provide, without having to condone those services. See maj. op. at 287-88.
But the majority utterly fails to appreciate the nature of the Center’s beliefs. The Center has “sincerely held” “moral, ideological, political, and religious beliefs” that abortion and at least some forms of birth control are profoundly wrong and thus are not to be chosen. Complaint ¶¶ 43, 40. The Ordinance requires the Center to state that it “does not provide or make referral for abortion or birth-control services.” J.A. 26. The conflict between the Center’s beliefs and the mandated disclosure is thus plain: where the Center wishes to guide women toward alternatives to abortion and birth control, the Ordinance requires it to indicate at the outset that those services are readily available, just not at the Center itself.
The flag-salute ceremony may not have compelled Jehovah’s Witnesses to affirm the American flag as an idol or the United States as a deity in so many words, but from their perspective, that was the import of the ritual. The same is true here. Although the Ordinance does not compel the Center to explicitly countenance abortion and birth control, it does compel the Center to present them as viable options— which, of course, is precisely what the Center denies they are. Putting aside altogether the matter of abortion, about which people of good will may and do differ, imagine any of us being told by the state to renounce ourselves in such a basic way.
Echoing Justice Frankfurter’s rejoinder to the Jehovah’s Witnesses in the flag-salute cases, the City responds by noting that pregnancy centers remain free to express their disapproval of abortion and birth control alongside the mandatory disclaimer. But the Supreme Court rightly found this response unavailing in Barnette,
Compelled speech can be all the more pernicious because of its context. So it is here. Whether or not the Ordinance is technically viewpoint-discriminatory, this much can be said: it compels groups that oppose abortion to utter a government-authored message without requiring any comparable disclosure — or indeed any disclosure at all — from abortion providers. Seventy years after the flag-salute cases, it should be axiomatic that the First Amendment prohibits the government from dictating the terms of private expression, let alone in such a one-sided manner. Faced with the inadequacy of its reasons, the majority responds with only noise, making believe it has somehow been accused of various “improprieties,” maj. op. at 290, and “zealous” pro-choice views, id,., when the only issue in reality is that the grand neutrality at the heart of the First Amendment has been compromised. Those who support most firmly a woman’s right to reproductive choice should find it the most disheartening that the court’s First Amendment jurisprudence is trampling expressive privacy and marching backward through time.
II.
The majority would have us believe that it has issued nothing more than a cut-and-dried procedural ruling, merely ordering “essential discovery” into a few key factual questions in the case. Maj. op. at 280. Don’t be fooled. The majority is conducting an amorous affair with litigation that is anything but benign. For the infatuation here is indiscriminate. The majority neglects to pose the most relevant question: whether its enchantment with extended procedures will serve to vindicate the assertion of a constitutional right or to suffocate it. Perhaps it evades this question because the answer is so obvious. By bringing the full brunt of the litigative process to bear on the Center, the majority is imposing a high price on the Center (and by extension any speaker) for attempting to vindicate its free-speech rights.
Most troubling, the majority has licensed a fishing expedition into the Center’s motivations and operations on the off chance that it might turn up some vaguely “commercial” activity. The majority appears to recognize that the Center’s speech clearly lies far from “the core notion of commercial speech,” since none of its advertisements propose a commercial transaction. Maj. op. at 284 (quoting Bolger v. Youngs Drug Prods. Corp.,
Ordering discovery on this tenuous a basis would entail delays and costs even in the ordinary case. But the delays and costs are especially onerous where, as here, the party that is subjected to discovery has so plainly suffered a violation of its constitutional rights. By encouraging the City to pry into every corner of the Center’s operations, the majority heavily penalizes this organization for attempting to defend its constitutional rights, a penalty that will only dissuade future victims of constitutional violations — and especially those who hold to the Center’s persuasion — from bringing suit in the first place. Where discovery should be a means of vindicating constitutional rights, the majority converts it into a process that strangles them.
The majority’s approach also excuses the City’s rush to regulate the Center’s speech, rather than consider other ways of achieving the purposes underlying the Ordinance. There has never been any dispute that the Ordinance forces organizations like the Center to communicate a message they would otherwise never utter. Given the dangers of compelled speech, this kind of mandated disclosure should be a last resort, not a first recourse. See Riley v. Nat’l Fed’n of the Blind of N.C., Inc.,
Thus, before enacting the Ordinance, the City should at least have considered less restrictive alternatives and indicated why those alternatives would be ineffective. And yet, the City points to not a single portion of the 239-page legislative history submitted as part of this litigation indicating that it ever took these elementary steps. See J.A. 192-430. What testimony was delivered and evidence presented before the City Council appears to have focused on the City’s interest in enacting the Ordinance rather than the question of whether the Ordinance was a narrowly tailored means of serving that interest. Especially telling is the absence of any statement of legislative findings indicating why less restrictive alternatives would come up short. This is not for a lack of such alternatives. As the district court noted, many suggest themselves. See O’Brien v. Mayor & City Council of Balt.,
Without ever having contemplated these options, the City now asserts that they will prove ineffective, and based on that bald assertion, the majority unlocks the doors of discovery. The lesson of the majority’s ruling for other legislative bodies is clear: compel speech before considering less restrictive alternatives, and you will be granted discovery to prove why those alternatives are ineffective after the fact. This upends the notion that compelled speech should be a last resort, encouraging legislatures to adopt the most constitutionally offensive option rather than the least. In this respect as well, the majority renders litigation a threat to liberty rather than its safeguard.
The majority’s infatuation with discovery is compounded by its similarly misguided affection for as-applied challenges. Although the district court construed the Center’s claim as a facial challenge, the majority insists it actually undertook an
The majority responds by doubling down on the virtues of extended litigation. It pens a final ode to discovery, maj. op. at 290, again ignoring the question of when that discovery serves a salutary purpose and when it simply chokes off constitutional rights as it does here. This is by no means to suggest that affording the government discovery is inappropriate in every constitutional case. But one does not need discovery to discover the obvious. Here, the infringement of the Center’s free-speech rights is patent and profound, and the alternatives to a mandatory disclaimer are myriad. I recognize that the Center’s views on the issues surrounding abortion rights are controversial. But the First Amendment is not needed to protect speech that elicits broad popular approbation. “The test of [freedom’s] substance is the right to differ as to things that touch the heart of the existing order.” Barnette,
Indeed, the Supreme Court has only recently reiterated the “basic First Amendment principle that freedom of speech prohibits the government from telling people what they must say.” Agency for Int’l Development v. Alliance for Open Society Int’l, Inc., — U.S.—,
III.
To my good colleagues in the majority, all I can say is, “Be careful what you wish for.” In strongly implying that the Ordinance will survive First Amendment scrutiny, the majority has established a principle that will bite the very hands that feed it. For compelled speech can serve a pro-life agenda for elected officials as well as a pro-choice one. Cf. Planned Parenthood Minn., N.D., S.D. v. Rounds,
When this court finally confronts a pro-life analogue of the Baltimore Ordinance, it will face a dilemma. Either it will uphold the measure, in which case it will simply confirm what today’s decision suggests: that the government does have the power after all to “prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion [and to] force citizens to confess by word or act their faith therein.” Barnette,
IV.
Compelled speech can get tricky quickly. The state possesses a broad police power to regulate for the health and safety of its citizens, which includes the authority to require the disclosure of limited amounts of accurate information. See, e.g., Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio,
This case, however, is not vexing. The Baltimore Ordinance demands that organizations like the Center affirm a proposition they vehemently deny. It is, moreover, a law in search of a problem about which the City and majority speculate but cannot identify. The City made no attempt to try or even consider alternative approaches that would have allowed it to achieve its purposes without compelling the Center to say a word. Wherever the First Amendment might draw the line between state regulation and individual conscience, this law crosses it. To the infirmities of the law, the majority adds burdens beyond measure on freedom of the mind.
I respectfully dissent.
Dissenting Opinion
dissenting:
Baltimore City Ordinance 09-252 mandates that pregnancy centers that do not offer abortions or refer for abortions must post one or more signs in their waiting rooms, stating that they “do[ ] not provide or make referral for abortion or birth-control services.” On the plaintiffs’ assertion that such a sign requires them to speak contrary to their moral and religious beliefs, the district court held, as a matter of law, (1) that the ordinance, on its face, compels speech that is not content neutral; (2) that such compelled speech is subject to strict scrutiny; and (3) that the ordinance is not narrowly tailored to serve the City’s stated interest in prohibiting such pregnancy centers, as a health concern, from misrepresenting information about abortions. It thus found the ordinance unconstitutional.
First, it fails to address the actual holding of the district court insofar as the district court applied established legal principles to conclude, as a matter of law, that the ordinance was unconstitutional. Rather, it dismisses the district court’s ruling as “laden with error,” pointing to a raft of circumstantial factual questions, irrelevant to the necessary legal propositions, and concluding that the legal issues therefore cannot be resolved by summary judgment.
Second and more fundamentally, it fails to recognize the scrutiny applicable to regulations that compel speech — regulations that require a person to say that with which the person would not otherwise say and might well disagree. Such regulations are among the most pernicious invasions of First Amendment rights, and for that reason, they are subject to “the most exacting scrutiny.” Turner Broadcasting Sys., Inc. v. FCC,
And third, it fails to recognize that the challenge addressed by the district court was the plaintiffs’ facial challenge. In an effort to identify questions of fact to support its remand, the opinion ignores the issue presented — i.e., whether a facial review would render the ordinance unconstitutional — and recharacterizes the proceeding as an as-applied challenge. With that erroneous maneuver, it concludes that facts need to be developed to conduct such an as-applied challenge. Ante, at 282 (“But to properly employ an as-applied analysis, the court was obliged to first afford the City discovery”). To be sure, the complaint challenged the ordinance both facially and as-applied, but the plaintiffs argued before the district court that on Count I (violation of free speech), the court could rule on the ordinance “as a facial matter.” And in its opinion, the district court accepted this, repeating that in the plaintiffs’ claims against the City, the plaintiffs “contend[ed] that the Ordinance [was] facially invalid.” O’Brien v. Mayor & City Council of Baltimore,
Thus, to conclude that the district court’s holding was “laden with error,” ante, at 271, the majority opinion itself is error-laden, giving the governing core principles the back of the hand and broadening, by recharacterization, the issues so as to be able to conclude that the City should have been given the opportunity to engage in discovery, even as to subjects that would be irrelevant or unnecessary to the legal questions decided by the district court. It is apparent that the majority opinion, which is some 50 typewritten pages, roams in supposition about what pregnancy centers that do not offer abortion have said to their clients; about whether their advice could have been commercial in nature; and about the facts that might have been misrepresented, as identified by pro-choice groups in their stated policy positions. For example, the majority opinion quotes at length: (1) the Wax-man report, which suggests the pregnancy centers “often mask their pro-life mission” to mislead pregnant women; (2) the report of the NARAL Pro-Choice Maryland Fund that pregnancy centers give “wildly inaccurate information” about abortion; (3) the legislative testimony of a woman who stated she had “felt tricked” by a pregnancy center 16 years before; and (4) the legislative testimony of a professor who stated that she was “distressed by the existence of centers” that misrepresent their mission. The majority sets forth no similar evidence provided by the plaintiffs, yet it relies on the City’s claimed need to respond to the plaintiffs’ facts.
In its gratuitous shaping of the issues, the majority also devotes pages to speculation about whether the ordinance regulates commercial speech or noncommercial speech — failing to recognize that, on its face, the ordinance regulates both. The majority’s position is curious in view of the fact that it has today affirmed the district court’s conclusion in Centro Tepeyac that a similar Montgomery County, Maryland provision compelled noncommercial speech and that any commercial speech was intertwined with regulated noncommercial speech. See Centro Tepeyac v. Montgomery Cnty.,
Were our court grappling with the abortion issue itself, the majority’s fulsome and overstated facts might mean something. But the case before us presents the much narrower question about the scope of the ordinance on its face. It appears that the majority has become seduced by its own elaboration of abortion policy from the viewpoint of some interested groups, thereby blinding it from the narrow legal issue raised by the terms of the ordinance.
The district court, on the other hand, correctly focused on the relevant legal issue and, in a reasoned fashion, supported its holding by analyzing the ordinance’s language. To be sure, the district court engaged hypothetically from time to time in discussion about the potential relevance
I respectfully submit that under the well-established First Amendment principles relating to compelled speech, Baltimore City Ordinance 09-252 cannot, on its face, withstand strict scrutiny. The ordinance is content-based, telling a person, not otherwise regulated, what to say to a client, even though the person may disagree with the speech and would not otherwise say what is commanded. The mandate is imposed on all pregnancy centers not providing or referring for abortion, whether they are commercial or noncommercial or whether they provide services for free or for a fee. Although the City may have a compelling interest in prohibiting the misrepresentation of information about abortion, as it claims, the ordinance on its face does not prohibit misrepresentation. Indeed, it mandates speech regardless of whether the pregnancy center misrepresents or not. These statutorily based observations lead to the legal conclusion that the ordinance is overbroad and therefore unconstitutional. To reach that conclusion does not require discovery of the circumstantial facts about how the ordinance might apply in any given circumstance. I conclude that the majority’s decision to remand for the development of irrelevant facts is simply misguided.
The district court’s decision should be affirmed.
I
By way of background, the City of Baltimore enacted Ordinance 09-252 in December 2009, regulating all pregnancy centers that provide pregnancy related services for free or for a fee and that either do not provide abortions or refer for abortions. The ordinance requires each one of those centers to post one or more signs in its waiting room stating that the center “does not provide or make referral for abortion or birth-control services.”
The legislative record indicates that the President of the Baltimore City Council introduced Bill 09-0406 (the future Ordinance 09-252) after meeting with abortion-rights advocacy groups. Those groups complained that some pregnancy clinics provide inaccurate information to women about abortions. A spokesperson for the City Council President explained in a public statement: “The bill deals with whether women are told up front what the facts are. Women need to know up front what to expect when they go into these centers.” The “Bill Synopsis” presented to the City Council stated that the Bill was “introduced because of the ‘importance of choice.’ ” And the Baltimore City Health Department backed the Bill, based on the “purpose of the bill to require limited-service pregnancy centers to provide accurate information about available services to clients and potential clients.” (Emphasis added). The Bill was enacted in November and became law on December 4, 2009.
In March 2010, before any enforcement of Ordinance 09-252, the Archbishop of Baltimore, St. Brigid’s Roman Catholic Church, and the Greater Baltimore Center for Pregnancy Concerns, Inc. (“the Pregnancy Center”) commenced this action
The complaint alleges that the Pregnancy Center is a “limited-service pregnancy center,” as defined in Ordinance 09-252, operating in Baltimore City from two locations. The Center provides free services to pregnant women, such as pregnancy testing; classes in prenatal development, post-pregnancy parenting, and life skills; Bible studies; and material support for women through its “Hannah’s Cupboard” program, including diapers, formula, baby and maternity clothes, toys, and books. It also provides women with information on “abstinence and natural family planning, which are recognized forms of birth control,” but does not provide referrals for abortions or other methods of birth control, asserting that it does not do so “[biased on moral and religious beliefs.” The Pregnancy Center does not charge its clients for its services.
The complaint alleges that Ordinance 09-252 specifically targets pro-life pregnancy centers such as the Pregnancy Center and thus “regulates communications at the Pregnancy Center that are personal, moral, religious, and political.” It also states that “[b]y requiring a disclaimer that the Center does not provide or refer for abortions, the Ordinance compels Plaintiffs to deliver the implied message that these services are available elsewhere and should be considered,” thus appearing to legitimize such services, in violation of the plaintiffs’ beliefs. The complaint objects to the ordinance’s requirement that the Pregnancy Center “post a sign saying that it does not provide birth-control services,” when in fact it does “in the form of education about abstinence and natural family planning.” The plaintiffs seek a declaratory judgment that the ordinance is unconstitutional on its face and/or as applied to them and an injunction prohibiting the ordinance’s enforcement. Some two months after they filed their complaint, but before the City filed its answer, the plaintiffs also filed a motion for partial summary judgment on their free speech and equal protection claims.
The City argued that the plaintiffs’ summary judgment request was premature in that the City had not been afforded the opportunity to conduct discovery or to fully develop expert testimony on key factual issues. The City contended that it needed “to conduct discovery concerning the advertising that the Pregnancy Center and other limited-service pregnancy centers employ ... [to] demonstrate its deceptive character.” The City also asked for discovery “to develop factual support for [the City’s] argument that the services offered by [the Center] are a form of commerce, and, therefore, the disclaimer required by the Ordinance is commercial speech, subject only to rational basis scrutiny' — not strict scrutiny.” Finally, the City asked for “the opportunity to develop expert testimony to provide factual support for the propositions that deceptive advertising by limited-service pregnancy centers threatens public health in a variety of ways.”
Following a hearing on the motion for summary judgment, as well as on other motions, the district court entered an order dated January 28, 2011, denying the City’s request for further discovery on the ground that it was not necessary to the issue being decided; granting the Pregnancy Center’s motion for summary judgment on its free speech claim; and enter
II
This is not a hard case, and the First Amendment analysis is straightforward.
For a facial challenge, we look to the face of the ordinance and are “careful not to go beyond [its] facial requirements and speculate about ‘hypothetical’ or ‘imaginary’ cases.” Wash. State Grange v. Wash. State Republican Party,
Ordinance 09-252 targets “limited-service pregnancy centers,” which are defined as “any person ”
(1) whose primary purpose is to provide pregnancy-related services; and
(2) who:
(i) for a fee or as a free service, provides information about pregnancy-related services; but
(ii) does not provide or refer for:
(A) abortions; or
(B) nondirective and comprehensive birth-control services.
Baltimore City Health Code § 3-501 (emphasis added). Under the ordinance, “[a] limited-service pregnancy center must provide its clients and potential clients with a disclaimer substantially to the effect that the center does not provide or make referral for abortion or birth-control services.” Id. § 3-502(a). This disclaimer must be made through one or more “easily readable” signs that are “conspicuously posted in the center’s waiting room” and written in English and Spanish. Id. § 3-502(b). The failure to comply with the terms of the ordinance is punishable by a citation carrying a maximum civil penalty of $150. Id. § 3-506(a).
On its face, Ordinance 09-252 compels speech. A pregnancy center that does not provide or refer for abortions must post the sign containing the mandated language. A pregnancy center is thus required to participate in the City’s effort to tell pregnant women that abortions are available elsewhere as a presumably acceptable alternative, regardless of the moral and religious beliefs of the center.
As a matter of logic and Supreme Court precedent, “[m]andating speech that a speaker would not otherwise make necessarily alters the content of the speech.” Riley,
In an effort to avoid strict scrutiny of Ordinance 09-252, the City contends that the ordinance compels only commercial speech and therefore is subject to a lower level of scrutiny. Commercial speech is defined as “expression related solely to the economic interests of the speaker and its audience.” Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y.,
Here, the enacted text forecloses the City’s argument that the ordinance targets only commercial speech because the ordinance imposes a disclosure requirement on all speakers, regardless of economic motivation. The ordinance applies wholesale to any person who “for a fee or as a free service ” provides information about pregnancy. The ordinance thus imposes its disclosure requirement wholly indifferent to whether the speaker “propos[es] a commercial transaction.” Central Hudson,
In a similar effort to avoid the application of strict scrutiny, the majority maintains that the commercial speech inquiry is “fact-driven” and that therefore “discovery is needed to substantiate ... whether the Center possesses economic interests apart from its ideological motivations.” Ante, at 285-86. But this approach is flawed. The Pregnancy Center’s motivation for its provision of free information is irrelevant to the inquiry of whether the ordinance, on its face, compels noncommercial speech. The ordinance reaches beyond this one pregnancy center and imposes the requirement of a disclaimer sign on every speaker — commercial or not — -who provides information “for a fee or as a free service.” The plain language of the ordinance focuses not on the economic motive of the per
Thus, as a noncommercial, content-based regulation, the ordinance is subject to strict scrutiny, see Centro Tepeyac,
The City maintains that it has a compelling government interest in assuring, as a health concern, that pregnancy centers do not misrepresent information about abortion, a concern that it grounds in the Wax-man Report and the report of the NARAL Pro-Choice Maryland Fund. It also contends that the ordinance narrowly addresses this concern by requiring pregnancy centers to post the mandated sign in their waiting rooms.
The district court accepted the City’s stated interest in the ordinance as a compelling one and elected to assess the question of whether the ordinance was narrowly tailored to serve that interest. I too would bypass any inquiry about the sufficiency of the City’s stated government interest and address the question of whether it is narrowly tailored. If the ordinance is not narrowly tailored to serve the City’s stated interest, then it must be invalidated as unconstitutional.
The inquiry into whether Ordinance 09-252 is narrowly tailored is a purely legal question: “Whether [a] regulation meets the ‘narrowly tailored’ requirement is of course a question of law....” United States v. Doe,
A regulation is not narrowly tailored when, among other things, (1) it does not advance the purported compelling interest, e.g., Meyer v. Grant,
Second, the ordinance is overinclusive because it applies equally to pregnancy centers regardless of whether they advertise and, if they advertise, regardless of whether they engage in false advertising. See FEC v. Mass. Citizens for Life, Inc.,
Third, several alternatives to address the problems purportedly targeted by the ordinance are available and would impose a lesser burden on speech. Most obviously, the City could speak with 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,
As another alternative, the City could produce a document or website listing local pregnancy centers and noting what services are available at each. See Riley,
And as yet another alternative, the City could always pursue the option of prosecuting violations of its criminal and civil laws that proscribe false or deceptive advertising. See Riley,
That the City resorted to speech restrictions before trying these or other less restrictive alternatives is more than enough to render the ordinance unconstitutional. See Thompson v. Western States Med. Ctr.,
The additional discovery ordered by the majority would not eliminate or even mitigate these narrow-tailoring problems. The ordinance’s infirmity in this regard is apparent on its face. Cf. Sable Commc’ns of Cal., Inc. v. FCC,
Tellingly, the majority does not dispute the fact that discovery would not be needed to determine whether the language of the ordinance advances the stated government interest or is overinclusive — -two of the three ways that can render an ordinance not narrowly tailored. ' But it nonetheless states that the City “must be accorded the opportunity to develop evidence disproving the effectiveness of purported less restrictive alternatives to the Ordinance’s disclaimer.” Ante, at 288; cf. Centro Tepeyac,
Finally, the majority adds the careless declaration that:
[T]he City must be accorded the opportunity to develop evidence relevant to the compelling governmental interest and narrow tailoring issues, including, inter alia, evidence substantiating the efficacy of the Ordinance in promoting public health.
Ante, at 288. This declaration of loosely mixed principles is, as it stands, irrelevant to any issue, but it appears mostly to collapse two burdens that the government has under strict scrutiny. First, the government was required to advance a compelling governmental interest in mandating speech. With respect to that, the majority fails to recognize that the district court assumed that the government had appropriately claimed a compelling interest in prohibiting the misrepresentation of information about abortion. Thus, there is no issue of fact to resolve. Second, the government had the burden to show that its regulation of speech — i.e., mandating the posting of a sign with specific content in pregnancy centers’ waiting rooms — was narrowly tailored to serve the compelling governmental interest. As to this, the majority fails to recognize that that issue was a question of law. See Village of Schaumburg,
In short, to respond to the self-evident proposition that discovery is not needed in resolving questions of law, the majority fabricates fact issues where none exist and then criticizes the dissenting opinions, stating, “The dissenters would wholly exempt the Center from fundamental procedures to which all civil litigants are both subject and entitled.” Ante, at 290. Indeed, it inflates the postured balloon, suggesting even a constitutional issue in denying discovery. See ante, at 290 (“We, however, are not so dismissive of the Federal Rules of Civil Procedure, which, as the Supreme Court has underscored, ‘are designed to further the due process of law that the Constitutional guarantees’ ”). The majority’s drama about its role in protecting the Federal Rules of Civil Procedure and the U.S. Constitution does not, however, advance its argument that it can ignore the reality that the district court ruled on questions of law, questions that do not need discovery to resolve.
Ill
At bottom, we have a City ordinance that targets, on its face and by design, all
The majority, however, refuses to consider the legal questions raised by the Pregnancy Center’s facial challenge and reaches, in its far-ranging opinion, irrelevant and ideological facts about a case not presented to conclude that summary judgment was inappropriate. I disagree and conclude that the district court properly recognized the issues that could be decided as a matter of law and found the ordinance unconstitutional. That legal analysis is not a difficult one and, I submit, readily leads
to the district court’s conclusion. Accordingly, I would affirm.
Judges WILKINSON, SHEDD, and AGEE have asked me to show them as joining this opinion.
While I dissent from the court’s remand, I concur in its judgment that the Archbishop and St. Brigid's Catholic Church lack standing to challenge the ordinance.