Greater Baltimore Center v. Mayor and City Council

Citation: 879 F.3d 101Docket: 16-2325

Court: Court of Appeals for the Fourth Circuit; January 4, 2018; Federal Appellate Court

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The case before the United States Court of Appeals for the Fourth Circuit involves Greater Baltimore Center for Pregnancy Concerns, Inc., along with other plaintiffs including St. Brigid’s Roman Catholic Congregation and Archbishop Edwin F. O’Brien, against the Mayor and City Council of Baltimore, and various city officials, as defendants. The appeal arises from a decision of the United States District Court for the District of Maryland, presided over by Senior District Judge Marvin J. Garbis. 

The court heard arguments on October 24, 2017, and issued a decision on January 5, 2018. The opinion was authored by Judge Wilkinson, with Judges Duncan and Agee concurring. The case has garnered significant amicus support, with numerous organizations and legal entities aligned on both sides, reflecting the contentious nature of the issues at stake, likely concerning reproductive rights and related public health policies. Legal representation included members from the Baltimore City Law Department for the appellants and multiple law firms for the appellees and amici curiae. 

The court ultimately affirmed the lower court's ruling.

Edward L. White III and others represent various amici, including the American Center for Law and Justice, National and Local Pregnancy Care Organizations, and several state attorneys general, among others. A Baltimore City ordinance mandates that pregnancy clinics not providing or referring for abortions must post signs disclosing this fact in their waiting areas. The district court found that this requirement infringes on the First Amendment’s Free Speech Clause in relation to the Greater Baltimore Center for Pregnancy Concerns, Inc. The court affirmed this ruling, noting that while the city has significant authority to regulate public health and prevent deceptive advertising, the ordinance is improperly aligned with these goals. It compels a group with specific political and religious beliefs to communicate a message that contradicts its fundamental principles and mission.

The Greater Baltimore Center for Pregnancy Concerns, a non-profit Christian organization, aims to provide alternatives to abortion for women facing unplanned pregnancies. Located in rent-free space from a Catholic Church, it offers free services such as counseling, pregnancy tests, sonograms, education on childcare and life skills, and distributes items like prenatal vitamins and diapers, all without charge. The Center adheres to its religious mission by not providing or referring for abortions, a policy outlined in its “Commitment of Care” pamphlet. Although it does not explicitly advertise its religious opposition to abortion, it promotes its pregnancy-related services through campaigns highlighting free options and counseling.

In response to concerns that women seeking abortions might be misled into visiting pro-life pregnancy centers, the Baltimore City Council enacted Ordinance 09-252 on December 4, 2009. This ordinance mandates that “limited-service pregnancy centers” post disclaimers in their waiting rooms, informing clients that they do not provide or refer for abortion or birth-control services. The ordinance defines such centers and requires the disclaimers to be prominently displayed in English and Spanish. Non-compliance can result in a $150 citation, with oversight by the Baltimore City Health Commissioner.

On March 29, 2010, the Center filed a lawsuit against the City Council, the Mayor, and the acting Health Commissioner, claiming the ordinance violates its First Amendment rights, equal protection under the Fourteenth Amendment, and Maryland’s conscience clause. The Center sought partial summary judgment on First Amendment grounds, supported by an affidavit from its executive director, while the City moved to dismiss the case, citing the need for further discovery. The district court ultimately granted summary judgment in favor of the Center.

The ordinance in question was found to violate the Free Speech Clause due to its failure to be narrowly tailored to serve a compelling government interest, as established in O’Brien v. Mayor, City Council of Baltimore, 768 F. Supp. 2d 804 (D. Md. 2011). This decision was affirmed by a panel on appeal (Greater Baltimore Ctr. for Pregnancy Concerns, Inc. v. Mayor, City Council of Baltimore, 683 F.3d 539 (4th Cir. 2012)), but upon en banc review, the court vacated the district court’s judgment and remanded for further proceedings, emphasizing the need for discovery on various aspects, including the Center’s economic motivations and the effectiveness of the ordinance (Greater Baltimore Ctr. for Pregnancy Concerns, Inc. v. Mayor, City Council of Baltimore, 721 F.3d 264 (4th Cir. 2013)). 

Following extensive discovery and cross-motions for summary judgment, the district court concluded that the ordinance, as applied to the Center, infringed upon First Amendment rights. The court identified the ordinance as a content-based regulation affecting noncommercial speech, thereby subjecting it to strict scrutiny. It also determined that there was insufficient evidence to prove that the ordinance advanced a compelling government interest, specifically noting a lack of proof that deception occurred or that health harms were caused by deceptive advertising. Furthermore, the court found the ordinance overly broad as it applied to all pregnancy centers, regardless of their advertising practices. 

The appeal process was initiated to review the summary judgment, with the standard of review being de novo, requiring confirmation that no genuine dispute of material fact existed. The City argued for a relaxed scrutiny level, asserting that the ordinance targeted commercial or professional speech; however, the court clarified that the ordinance did not regulate commercial speech as it was defined.

The court references the definition of commercial speech and highlights the complexity of applying it, noting that not all speech outside the core definition is non-commercial. Three criteria are used to identify commercial speech: whether the speech is an advertisement, whether it refers to a specific product or service, and whether the speaker has an economic motivation. The inquiry is fact-intensive, and context is crucial. In this case, the court remanded for further discovery to assess the Center’s economic motivation and the nature of its advertisements. The ordinance does not regulate speech proposing a commercial transaction, as the Center does not engage in transactions in the waiting room and does not receive any remuneration. The Center's offering of free services, motivated by moral and religious beliefs, does not constitute commercial activity. The City argues that the ordinance regulates commercial speech due to the Center’s advertisements, but this alone does not convert its advocacy into commercial activity. The ordinance is distinguished from cases where misleading advertising was directly regulated, as it applies to the Center regardless of its advertising status. Additionally, there is no evidence indicating that the Center has an economic motivation, as it operates as a non-profit and primarily pursues moral, philosophical, and religious goals. The City's argument about the Center's economic motivation is largely speculative.

The relationship between clinic patronage and fundraising at the Greater Baltimore Center is deemed insufficient to establish "economic motivation" under the relevant legal standards. While acknowledging that other facilities may engage in commercial speech under different circumstances, the court agrees with the district court's conclusion that the ordinance does not regulate commercial speech as applied to this Center. 

Additionally, the ordinance does not regulate professional speech. The government retains the authority to regulate professions that involve speech, but professionals do not relinquish their First Amendment rights upon entering their field. The review process for First Amendment rights in professional contexts operates on a continuum, influenced by the state's interest in overseeing the ethical and competent practice of licensed professions.

The court distinguishes the Greater Baltimore Center from traditional professions like medicine or accounting, which are subject to rigorous state regulation. The Center lacks a licensing framework, and its employees are not certified or regulated by any professional board. Although there is a volunteer medical director, her infrequent presence and lack of direct client interaction do not establish the Center as a practicing profession in the legal sense. 

The Center's offering of personalized advice in a private setting does not fulfill the criteria established for professional speech, particularly since it does not charge clients for its services. This lack of a licensing requirement further differentiates this case from similar cases in other jurisdictions, such as a recent Ninth Circuit decision, which only applied the professional speech doctrine to state-licensed clinics.

Providing program participants with confidentiality does not classify a pregnancy center's message as professional speech, as established in *Tepeyac v. Montgomery Cty.* The absence of comprehensive state regulation or paying clients means the Baltimore ordinance does not regulate professional speech. Consequently, the ordinance's requirement to communicate a specific message must undergo heightened scrutiny, unlike the relaxed standards proposed by the City. The factual nature of the compelled disclaimer does not lessen the necessity for rigorous review, as factual statements can still carry moral or ideological implications. This compelled speech raises significant First Amendment concerns, particularly because the disclaimer equates abortion with other morally equivalent choices, contradicting the Center's pro-life mission and beliefs.

The Center, dedicated to providing alternatives to abortion based on pro-life Christian values, must articulate its stance on abortion in its own terms, as outlined in its "Commitment of Care" pamphlets. The ordinance compels the Center to convey messages that conflict with its foundational beliefs, constituting a violation of free speech rights. Historically, First Amendment violations have involved outright prohibitions, but adjunct rights have also emerged, such as the right to listen and the right to refrain from expressing political or philosophical views that the state endorses.

A public school cannot require students to recite the Pledge of Allegiance, emphasizing the importance of protecting speech freedoms from compelled expression that could suppress opposing beliefs. The core issue is whether the Baltimore ordinance meets heightened scrutiny standards, which require that compelled disclosures be narrowly tailored to serve a significant government interest. Baltimore's goals include addressing deceptive advertising and preventing health risks associated with delays in seeking abortion services, both recognized as substantial interests. However, evidence of actual deception or health harms due to such advertising is lacking, as the city fails to demonstrate any specific incidents of misinterpretation regarding abortion services based on advertising. The only evidence provided is an increase in hotline calls, which does not indicate misleading practices. The ordinance’s selective application raises concerns of content-based regulation, as it specifically targets pro-life pregnancy centers without imposing similar requirements on other clinics that offer abortion services. Such regulation may suggest government bias against certain viewpoints, undermining the principle of viewpoint neutrality in speech regulation.

In Schuster, Inc. v. Members of New York State Crime Victims Bd., the Court emphasized that while the City is entitled to its viewpoint, it cannot discriminate against opposing views. It raised concerns about the narrow tailoring of the City's regulations, suggesting that less restrictive alternatives exist for achieving its goals. Citing prior Supreme Court rulings, it proposed that the City could inform the public about services through advertising campaigns rather than imposing compelled speech on speakers. Additionally, it noted that the ordinance in question was overly broad, applying indiscriminately to pregnancy centers regardless of their advertising practices and effectiveness in addressing deceptive advertising. The Court concluded that the City had not demonstrated the ineffectiveness of less restrictive measures or provided sufficient evidence of deception, rendering the ordinance unconstitutional under heightened First Amendment scrutiny. The opinion reiterated the importance of protecting core beliefs from government imposition and cautioned against using state power to silence ideological opponents, reinforcing the principle that no official can dictate orthodoxy in matters of politics, religion, or other core beliefs. The ruling explicitly distinguished itself from a related Ninth Circuit decision.

The case referenced involves two compelled disclosures mandated by law. The first requirement in Harris obligated licensed clinics to display a notice regarding the availability of state-sponsored services, including abortion, along with a contact number for further information. This disclosure's content and the scrutiny it received differed significantly from a related Baltimore ordinance. The second requirement dictated that unlicensed pregnancy centers must post a notice indicating they are not state-licensed. This compelled message, which did not reference abortion, resulted in a different First Amendment analysis due to the lesser burden on the speaker. The text also reflects on the broader implications of compelled speech, suggesting a hope for mutual respect between pro-choice and pro-life advocates while asserting that the First Amendment protects against forced speech. Consequently, the district court's judgment is affirmed.