Centro Tepeyac v. Montgomery County

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

CENTRO TEPEYAC, 
Plaintiff-Appellee,
v.
MONTGOMERY COUNTY;
MONTGOMERY COUNTY COUNCIL, In
its Capacity as the Montgomery

County Board of Health,
No. 11-1314
Defendants-Appellants,
and
MONTGOMERY COUNTY
DEPARTMENT OF HEALTH AND
HUMAN SERVICES; MARC HANSEN,
Acting County Counsel,
Defendants.

2 TEPEYAC v. MONTGOMERY COUNTY

CENTRO TEPEYAC, 
Plaintiff-Appellant,
v.
MONTGOMERY COUNTY;
MONTGOMERY COUNTY COUNCIL, In
its Capacity as the Montgomery

County Board of Health,
No. 11-1336
Defendants-Appellees,
and
MONTGOMERY COUNTY
DEPARTMENT OF HEALTH AND
HUMAN SERVICES; MARC HANSEN,
Acting County Counsel,
Defendants.

Appeals from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, Chief District Judge.
(8:10-cv-01259-DKC)

Argued: March 23, 2012

Decided: June 27, 2012

Before NIEMEYER, KING, and AGEE, Circuit Judges.

Affirmed in part and reversed in part by published opinion.
Judge Niemeyer wrote the opinion, in which Judge Agee
joined. Judge King wrote a dissenting opinion.
 TEPEYAC v. MONTGOMERY COUNTY 3
COUNSEL

ARGUED: Clifford Lee Royalty, COUNTY ATTORNEY’S
OFFICE, Rockville, Maryland, for Appellants/Cross-
Appellees. Mark L. Rienzi, COLUMBUS SCHOOL OF
LAW, Catholic University of America, Washington, D.C., for
Appellee/Cross-Appellant. ON BRIEF: Marc P. Hansen,
County Attorney, Edward B. Lattner, Chief, Division of
Human Resources & Appeals, COUNTY ATTORNEY’S
OFFICE, Rockville, Maryland, for Appellants/Cross-
Appellees. Steven H. Aden, Matthew S. Bowman, M. Casey
Mattox, ALLIANCE DEFENSE FUND, Washington, D.C.;
Robert Destro, COLUMBUS SCHOOL OF LAW, Catholic
University of America, Washington, D.C.; John R. Garza,
GARZA, REGAN & ASSOCIATES, Rockville, Maryland;
Robert Michael, SHADOAN, MICHAEL & WELLS LLP,
Rockville, Maryland, for Appellee/Cross-Appellant.

OPINION

NIEMEYER, Circuit Judge:

Centro Tepeyac, a Montgomery County nonprofit corpora-
tion that provides pregnancy services but does not refer for or
provide abortions, commenced this action against Montgom-
ery County, Maryland, the Montgomery County Council, the
Montgomery County Department of Health and Human Ser-
vices, and Marc Hansen, the acting County Counsel (collec-
tively, "Montgomery County" or "the County"), challenging
the constitutionality of Montgomery County Resolution No.
16-1252. In its complaint, it contended that in compelling
speech, the resolution violates its free speech rights under the
First and Fourteenth Amendments to the U.S. Constitution.

Resolution 16-1252 requires "limited service pregnancy
resource centers,"* such as Centro Tepeyac, to display a sign

*A "limited service pregnancy resource center" is defined as "an organi-
zation, center or individual" that: "has a primary purpose to provide
4 TEPEYAC v. MONTGOMERY COUNTY
on their premises stating (1) "the Center does not have a
licensed medical professional on staff"; and (2) "the Mont-
gomery County Health Officer encourages women who are or
may be pregnant to consult with a licensed health care pro-
vider." The sign must be "written in English and Spanish,"
"easily readable," and "conspicuously posted." Violation of
Resolution 16-1252 is punishable as a "Class A civil viola-
tion," which may be enforced by a court action or by a civil
citation, and under Montgomery County law, each day of a
continuing Class A civil violation is a separate offense. See
Montgomery County, Md. Code §§ 1-19, 1-20(c).

For relief, Centro Tepeyac sought a declaratory judgment
that Resolution 16-1252 is unconstitutional and preliminary
and permanent injunctive relief against its enforcement.

Applying strict scrutiny, the district court entered an order
dated March 15, 2011, denying Centro Tepeyac’s motion for
a preliminary injunction as to the first statement required by
Resolution 16-1252—"the Center does not have a licensed
medical professional on staff"—and granting its motion as to
the second mandated statement—"the Montgomery County
Health Officer encourages women who are or may be preg-
nant to consult with a licensed health care provider." The
court concluded that the first statement could likely be justi-
fied under the strict scrutiny standard but that the second
statement compelled "unneeded speech" and therefore would
not be "the least restrictive means of achieving a relevant gov-
ernment interest."

Montgomery County appealed the district court’s prelimi-
nary injunction prohibiting enforcement of the second man-
dated statement, and Centro Tepeyac cross-appealed the

pregnancy-related services"; "does not have a licensed medical profes-
sional on staff"; and "provides information about pregnancy-related ser-
vices, for a fee or as a free service."
 TEPEYAC v. MONTGOMERY COUNTY 5
district court’s denial of its motion for an injunction with
respect to the first mandated statement. For the reasons given
in our decision today in Greater Baltimore Center for Preg-
nancy Concerns, Inc. v. Mayor and City Council of Baltimore,
___ F.3d ___, No. 11-1111 (4th Cir. June 27, 2012), we
affirm the district court’s entry of a preliminary injunction
and reverse its denial of the preliminary injunction requested
by Centro Tepeyac with respect to the first mandated state-
ment.

On Montgomery County’s appeal, we conclude that strict
scrutiny is appropriate because Resolution 16-1252 compels
noncommercial speech. And, as we found with respect to the
ordinance in Greater Baltimore Center, the second statement
mandated by the resolution cannot withstand such scrutiny
because it is not narrowly tailored. If Montgomery County
wishes to "encourage[ ] women who are or may be pregnant
to consult with a licensed health care provider," it must, at a
minimum, first do so using its own voice. See Greater Balti-
more Center, ___ F.3d at ___, slip op. at 36-38.

On Centro Tepeyac’s cross-appeal, we reverse the district
court’s denial of injunctive relief with respect to the first man-
dated statement—"the Center does not have a licensed medi-
cal professional on staff." The district court concluded that
mandating that statement was likely permissible because the
statement "does not require any other specific message and in
neutral language states the truth." This basis for approving the
compelled speech, however, does not apply the governing
standards that have been announced by the Supreme Court.
As the Court has explained, even supposedly neutral and fact-
based compelled disclosures can imperil free speech. See
Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781,
797-98 (1988). The Riley Court noted, "[T]he government,
even with the purest of motives, may not substitute its judg-
ment as to how best to speak for that of speakers and listen-
ers." Id. at 791. Thus, while the first mandated statement of
Resolution 16-1252 may impose a comparatively less severe
6 TEPEYAC v. MONTGOMERY COUNTY
First Amendment burden, it still amounts to an impermissible
government control of speech. The government-mandated
statement, which must be posted "conspicuously" on a preg-
nancy center’s wall, suggests to potential clients that the cen-
ter is not to be trusted and that a pregnancy center’s services,
like religious counseling or job placement assistance, will
usually be inferior to those offered by medical professionals.
To be sure, Montgomery County is entitled to believe that
pregnancy is first and foremost a medical condition, but it
may not compel unwilling speakers to express that view.

Like the ordinance in Greater Baltimore Center, the first
mandated statement in Resolution 16-1252 also suffers from
serious underinclusiveness. Although underinclusive govern-
ment regulations are often permissible, they pose a special
problem in the First Amendment context because such regula-
tions "raise[ ] serious doubts about whether the government is
in fact pursuing the interest it invokes, rather than disfavoring
a particular speaker or viewpoint." Brown v. Entm’t Mer-
chants Ass’n, 131 S. Ct. 2729, 2740 (2011); see also City of
Ladue v. Gilleo, 512 U.S. 43, 51 (1994) ("[A]n exemption
from an otherwise permissible regulation of speech may rep-
resent a governmental attempt to give one side of a debatable
public question an advantage in expressing its views to the
people" (internal quotation marks omitted)). In this case,
pregnancy centers are singled out for disfavored treatment
while many other sources that pregnant women may consult
for advice—Internet sites, bookstores, or houses of worship—
are left unregulated, regardless of whether the advice they
give comes from a "licensed medical professional." Where, as
here, the government seeks to burden speech in the name of
some public interest, it must "demonstrate its commitment to
advancing this interest by applying its prohibition even-
handedly." Fla. Star v. B.J.F., 491 U.S. 524, 540 (1989). The
County has failed to follow this requirement.

Finally, we note that the goals of the "no licensed medical
professional" disclosure could readily be achieved through
 TEPEYAC v. MONTGOMERY COUNTY 7
less speech-restrictive methods. Such methods might include
a more vigorous enforcement of laws against practicing medi-
cine without a license. Or the County could simply publicize
the names of the small number of pregnancy centers within its
jurisdiction and explain that the centers do not employ doc-
tors. Without first trying these or similar options, the County
may not adopt a speech-restrictive strategy. See Thompson v.
Western States Med. Ctr., 535 U.S. 357, 373 (2002).

Accordingly, we affirm the district court’s order, dated
March 15, 2011, to the extent that it grants Centro Tepeyac’s
motion for a preliminary injunction and reverse to the extent
that it denies Centro Tepeyac’s requested preliminary injunc-
tion.

It is so ordered.

KING, Circuit Judge, dissenting:

I am somewhat bemused by the panel majority’s resolute-
ness in deciding that an innocuous and truthful disclaimer —
"the Center does not have a licensed medical professional on
staff" — patently offends the First Amendment. Equally dis-
concerting, the majority makes this conclusion — concerning
the first statement prescribed by the Resolution — in apparent
disregard for the deference accorded to a district court in rul-
ing on a preliminary injunction request. That is, "regardless of
whether [we] would, in the first instance, have decided the
matter differently," the court’s discretionary decision to grant
or deny an injunction request "will not be disturbed on appeal
unless the record shows an abuse of that discretion." Quince
Orchard Valley Citizens Ass’n, Inc. v. Hodel, 872 F.2d 75, 78
(4th Cir. 1989). Had I been the trial judge entertaining the
injunction request in the first instance, I may well have denied
it, not only as to the first statement, but also as to the second
one (that "the Montgomery County Health Officer encourages
women who are or may be pregnant to consult a licensed
health care provider"). Regarding either statement, however,
8 TEPEYAC v. MONTGOMERY COUNTY
I am not at all left with the "definite and firm conviction" that
the court "abuse[d] its discretion by applying an incorrect pre-
liminary injunction standard, by resting its decision on a
clearly erroneous finding of a material fact, or by misappre-
hending the law with respect to underlying issues in litiga-
tion." Id. (internal quotation marks omitted).

The majority contends that the district court misapplied the
Supreme Court’s governing standards concerning compelled
speech by making a preliminary finding that the first state-
ment "does not require any other specific message and in neu-
tral language states the truth." See Centro Tepeyac v.
Montgomery Cnty., 779 F. Supp. 2d 456, 471 (D. Md. 2011).
My colleagues observe that the Supreme Court has recognized
that even "neutral and fact-based compelled disclosures can
imperil free speech." Ante at 5 (citing Riley v. Nat’l Fed’n of
the Blind of N.C., Inc., 487 U.S. 781, 797-98 (1988)). True
enough, but the district court concluded that the first state-
ment does not unconstitutionally imperil free speech. To be
sure, the majority may disagree with that legal conclusion.
See Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group of
Boston, 515 U.S. 557, 567 (1995) (observing that we review
de novo legal conclusions and mixed questions of law and
fact concerning First Amendment claims). In fairness, how-
ever, the majority does not fault the district court for misap-
plying Supreme Court precedent. Rather, unlike the district
court, the majority reads the first statement as conveying the
subjective message that a pregnancy center "is not to be
trusted," or that a center’s "religious counseling or job place-
ment assistance" services are "inferior to [services] offered by
medical professionals." Ante at 6.

Put simply, I cannot identify in the first statement the mes-
sages ascribed by the majority — without contravening the
cardinal rule of construction that "we give the words of a stat-
ute their plain and ordinary meaning." See Broughman v. Car-
ver, 624 F.3d 670, 675 (4th Cir. 2010) (Agee, J.) (internal
quotation marks omitted). The Supreme Court instructed long
 TEPEYAC v. MONTGOMERY COUNTY 9
ago that "the plain, obvious and rational meaning of a statute
is always to be preferred to any curious, narrow, hidden sense
that nothing but the exigency of a hard case and the ingenuity
and study of an acute and powerful intellect would discover."
Lynch v. Alworth-Stephens Co., 267 U.S. 364, 370 (1925). Of
course, because we are dealing with a disclaimer, context
matters. See Riley, 487 U.S. at 796 (instructing that consider-
ation be given to "the nature of the speech taken as a whole
and the effect of the compelled statement thereon"). But to
borrow the majority’s example, there is no reason to believe
that a pregnant woman in need of religious counseling or a
job would be instinctively distrustful or think less of a preg-
nancy center just because it does not have a licensed medical
professional on staff. The disclaimer would cause only those
women in need of medical services to reassess a pregnancy
center’s proficiency in that regard — the Resolution’s
intended effect. Indeed, if the Resolution were somehow
ambiguous, "we must ascertain the interpretation . . . that best
implements [the legislative] intent and gives effect to the
[Resolution’s] purpose." See Long v. Merrifield Town Ctr.
Ltd. P’ship, 611 F.3d 240, 244 (4th Cir. 2010) (Niemeyer, J.).
The County’s intent with respect to the Resolution was clear
— to promote the health of women by ensuring that they have
access to medical services, as reflected in the Resolution’s
stated purpose:

The Board of Health’s concern is that clients may be
misled into believing that a Center is providing med-
ical services when it is not. Clients could therefore
neglect to take action (such as consulting a doctor)
that would protect their health or prevent adverse
consequences, including disease, to the client or the
pregnancy.

J.A. 198.1
1
Citations herein to "J.A.___" refer to the contents of the Joint Appen-
dix filed by the parties in this appeal.
10 TEPEYAC v. MONTGOMERY COUNTY
The majority also concludes that the district court’s strict
scrutiny analysis was faulty with respect to the narrow tailor-
ing requirement. Once again, however, the majority merely
disagrees with the court’s assessment that the Resolution’s
first statement is narrowly tailored without identifying exactly
how the court misapprehended the law. In my view, the
majority simply disagrees with the ruling of the district court,
believing instead that the first statement is underinclusive and
not the least restrictive means of achieving the County’s com-
pelling interests. Underinclusiveness is problematic in this
case, the majority explains, because "pregnancy centers are
singled out for disfavored treatment while many other sources
that pregnant women may consult for advice — internet sites,
bookstores, or houses of worship — are left unregulated,
regardless of whether the advice they give comes from a
‘licensed medical professional.’" Ante at 6. That explanation
betrays the majority’s staunch hostility to the Resolution, but
it has no application here.

The district court made no finding that the first statement
is viewpoint discriminatory.2 The majority nevertheless con-
cludes — without reference to the legislative record or to any
evidence whatsoever — that the Resolution disfavors the
viewpoint of pregnancy centers, apparently because it does
not also compel internet websites, bookstores, and houses of
worship to disclose that they have no licensed medical profes-
sional on staff. But the County did not receive reports or evi-
dence that pregnant women were being deceived into
believing that internet websites, bookstores, and houses of
worship were providing medical services, such as abortions.
2
The district court did conclude that the Resolution "is not ‘content-
neutral’" because the "disclosure requirements are activated in part by a
particular message" and "triggered by the ‘provision of information about
pregnancy-related services.’" Centro Tepeyac, 779 F. Supp. 2d at 462 n.5.
But, of course, "viewpoint-neutrality is not equivalent to content-neutrality
and the difference between the two concepts is critical in a first amend-
ment analysis." Baugh v. Judicial Inquiry & Review Comm’n, 907 F.2d
440, 444 (4th Cir. 1990).
 TEPEYAC v. MONTGOMERY COUNTY 11
Rather, the County heard from multiple speakers relating their
experiences with pregnancy centers and received detailed
reports documenting false and misleading information pro-
vided by pregnancy centers. Moreover, the County "had an
obligation to deal with existing public health problems, with-
out addressing the likelihood of deception from every possible
source of information available to pregnant women." See
Greater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor of
Balt., No. 11-1111, ___ F.3d ___, ___ (4th Cir. 2012) (King,
J., dissenting) (citing Buckley v. Valeo, 424 U.S. 1, 105
(1976) (observing that a "statute is not invalid under the Con-
stitution because it might have gone farther than it did, that a
legislature need not strike at all evils at the same time, and
that reform may take one step at a time, addressing itself to
the phase of the problem which seems most acute to the legis-
lative mind" (citations and internal quotation marks omit-
ted))).

Finally, the district court committed no error regarding
least restrictive alternatives. Significantly, my good col-
leagues in the majority point to nothing in this limited record
to demonstrate that their proposed alternatives would be least
restrictive, yet "as effective in achieving the [Resolution’s]
legitimate purpose." See Reno v. Am. Civil Liberties Union,
521 U.S. 844, 874 (1997) (emphasis added). Publicizing "the
names of . . . the centers [that] do not employ doctors," as the
majority suggests, ante at 7, would "not ensure that every
woman who visits a . . . pregnancy center will be apprised of
the services offered there, at a time when such information is
most needed." See Greater Balt. Ctr., ___ F.3d at ___ (King,
J., dissenting). Likewise, "[i]nadequate or unenforceable . . .
statutes, problems of proof, and scarcity of resources," id.,
may significantly hamper the majority’s suggested "enforce-
ment of laws against practicing medicine without a license,"
ante at 6-7.

In any event, the district court, unlike the majority, properly
constrained itself to the record. See Centro Tepeyac, 779 F.
12 TEPEYAC v. MONTGOMERY COUNTY
Supp. 2d at 471 (concluding that "the record is at least color-
able at this stage to suggest that the [first statement] is nar-
rowly tailored to meet the [compelling] interest").3 The court
was certainly cognizant of some of the proposed alternatives
to the Resolution’s second statement. See id. at 469 n.9
(observing that "options less restrictive than compelled speech
could be used to encourage pregnant women to see a licensed
medical professional[, including] post[ing] notices encourag-
ing women to see a doctor . . . or launch[ing] a public aware-
ness campaign"). Nevertheless, based on the evidence before
it, the court determined that those alternatives were not neces-
sarily less restrictive or as effective as the first statement —
or, at least, that Centro Tepeyac had failed to make the
required "clear showing" that it was "likely to succeed on the
merits" with respect to narrow tailoring, see Winter v. Natural
Res. Def. Council, Inc., 555 U.S. 7, 20, 22 (2008). Indeed,
Centro Tepeyac did not propose any less restrictive alterna-
tives until the hearing on the parties’ respective motions. See
J.A. 168. Because narrow tailoring usually demands "a fact
specific and situation specific inquiry," see Deegan v. City of
Ithaca, 444 F.3d 135, 142 (2d Cir. 2006), the record concern-
ing the alternatives was inadequate to warrant an injunction at
that point in the litigation, see Beal v. Stern, 184 F.3d 117,
128-30 (2d Cir. 1999) (concluding that appellants had not
shown likelihood of success for injunction request where,
3
In stark contrast to the district court’s approach in Greater Baltimore
Center — i.e., awarding summary judgment and permanently enjoining a
city ordinance based on an undeveloped record — the district court in this
case appreciated that, in the absence of further factual development, the
free speech claim could not be resolved solely on the County’s motion to
dismiss or, alternatively, for summary judgment and Centro Tepeyac’s
preliminary injunction motion. For example, the court observed the cur-
rent absence (but not future impossibility) of evidence that the Resolution
regulates commercial or professional speech. See Centro Tepeyac, 779 F.
Supp. 2d at 463, 467. The court also recognized that the County was enti-
tled to satisfy judicial scrutiny with discoverable evidence. See id. at 468.
Indeed, Centro Tepeyac itself recognized the need for discovery in oppos-
ing the County’s motion to dismiss.
 TEPEYAC v. MONTGOMERY COUNTY 13
inter alia, there was insufficient evidence to determine
whether means chosen for regulation were narrowly tailored);
see also New Albany DVD, LLC v. City of New Albany, Ind.,
581 F.3d 556, 561 (7th Cir. 2009) (vacating entry of injunc-
tion and remanding to district court for evidentiary hearing to
determine whether city could satisfy intermediate scrutiny).

Accordingly, and in recognition of the proposition that
injunction requests are "extraordinary remedies involving the
exercise of very far-reaching power to be granted only spar-
ingly and in limited circumstances," Scotts Co. v. United
Indus. Corp., 315 F.3d 264, 272 (4th Cir. 2002) (internal quo-
tation marks omitted), the district court did not abuse its dis-
cretion in ruling as it did.

Because I would affirm the rulings of the district court, I
respectfully dissent.