Greater Baltimore Center for Pregnancy Concerns, Inc. v. Mayor of Baltimore

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

GREATER BALTIMORE CENTER FOR 
PREGNANCY CONCERNS,
INCORPORATED,
Plaintiff-Appellee,
and
ST. BRIGID’S ROMAN CATHOLIC
CONGREGATION INCORPORATED;
ARCHBISHOP EDWIN F. O’BRIEN,
ARCHBISHOP OF BALTIMORE AND HIS
SUCCESSORS IN OFFICE, A
CORPORATION SOLE,
 No. 11-1111
Plaintiffs,
v.
MAYOR AND CITY COUNCIL OF
BALTIMORE; STEPHANIE RAWLINGS-
BLAKE, Mayor of Baltimore, in her
Official Capacity; OXIRIS BARBOT,
Baltimore City Health
Commissioner,
Defendants-Appellants,
and

2 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL

OLIVIA FARROW; BALTIMORE CITY 
HEALTH DEPARTMENT,
Defendants.

TAUNYA LOVELL BANKS, Jacob A.
France Professor of Equality
Jurisprudence, University of
Maryland School of Law; C.
CHRISTOPHER BROWN, Jacob A.
France Professor of Equality
Jurisprudence, University of
Maryland School of Law; ERWIN
CHEMERINSKY, Jacob A. France
Professor of Equality
Jurisprudence, University of 
Maryland School of Law; ROBERT
J. CONDLIN, Jacob A. France
Professor of Equality
Jurisprudence, University of
Maryland School of Law; NORMAN
DORSEN, Jacob A. France Professor
of Equality Jurisprudence,
University of Maryland School of
Law; LEIGH GOODMARK, Jacob A.
France Professor of Equality
Jurisprudence, University of
Maryland School of Law; STEVEN
P. GROSSMAN, Jacob A. France
Professor of Equality

 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 3

Jurisprudence, University of 
Maryland School of Law; MARTIN
GUGGENHEIM, Jacob A. France
Professor of Equality
Jurisprudence, University of
Maryland School of Law;
DEBORAH HELLMAN, Jacob A.
France Professor of Equality
Jurisprudence, University of
Maryland School of Law;
MARGARET E. JOHNSON, Jacob A.
France Professor of Equality
Jurisprudence, University of
Maryland School of Law;
KENNETH LASSON, Jacob A. France 
Professor of Equality
Jurisprudence, University of
Maryland School of Law; SYLVIA
A. LAW, Jacob A. France
Professor of Equality
Jurisprudence, University of
Maryland School of Law; SUSAN
PAULA LEVITON, Jacob A. France
Professor of Equality
Jurisprudence, University of
Maryland School of Law; AUDREY
MCFARLANE, Jacob A. France
Professor of Equality

4 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL

Jurisprudence, University of 
Maryland School of Law; PAULA
A. MONOPOLI, Jacob A. France
Professor of Equality
Jurisprudence, University of
Maryland School of Law; BURT
NEUBORNE, Jacob A. France
Professor of Equality
Jurisprudence, University of
Maryland School of Law; JOHN T.
NOCKLEBY, Jacob A. France
Professor of Equality
Jurisprudence, University of
Maryland School of Law; HELEN
L. NORTON, Jacob A. France
Professor of Equality
Jurisprudence, University of 
Maryland School of Law; DAVID
A. J. RICHARDS, Jacob A. France
Professor of Equality
Jurisprudence, University of
Maryland School of Law;
ELIZABETH J. SAMUELS, Jacob A.
France Professor of Equality
Jurisprudence, University of
Maryland School of Law;
ELIZABETH M. SCHNEIDER, Jacob A.
France Professor of Equality
Jurisprudence, University of
Maryland School of Law; JANA B.
SINGER, Jacob A. France Professor
of Equality Jurisprudence,
University of Maryland School of

 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 5

Law; BARBARA ANN WHITE, Jacob 
A. France Professor of Equality
Jurisprudence, University of
Maryland School of Law; TOBIAS
BARRINGTON WOLFF, Jacob A.
France Professor of Equality
Jurisprudence, University of
Maryland School of Law; DIANE
L. ZIMMERMAN, Jacob A. France
Professor of Equality
Jurisprudence, University of
Maryland School of Law;
INTERNATIONAL MUNICIPAL LAWYERS
ASSOCIATION; AMERICAN MEDICAL
WOMEN’S ASSOCIATION; ROBERT
BLUM; WILLARD CATES, JR.;
CHESAPEAKE REGIONAL CHAPTER OF
THE SOCIETY FOR ADOLESCENT

HEALTH AND MEDICINE; ERIC LEVEY;
MATERNAL AND CHILD HEALH
ACCESS; NADINE PEACOCK;
PHYSICIANS FOR REPRODUCTIVE
CHOICE AND HEALTH; MARK SEIGEL;
LAURIE SCHWAB ZABIN; CATHOLICS
FOR CHOICE; DC ABORTION FUND;
DIANA DEGETTE; DONNA EDWARDS;
LAW STUDENTS FOR REPRODUCTIVE
JUSTICE; CAROLYN MALONEY;
MARYLAND CHAPTER FOR THE
NATIONAL ORGANIZATION FOR
WOMEN; NARAL PRO-CHOICE
AMERICA; NARAL PRO-CHOICE
MARYLAND; NATIONAL ABORTION
FEDERATION;

6 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL

NATIONAL ADVOCATES FOR 
PREGNANT WOMEN; NATIONAL
ASIAN PACIFIC AMERICAN WOMEN’S
FORUM; PLANNED PARENTHOOD OF
MARYLAND; MIKE QUIGLEY;
RELIGIOUS COALITION FOR
REPRODUCTIVE CHOICE; SISTERSONG
WOMEN OF COLOR REPRODUCTIVE
JUSTICE COLLECTIVE; LOUISE
SLAUGHTER; JACKIE SPEIER; WHOLE
WOMAN’S HEALTH OF BALTIMORE;
WOMEN’S LAW CENTER OF
MARYLAND, INCORPORATED; HUMAN
RIGHTS WATCH; SUSAN DELLER
ROSS, Professor,
Amici Supporting Appellant,
PREGNANCY CARE ORGANIZATIONS 
CARE NET; HEARTBEAT
INTERNATIONAL, INCORPORATED;
NATIONAL INSTITUTE OF FAMILY AND
LIFE ADVOCATES; ROCKA-MY-BABY
PREGNANCY CRISIS CENTER; BOWIE
CROFTON PREGNANCY CLINIC,
INCORPORATED; CARE NET
PREGNANCY CENTER OF FREDERICK;
CARE NET PREGNANCY CENTER OF
SOUTHERN MARYLAND; LAUREL
PREGNANCY CENTER; ROCKVILLE
PREGNANCY CENTER, INCORPORATED;
AMERICAN CENTER FOR LAW AND
JUSTICE; AMERICAN ASSOCIATION OF
PRO-LIFE OBSTETRICIANS AND
GYNECOLOGISTS;

 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 7

CHRISTIAN MEDICAL & DENTAL 
ASSOCIATIONS; CATHOLIC MEDICAL
ASSOCIATION; HELEN M. ALVARE,
Associate Professor of Law,
George Mason University School
of Law; ROBERT JOHN ARAUJO, S.J.,
John Courtney Murray, S.J.
University Professor, Loyola
University of Chicago School of
Law; ROBERT F. COCHRAN, JR.,
Louis D. Brandeis Professor of
Law, Pepperdine University
School of Law; DAVID DEWOLF,
Professor, Gonzaga University
School of Law; DWIGHT G. 
DUNCAN, Professor of Law,
University of Massachusetts
Dartmouth School of Law; JOHN
C. EASTMAN, Henry Salvatori
Professor of Law & Community
Service, former Dean, Chapman
University School of Law; SCOTT
T. FITZGIBBON, Professor, Boston
College Law School; RICHARD W.
GARNETT, Associate Dean and
Professor of Law, Notre Dame
Law School; BRADLEY P. JACOB,
Associate Professor,

8 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL

Regent University School of Law; 
DREW L. KERSHEN, Earl Sneed
Centennial Professor of Law,
University of Oklahoma College
of Law; LYNNE MARIE KOHM, John
Brown McCarty Professor of
Family Law, Regent University
School of Law; RICHARD S.
MYERS, Professor of Law, Ave
Maria School of Law; MICHAEL
STOKES PAULSEN, Distinguished
University Chair and Professor,
University of St. Thomas School
of Law; ROBERT J. PUSHAW, James
Wilson Endowed Professor of
Law, Pepperdine University
School of Law; MICHAEL 
SCAPERLANDA, Professor of Law,
Gene & Elaine Edwards Family
Chair in Law, The University of
Oklahoma College of Law;
GREGORY C. SISK, Pio Cardinal
Laghi Distinguished Chair in Law
and Professor, University of St.
Thomas School of Law; O.
CARTER SNEAD, Professor of Law,
Notre Dame Law School; RICHARD
STITH, Professor of Law,
Valparaiso University School of
Law; TIMOTHY J. TRACEY, Assistant
Professor of Law, Ave Maria
School of Law;

 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 9

LYNN D. WARDLE, Bruce C. Hafen 
Professor of Law, J. Reuben Clark
Law School, Brigham Young
University,

Amici Supporting Appellee.


ST. BRIGID’S ROMAN CATHOLIC 
CONGREGATION INCORPORATED;
ARCHBISHOP EDWIN F. O’BRIEN,
ARCHBISHOP OF BALTIMORE AND HIS
SUCCESSORS IN OFFICE, A
CORPORATION SOLE,
Plaintiffs-Appellants,
and
GREATER BALTIMORE CENTER FOR
PREGNANCY CONCERNS,
INCORPORATED,
 No. 11-1885
Plaintiff,
v.
MAYOR AND CITY COUNCIL OF
BALTIMORE; STEPHANIE RAWLINGS-
BLAKE, Mayor of Baltimore, in her
Official Capacity; OXIRIS BARBOT,
Baltimore City Health
Commissioner,
Defendants-Appellees,
and

10 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL

OLIVIA FARROW; BALTIMORE CITY 
HEALTH DEPARTMENT,
Defendants.

HELEN M. ALVARE, Associate
Professor of Law, George Mason
University School of Law;
AMERICAN CENTER FOR LAW AND
JUSTICE; AMERICAN ASSOCIATION OF
PRO - LIFE OBSTETRICIANS AND
GYNECOLOGISTS; ROBERT JOHN
ARAUJO, S.J., John Courtney
Murray, S.J. University Professor,
Loyola University of Chicago
School of Law; BOWIE CROFTON 
PREGNANCY CLINIC, INCORPORATED;
CARE NET PREGNANCY CENTER OF
FREDERICK; CARE NET PREGNANCY
CENTER OF SOUTHERN MARYLAND;
CHRISTIAN MEDICAL & DENTAL
ASSOCIATIONS; CATHOLIC MEDICAL
ASSOCIATION; ROBERT F. COCHRAN,
JR., Louis D. Brandeis Professor
of Law, Pepperdine University
School of Law; DAVID DEWOLF,
Professor, Gonzaga University
School of Law; DWIGHT G.
DUNCAN, Professor of Law,
University of Massachusetts
Dartmouth School of Law;

 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 11

JOHN C. EASTMAN, Henry Salvatori 
Professor of Law & Community
Service, former Dean, Chapman
University School of Law; SCOTT
T. FITZGIBBON, Professor, Boston
College Law School; RICHARD W.
GARNETT, Associate Dean and
Professor of Law, Notre Dame
Law School; HEARTBEAT
INTERNATIONAL, INCORPORATED;
BRADLEY P. JACOB, Associate
Professor, Regent University
School of Law; DREW L. KERSHEN,
Earl Sneed Centennial Professor of
Law, University of Oklahoma
College of Law; LYNNE MARIE
KOHM, John Brown McCarty 
Professor of Family Law, Regent
University School of Law; LAUREL
PREGNANCY CENTER; RICHARD S.
MYERS, PROFESSOR oF LAW, AVE
MARIA SCHOOL oF LAW; NATIONAL
INSTITUTE OF FAMILY AND LIFE
ADVOCATES; MICHAEL STOKES
PAULSEN, Distinguished University
Chair and Professor, University of
St. Thomas School of Law;
PREGNANCY CARE ORGANIZATIONS
CARE NET; ROBERT J. PUSHAW,
James Wilson Endowed Professor
of Law, Pepperdine University
School of Law;

12 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL

ROCKA-MY-BABY PREGNANCY CRISIS 
CENTER; ROCKVILLE PREGNANCY
CENTER, INCORPORATED; MICHAEL
SCAPERLANDA, Professor of Law,
Gene & Elaine Edwards Family
Chair in Law, The University of
Oklahoma College of Law;
GREGORY C. SISK, Pio Cardinal
Laghi Distinguished Chair in Law
and Professor, University of St.
Thomas School of Law; O.
CARTER SNEAD, Professor of Law,
Notre Dame Law School; RICHARD
STITH, Professor of Law,
Valparaiso University School of
Law; TIMOTHY J. TRACEY, Assistant
Professor of Law, Ave Maria
School of Law; LYNN D. WARDLE,

Bruce C. Hafen Professor of Law,
J. Reuben Clark Law School,
Brigham Young University,
Amici Supporting Appellant,
TAUNYA LOVELL BANKS, Jacob A.
France Professor of Equality
Jurisprudence, University of
Maryland School of Law; C.
CHRISTOPHER BROWN, Jacob A.
France Professor of Equality
Jurisprudence, University of
Maryland School of Law; ERWIN
CHEMERINSKY, Jacob A. France
Professor of Equality
Jurisprudence, University of

 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 13

Maryland School of Law; ROBERT 
J. CONDLIN, Jacob A. France
Professor of Equality
Jurisprudence, University of
Maryland School of Law; NORMAN
DORSEN, Jacob A. France Professor
of Equality Jurisprudence,
University of Maryland School of
Law; LEIGH GOODMARK, Jacob A.
France Professor of Equality
Jurisprudence, University of
Maryland School of Law; STEVEN
P. GROSSMAN, Jacob A. France
Professor of Equality
Jurisprudence, University of
Maryland School of Law; MARTIN 
GUGGENHEIM, Jacob A. France
Professor of Equality
Jurisprudence, University of
Maryland School of Law;
DEBORAH HELLMAN, Jacob A.
France Professor of Equality
Jurisprudence, University of
Maryland School of Law;
MARGARET E. JOHNSON, Jacob A.
France Professor of Equality
Jurisprudence, University of
Maryland School of Law;
KENNETH LASSON, Jacob A. France
Professor of Equality

14 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL

Jurisprudence, University of 
Maryland School of Law; SUSAN
PAULA LEVITON, Jacob A. France
Professor of Equality
Jurisprudence, University of
Maryland School of Law; SYLVIA
A. LAW, Jacob A. France
Professor of Equality
Jurisprudence, University of
Maryland School of Law; AUDREY
MCFARLANE, Jacob A. France
Professor of Equality
Jurisprudence, University of
Maryland School of Law; PAULA
A. MONOPOLI, Jacob A. France
Professor of Equality 
Jurisprudence, University of
Maryland School of Law; BURT
NEUBORNE, Jacob A. France
Professor of Equality
Jurisprudence, University of
Maryland School of Law; JOHN T.
NOCKLEBY, Jacob A. France
Professor of Equality
Jurisprudence, University of
Maryland School of Law; HELEN
L. NORTON, Jacob A. France
Professor of Equality
Jurisprudence, University of
Maryland School of Law; DAVID
A . J. RICHARDS, Jacob A. France

 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 15

Professor of Equality 
Jurisprudence, University of
Maryland School of Law;
ELIZABETH M. SCHNEIDER, Jacob A.
France Professor of Equality
Jurisprudence, University of
Maryland School of Law;
ELIZABETH J. SAMUELS, Jacob A.
France Professor of Equality
Jurisprudence, University of
Maryland School of Law; JANA B.
SINGER, Jacob A. France Professor
of Equality Jurisprudence,
University of Maryland School of
Law; BARBARA ANN WHITE, Jacob
A. France Professor of Equality
Jurisprudence, University of 
Maryland School of Law; TOBIAS
BARRINGTON WOLFF, Jacob A.
France Professor of Equality
Jurisprudence, University of
Maryland School of Law; DIANE
L. ZIMMERMAN, Jacob A. France
Professor of Equality
Jurisprudence, University of
Maryland School of Law;
INTERNATIONAL MUNICIPAL LAWYERS
ASSOCIATION; AMERICAN MEDICAL
WOMEN’S ASSOCIATION; MATERNAL
AND CHILD HEALH ACCESS;
PHYSICIANS FOR REPRODUCTIVE
CHOICE AND HEALTH; CHESAPEAKE

16 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL

REGIONAL CHAPTER OF THE SOCIETY 
FOR ADOLESCENT HEALTH AND
MEDICINE; ROBERT BLUM; WILLARD
CATES, JR.; ERIC LEVEY; NADINE
PEACOCK; MARK SEIGEL; LAURIE
SCHWAB ZABIN; NARAL PRO-CHOICE
MARYLAND; NARAL PRO-CHOICE
AMERICA; CATHOLICS FOR CHOICE;
DC ABORTION FUND; LAW
STUDENTS FOR REPRODUCTIVE
JUSTICE; NATIONAL ABORTION
FEDERATION; MARYLAND CHAPTER
FOR THE NATIONAL ORGANIZATION
FOR WOMEN; NATIONAL ADVOCATES


FOR PREGNANT WOMEN; NATIONAL
ASIAN PACIFIC AMERICAN WOMEN’S
FORUM; PLANNED PARENTHOOD OF
MARYLAND; RELIGIOUS COALITION
FOR REPRODUCTIVE CHOICE;
SISTERSONG WOMEN OF COLOR
REPRODUCTIVE JUSTICE COLLECTIVE;
WHOLE WOMAN’S HEALTH OF
BALTIMORE; WOMEN’S LAW CENTER
OF MARYLAND, INCORPORATED;
DIANA DEGETTE; DONNA EDWARDS;
CAROLYN MALONEY; MIKE QUIGLEY;
LOUISE SLAUGHTER; JACKIE SPEIER;
HUMAN RIGHTS WATCH; SUSAN
DELLER ROSS, Professor,
Amici Supporting Appellee.

 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 17
Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, Senior District Judge.
(1:10-cv-00760-MJG)

Argued: March 23, 2012

Decided: June 27, 2012

Before NIEMEYER, KING, and AGEE, Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the
opinion, in which Judge Agee joined. Judge King wrote a dis-
senting opinion.

COUNSEL

ARGUED: Suzanne Sangree, BALTIMORE CITY
DEPARTMENT OF LAW, Baltimore, Maryland, for Mayor
and City Council of Baltimore, Stephanie Rawlings-Blake,
Mayor of Baltimore, in her Official Capacity, and Oxiris Bar-
bot, Baltimore City Health Commissioner. David William
Kinkopf, GALLAGHER EVELIUS & JONES, LLP, Balti-
more, Maryland, for Greater Baltimore Center for Pregnancy
Concerns, Incorporated, St. Brigid’s Roman Catholic Congre-
gation, Incorporated, Archbishop Edwin F. O’Brien, Arch-
bishop of Baltimore and His Successors in Office, A
Corporation Sole. ON BRIEF: Stephanie Toti, Special Assis-
tant City Solicitor, Dipti Singh, Special Assistant City Solici-
tor, CENTER FOR REPRODUCTIVE RIGHTS, New York,
New York, for Mayor and City Council of Baltimore, Stepha-
nie Rawlings-Blake, Mayor of Baltimore, in her Official
Capacity, and Oxiris Barbot, Baltimore City Health Commis-
sioner. Peter J. Basile, FERGUSON, SHETELICH & BAL-
18 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
LEW, PA, Baltimore, Maryland; Steven G. Metzger,
GALLAGHER EVELIUS & JONES, LLP, Baltimore, Mary-
land; Mark L. Rienzi, COLUMBUS SCHOOL OF LAW,
Catholic University of America, Washington, D.C., for
Greater Baltimore Center for Pregnancy Concerns, Incorpo-
rated, St. Brigid’s Roman Catholic Congregation, Incorpo-
rated, Archbishop Edwin F. O’Brien, Archbishop of
Baltimore and His Successors in Office, A Corporation Sole.
Maria T. Vullo, PAUL, WEISS, RIFKIND, WHARTON &
GARRISON LLP, New York, New York, for Amici Curiae
Law Professors in Support of Mayor and City Council of Bal-
timore, Stephanie Rawlings-Blake, Mayor of Baltimore, in
her Official Capacity, and Oxiris Barbot, Baltimore City
Health Commissioner. Douglas W. Baruch, FRIED, FRANK,
HARRIS, SHRIVER & JACOBSON LLP, Washington, D.C.;
Janice Mac Avoy, Alexander T. Korn, FRIED, FRANK,
HARRIS, SHRIVER & JACOBSON LLP, New York, New
York, for International Municipal Lawyers Association,
Amicus Curiae in Support of Mayor and City Council of Bal-
timore, Stephanie Rawlings-Blake, Mayor of Baltimore, in
her Official Capacity, and Oxiris Barbot, Baltimore City
Health Commissioner. Simona G. Strauss, Melissa M. Derr,
SIMPSON THACHER & BARTLETT LLP, Palo Alto, Cali-
fornia; Jayma M. Meyer, Sarah L. Dunn, SIMPSON
THACHER & BARTLESS LLP, New York, New York, for
Amici Curiae Public Health Advocates in Support of Mayor
and City Council of Baltimore, Stephanie Rawlings-Blake,
Mayor of Baltimore, in her Official Capacity, and Oxiris Bar-
bot, Baltimore City Health Commissioner. Kimberly A. Par-
ker, Zaid A. Zaid, Stephanie Wright, WILMER CUTLER
PICKERING HALE AND DORR LLP, Washington, D.C.,
for Catholics for Choice, DC Abortion Fund, Diana Degette,
Donna Edwards, Law Students for Reproductive Justice, Car-
olyn Maloney, Maryland Chapter for the National Organiza-
tion for Women, Naral Pro-Choice America, Naral Pro-
Choice Maryland, National Abortion Federation, National
Advocates for Pregnant Women, National Asian Pacific
 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 19
American Women’s Forum, Planned Parenthood of Maryland,
Mike Quigley, Religious Coalition for Reproductive Choice,
Sistersong Women of Color Reproductive Justice Collective,
Louise Slaughter, Jackie Speier, Whole Woman’s Health of
Baltimore, Women’s Law Center of Maryland, Incorporated,
Amici Curiae in Support of Mayor and City Council of Balti-
more, Stephanie Rawlings-Blake, Mayor of Baltimore, in her
Official Capacity, and Oxiris Barbot, Baltimore City Health
Commissioner. Priscilla J. Smith, YALE LAW SCHOOL
INFORMATION SOCIETY PROJECT, Brooklyn, New
York, for Human Rights Watch and Susan Deller Ross, Amici
Curiae in Support of Mayor and City Council of Baltimore,
Stephanie Rawlings-Blake, Mayor of Baltimore, in her Offi-
cial Capacity, and Oxiris Barbot, Baltimore City Health Com-
missioner. Anna Franzonello, Mailee R. Smith,
AMERICANS UNITED FOR LIFE, Washington, D.C., for
Pregnancy Care Organizations Care Net, Heartbeat Interna-
tional, Incorporated, National Institute of Family and Life
Advocates, Rocka-My-Baby Pregnancy Crisis Center, Bowie
Crofton Pregnancy Clinic, Incorporated, Care Net Pregnancy
Center of Frederick, Care Net Pregnancy Center of Southern
Maryland, Laurel Pregnancy Center, and Rockville Pregnancy
Center, Incorporated, Amici Curiae in Support of Greater Bal-
timore Center for Pregnancy Concerns, Incorporated, St. Brig-
id’s Roman Catholic Congregation, Incorporated, Archbishop
Edwin F. O’Brien, Archbishop of Baltimore and His Succes-
sors in Office, A Corporation Sole. Cecilia N. Heil, Erik M.
Zimmerman, AMERICAN CENTER FOR LAW & JUS-
TICE, Virginia Beach, Virginia; Carly F. Gammill, AMERI-
CAN CENTER FOR LAW & JUSTICE, Brentwood,
Tennessee; Colby M. May, James Matthew Henderson, Sr.,
Thomas J. Dolan, III, Tiffany N. Barrans, AMERICAN CEN-
TER FOR LAW & JUSTICE, Washington, D.C., for Ameri-
can Center for Law and Justice, Amicus Curiae in Support of
Greater Baltimore Center for Pregnancy Concerns, Incorpo-
rated, St. Brigid’s Roman Catholic Congregation, Incorpo-
rated, Archbishop Edwin F. O’Brien, Archbishop of
20 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
Baltimore and His Successors in Office, A Corporation Sole.
Matthew S. Bowman, ALLIANCE DEFENSE FUND, Wash-
ington, D.C.; Samuel B. Casey, David B. Waxman, JUBILEE
CAMPAIGN-LAW OF LIFE PROJECT, Washington, D.C.,
for American Association of Pro-Life Obstetricians and
Gynecologists, Christian Medical & Dental Associations, and
Catholic Medical Association, Amici Curiae in Support of
Greater Baltimore Center for Pregnancy Concerns, Incorpo-
rated, St. Brigid’s Roman Catholic Congregation, Incorpo-
rated, Archbishop Edwin F. O’Brien, Archbishop of
Baltimore and His Successors in Office, A Corporation Sole.
John C. Eastman, CENTER FOR CONSTITUTIONAL
JURISPRUDENCE, Chapman University School of Law,
Orange, California; David T. Raimer, Noel J. Francisco,
JONES DAY, Washington, D.C., for Amici Curiae Professors
in Support of Greater Baltimore Center for Pregnancy Con-
cerns, Incorporated, St. Brigid’s Roman Catholic Congrega-
tion, Incorporated, Archbishop Edwin F. O’Brien, Archbishop
of Baltimore and His Successors in Office, A Corporation
Sole.

OPINION

NIEMEYER, Circuit Judge:

Archbishop Edward F. O’Brien, St. Brigid’s Roman Catho-
lic Congregation, Inc., and the Greater Baltimore Center for
Pregnancy Concerns, Inc. ("the Pregnancy Center") com-
menced this action against the Mayor and City Council of
Baltimore, challenging the constitutionality of the City’s
Ordinance 09-252, which requires that "limited-service preg-
nancy centers," such as the Pregnancy Center, post signs dis-
claiming that they "do[ ] not provide or make referral for
abortion or birth control services." The complaint alleges that
the ordinance, both facially and as applied to the plaintiffs,
violates the plaintiffs’ free speech, free exercise, and equal
 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 21
protection rights under the First and Fourteenth Amendments
to the U.S. Constitution, as well as the plaintiffs’ rights under
the Conscience Clause of Maryland’s health law.

The district court granted summary judgment to the Preg-
nancy Center on its freedom of speech count, dismissed the
Archbishop and St. Brigid’s as plaintiffs for lack of standing,
and dismissed the remaining counts without prejudice, in
view of its free speech ruling. The court held that the dis-
claimer required by Ordinance 09-252 is "a form of com-
pelled speech" that "alters the course of a [pregnancy]
center’s communication with a client or prospective client
about abortion and birth-control" and "is based, at least in
part, on disagreement with the viewpoint of the speaker." The
court entered a permanent injunction barring enforcement of
the ordinance. For the reasons that follow, we affirm.

I

In December 2009, the City of Baltimore enacted Ordi-
nance 09-252. The ordinance applies to "limited-service preg-
nancy 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 ser-
vices; but

(ii) does not provide or refer for:

(A) abortions; or

(B) nondirective and comprehensive
birth-control services.
22 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
Baltimore City Health Code § 3-501. 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 dis-
claimer 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 punish-
able by a citation carrying a maximum civil penalty of $150.
Id. § 3-506.1

The legislative record indicates that the President of the
Baltimore City Council introduced Bill 09-406 (later to
become Ordinance 09-252), after the City Council President
had met with abortion rights advocacy groups, which com-
plained that some pregnancy clinics provide inaccurate infor-
mation 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.’"

At the hearings on the Bill, representatives of Planned Par-
enthood of Maryland, NARAL Pro-Choice Maryland, and
other pro-choice groups spoke in favor of the Bill, and repre-
1
The Baltimore City Health Department enacted a regulation clarifying
certain aspects of its enforcement of the ordinance, which it made effec-
tive July 15, 2010. Among other things, the regulation provides a defini-
tion of "non-directive and comprehensive birth-control services" and
allows a pregnancy center to indicate on its disclaimer sign what birth-
control services it does provide and/or refer for. The regulation’s defini-
tion of "non-directive and comprehensive birth-control services" was sub-
sequently amended to define that term as including all "birth-control
services which only a licensed health care professional may prescribe or
provide."
 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 23
sentatives of the Archbishop, the Maryland Right to Life
Committee, and other pro-life groups spoke in opposition.
The Bill was enacted in November and became law on
December 4, 2009.

The Pregnancy Center is a "limited-service pregnancy cen-
ter," as defined in Ordinance 09-252, operating in Baltimore
City from two locations and providing services to pregnant
women, such as pregnancy testing; classes in prenatal devel-
opment, post-pregnancy parenting, and life skills; Bible
studies; and material support for women through its "Han-
nah’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, a form of birth control," but does not provide refer-
rals "for abortions or other methods of birth control." The
Pregnancy Center does not charge its clients for any of its ser-
vices, which it provides through paid employees and volun-
teers, each of whom must sign a statement affirming his or her
Christian faith and belief that abortion is immoral.

Archbishop Edward F. O’Brien, the Archbishop of Balti-
more, is a corporate entity that owns the property on which
the Pregnancy Center operates one of its locations and on
which St. Brigid’s Roman Catholic Church operates. Neither
the Archbishop nor St. Brigid’s charges the Pregnancy Center
for the use of its space on the property.

In March 2010, before any enforcement of Ordinance 09-
252, the Archbishop, St. Brigid’s, and the Pregnancy Center
commenced this action against the Mayor and City Council of
Baltimore,2 alleging violations of the Free Speech and Free
2
The complaint names as defendants the Mayor and City Council of
Baltimore, the Baltimore Health Department, Stephanie Rawlings-Blake,
in her official capacity as Mayor of Baltimore, and Olivia Farrow, in her
official capacity as Acting Baltimore City Health Commissioner. Dr.
Oxiris Barbot became Baltimore City Health Commissioner on June 7,
2010, and he was then substituted as a defendant in place of Olivia Far-
row.
24 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
Assembly Clauses of the First Amendment, the Free Exercise
Clause of the First Amendment, the Equal Protection Clause
of the Fourteenth Amendment, and the Conscience Clause in
Maryland Code, Health-General, § 20-214(a)(1) (providing
that a "person may not be required to . . . refer . . . for . . .
any medical procedure that results in . . . termination of preg-
nancy" and that the refusal to provide abortion referrals "may
not be a basis for . . . [c]ivil liability to another person . . . or
. . . [d]isciplinary or other recriminatory action"). The com-
plaint alleges that the Pregnancy Center does not provide or
refer for abortions, "based on moral and religious beliefs,"
and that Ordinance 09-252 specifically targets pro-life preg-
nancy centers such as the Pregnancy Center and thus "regu-
lates communications at the Pregnancy Center that are
personal, moral, political, and religious." It also states that "by
requiring a disclaimer that the [pregnancy] center does not
provide or refer for abortions, the ordinance compels plain-
tiffs to deliver the implied message that these services are
available elsewhere and should be considered," thus appear-
ing to legitimize such services, in violation of the plaintiffs’
beliefs. The complaint also objects to the ordinance’s require-
ment 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," which, the complaint asserts, are medically recog-
nized means of birth control. The plaintiffs seek a declaratory
judgment that the ordinance is unconstitutional on its face
and/or as applied to plaintiffs 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 filed a motion to dismiss under Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6), alleging that the Arch-
bishop and St. Brigid’s lacked standing to sue and that the
complaint otherwise failed to state a claim on which relief
could be granted. In response to the plaintiffs’ motion for
 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 25
summary judgment, the City submitted an affidavit of an
expert witness, along with a motion under Rule 56(f), request-
ing further discovery to amplify its response.

Following a hearing on the motions, the district court
entered an order dated January 31, 2011, granting the City’s
motion to dismiss the Archbishop and St. Brigid’s for lack of
standing; denying the City’s motion to dismiss, which it con-
verted to a motion for summary judgment in view of the addi-
tional materials submitted by the parties; denying the City’s
request for further discovery as not necessary to the issue
being decided; granting the Pregnancy Center’s motion for
summary judgment on its free speech claim, as set forth in
Count 1; dismissing without prejudice the plaintiffs’ remain-
ing claims in view of its ruling on the free speech claim; and
entering a judgment permanently enjoining the enforcement
of the ordinance. In granting summary judgment to the Preg-
nancy Center on its free speech claim, the court applied strict
scrutiny as the result of its conclusion that the ordinance com-
pelled speech and was not viewpoint neutral and concluded
that the ordinance violated the Pregnancy Center’s free speech
rights.

From the district court’s judgment, the City appealed, chal-
lenging all of the court’s rulings except the dismissal of the
Archbishop and St. Brigid’s. And the Archbishop and St.
Brigid’s filed a cross-appeal, challenging their dismissal for
lack of standing.

II

We address first the plaintiffs’ cross-appeal challenging the
district court’s dismissal of the Archbishop and St. Brigid’s
for lack of standing to challenge Ordinance 09-252. The dis-
trict court reasoned that because the Archbishop and St. Brig-
id’s "are not, and do not operate, limited-service pregnancy
centers subject to the Ordinance," the ordinance "does not
require the Archbishop and St. Brigid’s to take any action and
26 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
does not subject them to liability" under the law. The court
concluded, therefore, that the Archbishop and St. Brigid’s did
not suffer a "concrete and particularized" injury, as required
under Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992).

The Archbishop and St. Brigid’s argue that the district
court ignored the injury that they suffer as a result of the ordi-
nance’s infringement of their right to freedom of speech. They
maintain that because they own the building in which the
Pregnancy Center is located, they "suffer a constitutional
harm when they are forced ‘to use their private property as a
. . . billboard for the State’s ideological’ message" (quoting
Wooley v. Maynard, 430 U.S. 705, 715 (1977)). They also
argue that "the Baltimore City Health Code leaves open the
possibility that the City might seek to enforce the ordinance
against the owner of the property [used by the Pregnancy
Center]," citing Baltimore City Health Code § 5-201.

Although Ordinance 09-252 does require speech to be
posted on property owned by the Archbishop and St. Brigid’s,
its mandate only applies to the space operated by the Preg-
nancy Center. The Archbishop and St. Brigid’s do not qualify
as a pregnancy center and they do not operate the Pregnancy
Center. Indeed, the space where the disclosure would be
located is separate from the church-operated portions of the
building, and a regular visitor to the church would not see the
disclaimer sign unless visiting the Pregnancy Center itself. In
these circumstances it would be most doubtful that anyone
would attribute the government’s message to the Archbishop
or St. Brigid’s, rather than to the Pregnancy Center or the
City.

The Archbishop and St. Brigid’s suggestion that they do
not charge for the use of their space and thus are not "ordinary
landlords" does not change the analysis. If anything, this fact
might cut against them because, by their own admission, their
interest in the ordinance is related primarily to a "desire to
 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 27
promote life over abortion." Ideological injuries of this sort,
without more, have routinely been held insufficient to support
standing, see, e.g., Sierra Club v. Morton, 405 U.S. 727, 739
(1972), even when those ideologies are intertwined with reli-
gious beliefs, see, e.g., Harris v. McRae, 448 U.S. 297, 320-
21 (1980).

We also conclude that there is little likelihood that the
Archbishop or St. Brigid’s could face liability if the Preg-
nancy Center violated Ordinance 09-252. By its terms, the
ordinance only authorizes the issuance of environmental or
civil citations to pregnancy centers themselves, and contains
no provisions for joint-and-several liability of landlords. See
Baltimore City Health Code § 3-506. And the portion of the
City Health Code that the Archbishop and St. Brigid’s cite as
a potential basis for liability, § 5-201, relates only to nuisance
abatement; it has no connection to Ordinance 09-252 and does
not indicate that a failure to comply with the other, non-
nuisance-related regulations can be penalized. See Baltimore
City Health Code § 5-101 (defining nuisances); id. § 5-209
(enforcement provisions).

Accordingly, we affirm the district court’s ruling that the
Archbishop and St. Brigid’s lack standing to challenge the
ordinance.

III

In its appeal, the City contends first that the district court
erred in applying strict scrutiny to the ordinance. It argues that
the ordinance, even though compelling speech, compels com-
mercial speech, which is subject to a lower level of scrutiny,
involving the determination of whether the "disclosure
requirements are reasonably related to the State’s interest in
preventing deception of customers." Alternatively, the City
urges us to draw on the disclosure requirements of election
law and abortion regulation, with respect to which cases have
28 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
applied an "exacting" scrutiny standard or other intermediate
scrutiny standard.

The Pregnancy Center contends that compelling someone
to speak a message that the speaker would not otherwise make
is a content-based regulation that is subject to strict scrutiny.
Responding to the City’s argument that Ordinance 09-252
compels commercial speech, the Pregnancy Center maintains
that, to the contrary, the ordinance targets its free provision of
information about pregnancy and not any proposal for a com-
mercial transaction. Indeed, it notes that it does not sell any
goods or services. At bottom, it asserts that no case supports
the City’s claim that "government can require private speak-
ers to post a government-mandated message in their waiting
room (to all visitors, at all times) unrelated to any commercial
transaction being proposed by the speaker."

We begin by noting that the ordinance does indeed compel
the Pregnancy Center to speak, mandating it to post a sign that
it "does not provide or make referral for abortion or birth-
control services." Moreover, in compelling that speech, the
Pregnancy Center is, in this case, required to participate in the
City’s effort to tell pregnant women that abortions are avail-
able elsewhere as a morally acceptable alternative, contrary to
the moral and religious beliefs of the Pregnancy Center. A
representative of the Pregnancy Center stated that absent the
ordinance’s mandate, the Pregnancy Center would not speak
to clients and potential clients in the manner required by the
ordinance.

It is well-established that a regulation compelling non-
commercial speech is subject to strict scrutiny and must be
narrowly tailored to serve a compelling governmental interest.
United States v. Playboy Entm’t Group, Inc., 529 U.S. 803,
813 (2000); Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487
U.S. 781, 796 (1988). The First Amendment protects not only
"the right to speak freely," but also "the right to refrain from
speaking at all." Wooley v. Maynard, 430 U.S. 705, 714
 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 29
(1977); see also Hurley v. Irish-American Gay, Lesbian, &
Bisexual Group of Boston, 515 U.S. 557, 573 (1995) ("[O]ne
important manifestation of the principle of free speech is that
one who chooses to speak may also decide what not to say"
(internal quotation marks omitted)). Because "[m]andating
speech that a speaker would not otherwise make necessarily
alters the content of the speech," laws that compel speech are
normally considered "content-based regulation[s] of speech"
and therefore are subject to strict scrutiny. Riley, 487 U.S. at
795. Indeed, strict scrutiny applies even in cases where the
compelled disclosure is limited to factually accurate or non-
ideological statements. Id. at 797-98 (invalidating a require-
ment that professional fund-raisers disclose to potential
donors the percentage of charitable contributions collected
during the previous 12 months that were actually turned over
to the charity); see also Hurley, 515 U.S. at 573 (the "general
rule[ ] that the speaker has the right to tailor the speech[ ]
applies not only to expressions of value, opinion, or endorse-
ment, but equally to statements of fact").

The City does not take issue with these First Amendment
principles, generally. Rather, it argues that the speech man-
dated here is commercial speech and therefore is subject to
the lower standard of judicial scrutiny applicable to commer-
cial speech. Alternatively, it argues that the speech mandated
here is analogous to election-law disclosures or abortion-
regulation disclosures, both of which have been evaluated
under a lower level of scrutiny than strict scrutiny. We
address each of these arguments in order.

A

In making the argument that Ordinance 09-252 regulates
commercial speech, the City contends that "when a Pregnancy
Center offers to provide commercially valuable, pregnancy-
related goods or services to a consumer, the Pregnancy Center
is proposing a commercial transaction." Specifically, the City
asserts that although many pregnancy centers operate as non-
30 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
profits, they effectively engage in commerce by offering preg-
nancy testing, sonograms, and options counseling, "all of
which have commercial value, garnering payments and fees in
the marketplace." Appellants Br. at 16 (citing Camps New-
found/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 573
(1997) (holding that a nonprofit summer camp was engaged
in commerce for purposes of the dormant Commerce
Clause)). The City’s formulation of the commercial speech
doctrine, however, is not supported by the law.

The Supreme Court has defined commercial speech as "ex-
pression related solely to the economic interests of the
speaker and its audience." Cent. Hudson Gas & Elec. Corp.
v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 561 (1980).
Stated in another way, the hallmark of commercial speech is
that it "does no more than propose a commercial transaction."
Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 66 (1983)
(internal quotation marks omitted); see also Martin H. Redish,
Commercial Speech, First Amendment Intuitionism and the
Twilight Zone of Viewpoint Discrimination, 41 Loy. L.A. L.
Rev., 67, 75 (2007) ("[T]he [Supreme] Court has unambigu-
ously adopted the view that commercial speech is confined to
expression advocating purchase"). In some circumstances,
such as when expression clearly promotes a speaker’s eco-
nomic interests, speech may be classified as commercial even
when it "cannot be characterized merely as proposals to
engage in commercial transactions." Bolger, 463 U.S. at 67-
68 (holding that advertisements discussing the health benefits
of contraceptives were commercial speech); see also Wag
More Dogs, Ltd. Liab. Corp. v. Cozart, __ F.3d __, 2012 WL
1851326 (4th Cir. May 22, 2012) (holding that business’s out-
door mural was commercial speech where business conceded
mural was advertising and "had an economic motivation for
displaying the painting"). But speech does not "retain[ ] its
commercial character when it is inextricably intertwined with
otherwise fully protected speech." Riley, 487 U.S. at 796.

Rather than regulating traditional commercial advertising,
Ordinance 09-252 targets speech regarding the provision of
 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 31
"free services." While this fact alone might not be dispositive,
it becomes so in this case because there is no indication that
the Pregnancy Center is motivated by any economic interest
or that it is proposing any commercial transaction. The Preg-
nancy Center seeks to provide free information about preg-
nancy, abortion, and birth control as informed by a religious
and political belief. This kind of ideologically driven speech
has routinely been afforded the highest levels of First Amend-
ment protection, even when accompanied by offers of com-
mercially valuable services. See, e.g., In re Primus, 436 U.S.
412, 422, 439 (1978) (holding that a lawyer’s solicitation of
pro-bono client was protected by the First Amendment
because the lawyer’s actions "were undertaken to express per-
sonal political beliefs and to advance . . . civil-liberties objec-
tives . . . rather than to derive financial gain").

The City’s argument does not address what commercial
transaction is proposed by the Pregnancy Center’s speech or
what economic interest motivates the Pregnancy Center’s
speech. Instead, the City would define commercial speech to
include any speech that offers services "which have commer-
cial value, garnering payments and fees in the marketplace"
generally. Adopting this definition of commercial speech
would effect an unprecedented expansion of the commercial
speech doctrine and is unsupported by citation to any applica-
ble Supreme Court precedent. As the district court explained,
the City’s position would mean that "any house of worship
offering their congregants sacramental wine, communion
wafers, prayer beads, or other objects with commercial value,
would find their accompanying speech subject to diminished
constitutional protection." Indeed, it is difficult to imagine
any charitable organization whose speech would not be con-
sidered "commercial" under the City’s proposed broad defini-
tion.

In short, we agree with the district court that the pregnancy
centers are not engaged in commercial speech and that their
32 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
speech cannot be denied the full protection of strict scrutiny
on that basis.

B

The City argues alternatively that if the Pregnancy Center’s
speech is not considered commercial speech, it should still be
accorded reduced protection because the disclaimer required
by Ordinance 09-252 is analogous to the disclosure require-
ments imposed on abortion providers and in campaign finance
laws, both of which are subject to a lower level of scrutiny
than strict scrutiny. See Planned Parenthood of Southeastern
Pa. v. Casey, 505 U.S. 833 (1992) (plurality opinion) (apply-
ing intermediate scrutiny to disclosure requirements under
Pennsylvania’s abortion law); Citizens United v. Fed. Election
Comm’n, 130 S. Ct. 876, 914 (2010) (applying "exacting scru-
tiny" to campaign finance disclosure requirements).

The differing contexts of the speech restrictions in those
cases, however, render the cases inapplicable to the compelled
speech before us. In Casey, the mandatory disclosures focused
on the speech of licensed medical professionals, and the regu-
lations were upheld because, even though they implicated a
physician’s right not to speak, they did so "only as part of the
practice of medicine, subject to reasonable licensing and regu-
lation by the State." Casey, 505 U.S. at 884. More particu-
larly, the regulations there were permissible because they
facilitated the process of obtaining a patient’s informed con-
sent prior to performing a medical procedure. Thus the regula-
tion of such professional speech was imposed incidental to the
broader governmental regulation of a profession and was jus-
tified by this larger context. In contrast, the pregnancy centers
that are subject to Ordinance 09-252 do not practice medicine,
are not staffed by licensed professionals, and need not satisfy
the informed consent requirement.3
3
The Supreme Court has not recognized the notion that "professional
speech," unconnected to state regulation or licensing, is entitled to less
 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 33
Similarly, the exacting scrutiny standard applied to finance
disclosure laws in the campaign finance cases is justified by
circumstances that are also not applicable here. In the
Supreme Court’s cases of Citizens United and Buckley v.
Valeo, 424 U.S. 1 (1976), the Court drew a distinction
between regulations that limit campaign contributions and
restrict campaign activities and regulations that merely
require the disclosure of objective financial information. The
Supreme Court has never suggested that Buckley’s holding
that disclosure requirements do not substantially burden
speech applies to speech regulations more generally. See Doe
v. Reed, 130 S. Ct. 2811, 2818 (2001) ("We have a series of
precedents considering First Amendment challenges to disclo-
sure requirements in the electoral context" (emphasis added)).
While disclosure of campaign contributions or expenditures
will always be limited to factual information, the line between
fact and opinion in most compelled speech cases will be much
harder to draw. Thus, campaign finance disclosure laws are
less likely to be impermissibly content- or viewpoint-based
and pose a lower risk of altering the speaker’s message. The
regulation imposed by Ordinance 09-252, however, burdens
the content of speech generally, requiring pregnancy centers
to speak in a manner that they might otherwise wish to avoid.
This type of regulation is significantly more analogous to the
restrictions on campaign speech that the Court held were sub-
ject to strict scrutiny. See Citizens United, 130 S. Ct. at 898;
Buckley, 424 U.S. at 58-59.

protection under the First Amendment. We have, however, recognized that
the government may regulate the professions and, as necessary to serve the
state’s interest in such regulation, so regulate the professionals’ speech.
See Accountant’s Soc’y of Va. v. Bowman, 860 F.2d 602, 603-05 (4th Cir.
1988) (noting that "governmental regulation of the professions is constitu-
tional if the regulations have a rational connection with the applicant’s fit-
ness or capacity to practice the profession" (internal quotation marks
omitted)). The City, however, does not claim that the Pregnancy Center’s
employees and volunteers are state-regulated professionals.
34 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
Accordingly, we affirm the district court’s conclusion that
Ordinance 09-252 regulates the Pregnancy Center’s fully pro-
tected, non-commercial speech and therefore is subject to
strict scrutiny.4

IV

"Content-based [speech] regulations are presumptively
invalid." R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992).
The City thus bears the burden of rebutting the presumption
of invalidity. Playboy Entm’t Group, 529 U.S. at 817. Indeed,
"[i]t is rare that a regulation restricting speech because of its
content will ever be permissible." Id. at 818. The City can,
nonetheless, rebut the presumption if it is able to show that
the ordinance is "narrowly tailored to promote a compelling
Government interest," such that the ordinance is the "least
restrictive alternative" to serve the government’s purpose. Id.
at 813; Ashcroft v. ACLU, 542 U.S. 656, 666 (2004).

The City claims it can satisfy this strict scrutiny standard,
arguing that it has at least two compelling interests served by
the ordinance and that the ordinance is narrowly tailored to
promote those interests. First, the City claims that it has an
interest in countering what it maintains are the "deceptive
4
Strict scrutiny would generally be appropriate also because the Ordi-
nance is not viewpoint neutral. By its terms, Ordinance 09-252 does not
apply to all speakers who "provide information" about pregnancy. Rather,
the law targets only those speakers who refuse to provide or refer for abor-
tions or certain types of birth control. This qualification effectively limits
the law’s disclosure obligations to organizations whose moral or religious
codes lead them to oppose abortion and birth control. Cf. Sorrell v. IMS
Health, Inc., 131 S. Ct. 2653, 2663 (2011) (concluding that law was
speaker- and content-based where the "practical effect" was to burden one
group of speakers). These speakers are disfavored because they have cho-
sen, for whatever reason, not to adopt the City’s preferred perspective on
appropriate reproductive decisions. Although it is true that disparate
impact alone is not enough to make a law viewpoint discriminatory, see
Hill v. Colorado, 530 U.S. 703, 724–25 (2000), the text of the ordinance
and its legislative history demonstrate that it burdens only the expression
of pro-life speakers, as it was intended to do.
 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 35
business practices" of certain pregnancy centers. According to
the City, these practices include deceptive advertising, delay-
ing tactics intended to prevent women from obtaining abor-
tions, and misleading statements about the medical and
psychological impact of abortion. To support this argument,
the City cites two reports that purport to document the decep-
tive practices of pregnancy centers: A 2006 report prepared
for U.S. Representative Henry Waxman, and a 2008 report
compiled by the NARAL Pro-Choice Maryland Fund detail-
ing the results of its investigation of pregnancy centers in
Maryland.

Second, the City argues that it has an interest in protecting
the health of pregnant women and in ensuring that pregnant
women who seek abortions have prompt access to medical
services. The City notes that the risks and costs associated
with abortion increase as a woman advances through her
pregnancy. Similarly, the City contends that "delays in access
to the birth-control method of an individual’s choice can leave
the individual and his or her partner vulnerable to unintended
pregnancy and sexually transmitted disease." Thus, the City
argues, delays in obtaining abortion services pose a clear
threat to public health.

To be sure, the City has a considerable interest in promot-
ing the general health and well-being of its citizens. But as the
Supreme Court recently reiterated, to demonstrate the exis-
tence of a compelling interest, a government "must specifi-
cally identify an ‘actual problem’ in need of solving." Brown
v. Entm’t Merchants Ass’n, 131 S. Ct. 2729, 2740 (2011)
(quoting Playboy Entm’t Group, 529 U.S. at 822-23).
Although the existence of such a problem need not be exhaus-
tively documented, "the Government must present more than
anecdote and supposition" to support a speech restriction.
Playboy Entm’t Group, 529 U.S. at 822. With respect to Ordi-
nance 09-252, and the Pregnancy Center, the City failed to
carry its burden to show a compelling interest.
36 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
Here, the record establishes, at most, only isolated
instances of misconduct by pregnancy centers generally, and,
as the City concedes, none by the Pregnancy Center itself.
Indeed, the record contains no evidence that any woman has
been misled into believing that any pregnancy center subject
to Ordinance 09-252 was a medical clinic or that a woman in
Baltimore delayed seeking medical services because of such
a misconception. The City instead cites allegations of decep-
tive practices occurring in other locations or second-hand
reports of "stories about harassment." The City’s failure to
provide more than speculative evidence of problems at Balti-
more’s pregnancy centers strongly suggests that the need for
regulation of those centers is not as pressing as the City
asserts.

The City’s claim of a compelling interest is also called into
question by its selective pursuit of its interest. While the City
asserts that it is primarily concerned with ensuring that
women receive accurate information about their pregnancies,
Ordinance 09-252 does not focus on or reach the vast majority
of sources that pregnant women would likely consult. Book-
stores, websites, religious leaders, and pregnant women’s
friends and family — all of whom might potentially provide
a woman with "incorrect" information about her pregnancy —
are unaffected by the ordinance. This kind of underinclusive-
ness "raises serious doubts about whether the government is
in fact pursuing the interest it invokes, rather than disfavoring
a particular speaker or viewpoint." Brown, 131 S. Ct. at 2740;
see also Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520, 546-47 (1993) ("Where government
restricts only conduct protected by the First Amendment and
fails to enact feasible measures to restrict other conduct pro-
ducing substantial harm or alleged harm of the same sort, the
interest given in justification of the restriction is not compel-
ling").

Moreover, the City’s claim to be promoting a compelling
interest is seriously undermined by its failure to pursue any
 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 37
other course to promote its interest other than to restrict the
Pregnancy Center’s speech. This fact is particularly salient
based on the City’s admission that the record reflects that it
has done nothing other than enact Ordinance 09-252 to com-
bat the perceived danger of misleading information from the
Pregnancy Center and like facilities. The need was thus not so
compelling as to cause the City to post a single notice in any
City building or facility, to place a warning on its own web-
site, or to give any public service information in furtherance
of its interest. The City also conceded that it has referred and
continues to refer women to the Pregnancy Center without
any forewarning as to the danger of misinformation the City
believes the women will encounter there. To find, with these
facts, that the City has shown a compelling interest would be
dubious at best.

We need not, however, rely entirely on the weakness of the
City’s demonstration that in enacting the ordinance, it was
promoting a compelling government interest, because the
more significant problem for the City — the one that we find
fatal—is that the ordinance is not narrowly tailored to serve
the City’s interest. "A statute is narrowly tailored if it targets
and eliminates no more than the exact source of the ‘evil’ it
seeks to remedy." Frisby v. Schultz, 487 U.S. 474, 485 (1988).
"Broad prophylactic rules in the area of free expression are
suspect. Precision of regulation must be the touchstone in an
area so closely touching our most precious freedoms."
NAACP v. Button, 371 U.S. 415, 438 (1963) (citations omit-
ted). Courts may find that a statute is not narrowly tailored
when, among other things, the statute does not advance the
purported compelling interests, e.g., Meyer v. Grant, 486 U.S.
414, 426 (1988); or when the statute is overinclusive, e.g.,
Simon & Schuster, Inc. v. Members of the N.Y. State Crime
Victims Bd., 502 U.S. 105, 120-21 (1991); or when the gov-
ernment has other, less speech-restrictive alternatives avail-
able, e.g., Playboy Entm’t Group, 529 U.S. at 816-17. We
conclude that Ordinance 09-252 is an example of all three of
these indicators.
38 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
First, the ordinance purports to target false advertising, yet
it fails actually to regulate "deceptive practices" or false
advertising. Further, the ordinance applies to all pregnancy
centers regardless of whether they advertise at all.

Second, the ordinance is overinclusive in that it applies
equally to pregnancy centers that engage in deceptive prac-
tices and those whose speech is entirely truthful. See Fed.
Election Comm’n v. Mass. Citizens for Life, Inc., 479 U.S.
238, 265 (1986) (stating that for a law to be narrowly tailored
"government must curtail speech only to the degree necessary
to meet the particular problem at hand" and "must avoid
infringing on speech that does not pose the danger that has
prompted regulation").

Finally, there are also several alternatives that would
address the problems targeted by the ordinance while impos-
ing 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 consultation with physicians for pregnant women.
Cf. Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 507
(1996) ("It is perfectly obvious that alternative forms of regu-
lation that would not involve any restriction on speech would
be more likely to achieve the State’s goal of promoting tem-
perance. . . . [E]ducational campaigns focused on the prob-
lems of excessive, or even moderate, drinking might prove to
be more effective"). The City could also produce a document
or website listing local pregnancy centers and noting what
services are available at each. See Riley, 487 U.S. at 800
("[T]he State may itself publish the detailed financial disclo-
sure forms it requires professional fundraisers to file. This
procedure would communicate the desired information to the
public without burdening a speaker with unwanted speech").
And the City always retains the option of prosecuting viola-
tions of its criminal and civil laws that proscribe deceptive
advertising and deceptive statements made by pregnancy cen-
 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 39
ters. See Riley, 487 U.S. at 800; see also Nefedro v. Montgom-
ery Cnty., 996 A.2d 850, 863 (Md. 2010) (holding that fraud
laws were a less restrictive alternative to a law prohibiting
remuneration for fortunetelling).

That the City resorted to speech restrictions before trying
these or other similar options is more than enough to doom
the ordinance. See Thompson v. Western States Med. Ctr., 535
U.S. 357, 373 (2002) ("If the First Amendment means any-
thing, it means that regulating speech must be a last—not first
—resort").

The City seeks to salvage the ordinance by arguing that it
imposes on pregnancy centers a burden that is de minimis, and
that the signage requirement is less restrictive than other
methods of communicating the disclaimer. The City suggests,
for example, that it could have required the disclaimer to be
included on "every page of a pregnancy center’s website, as
well as text in all paid advertisements, brochures, and other
written materials." But this argument does not save the law.
First, the impact is not minimal. As the district court found
below, the ordinance inevitably "alters the course of a center’s
communications with a client or potential client" by requiring
that the Pregnancy Center’s initial communication occur in
"the presence of a stark and immediate statement about abor-
tion and birth-control." Second, even a de minimis restriction
on speech would not make the ordinance the least restrictive
option, as required to survive strict scrutiny. See Playboy
Entm’t Group, 529 U.S. at 813.

In sum, while the city has not demonstrated a compelling
government interest rather than simply its disfavor with a par-
ticular speaker’s speech, we do not rest on that failure because
Ordinance 09-252 is not narrowly tailored to promote the
City’s interest so as to justify its intrusion on the Pregnancy
Center’s speech. Accordingly, we hold that Ordinance 09-252
is invalid, in violation of the First Amendment presumption
40 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
that "speakers, not the government, know best both what they
want to say and how to say it." Riley, 487 U.S. at 791.

V

Finally, the City contends that the district court abused its
discretion (1) in converting its motion to dismiss into a
motion for summary judgment, without giving it prior notice
and without allowing it discovery before deciding the motion,
and (2) in dismissing the plaintiffs’ remaining counts (other
than the free speech count) without prejudice, rather than with
prejudice. We find no error in these rulings and also see no
prejudice to the City.

By converting the City’s Rule 12(b)(6) motion into a sum-
mary judgment motion, the district court did not deny the City
its opportunity to press its claim that the complaint failed to
state a claim upon which relief could be granted. This proce-
dural ruling, in the context of the plaintiffs’ pending motion
for summary judgment, simply gave recognition to the fact
that the court would be looking at the case more broadly on
plaintiffs’ summary judgment motion. Because of that
motion, the City was on notice that the court would be consid-
ering matters beyond the complaint to resolve the plaintiffs’
free speech claim and that the City should, if it wished, file
a response to that motion for summary judgment. The proce-
dural conversion in this context had the effect simply of
allowing the court to consider the parties’ dispositive motions
as cross-motions for summary judgment and take into account
any evidence that the parties might wish to submit. And
indeed, the City did submit matters outside of the complaint
and its motion to dismiss for consideration by the court.

The City argues that additional discovery would have given
it "the opportunity to gather additional support for key factual
propositions, including that Pregnancy Centers engage in
deceptive advertising, such deception threatens public health,
and the provision of services by Pregnancy Centers is a form
 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 41
commerce." The dissent adopts the same position. But as the
district court explained, additional discovery was unneces-
sary. The district court assumed for purposes of its analysis
that the Ordinance served the compelling interests that the
City claimed. Instead of exploring any factual context that
might be relevant to that proposition, the court struck down
Ordinance 09-252 because it was not narrowly tailored, a
problem that was apparent on the face of the Ordinance.
"Whether [a] regulation meets the ‘narrowly tailored’ require-
ment is of course a question of law." United States v. Doe,
968 F.2d 86, 88 (D.C. Cir. 1992); see also Vill. of Schaum-
burg v. Citizens for a Better Env’t, 444 U.S. 620, 634 (1980)
(overbreadth is "a question of law that involved no dispute
about the characteristics of" the law being challenged).
Because additional discovery could not eliminate the narrow
tailoring problems, as we have discussed above, the court was
well within its rights to decide the First Amendment issues on
the record before it. Cf. Sable Commc’ns of Cal., Inc. v.
F.C.C., 492 U.S. 115, 129 (1989) (affirming district court’s
grant of preliminary injunction where the pre-enactment
record contained "no legislative findings that would justify us
in concluding that there is no constitutionally acceptable less
restrictive means, short of a total ban, to achieve the Govern-
ment’s interest"); Solantic, LLC v. City of Neptune Beach, 410
F.3d 1250, 1274 (11th Cir. 2005) (invalidating content-based
sign regulation without discovery because "[t]he First Amend-
ment questions [were] purely legal" and "only minimally
intertwined with the facts").

The City’s remaining justification for discovery—that it
was necessary to show that pregnancy centers engage in com-
mercial speech—is also unavailing. The district court found
that the law on its face regulated protected, non-commercial
speech. The individual characteristics of any particular preg-
nancy center would thus be irrelevant to this determination, a
fact the City itself acknowledged during a hearing on the par-
ties’ motions:
42 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
The Court: [T]he City Council wasn’t concerned
about this individual center. There’s the legislative
history. They were concerned about the generalities
of it. So 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 [i.e. the plain-
tiffs] did.

Counsel for the City: I agree with you.

J.A. 130.

Moreover, as the district court recognized, even if some
speech of regulated pregnancy centers included commercial
elements, strict scrutiny would still apply because those ele-
ments would be "inextricably intertwined" with otherwise
fully protected speech. Thus, for example, an advertisement
offering a pregnant woman the opportunity to "see a picture
of your baby" is both an offer to provide a service—a
sonogram—and a political statement regarding the status of
fetal life. Contrary to the dissent’s claims, the commercial and
political aspects of a statement of this kind cannot be "easily
separated," as the dissent suggests. Indeed, the Supreme Court
rejected precisely this argument in Riley in the course of hold-
ing that solicitations by professional fundraisers were not
commercial speech. See Riley, 487 U.S. at 796 ("[W]e cannot
parcel out the speech, applying one test to one phrase and
another test to another phrase. Such an endeavor would be
both artificial and impractical. Therefore, we apply our test
for fully protected expression"). Thus, even if additional dis-
covery could somehow uncover facts suggesting that the
Pregnancy Center itself or other pregnancy centers engaged in
some amount of commercial speech (because, for instance,
they may have charged money for some of their services), the
district court’s reasoning would still have led to the applica-
tion of strict scrutiny.
 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 43
In sum, the city has been unable to point to any item of dis-
covery or fact that would have assisted the district court in
addressing the issues that have been appealed.

Finally, the City’s contention that the district court abused
its discretion in dismissing the Pregnancy Center’s remaining
counts without prejudice, rather than with prejudice, lacks
merit. The district court did not reach the merits of the Preg-
nancy Center’s other claims, which on their face were not
frivolous. It simply dismissed those counts because it awarded
the Pregnancy Center all the relief that it had requested, based
on its ruling on the free speech count.

For the reasons given, the judgment of the district court is

AFFIRMED.

KING, Circuit Judge, dissenting:

I lament that, in its haste to wholly and permanently enjoin
the City of Baltimore’s enforcement of its duly enacted Ordi-
nance, the district court has flouted foundational legal princi-
ples. Rushing to summary judgment, the court subverted the
Federal Rules of Civil Procedure — time-tested rules
designed to further the venerable constitutional principle of
due process, see Nelson v. Adams USA, Inc., 529 U.S. 460,
465 (2000) — by, inter alia, denying the City essential discov-
ery, refusing to view in the City’s favor what evidence there
is, and making untoward findings of fact, often premised on
nothing more than the court’s own supposition. Meanwhile,
thinly disguising its First Amendment as-applied analysis of
the Ordinance as a facial review, the court prematurely and
unfairly discounted the real possibility that the Ordinance tar-
gets only commercial speech, condemned the Ordinance as
viewpoint discriminatory, and, applying strict scrutiny, nulli-
fied the Ordinance for lack of narrow tailoring. The court’s
decision is, in a word, indefensible.
44 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
Nevertheless, the panel majority not only endorses the dis-
trict court’s unseemly approach, but engages in further impru-
dence. As but one example, while the district court was at
least willing to assume that the Ordinance is undergirded by
a compelling interest, the majority opines at length on the
insufficiency and insincerity of the interests and positions
advanced by the City. Because these proceedings have thus
followed a course more fitting a kangaroo court than a court
of the United States, I write separately in dissent.1

I.

In order to properly explain the defective rulings of the dis-
trict court and the panel majority, I briefly retrace the genesis
of the Ordinance and the fleeting procedural history of this
case.

A.

In response to congressional and statewide reports that
women were being deceived by limited-service pregnancy
centers, Baltimore’s City Council conducted hearings on the
issue in 2009. As the majority acknowledges, the City Coun-
cil, prior to its adoption of the Ordinance, specifically consid-
ered the 2006 Waxman and 2008 NARAL reports
documenting a pattern of deceptive practices by limited-
service pregnancy centers nationwide. The Waxman report
found that several such centers throughout the county were
using deceptive advertising techniques to attract women seek-
ing abortions and comprehensive birth-control services. Those
techniques included placing ads in the telephone book’s yel-
low pages under "abortion services" and on the Internet gen-
erated by keyword searches of "abortion" and "abortion
1
I dissent from the majority’s constitutional ruling in the City’s appeal,
No. 11-1111. I have no quarrel with its disposition of the cross-appeal, No.
11-1885, deeming plaintiffs St. Brigid’s and the Archbishop to be without
standing.
 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 45
clinics." See J.A. 417-18.2 The NARAL report found that sim-
ilar deceptive practices were being used by limited-service
pregnancy centers in Maryland, including in the City of Balti-
more. During its 2009 hearings, the City Council heard evi-
dence from a number of women complaining about being
deceived by pregnancy center advertising. See id. at 212. One
witness related her experience as a teenager, being subjected
to anti-abortion advocacy when she visited a pregnancy center
because it advertised in the telephone book under "Abortion
Counseling." Id. at 261. A college professor referenced
"countless stories" from female students who had similar
experiences when they visited pregnancy centers. Id. at 273.

The evidence relied on by the City Council revealed that
limited-service pregnancy centers were using questionable
tactics to delay women from accessing abortions. Such tactics
included counseling women to undergo pregnancy tests and
sonograms that were scheduled weeks after their initial preg-
nancy center visit, and misinforming women about abortion
services, including when abortions could be lawfully
obtained. Such delays placed the health of women who
decided to have abortions at risk, as "[n]umerous studies have
shown that it is safest to have an abortion within the first tri-
mester." See J.A. 331.

Importantly, the City’s Health Department studied the mat-
ter and supported the Council’s adoption of the proposed
Ordinance, agreeing that it was "imperative that all Baltimore
City women have the ability to obtain factual and timely
advice on all available health care options." J.A. 209. Before
taking action, the City Council prudently sought the views of
the City Solicitor, who concluded that the proposed Ordi-
nance did not contravene the First Amendment. By letter
opinion of October 23, 2009, the Solicitor advised the Council
that
2
Citations herein to "J.A.___" refer to the contents of the Joint Appen-
dix filed by the parties in these appeals.
46 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
[the Ordinance] requires disclosure of factual, truth-
ful, non-misleading information; namely, whether or
not abortion or birth control services are provided at
a given facility. The [Ordinance] serves the purpose
of preventing misleading advertising practices of
pregnancy services centers and furthers the City’s
interest in ensuring a woman seeking these services
in the City is fully informed of what services are
available at any given location and can find the ser-
vices that she needs in a timely manner whether they
be abortion or birth control services or any of the
many other pregnancy related services that a woman
may be seeking. . . . The [Ordinance], therefore, does
not violate the 1st Amendment right to freedom of
speech.

Id. at 208. During a public hearing on the proposed Ordi-
nance, its sponsor in the Council clarified that the "bill is not
about an abortion debate, but a simple sign . . . to make sure
no one is misled and [pregnancy center clients] know what to
expect." Id. at 211.

Thus, after considering the matter thoroughly, the Council
concluded that the various deceptive practices of limited-
service pregnancy centers posed a danger to public health. As
a result, on December 5, 2009, the City Council enacted the
Ordinance, which took effect on January 4, 2010.

B.

On March 29, 2010, the plaintiffs in this case — including
the Greater Baltimore Center for Pregnancy Concerns, Incor-
porated (the "Center") — challenged the Ordinance in federal
court, asserting various constitutional defects, including free
speech, free assembly, free exercise, and equal protection,
plus related state law claims. On June 4, 2010, barely two
months after service of the Complaint — and four days before
the City’s responsive pleading was due — the Center moved
 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 47
for summary judgment on its free speech and equal protection
challenges. No party had by then either initiated or conducted
discovery.3 Consistent with the lack of discovery, the City, on
June 8, 2010, filed a Rule 12(b)(6) motion seeking dismissal
of the Complaint. Then, on July 16, 2010, in response to the
Center’s summary judgment motion, the City filed a declara-
tion pursuant to Rule 56(f), averring that it could not ade-
quately oppose summary judgment without first conducting
discovery (the "Declaration").4

The Declaration specified that the City needed "the oppor-
tunity 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." J.A. 41. The Declaration also explained that the
City desired and required "the opportunity to conduct discov-
ery concerning the advertising that the Center and other
limited-service pregnancy centers employ, so [it] may demon-
strate [the advertising’s] deceptive character." Id. at 42. The
3
By applicable rule, no party had the right to serve or seek discovery
when the Center’s summary judgment motion was filed. See Fed. R. Civ.
P. 26(d)(1) (providing that, unless otherwise stipulated or ordered, "[a]
party may not seek discovery from any source before the parties have con-
ferred as required by Rule 26(f)").
4
The Declaration was filed pursuant to the version of Rule 56(f) then in
effect. Under the 2010 Amendments to the Civil Rules, "[s]ubdivision (d)
carries forward without substantial change the provisions of former subdi-
vision (f)." Fed. R. Civ. P. 56 advisory committee’s note. The current sub-
division (d) of Rule 56 provides:
If a nonmovant shows by affidavit or declaration that, for speci-
fied reasons, it cannot present facts essential to justify its opposi-
tion, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take dis-
covery; or
(3) issue any other appropriate order.
Fed. R. Civ. P. 56(d).
48 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
City requested "discovery to develop factual support for [its]
argument that the services offered by [the Center] are a form
of commerce, and, therefore, the disclaimer required by the
Ordinance is commercial speech." Id.

Additionally, the City filed the declaration of an expert,
Robert W. Blum, M.D., M.P.H., Ph.D. (the "Blum declara-
tion"), seeking to substantiate the City’s compelling interests
advanced by the Ordinance. More specifically, Dr. Blum
explained that, because family planning improves "the health
and well-being" of women and their children, public health is
promoted by providing "complete and accurate information to
women about their health care options." J.A. 45. "Women
who can plan the number and timing of their births," Dr.
Blum observed, "experience fewer unwanted pregnancies and
births and have lower rates of abortion." Id. Young and poor
women, however, are "particularly vulnerable to being
deceived by limited-service pregnancy centers that fail to dis-
close the scope of services that they provide." Id. at 46.

On August 4, 2010, the district court heard argument on the
City’s motion to dismiss and the Center’s summary judgment
motion. The court advised the parties, however, that if it
intended to award summary judgment to the Center on its as-
applied challenge, discovery would be necessary. By its Janu-
ary 28, 2011 decision, the court denied the City’s discovery
requests and converted the City’s pending Rule 12(b)(6)
motion to dismiss into a Rule 56 motion for summary judg-
ment. See O’Brien v. Mayor of Balt., 768 F. Supp. 2d 804,
809-10 (D. Md. 2011). The court then treated the parties’
respective submissions as cross-motions for summary judg-
ment, ruling for the Center on its free speech claim and dis-
missing without prejudice (and as moot) each of the Center’s
remaining claims. On January 31, 2011, the court fully and
permanently enjoined enforcement of the Ordinance.5
5
At the outset of this litigation, the City agreed not to enforce the Ordi-
nance until December 31, 2010, or until the district court had made a final
 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 49
II.

A.

As a general proposition, "summary judgment is appropri-
ate only after adequate time for discovery." Evans v. Tech.
Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996)
(internal quotation marks omitted). In the main, discovery is
essential in a contested proceeding prior to summary judg-
ment because a party can show that the relevant facts are
undisputed only by:

(A) citing to particular parts of materials in the
record, including depositions, documents, electroni-
cally stored information, affidavits or declarations,
stipulations . . . , admissions, interrogatory answers,
or other materials; or

(B) showing that the materials cited do not establish
the absence or presence of a genuine dispute, or that
an adverse party cannot produce admissible evidence
to support the fact.

Fed. R. Civ. P. 56(c)(1). Hence, "by its very nature, the sum-
mary judgment process presupposes the existence of an ade-
quate record." Doe v. Abington Friends Sch., 480 F.3d 252,
257 (3d Cir. 2007). At minimum, a court "must refuse sum-
mary judgment where the nonmoving party has not had the

decision, whichever was earlier. That commitment apparently expired at
the end of 2010, prior to the summary judgment award. Nevertheless, had
the district court reasonably ascertained from the parties’ submissions that,
inter alia, the Center was likely to succeed on its free speech claim, the
court should have adhered to Rule 65 and entered a temporary restraining
order ("TRO") against the Ordinance. After entering a TRO, the court
should have conducted appropriate proceedings to entertain preliminary
and permanent injunction requests. Instead, the court elected to award
summary judgment on the merits of the free speech issue, entering a per-
manent injunction based on an undeveloped record.
50 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
opportunity to discover information that is essential to [its]
opposition." See Nader v. Blair, 549 F.3d 953, 961 (4th Cir.
2008) (internal quotation marks omitted).

The City took "the proper course" when it filed the Decla-
ration, "stating that it could not properly oppose . . . summary
judgment without a chance to conduct discovery." See Har-
rods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244
(4th Cir. 2002) (internal quotation marks omitted) (deeming
summary judgment award premature where, inter alia, court
made its award only six weeks after complaint was filed,
before significant discovery). Such a declaration is "broadly
favored and should be liberally granted because the rule is
designed to safeguard non-moving parties from summary
judgment motions that they cannot adequately oppose." Raby
v. Livingston, 600 F.3d 552, 561 (5th Cir. 2010) (internal quo-
tation marks omitted); accord Harrods Ltd., 302 F.3d at 245
n.18. Nevertheless, the district court decided that the City’s
discovery requests were merely "an attempt to generate justi-
fications for the Ordinance following its enactment." O’Brien,
768 F. Supp. 2d at 810. The court explained that discovery
was unnecessary in examining "whether the Ordinance, on its
face, is subject to, and satisfies, the applicable level of scru-
tiny." Id. Indeed, the court considered itself constrained to
"base its decision on the evidence relied on by the [City] at
the time the Ordinance was passed." Id.

We review for abuse of discretion a district court’s denial
of "discovery before ruling on a summary judgment motion."
Nader, 549 F.3d at 959-60. A court abuses its discretion, how-
ever, when "its conclusion is guided by erroneous legal prin-
ciples or rests upon a clearly erroneous factual finding." Belk,
Inc. v. Meyer Corp., U.S., No. 10-1664, ___ F.3d ___ (4th
Cir. 2012) (internal quotation marks omitted). As explained
below, the district court’s rationale for denying the City its
right to discovery was patently erroneous.
 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 51
1.

As an initial matter, the district court legally erred in deny-
ing discovery prior to converting the City’s motion to dismiss
into a request for summary judgment. The majority states that
"the City was on notice that the court would be considering
matters beyond the complaint to resolve the plaintiffs’ free
speech claim." Ante at 40. As we have previously explained,
however, "notification that a Rule 12(b)(6) motion may be
converted is only one of the requirements" for a proper con-
version; "[o]nce notified, a party must be afforded a reason-
able opportunity for discovery before a Rule 12(b)(6) motion
may be converted and summary judgment granted." Gay v.
Wall, 761 F.2d 175, 177 (4th Cir. 1985) (internal quotation
marks omitted); see E.I. du Pont de Nemours & Co. v. Kolon
Indus., Inc., 637 F.3d 435, 450 (4th Cir. 2011) (concluding
that the court erred in converting a motion to dismiss to a
summary judgment motion where the "record indicates that
the parties had not yet had the opportunity to conduct reason-
able discovery"). The explicit authorization of discovery artic-
ulated by Judge Ervin in the Gay decision is applicable
precedent here, and is also prescribed by Rule 12(d). That rule
provides that, when a Rule 12(b)(6) motion is "treated as one
for summary judgment under Rule 56," the "parties must be
given a reasonable opportunity to present all the material that
is pertinent to the motion." Fed. R. Civ. P. 12(d) (emphasis
added). This controlling authority has been ignored entirely
by the district court and by the majority.

The district court’s justification for refusing to authorize or
permit the City to conduct discovery rested on an erroneous
perception that further factual development was not germane
to the Center’s facial free speech challenge to the Ordinance.
I acknowledge that a court may, in the proper circumstances,
rule on a "summary judgment motion without allowing fur-
ther discovery," where "a facial challenge to an ordinance . . .
may be resolved as a question of law." Penn Adver. of Balt.,
Inc. v. Mayor of Balt., 63 F.3d 1318, 1322-23 (4th Cir. 1995),
52 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
vacated on other grounds, 518 U.S. 1030 (1996). In such lim-
ited circumstances, discovery is unnecessary because "the
court’s inquiry is limited to consideration of the ordinance on
its face against the background of the government’s objective
and the prospect of the ordinance’s general effect," id. at
1323, "without regard to [an ordinance’s] impact on the plain-
tiff asserting the facial challenge," Educ. Media Co. at Va.
Tech, Inc. v. Swecker, 602 F.3d 583, 588 (4th Cir. 2010). In
this situation, however, the court neither undertook nor prop-
erly conducted a facial analysis of the constitutionality of the
Ordinance.

In the First Amendment context, there are two ways for a
plaintiff to mount a facial challenge to a statute. First, the
plaintiff may demonstrate "that no set of circumstances exists
under which the [law] would be valid, i.e., that the law is
unconstitutional in all of its applications." Wash. State
Grange v. Wash. State Republican Party, 552 U.S. 442, 449
(2008) (internal quotation marks omitted). Or, second, the
plaintiff may show that the law is "overbroad [because] a sub-
stantial number of its applications are unconstitutional, judged
in relation to the statute’s plainly legitimate sweep." United
States v. Stevens, 130 S. Ct. 1577, 1587 (2010) (internal quo-
tation marks omitted). Here, the district court did not con-
clude that the Ordinance is invalid in all its applications. For
example, it never assessed the potential application of the
Ordinance to limited-service pregnancy centers that charge a
fee for their services. Indeed, the majority emphasizes instead
the Ordinance’s application to "the provision of ‘free ser-
vices.’" Ante at 30-31.6

The district court also failed to address "a substantial num-
ber" of the Ordinance’s other applications. Put succinctly, its
analysis was an as-applied one, focusing almost exclusively
6
The majority also excludes from its analysis limited-service pregnancy
centers that practice medicine or are staffed by licensed professionals. See
ante at 32.
 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 53
on the Ordinance’s application to the Center. For example, on
the question of whether the Ordinance regulates commercial
or noncommercial speech, the court conducted an as-applied
free speech analysis, amply demonstrated by its repeated (and
inappropriate) findings on the specific characteristics of the
Center:

• "The overall purpose of the advertisements, ser-
vices, and information offered by the CENTER is
not to propose a commercial transaction, nor is it
related to the CENTER’s economic interest."
O’Brien, 768 F. Supp. 2d at 813 (emphasis
added);

• "The CENTER engages in speech relating to
abortion and birth-control based on strongly held
religious and political beliefs rather than com-
mercial interests or profit motives." Id. (emphasis
added);

• "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. (emphasis added);

• "[T]he disclaimer mandated by the Ordinance
introduces the topics of abortion and birth-
control. This has an immediate effect on any
speech and information offered by the CENTER
on these subjects." Id. at 814 (emphasis added);
and

• "At the very least, a disclaimer conspicuous to
anyone visiting the CENTER regarding the lack
of abortion and birth-control services, mandates
the inclusion of a government message concur-
rent, and intertwined with, Plaintiffs’ delivery of
54 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
fully protected speech." Id. at 814 (emphasis
added).

Similarly, in assessing whether the Ordinance is viewpoint
neutral, the Opinion made what can only be deemed to be as-
applied findings. More specifically, it related that:

• "The CENTER’s viewpoint, formed on the basis
of sensitive religious, moral, and political beliefs,
is the overarching reason for its stark refusal to
perform or refer for abortions and certain types of
birth-control." Id. at 815 (emphasis added); and

• "It is revealing that Defendants refer to the Ordi-
nance as a means of mitigating the ‘harm’ caused
by Plaintiffs’ underlying ‘propaganda’ speech
relating to abortion and contraception. Such
descriptions can only support the conclusion that
Defendants enacted the Ordinance out of dis-
agreement with Plaintiffs’ viewpoints on abortion
and birth-control." Id. at 816 (emphasis added).

The panel majority elaborates on several of these same factual
points. See ante at 31, 32, 34, 36-37.

In dissenting, I cast no aspersions on the use of the as-
applied approach in the proper setting. Indeed, it is clear that
"[a]s-applied challenges," with specific factual records, "are
the basic building blocks of constitutional adjudication." Gon-
zales v. Carhart, 550 U.S. 124, 168 (2007) (internal quotation
marks omitted). For a variety of reasons, a court should enter-
tain an as-applied constitutional challenge prior to assessing
a facial one and, if the as-applied challenge succeeds, neither
reach nor rule on the facial one. See Brockett v. Spokane
Arcades, Inc., 472 U.S. 491, 501-02 (1985). As the Supreme
Court has explained, "[f]acial challenges are disfavored"
because they "often rest on speculation" and thus "raise the
risk of premature interpretation of [laws] on the basis of factu-
 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 55
ally barebones records." Wash. State Grange, 552 U.S. at 450
(internal quotation marks omitted). Moreover, a facial chal-
lenge may contravene "the principle of judicial restraint that
courts should [not] formulate a rule of constitutional law
broader than is required by the precise facts to which it is to
be applied." Id. (internal quotation marks omitted). As my
friend Judge Niemeyer has emphasized, a facial challenge
"must be treated cautiously . . . because slipping into the
embrace of a facial challenge can tend to leave behind the
limitations imposed by Article III and [thus] trample on legis-
lative prerogatives, in violation of separation of powers prin-
ciples." Preston v. Leake, 660 F.3d 726, 738 (4th Cir. 2011)
(internal quotation marks omitted).

Because an as-applied analysis was employed by the dis-
trict court in this case, the City was unquestionably entitled to
conduct discovery proceedings. See Anheuser-Busch, Inc. v.
Schmoke, 63 F.3d 1305, 1312 (4th Cir. 1995) (Niemeyer, J.)
(explaining that, when confronted with an as-applied chal-
lenge, a "court is given the task of finding the facts defining
that circumstance and determining how the circumstance is
impacted by the . . . enactment"), vacated on other grounds,
517 U.S. 1206 (1996). The district court acknowledged as
much during its August 4, 2010 hearing on the parties’
respective motions, when it recognized that discovery pro-
ceedings would be necessary to properly evaluate an as-
applied challenge to the Ordinance. See J.A. 127-28, 130
(observing that "[the Center] can’t prevail on [summary judg-
ment] if I’m concerned about [its] individual status," and
assuring that "if what [the Center] did is relevant in this case[,
the City] will have the discovery").

Alternatively, discovery would be warranted if we were to
"treat[ ] this as a true facial challenge, rather than . . . an as-
applied challenge in the guise of a facial attack." Cf. Martin
v. Stewart, 499 F.3d 360, 378 (4th Cir. 2007) (Wilkinson, J.,
dissenting). As the City points out, a facial challenge would
"weigh[ ] in favor of discovery, not against it." Reply Br. of
56 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
Appellants 26. For example, "even if [the Center] did not
engage in commercial transactions, it [would not necessarily]
prevail on a facial challenge [even] if other [limited-service
pregnancy centers] in Baltimore did," including those within
the Ordinance’s scope that charge fees. Id. at 26-27 & n.12.
Thus, regardless of the type of analysis utilized — facial or
as-applied — the district court abused its discretion by deny-
ing the City its right to conduct discovery.

2.

In declining to approve the City’s discovery requests con-
cerning the potential commercial nature of speech targeted by
the Ordinance, the district court short-circuited the analysis
that was essential to properly deciding the appropriate level of
judicial scrutiny. That analysis should have been fact-driven,
due to the inherent "difficulty of drawing bright lines that . . .
clearly cabin commercial speech in a distinct category." See
City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410,
419 (1993). The Supreme Court has long grappled with the
concept of commercial speech, describing it at various times
as speech "confined to the promotion of specific goods or ser-
vices," Metromedia, Inc. v. City of San Diego, 453 U.S. 490,
505 n.12 (1981), or "related solely to the economic interests
of the speaker and its audience," In re R.M.J., 455 U.S. 191,
204 n.17 (1982) (internal quotation marks omitted). More
recently, the Court has explained that it "usually define[s]"
commercial speech "as speech that does no more than propose
a commercial transaction." United States v. United Foods,
Inc., 533 U.S. 405, 409 (2001).7 The proposition of a commer-
cial transaction — "I will sell you the X . . . at the Y price,"
see Va. State Bd. of Pharmacy v. Va. Citizens Consumer
7
Notably, we have recognized that, although "speech that proposes a
commercial transaction" is "a fairly straightforward" definition of com-
mercial speech, it is also "somewhat circular." Adventure Commc’ns, Inc.
v. Ky. Registry of Election Fin., 191 F.3d 429, 440 (4th Cir. 1999) (alter-
ation and internal quotation marks omitted).
 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 57
Council, Inc., 425 U.S. 748, 761 (1976) — is the "core
notion" of commercial speech. See Bolger v. Youngs Drug
Prods. Corp., 463 U.S. 60, 66 (1983).

On the periphery, the distinction between commercial and
noncommercial speech "presents a closer question." Bolger,
463 U.S. at 66. The Supreme Court has identified "three fac-
tors to consider in deciding whether speech is commercial: (1)
is the speech an advertisement; (2) does the speech refer to a
specific product or service; and (3) does the speaker have an
economic motivation for the speech." Facenda v. NFL Films,
Inc., 542 F.3d 1007, 1017 (3d Cir. 2008) (internal quotation
marks omitted); accord Adventure Commc’ns, Inc. v. Ky. Reg-
istry of Election Fin., 191 F.3d 429, 441 (4th Cir. 1999). We
have recognized that, although none of the factors is disposi-
tive, "the confluence of these considerations may permit the
conclusion that the speech at issue is commercial in nature."
Adventure Commc’ns, 191 F.3d at 441.

a.

The speech targeted by the Ordinance indubitably satisfies
the first two of the Bolger factors — i.e., advertisements
referring to a service. The majority surmises, however, that
the third factor is absent, because "there is no indication that
the Pregnancy Center is motivated by any economic interest."
Ante at 31. Ironically, my good colleagues fault the City for
not addressing "what economic interest motivates the Preg-
nancy Center’s speech," id., while ratifying the district court’s
denial of the City’s discovery requests that were aimed at,
inter alia, obtaining such information. The majority simply
accepts — as did the district court — the Center’s assertion
(by counsel only) that its motives are entirely religious or
political. But that assertion — although quite material — was
not at all undisputed. The City’s discovery proceedings
should have substantiated, inter alia, whether the Center pos-
sesses economic interests apart from its ideological motiva-
58 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
tions.8 Such discovery is "especially important when the
relevant facts are exclusively in the control of [the movant]"
or "when a case involves complex factual questions about
intent and motive." See Harrods Ltd., 302 F.3d at 247.

In any event, the potential commercial nature of its speech
does not hinge solely on whether the Center has an economic
motive. Not all of the Bolger factors "must necessarily be
present for speech to be commercial." Bolger, 463 U.S. at 67
n.14. Because the Ordinance compels a disclaimer, a court’s
"lodestars" in distinguishing commercial from noncommercial
speech are the "nature of the speech" regulated by the Ordi-
nance "taken as a whole and the effect of the compelled [dis-
claimer] thereon." See Riley v. Nat’l Fed’n of the Blind of
N.C., Inc., 487 U.S. 781, 796 (1988). In other words, context
matters. From a First Amendment free speech perspective,
that context includes the viewpoint of the listener, for
"[c]ommercial expression not only serves the economic inter-
est of the speaker, but also assists consumers and furthers the
8
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., 520 U.S. 564, 573 (1997) (summer camp spon-
sored by Christian Science nonprofit substantially affected interstate com-
merce though camp was not profitable and indeed at times operated on
deficit); Va. Vermiculite, Ltd. v. W.R. Grace & Co.-Conn., 156 F.3d 535,
541 (4th Cir. 1998) (nonprofit land preservation organization’s acceptance
of land donation "was commercial"). And, although outwardly the Center
appears to be driven by religious purposes only, certain operational intri-
cacies may prove otherwise. For instance, as observed in a similar case,
if the Center were "referring women to pro-life doctors in exchange for
‘charitable’ contributions, the analysis could change." Evergreen Ass’n,
Inc. v. City of N.Y., 801 F. Supp. 2d 197, 206 n.5 (S.D.N.Y. 2011). There
was "no such evidence" of referrals in exchange for charitable contribu-
tions in Evergreen Association, but there the parties had an opportunity to
conduct discovery. Id. Here, the prospect that such evidence exists is not
so farfetched. According to certain of the amici curiae — national organi-
zations that network individual pregnancy care centers ("Amici PCCs") —
all of their affiliated centers "make referrals to prenatal care providers for
their patients who are pregnant." Br. of Amici PCCs 7.
 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 59
societal interest in the fullest possible dissemination of infor-
mation." See Cent. Hudson Gas & Elec. Corp. v. Pub. Serv.
Comm’n of N.Y., 447 U.S. 557, 561-62, 567 (1980) (evaluat-
ing commercial nature of regulated speech based in part on
impact to consumers of electricity); Robert Post, The Consti-
tutional Status of Commercial Speech, 48 UCLA L. Rev. 1,
14 (2000) (observing that "[t]he Court has . . . focused its
analysis on the need to receive information, rather than on the
rights of the speakers").

The Supreme Court of North Dakota’s decision in Fargo
Women’s Health Org., Inc. v. Larson, 381 N.W.2d 176 (N.D.
1986), cert. denied, 476 U.S. 1108 (1986), illustrates the
proper contextual analysis. The Larson case involved false
and deceptive advertising by the Help Clinic, which, like the
Center, provided pregnancy tests and anti-abortion counseling
services to its clients at no cost. In determining that the Help
Clinic’s advertising constituted commercial speech, the Lar-
son court concluded that the provision of free services was not
"dispositive." 381 N.W.2d at 181. Rather, the court empha-
sized that

the Help Clinic’s advertisements are placed in a
commercial context and are directed at the providing
of services rather than toward an exchange of ideas
. . . . In effect, the Help Clinic’s advertisements con-
stitute promotional advertising of services through
which patronage of the clinic is solicited, and in that
respect constitute classic examples of commercial
speech.

Id.

We are unable to properly assess the context of any speech
regulated by the Ordinance "because no record evidence of
[the Center’s] advertisements exists to guide our review,
[thus] we can only speculate about the ways in which the
[Ordinance] might be applied to [the Center’s] speech." See
60 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
Milavetz, Gallop & Milavetz, P.A. v. United States, 130 S. Ct.
1324, 1344-45 (2010) (Thomas, J., concurring in part)
(observing that neither as-applied nor facial challenges could
be reviewed properly where there was no evidence of subject
advertisements). Nor is there any evidence concerning the
Ordinance’s impact on consumers of such information. In rul-
ing as it did, the district court was unconcerned with the full
context, because it decided that, even if the Center’s speech
"includes some commercial elements, strict scrutiny would
nonetheless apply," since any commercial element was "‘in-
extricably intertwined with otherwise fully protected
speech.’" O’Brien, 768 F. Supp. 2d at 814 (quoting Riley, 487
U.S. at 796).

b.

In my view, it was legally erroneous for the district court
to conclude, without the benefit of discovery, that the speech
at issue blends commercial and noncommercial elements. The
court necessarily premised that conclusion on its own finding
that the "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." O’Brien, 768 F.
Supp. 2d at 814. But such a dialogue may actually begin
much earlier, when a prospective client views a limited-
service pregnancy center’s advertisements. Indeed, the pur-
pose of the Ordinance was to curb any deceptive advertising.
Even if the disclaimer in the waiting room were the "initial
communication," however, the court mischaracterized the dis-
claimer as "a stark and immediate statement about abortion
and birth-control." Id. The disclaimer does not, as the major-
ity suggests, convey a message that abortion and birth control
are "morally acceptable alternative[s]." Ante at 28. The dis-
claimer simply does not speak to what is or may be morally
acceptable. It merely discloses that a particular pregnancy
center does not provide or refer for abortions or nondirective
and comprehensive birth-control services. That is, the dis-
 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 61
claimer relates to the services offered, not to the religious or
ideological beliefs of a pregnancy center.

Moreover, "where the two components of speech can be
easily separated, they are not ‘inextricably intertwined.’" Hunt
v. City of L.A., 638 F.3d 703, 715 (9th Cir. 2011) (citing Bd.
of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 473-
74 (1989)). Because the Ordinance merely requires a disclo-
sure that "the center does not provide or make referrals for
abortion or birth-control services" — but does not otherwise
prescribe the language or terminology to be used — a limited-
service pregnancy center could disassociate itself completely
from the required disclaimer. Indeed, a limited-service preg-
nancy center would be free to express its disapproval along-
side the disclaimer, or otherwise qualify its viewpoint vis-à-
vis the disclaimer.9 More to the point, however, "[n]othing in
the [Ordinance] prevents [a pregnancy center] from convey-
ing, or the audience from hearing, . . . noncommercial mes-
sages, and nothing in the nature of things requires them to be
combined with commercial messages." See Fox, 492 U.S. at
474; see also Fargo, 381 N.W.2d at 181 (concluding it was
unnecessary to extend First Amendment protections to the
clinic’s "commercial solicitation of clientele" because the
clinic could "advocat[e] . . . outside the commercial context
9
Notably, had the City been permitted to conduct discovery, it could
have shown that the Center’s website already provides a disclaimer
explaining its position: "Our mission is to protect the physical, emotional
and spiritual lives of women and their unborn children. We do not perform
or refer for abortions because of the physical and emotional risks
involved." Center For Pregnancy Concerns, http://www.cpcforhelp.org
(last visited June 19, 2012). The existence of such a disclaimer featured
conspicuously on the website contradicts the assertion of the Center’s
"representative," referenced by the majority, that "the Pregnancy Center
would not speak to clients and potential clients in the manner required by
the ordinance." Ante at 28. Furthermore, Amici PCCs inform us that they
counsel their affiliates to disclose that they do not offer or refer for abor-
tions and, in their advertisements, to "avoid implying that abortion ser-
vices or professional counseling is available." See Br. of Amici PCCs 9,
21-22.
62 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
and receive full First Amendment protection"). Put simply,
the Ordinance does not prohibit or restrict a limited-service
pregnancy center’s speech about abortion and birth-control.

In sum, the district court’s finding that the Ordinance tar-
geted noncommercial speech or, at most, intertwined com-
mercial and noncommercial speech — as echoed by the
majority — was premature and inappropriate. Under the
applicable rules of procedure and our precedent, it was essen-
tial to the City’s opposition to the Center’s summary judg-
ment motion — and to a fair and proper exercise of judicial
scrutiny — for the court to have the benefit of discovery. See,
e.g., Gay, 761 F.2d at 177; Fed. R. Civ. P. 12(d) (providing
reasonable opportunity for discovery after conversion of Rule
12(b)(6) motion to summary judgment motion). Those discov-
ery proceedings should have yielded, inter alia, any economic
motivations of the Center, the context of the Center’s adver-
tisements in relation to the disclaimer, and the degree of
entanglement, if any, of the commercial and noncommercial
elements of the regulated speech.10
10
Although not addressed by the district court, and raised only indirectly
by the City on appeal, there may well be a legitimate question as to
whether the speech targeted by the Ordinance constitutes professional
speech. The majority dismisses that possibility because "the pregnancy
centers that are subject to Ordinance 09-252 do not practice medicine, are
not staffed by licensed professionals, and need not satisfy the informed
consent requirement." Ante at 32. I am simply unable to understand how
the majority can make such factual findings. In truth, there may be
licensed professionals who are subject to the Ordinance. Indeed, Amici
PCCs assert that some of its affiliates "operate under the licensure of a
physician-medical director [and] provide medical services . . . by certified
and licensed professionals," and that "there are 750 such clinics nation-
wide, including [the Center]." Br. of Amici PCCs 6-7. Therefore, discov-
ery concerning the possible professional nature of the regulated speech is
also warranted.
 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 63
3.

In rejecting the City’s right to conduct discovery proceed-
ings regarding the compelling interests advanced by the Ordi-
nance, the district court improperly characterized the City’s
request as solely "an attempt to generate justifications for the
Ordinance following its enactment." O’Brien, 786 F. Supp. 2d
at 810. The court relied on the Supreme Court’s decision in
United States v. Virginia, 518 U.S. 515, 533 (1996), for the
proposition that the City’s justification should not be "in-
vented post-hoc in response to litigation." The City, however,
sought only to augment the record with evidence to support
its existing justification — not to invent a new one. As we
have previously observed, "courts have routinely admitted
evidence . . . to supplement a legislative record or explain the
stated interests behind challenged regulations." 11126 Balt.
Blvd. v. Prince George’s Cnty., Md., 886 F.2d 1415, 1425
(4th Cir. 1989), vacated on other grounds, 496 U.S. 901
(1990). Although "‘supplemental’ materials cannot sustain
regulations where there is no evidence in the preenactment
legislative record[, that] is not the case here." Id.

The majority does not deny that there was a substantial pre-
enactment record supporting adoption of the Ordinance;
rather, my colleagues simply deem that record insufficient to
establish a compelling interest. See Ante at 36 (observing that
"the record establishes, at most, only isolated instances of
misconduct by pregnancy centers generally" and "the record
contains no evidence that any woman has been misled into
believing that any pregnancy center . . . was a medical clinic
or that a woman in Baltimore delayed seeking medical ser-
vices because of such a misconception"). But criticizing the
record as somehow lacking merely begs the real question
underlying the errors of the district court: Why was the City
denied a full and fair opportunity to conduct discovery and
present a proper record?

As Judge Niemeyer recently explained, "the Constitution
does not mandate a specific method by which the government
64 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
must satisfy its burden under heightened judicial scrutiny. . . .
[I]t may resort to a wide range of sources, such as legislative
text and history, empirical evidence, case law, and common
sense, as circumstances and context require." United States v.
Carter, 669 F.3d 411, 418 (4th Cir. 2012) (remanding "to
allow the government to develop a record sufficient to justify
its argument" concerning interests advanced by statute). And,
when the court’s record is deficient, the government has been
permitted to marshal the relevant evidence. See, e.g., Turner
Broad. Sys., Inc. v. FCC, 512 U.S. 622, 668 (1994) (remand-
ing "to permit the parties to develop a more thorough factual
record" because government had failed to demonstrate "that
the recited harms are real, not merely conjectural, and that the
regulation will in fact alleviate these harms in a direct and
material way"); see also Hayes v. N. State Law Enforcement
Officers Ass’n, 10 F.3d 207, 215 (4th Cir. 1993) (indicating
that remand for discovery would be warranted had the "City
. . . asked the district court for additional discovery to respond
to . . . summary judgment, or for additional time to ‘develop
the factual record’ in support of its alleged compelling state
interest"). We have no discernible reason to stray from such
precedent.

B.

Apart from abusing its discretion by denying the City of
Baltimore its right to conduct discovery, the district court also
erred in concluding that the Ordinance is not viewpoint neu-
tral — its alternative basis for applying strict scrutiny. See
O’Brien, 768 F. Supp. 2d at 815-16. The majority endorses
that conclusion by way of footnote only, agreeing that,
because the Ordinance applies solely to persons who do not
provide or refer for abortions or nondirective and comprehen-
sive birth-control services, it burdens only "pro-life speakers,"
"whose moral or religious codes lead them to oppose abortion
and birth control." Ante at 34 n.4. It requires no lengthy delib-
eration to specify examples that entirely undermine the major-
ity’s supposition:
 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 65
• A Lamaze instructor, who teaches pregnant
women and their partners strategies for having a
natural, healthy pregnancy and childbirth, may
not provide referrals for abortion or birth-control
services simply because that is not the objective
of her job;

• A doula, who gives advice and emotional assis-
tance to pregnant women during childbirth,
would have no cause to even discuss abortion or
birth-control, much less make referrals;

• A pregnancy shelter, supplying material assis-
tance and information about pregnancy-related
products, may not make referrals for abortion or
nondirective and comprehensive birth-control
services so as to avoid liability because it has no
licensed or trained professionals to address those
subjects; and

• A center, encouraging or facilitating adoption
services or surrogate pregnancies, may be neither
qualified nor disposed to make referrals for abor-
tion or birth-control services.11
11
The foregoing examples are more appropriate than the district court’s
effort, made during its hearing on the parties’ respective motions, to com-
pare the Ordinance to a regulation requiring "a non-American car dealer-
ship . . . to post a sign that says, ‘We do not offer cars built in the United
States.’" J.A. 131. The court posed the hypothetical dealership regulation
to suggest that in the same way that "BMW salespeople would . . . be
handicapped by having their customers read the sign that they don’t want
their customers to think about that issue," the Ordinance disfavors the
Center because when a woman "comes in and [the Center] says we don’t
offer abortions" the woman thinks, "Oh, abortions, yeah, I guess I better
ask about that." Id. The court thus remarked the Ordinance is "not neu-
tral." Id. Comparing a woman’s right to seek lawful medical treatment to
a salesperson’s economic interest in keeping his customers ignorant is, as
the court initially thought before it made the comparison anyway, "a stu-
pid example." Id.
66 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
Absent the premise that the Ordinance burdens only pro-
life speakers, the majority’s fallback position is legislative
history, which, it asserts, demonstrates that the Ordinance was
enacted because of an improper animus of the City Council
against the Center’s viewpoint on abortion and birth-control.
As the majority points out, however, the City "has referred
and continues to refer women to the Pregnancy Center." Ante
at 37. If the City disfavors the Center’s viewpoint, or pos-
sesses an improper animus against the Center, its continual
referrals of women to the Center constitutes an unexplained
oddity. In any event, the record validates the City’s uncontra-
dicted contention that the Ordinance was enacted to curtail
deceptive advertising, not because the City disagreed with or
wanted to suppress the Center’s speech.12 And the majority
has failed to identify any aspects of the record that show oth-
erwise. If there were some ambiguity, however, that would be
more reason to conduct full discovery.13

C.

Even if all I have said to this point misses the mark, the dis-
trict court’s award of summary judgment to the Center must
nevertheless be vacated. Put simply, there are genuine dis-
putes of material fact regarding the issues of compelling inter-
ests and narrow tailoring that must be assessed.
12
As explained in Part I.A supra, the City Council acted carefully and
prudently in its adoption of the Ordinance. Even on this limited record, the
evidence supports its action, and the record shows that the Council secured
and relied on the advice of counsel. That record, which must be viewed
in the light most favorable to the City, fatally undermines any assertion of
improper animus against the Center or other limited-service pregnancy
centers. Indeed, the record shows conclusively that the animus assertion
has been created from whole cloth.
13
Notably, the need for discovery was evident in the Opinion’s descrip-
tion of the legislative record as "uneven when demonstrating the depth and
severity of the problem relating to limited-service pregnancy centers and
deceptive advertising." O’Brien, 768 F. Supp. 2d at 816.
 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 67
1.

Although the district court assumed that the Ordinance
serves a compelling interest, the majority disparages the two
such interests espoused by the City: (1) an "interest in protect-
ing the public from ongoing deceptive business practices";
and (2) a "public health interest in ensuring that individuals
who seek abortion or comprehensive birth-control services
have prompt access to those services." Br. of Appellants 35-
36. In addition to criticizing the incompleteness of the pre-
enactment record — which, as previously explained, would be
readily remedied with discovery — the majority "question[s]
[the City’s] selective pursuit of its interest." Ante at 36. My
fine colleagues protest in their majority opinion that the City
is not actually interested in combating inaccurate information
about pregnancy services, because the Ordinance does not
regulate "the vast majority of sources that pregnant women
would likely consult." Id.

The City, however, had an obligation to deal with existing
public health problems, without addressing the likelihood of
deception from every possible source of information available
to pregnant women. See 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 omitted)).
The majority persists, however, that the City could have
posted a "notice," placed a "warning on its own website," or
provided "public service information," rather than target a
pregnancy center’s speech, if it were really interested in com-
bating deceptive practices. Ante at 37. But such criticisms by
unelected judges are more a critique on the particular means
of serving the City’s compelling interests, discussed infra,
than a valid argument that those interests are not compelling.
68 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
In any event, the majority’s criticisms are lodged against
the City’s first identified compelling interest, with no more
than a nod to the second. The City undoubtedly possesses a
compelling interest in defending a woman’s right to obtain
timely information and medical care in connection with her
pregnancy. See Madsen v. Women’s Health Ctr., Inc., 512
U.S. 753, 767 (1994) (agreeing that Florida had a "strong
interest in protecting a woman’s freedom to seek lawful medi-
cal or counseling services in connection with her pregnancy").
Indeed, the City filed the Blum declaration to further substan-
tiate that very interest. See J.A. 44. Dr. Blum therein
explained that public health is advanced by providing com-
plete and accurate information to women about their health
care options because, inter alia:

• "The evidence is crystal clear that family plan-
ning is one of the best strategies for women in the
United States . . . to improve their health and
well-being, as well as that of their offspring." Id.
at 45;

• "Women who can plan the number and timing of
their births experience fewer unwanted pregnan-
cies and births and have lower rates of abortion."
Id.; and

• "Certain people are particularly vulnerable to
being deceived by limited-service pregnancy cen-
ters that fail to disclose the scope of services that
they provide. Those people include adolescents
and those who are poor or otherwise marginal-
ized in society." Id. at 46.

Notwithstanding the foregoing, the Blum declaration —
which is uncontroverted — was never referenced by the dis-
trict court. And, because this is an appeal from summary judg-
ment, the Blum declaration must be viewed in the light most
favorable to the City. See Kubicko v. Ogden Logistics Servs.,
 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 69
181 F.3d 544, 551 (4th Cir. 1999) (observing that, in review-
ing the propriety of summary judgment, an appellate court
considers "the facts in the light most favorable to the non-
moving party, drawing all reasonable inferences from the affi-
davits . . . submitted below in his or her favor"). Dr. Blum’s
evidence alone was more than sufficient to create a genuine
dispute of material fact on the compelling interest require-
ment. Cf. TFWS, Inc. v. Shaefer, 325 F.3d 234, 241-42 (4th
Cir. 2003) (vacating summary judgment award because non-
moving party proffered expert reports demonstrating genuine
disputes of material fact); McTernan v. City of York, Pa., 564
F.3d 636, 651 (3d Cir. 2009) (concluding factual disputes
concerning city’s compelling interests barred summary judg-
ment).

2.

Both the district court and the panel majority described the
lack of narrow tailoring as the Ordinance’s "fatal" constitu-
tional defect. See ante at 37; O’Brien, 768 F. Supp. 2d at 817.
On this record, however, such a conclusion simply cannot be
sustained.

a.

Notwithstanding all the controversy and litigation this
Ordinance has engendered, we must be mindful that we are
dealing with a one-sentence, non-verbal, truthful disclaimer
posted on a sign in a waiting room. The Ordinance does not
otherwise prohibit or inhibit a limited-service pregnancy cen-
ter’s speech. Indeed, the Ordinance is so minimally burden-
some that the majority condemns it as underinclusive —
failing "to regulate ‘deceptive practices’ or false advertising,"
the City’s first identified compelling interest. Ante at 38.

The courts have consistently recognized, however, that,
when confronted with false or misleading advertising, "the
preferred remedy is more disclosure, rather than less." See
70 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
Bates v. State Bar of Ariz., 433 U.S. 350, 375 (1977);
Zauderer v. Office of Disciplinary Counsel of Supreme Court
of Ohio, 471 U.S. 626, 651 (1985) (observing that a "dis-
claimer might be appropriately required . . . in order to dissi-
pate the possibility of consumer confusion or deception"
(alteration and internal quotation marks omitted)). As we have
explained, "[d]isclosure laws perform the important function
of deterring actual corruption and avoiding the appearance of
corruption, but unlike other types of restrictive laws," disclo-
sures have the added advantage of promoting "speech by
making more information available to the public and thereby
bolstering the ‘marketplace of ideas.’" Master Printers of Am.
v. Donovan, 751 F.2d 700, 710 (4th Cir. 1984). Nevertheless,
to go further than a simple waiting room sign — by, for
example, legislating precisely what a limited-service preg-
nancy center must say in an advertisement — could "chase
[the City] into overbroad restraints of speech." Cf. Nat’l Fed’n
of the Blind v. FTC, 420 F.3d 331, 345-46 (4th Cir. 2005).

b.

In the same vein that it condemns the Ordinance as
underinclusive, the majority maintains that the disclaimer is
overinclusive because "it applies equally to pregnancy centers
that engage in deceptive practices and those whose speech is
entirely truthful." Ante at 38. But the Ordinance applies
equally to all limited-service pregnancy centers, due to the
inherent potential for consumer confusion and deception con-
cerning the services provided. Cf. Fed. Election Comm’n v.
Nat’l Right to Work Comm., 459 U.S. 197, 210 (1982) (reject-
ing contention that statute likely applicable to violators and
nonviolators alike was overinclusive because it aimed "to pre-
vent both actual and apparent corruption" and "it is the poten-
tial for such influence that demands regulation"). In that
regard, exempting certain limited-service pregnancy centers
could undermine "the efficacy of [the Ordinance’s] overall
scheme." See Am. Legion Post 7 of Durham, N.C. v. City of
Durham, 239 F.3d 601, 610 (4th Cir. 2001) (deeming ordi-
 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 71
nance applicable to commercial and noncommercial entities
as nevertheless narrowly tailored); cf. Borgner v. Brooks, 284
F.3d 1204, 1214 (11th Cir. 2002) (concluding that disclaimer
constituted "constitutional alternative, one which is less
restrictive, yet sufficient to cure the potential deception and
ultimately serving the state’s interest").

c.

Finally, my good colleagues of the majority suggest that the
Ordinance is not the least restrictive means of preventing
deceptive advertising by limited-service pregnancy centers.
They insist that the City could have undertaken a public edu-
cation campaign to raise awareness, that it could have distrib-
uted information or operated a website about the services
offered by such pregnancy centers, or that it simply could
have prosecuted offenders of deceptive advertising laws. Pur-
suant to Supreme Court precedent, "[w]hen a plausible, less
restrictive alternative is offered to a content-based speech
restriction, it is the Government’s obligation to prove that the
alternative will be ineffective to achieve its goals." United
States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 816
(2000). Put simply, however, the City has never been
accorded a meaningful opportunity to satisfy that burden. The
Center did not, until it replied concerning its own summary
judgment request, propose any less restrictive alternatives.
Thereafter, the district court denied the City its right to con-
duct discovery and awarded summary judgment to the Center.
In so doing, the court suggested other less restrictive alterna-
tives. Of course, the City has argued — in both the district
court and on appeal — that these alternatives would be inef-
fectual or less effective. Importantly, however, the City has
never had a chance to adduce evidence with respect to those
alternatives.

At the very least, however, the City has identified a genuine
dispute of material fact on the narrow tailoring requirement.
The Ordinance requires only the disclaimer, which is critical
72 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
to the analysis. As the Supreme Court has most recently again
emphasized, a "disclosure is a less restrictive alternative to
more comprehensive regulations of speech." See Citizens
United v. Fed. Election Comm’n, 130 S. Ct. 876, 915 (2010).
Moreover, "the First Amendment interests implicated by dis-
closure requirements are substantially weaker than those at
stake when speech is actually suppressed." Zauderer, 471
U.S. at 651 n.14 (1985) (observing that "disclosure require-
ments trench much more narrowly . . . than do flat prohibi-
tions on speech"). Public education campaigns and websites
may be successful to some degree, but they do not ensure that
every woman who visits a limited-service pregnancy center
will be apprised of the services offered there, at a time when
such information is most needed. Inadequate or unenforceable
deceptive advertising statutes, problems of proof, and scarcity
of resources can also impact efforts to prosecute limited-
service pregnancy centers. It is worth reiterating that the least
restrictive alternatives must be "as effective in achieving the
[Ordinance’s] legitimate purpose." See Reno v. Am. Civil Lib-
erties Union, 521 U.S. 844, 846 (1997) (emphasis added).

Summary judgment is never appropriate where, as here,
there are genuine disputes of material fact on the narrow tail-
oring requirement. See, e.g., Snell v. City of York, Pa., 564
F.3d 659, 669-70 (3d Cir. 2009) (identifying factual issues
regarding whether police officer’s restrictions against pro-
tester were narrowly tailored to meet government’s compel-
ling interests); Greene v. Solano Cnty. Jail, 513 F.3d 982, 989
(9th Cir. 2008) (holding that the court erred in awarding sum-
mary judgment "[b]ecause disputed issues of material fact
exist as to whether the policy of prohibiting group worship by
maximum security prisoners is the least restrictive means of
maintaining security"); 729, Inc. v. Kenton Cnty. Fiscal
Court, 515 F.3d 485, 504-05 (6th Cir. 2008) (vacating sum-
mary judgment award where factual issues were apparent on
whether ordinance regulating sexually oriented businesses
was narrowly tailored); Cmty. for Creative Non-Violence v.
Turner, 893 F.2d 1387, 1395 (D.C. Cir. 1990) (remanding for
 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 73
development of factual issues concerning whether regulation
was sufficiently narrowly tailored to survive First Amend-
ment scrutiny).

III.

Because the district court erred in denying discovery to the
City, and in awarding summary judgment to the Center in the
face of genuine disputes of material fact, I would vacate the
judgment and remand for such further proceedings as may be
appropriate.

In these circumstances, I respectfully dissent.