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

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-1111

GREATER BALTIMORE CENTER FOR PREGNANCY CONCERNS,
INCORPORATED,

Plaintiff – Appellee,

and

ST. BRIGID’S ROMAN CATHOLIC CONGREGATION INCORPORATED;
ARCHBISHOP WILLIAM E. LORI, as successor to Archbishop
Edwin F. O’Brien, Archbishop of Baltimore, and his
successor in office, a corporation sole,

Plaintiffs,

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

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, Associate Professor Emeritus of Law,
University of Maryland School of Law; ERWIN CHEMERINSKY,
Dean and Distinguished Professor of Law, University of
California, Irvine School of Law; ROBERT J. CONDLIN,
Professor of Law, University of Maryland School of Law;
NORMAN DORSEN, Frederick I. and Grace A. Stokes Professor
of Law, New York University School of Law; LEIGH GOODMARK,
Associate Professor of Law, University of Baltimore School
of Law; STEVEN P. GROSSMAN, Dean Julius Isaacson Professor
of Law, University of Baltimore School of Law; MARTIN
GUGGENHEIM, Fiorello LaGuardia Professor of Clinical Law,
New York University School of Law; DEBORAH HELLMAN,
Professor of Law and Jacob France Research Professor,
University of Maryland School of Law; MARGARET E. JOHNSON,
Assistant Professor of Law, University of Baltimore School
of Law; KENNETH LASSON, Professor of Law, University of
Baltimore School of Law; SYLVIA A. LAW, Elizabeth K.
Dollard Professor of Law, Medicine and Psychiatry, New York
University School of Law; SUSAN PAULA LEVITON, Professor of
Law, University of Maryland School of Law; AUDREY
MCFARLANE, Professor of Law, University of Baltimore School
of Law; PAULA A. MONOPOLI, Professor of Law, University of
Maryland School of Law; BURT NEUBORNE, Inez Milholland
Professor of Civil Liberties, New York University School of
Law; JOHN T. NOCKLEBY, Professor of Law, Loyola Law School;
HELEN L. NORTON, Associate Professor of Law, University of
Colorado School of Law; DAVID A.J. RICHARDS, Edwin D. Webb
Professor of Law, New York University School of Law;
ELIZABETH J. SAMUELS, Professor of Law, University of
Baltimore School of Law; ELIZABETH M. SCHNEIDER, Rose L.
Hoffer Professor of Law, Brooklyn Law School; JANA B.
SINGER, Professor of Law, University of Maryland School of
Law; BARBARA ANN WHITE, Professor of Law, University of
Baltimore School of Law; TOBIAS BARRINGTON WOLFF, Professor
of Law, University of Pennsylvania Law School; DIANE L.
ZIMMERMAN, Samuel Tilden Professor of Law Emerita, New York
University 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 HEALTH ACCESS; NADINE PEACOCK;
PHYSICIANS FOR REPRODUCTIVE CHOICE AND HEALTH; MARK SEIGEL;
LAURIE SCHWAB ZABIN; EVA MOORE; 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; 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

2
MARYLAND, INCORPORATED; HUMAN RIGHTS WATCH; SUSAN DELLER
ROSS, Professor; ELIJAH CUMMINGS,

Amici Supporting Appellants,

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; 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, 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; LYNN
D. WARDLE, Bruce C. Hafen Professor of Law, J. Reuben Clark
Law School, Brigham Young University; THE NATIONAL LEGAL
FOUNDATION,

3
Amici Supporting Appellees.

No. 11-1185

Plaintiffs – Appellants,

and

GREATER BALTIMORE CENTER FOR PREGNANCY CONCERNS,
INCORPORATED,

Plaintiff,

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

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

4
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; 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; 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; THE NATIONAL LEGAL FOUNDATION,

Amici Supporting Appellants,

5
of Law, University of Baltimore School of Law; MARTIN
GUGGENHEIM, Fiorello LaGuardia Professor of Clinical Law,
New York University School of Law; DEBORAH HELLMAN,
Professor of Law and Jacob France Research Professor,
University of Maryland School of Law; MARGARET E. JOHNSON,
Assistant Professor of Law, University of Baltimore School
of Law; KENNETH LASSON, Professor of Law, University of
Baltimore School of Law; SUSAN PAULA LEVITON, Professor of
Law, University of Maryland School of Law; SYLVIA A. LAW,
Elizabeth K. Dollard Professor of Law, Medicine and
Psychiatry, New York University School of Law; AUDREY
MCFARLANE, Professor of Law, University of Baltimore School
of Law; PAULA A. MONOPOLI, Professor of Law, University of
Maryland School of Law; BURT NEUBORNE, Inez Milholland
Professor of Civil Liberties, New York University School of
Law; JOHN T. NOCKLEBY, Professor of Law, Loyola Law School;
HELEN L. NORTON, Associate Professor of Law, University of
Colorado School of Law; DAVID A.J. RICHARDS, Edwin D. Webb
Professor of Law, New York University School of Law;
ELIZABETH M. SCHNEIDER, Rose L. Hoffer Professor of Law,
Brooklyn Law School; ELIZABETH J. SAMUELS, Professor of
Law, University of Baltimore School of Law; JANA B. SINGER,
Professor of Law, University of Maryland School of Law;
BARBARA ANN WHITE, Professor of Law, University of
Baltimore School of Law; TOBIAS BARRINGTON WOLFF, Professor
of Law, University of Pennsylvania Law School; DIANE L.
ZIMMERMAN, Samuel Tilden Professor of Law Emerita, New York
University School of Law; INTERNATIONAL MUNICIPAL LAWYERS
ASSOCIATION; AMERICAN MEDICAL WOMEN’S ASSOCIATION; MATERNAL
AND CHILD HEALTH ACCESS; PHYSICIANS FOR REPRODUCTIVE CHOICE
AND HEALTH; CHESAPEAKE REGIONAL CHAPTER OF THE SOCIETY FOR
ADOLESCENT HEALTH AND MEDICINE; ROBERT BLUM; WILLARD CATES,
JR.; ERIC LEVEY; NADINE PEACOCK; MARK SEIGEL; LAURIE SCHWAB
ZABIN; EVA MOORE; 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;
ELIJAH CUMMINGS,

6
Amici Supporting Appellees.

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: December 6, 2012 Decided: July 3, 2013

Before TRAXLER, Chief Judge, and WILKINSON, NIEMEYER, MOTZ,
KING, SHEDD, DUNCAN, AGEE, KEENAN, WYNN, FLOYD, and THACKER,
Circuit Judges.

No. 11-1111 vacated and remanded, and No. 11-1185 affirmed, by
published opinion. Judge King wrote the majority opinion, in
which Chief Judge Traxler and Judges Motz, Duncan, Keenan, Wynn,
Floyd, and Thacker joined. Judge Wilkinson wrote a dissenting
opinion. Judge Niemeyer wrote a dissenting opinion, in which
Judges Wilkinson, Shedd, and Agee joined.

ARGUED: Suzanne Sangree, CITY OF BALTIMORE LAW DEPARTMENT,
Baltimore, Maryland, for Mayor and City Council of Baltimore,
Stephanie Rawlings-Blake, Mayor of Baltimore, in her Official
Capacity, and Oxiris Barbot, Baltimore City Health Commissioner.
David William Kinkopf, GALLAGHER EVELIUS & JONES, LLP,
Baltimore, Maryland, for Greater Baltimore Center for Pregnancy
Concerns, Incorporated, St. Brigid’s Roman Catholic
Congregation, Incorporated, Archbishop William E. Lori. ON
BRIEF: Stephanie Toti, Special Assistant City Solicitor, CENTER
FOR REPRODUCTIVE RIGHTS, New York, New York, for Mayor and City
Council of Baltimore, Stephanie Rawlings-Blake, Mayor of
Baltimore, in her Official Capacity, and Oxiris Barbot,
Baltimore City Health Commissioner. Peter J. Basile, FERGUSON,
SHETELICH & BALLEW, PA, Baltimore, Maryland; Steven G. Metzger,
GALLAGHER EVELIUS & JONES, LLP, Baltimore, Maryland; Mark L.
Rienzi, COLUMBUS SCHOOL OF LAW, Catholic University of America,
Washington, D.C., for Greater Baltimore Center for Pregnancy
Concerns, Incorporated, St. Brigid’s Roman Catholic
Congregation, Incorporated, Archbishop William E. Lori. 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 Baltimore, Stephanie Rawlings-Blake,

7
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 Baltimore, Stephanie Rawlings-Blake, Mayor of
Baltimore, in her Official Capacity, and Oxiris Barbot,
Baltimore City Health Commissioner. Simona G. Strauss, Melissa
D. Schmidt, SIMPSON THACHER & BARTLETT LLP, Palo Alto,
California; Jayma M. Meyer, SIMPSON THACHER & BARTLETT 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 Barbot, Baltimore City Health Commissioner. Kimberly
A. Parker, Zaid A. Zaid, Lesley Fredin, WILMER CUTLER PICKERING
HALE AND DORR LLP, Washington, D.C., for Catholics for Choice,
DC Abortion Fund, Donna Edwards, Maryland Chapter for the
National Organization for Women, Naral Pro-Choice America, Naral
Pro-Choice Maryland, National Abortion Federation, National
Advocates for Pregnant Women, National Asian Pacific American
Women's Forum, Planned Parenthood of Maryland, Mike Quigley,
Religious Coalition for Reproductive Choice, Louise Slaughter,
Jackie Speier, Whole Woman’s Health of Baltimore, Women's Law
Center of Maryland, Incorporated, Elijah Cummings, Amici Curiae
in Support of Mayor and City Council of Baltimore, Stephanie
Rawlings-Blake, Mayor of Baltimore, in her Official Capacity,
and Oxiris Barbot, Baltimore City Health Commissioner. Anna R.
Franzonello, Mailee R. Smith, Mary E. Harned, Denise M. Burke,
AMERICANS UNITED FOR LIFE, Washington, D.C., for 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,
and Rockville Pregnancy Center, Incorporated, Amici Curiae in
Support of Greater Baltimore Center for Pregnancy Concerns,
Incorporated, St. Brigid’s Roman Catholic Congregation,
Incorporated, Archbishop William E. Lori. Colby M. May, James
Matthew Henderson, Sr., Tiffany N. Barrans, AMERICAN CENTER FOR
LAW & JUSTICE, Washington, D.C.; Cecilia N. Heil, Erik M.
Zimmerman, AMERICAN CENTER FOR LAW & JUSTICE, Virginia Beach,
Virginia; Carly F. Gammill, AMERICAN CENTER FOR LAW & JUSTICE,
Franklin, Tennessee, for American Center for Law and Justice,
Amicus Curiae in Support of Greater Baltimore Center for
Pregnancy Concerns, Incorporated, St. Brigid’s Roman Catholic
Congregation, Incorporated, Archbishop William E. Lori. Matthew

8
S. Bowman, ALLIANCE DEFENDING FREEDOM, Washington, 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,
Incorporated, St. Brigid’s Roman Catholic Congregation,
Incorporated, Archbishop William E. Lori. 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
Concerns, Incorporated, St. Brigid’s Roman Catholic
Congregation, Incorporated, Archbishop William E. Lori. Steven
W. Fitschen, THE NATIONAL LEGAL FOUNDATION, Virginia Beach,
Virginia; John P. Tuskey, BINGHAM AND LOUGHLIN, P.C., Mishawaka,
Indiana, for The National Legal Foundation, Amicus Curiae in
Support of Greater Baltimore Center for Pregnancy Concerns,
Incorporated, St. Brigid’s Roman Catholic Congregation,
Incorporated, Archbishop William E. Lori.

9
KING, Circuit Judge:

Invoking the First Amendment, the district court fully and

permanently enjoined enforcement of a City of Baltimore

Ordinance requiring limited-service pregnancy centers to post

disclaimers that they do not provide or make referrals for

abortions or certain birth-control services. The injunction

emanated from the court’s award of summary judgment to plaintiff

Greater Baltimore Center for Pregnancy Concerns, Incorporated,

on its claim that the Ordinance is facially invalid under the

Free Speech Clause. See O’Brien v. Mayor of Balt., 768 F. Supp.

2d 804, 812-17 (D. Md. 2011). Crucially, however, the summary

judgment decision was laden with error, in that the court denied

the defendants essential discovery and otherwise disregarded

basic rules of civil procedure. We therefore vacate the

judgment and remand for further proceedings, without comment on

how this matter ultimately should be resolved. 1

1
To be clear, we vacate and remand in the appeal (No. 11-
1111) noted by defendants Mayor and City Council of Baltimore;
Stephanie Rawlings-Blake, in her official capacity as Mayor of
Baltimore; and Oxiris Barbot, in her official capacity as
Baltimore City Health Commissioner. We affirm, however, in the
cross-appeal (No. 11-1185) of St. Brigid’s Roman Catholic
Congregation Incorporated and Archbishop William E. Lori,
contesting the district court’s ruling that they lack standing
to be co-plaintiffs with the Greater Baltimore Center for
Pregnancy Concerns. See O’Brien, 768 F. Supp. 2d at 811-12. On
initial review by a three-judge panel of our Court, the majority
affirmed both the district court’s summary judgment decision and
its standing ruling. See Greater Balt. Ctr. for Pregnancy
(Continued)
10
I.

The challenged Ordinance — City of Baltimore Ordinance 09-

252 — was passed by the City Council on November 23, 2009, and

approved by the Mayor on December 4, 2009. See J.A. 25-28. 2 The

Ordinance applies to limited-service pregnancy centers, defined

as “any person”:

(1) whose primary purpose is to provide pregnancy-
related services; and

(2) who:

(I) for a fee or as a free service,
provides information about pregnancy-
related services; but

(II) does not provide or refer for:

(A) abortions; or

(B) nondirective and comprehensive birth-
control services.

Id. at 25-26. Under the Ordinance, “[a] limited-service

pregnancy center must provide its clients and potential clients

Concerns, Inc. v. Mayor of Balt., 683 F.3d 539 (4th Cir. 2012).
The panel opinion was subsequently vacated, however, with the
grant of rehearing en banc. See Greater Balt. Ctr. for
Pregnancy Concerns, Inc. v. Mayor of Balt., No. 11-1111(L) (4th
Cir. Aug. 15, 2012).
2
Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in these appeals.

11
with a disclaimer substantially to the effect that the center

does not provide or make referral for abortion or birth-control

services.” Id. at 26. The disclaimer is to be given by way of

one or more signs that are “written in English and Spanish,”

“easily readable,” and “conspicuously posted in the center’s

waiting room or other area where individuals await service.”

Id.

By an implementing Regulation of the Baltimore City Health

Department, nondirective and comprehensive birth-control

services are defined as “birth-control services which only a

licensed healthcare professional may prescribe or provide.” See

J.A. 39-40. 3 The Regulation specifies that, if a “center

provides or refers for some birth-control services, it may

indicate on the disclaimer sign what birth-control services it

does provide and/or refer for.” Id. at 40. Additionally, the

Regulation authorizes a center to “indicate on the disclaimer

sign that the sign is required by Baltimore City ordinance.”

Id.

3
The Joint Appendix contains the original version of the
Regulation, adopted on July 15, 2010, which indicated that
nondirective and comprehensive birth-control services “may also
include other birth-control services.” J.A. 39. That language
was deleted from the Regulation on September 27, 2010, after
being deemed problematic in the course of this litigation.
Otherwise, there are no substantive differences between the
original and superseding versions of the Regulation.

12
The Ordinance vests enforcement powers in the Baltimore

City Health Commissioner, who, upon “learn[ing] that a pregnancy

center is in violation of [the Ordinance],” must “issue a

written notice ordering the center to correct the violation

within 10 days of the notice or within any longer period that

the Commissioner specifies in the notice.” J.A. 26. If a

center fails to comply with a violation notice, the Commissioner

may issue an environmental or a civil citation pursuant to the

Baltimore City Code. Id. at 27. The Commissioner may also

“pursu[e] any other civil or criminal remedy or enforcement

action authorized by law.” Id.

This 42 U.S.C. § 1983 action — challenging the

constitutionality of the Ordinance — was initiated in the

District of Maryland on March 29, 2010, by the Greater Baltimore

Center for Pregnancy Concerns (the “Center”), together with St.

Brigid’s Roman Catholic Congregation and then-Archbishop Edwin

F. O’Brien. The plaintiffs’ Complaint names as defendants the

Mayor and City Council of Baltimore; Stephanie Rawlings-Blake,

in her official capacity as Mayor of Baltimore; and Olivia

Farrow, in her official capacity as then-Acting Baltimore City

Health Commissioner (collectively, the “City”). Since then, two

of the parties have been succeeded: now-Cardinal O’Brien by

13
Archbishop William E. Lori, and Farrow by Baltimore City Health

Commissioner Oxiris Barbot. 4

The Complaint reflects that the Center qualifies under the

Ordinance as a limited-service pregnancy center, in that it “has

as its primary purpose providing pregnancy-related services and

provides information about pregnancy-related services as a free

service”; “does not refer for or provide abortions”; and “does

not refer for, or provide information regarding birth control,

other than natural family planning and abstinence.” Complaint

¶¶ 25-26. The Center offers pregnancy-related services at two

locations in Baltimore, including a space owned by St. Brigid’s

and the Archbishop. Id. ¶¶ 10, 16-18. According to the

Complaint, the plaintiffs share sincerely held religious beliefs

that cause them to oppose abortion and certain forms of birth

control. Id. ¶¶ 40-41, 43-44. The Complaint alleges that the

Ordinance violates the First Amendment rights of free speech,

free assembly, and free exercise of religion, plus the

Fourteenth Amendment guarantee of equal protection and

Maryland’s statutory “conscience clause,” see Md. Code Ann.,

4
The plaintiffs consented to dismiss without prejudice
their claims against an additional defendant, the Baltimore City
Health Department. See O’Brien, 768 F. Supp. 2d at 808 n.5.
Meanwhile, the City voluntarily refrained from enforcing the
Ordinance prior to the entry of the district court’s judgment.

14
Health-Gen. § 20-214(a)(1) (providing, inter alia, that “[a]

person may not be required to . . . refer to any source for[]

any medical procedure that results in . . . termination of

pregnancy”). The Ordinance is attached to the Complaint as its

sole exhibit.

On June 4, 2010, before the City even had answered the

Complaint and when there were four days remaining for it to do

so, the plaintiffs filed a motion for partial summary judgment

under Rule 56 of the Federal Rules of Civil Procedure.

Specifically, the plaintiffs sought judgment on their free

speech, free assembly, and equal protection claims, contending

that the Ordinance is unconstitutional on its face and as

applied to them. The plaintiffs insisted that the strict

scrutiny standard applies and cannot be satisfied, because the

Ordinance fosters viewpoint discrimination against what they

termed “pro-life pregnancy centers” and unjustifiably compels

only those centers to engage in government-mandated speech. The

plaintiffs portrayed the Ordinance-mandated sign as ensuring

that every conversation at a limited-service pregnancy center

begins with the subject of abortion, and conveying the morally

offensive message that abortion is available elsewhere and might

be considered a good option.

The plaintiffs supported their summary judgment motion with

an affidavit of Carol Clews, the Center’s Executive Director,

15
corroborating several of the factual allegations in the

Complaint. See J.A. 29-31 (the “Clews Affidavit” of June 3,

2010). The Clews Affidavit asserted that, “[i]f not required by

law, the Center would not post the disclaimer compelled by

Baltimore City Ordinance 09-252.” Id. at 30. The plaintiffs

also proffered an excerpt from the “Journal of the City Council”

reflecting that the Council rejected proposed amendments to the

Ordinance aimed at expanding its disclosure requirements to,

e.g., pregnancy centers that refer for abortions but not

adoptions. Id. at 296-99.

On June 8, 2010, the City filed a motion to dismiss the

Complaint in its entirety, pursuant to Federal Rule of Civil

Procedure 12(b)(6), for failure to state a claim upon which

relief can be granted, or alternatively to dismiss the claims of

St. Brigid’s and the Archbishop, under Rule 12(b)(1), for lack

of standing. The City characterized the Ordinance as a consumer

protection regulation, referring to evidence in the Ordinance’s

legislative record showing that limited-service pregnancy

centers often engage in deceptive advertising to attract women

seeking abortion and comprehensive birth-control services, and

then use delay tactics to impede the women from accessing those

services. According to the City, limited-service pregnancy

centers thereby pose a threat to public health, in that the

risks and costs of abortion increase as a woman advances through

16
her pregnancy, and that delays in access to the birth control of

a woman’s choice can leave the woman vulnerable to unintended

pregnancy and sexually transmitted diseases.

The parties’ respective dispositive motions prompted the

district court to enter a Scheduling Order specifying deadlines

for further related submissions. In compliance with the

Scheduling Order, the plaintiffs filed a response to the City’s

motion to dismiss on July 2, 2010; the City submitted a reply

concerning its dismissal motion, combined with a response to the

plaintiffs’ motion for summary judgment, on July 16, 2010; and

the plaintiffs filed a reply with respect to their summary

judgment motion on July 23, 2010.

The City’s July 16, 2010 submission included four pieces of

evidence from the Ordinance’s legislative record that had

previously been referenced in the City’s motion to dismiss. The

first such piece of evidence was a July 2006 report prepared for

Congressman Henry A. Waxman entitled “False and Misleading

Health Information Provided by Federally Funded Pregnancy

Resource Centers.” See J.A. 413-30 (the “Waxman Report”). The

Waxman Report concerned pro-life pregnancy centers referred to

as “pregnancy resource centers,” and it recited, in pertinent

part, that

17
[p]regnancy resource centers often mask their pro-life
mission in order to attract “abortion-vulnerable
clients.” This can take the form of advertising under
“abortion services” in the yellow pages or obscuring
the fact that the center does not provide referrals to
abortions in the text of an advertisement. Some
centers purchase advertising on internet search
engines under keywords that include “abortion” or
“abortion clinics.” Other advertisements represent
that the center will provide pregnant teenagers and
women with an understanding of all of their options.
For example, “Option Line,” a joint venture of
[national umbrella organizations] Heartbeat
International and Care Net, is a 24-hour telephone
hotline that connects pregnant teenagers and women
with pregnancy resource centers in their communities.
The main page of Option Line’s website states at the
top, “Pregnant? Need Help? You Have Options,” but
does not reveal that both Heartbeat International and
Care Net represent only pro-life centers or that only
non-abortion options will be counseled.

Id. at 417-18 (footnotes omitted). Otherwise, the Waxman Report

focused on information that was provided over the telephone by

federally funded pregnancy resource centers in fifteen states to

investigators posing as pregnant seventeen-year-old girls.

The City’s second piece of evidence from the Ordinance’s

legislative history — a January 2008 report of the NARAL Pro-

Choice Maryland Fund entitled “The Truth Revealed: Maryland

Crisis Pregnancy Center Investigations” — was premised on visits

by investigators to “crisis pregnancy centers” or “CPCs” all

located in Maryland. See J.A. 326-412 (the “Maryland Report”).

The Maryland Report’s findings included the following:

Maryland Crisis Pregnancy Centers attract clients with
their advertisements offering free pregnancy tests and
“pregnancy options counseling.” This is a very

18
appealing offer for women in a vulnerable time in
their lives. After providing free urine pregnancy
tests (the kind available at any drug store), women
are counseled with only negative information about the
option of abortion. They are given wildly inaccurate
information about the physical and mental health risks
associated with abortion, and informed only about the
joys of parenting and adoption. If a client continues
to consider abortion, she is given false information
about abortion service availability and encouraged to
delay her decision. CPCs that offer ultrasounds and
[sexually transmitted infection] testing are able to
delay clients further through appointment wait times,
while also gaining a sense of authority and
credibility in their client’s eyes as a medical
service provider. However, CPCs are not medical
centers. They are operated by volunteers who are, in
general, poorly trained in women’s reproductive health
issues and well trained in anti-choice propaganda.

Id. at 334.

The City’s third and fourth pieces of evidence from the

Ordinance’s legislative record consisted of written testimony.

Tori McReynolds recounted that, sixteen years earlier, when she

was a sixteen-year-old girl who needed to know if she was

pregnant, her mother arranged for her to visit a limited-service

pregnancy center in central Maryland that “was listed in the

phone book under ‘Abortion Counseling.’” J.A. 261 (emphasis

omitted). McReynolds produced a urine sample for a pregnancy

test “and was told that it would take about 45 minutes to know

the result.” Id. During the waiting period, a woman at the

center subjected McReynolds to anti-abortion propaganda. Id.

McReynolds testified: “I felt tricked; I was a frightened

teenager expecting a discussion about my options and instead I

19
was bullied by an opinionated adult twice my age. . . . Had my

mother and I seen a sign at that reception desk informing us

that we could not get referrals for abortion or birth control,

we would have simply moved on.” Id.

Dr. Jodi Kelber-Kaye of the University of Maryland,

Baltimore County, testified that, “[a]s an educator of college-

aged women,” she had “heard countless stories from students who

go [to limited-service pregnancy centers], assuming they will

get a full range of services and counseling and wind up feeling

harassed, coerced, and misinformed.” J.A. 273. Dr. Kelber-Kaye

also said she was “distressed by the existence of centers that,

on purpose, appear to be medical facilities and are not staffed

by licensed medical personnel, nor even licensed counselors.”

Id. “Simply put,” Kelber-Kaye concluded, “there should be truth

in advertising and, like all consumer products, limited-service

pregnancy centers need to be kept honest about what services

they actually provide.” Id.

In addition to discussing the foregoing evidence, the City

asserted in its July 16, 2010 submission that the plaintiffs’

summary judgment request was premature, in that the City had not

been afforded the opportunity to conduct discovery or to fully

20
develop expert testimony on key factual issues. 5 The City

contended that discovery was needed to test the veracity of the

plaintiffs’ allegations and to develop evidence tending to

refute their claims. Pursuant to former Rule 56(f), the City

submitted an affidavit of Special Assistant City Solicitor

Stephanie Toti, identifying issues that required discovery. See

J.A. 41-43 (the “Rule 56(f) Affidavit” of July 16, 2010); see

also Fed. R. Civ. P. 56(f) (2010) (providing that, “[i]f a party

opposing the motion [for summary judgment] shows by affidavit

that, for specified reasons, it cannot present facts essential

to justify its opposition, the court may,” inter alia, “deny the

motion” or “order a continuance to enable . . . discovery to be

undertaken”). 6

The Rule 56(f) Affidavit specified that the City needed “to

conduct discovery concerning the advertising that the

[plaintiff] Center and other limited-service pregnancy centers

employ, [to] demonstrate its deceptive character.” J.A. 42.

The Affidavit also deemed discovery necessary “to develop

5
In accordance with Federal Rule of Civil Procedure
26(d)(1), the City was constrained to respond to the plaintiffs’
summary judgment motion without the benefit of discovery because
the parties had not yet conferred as required by Rule 26(f).
6
By amendment that took effect on December 1, 2010, former
Rule 56(f) was carried forward into subdivision (d) without
substantial change.

21
factual support for [the City’s] argument that the services

offered by [the Center] are a form of commerce, and, therefore,

the disclaimer required by the Ordinance is commercial speech,

subject only to rational basis scrutiny — not strict scrutiny.”

Id. Additionally, the Affidavit maintained that the City

“require[d] the opportunity to develop expert testimony to

provide factual support for the propositions that deceptive

advertising by limited-service pregnancy centers threatens

public health in a variety of ways.” Id. at 41. The Affidavit

explained that one potential expert, Dr. Laurie Schwab Zabin,

had “agreed to provide [the City] with a declaration detailing

the harms that can result from delays in women’s access to

abortion or comprehensive birth control services.” Id. at 42.

Dr. Zabin had not completed her declaration, however, and was

then abroad on vacation. Id.

The Rule 56(f) Affidavit further disclosed that another

potential expert, Dr. Robert Blum, had already provided a

declaration to the City, which the City in turn included in its

July 16, 2010 submission to the district court. See J.A. 44-46

(the “Blum Affidavit” of June 17, 2010). In his Affidavit, Dr.

Blum, the Director of the Johns Hopkins University Urban Health

Institute, confirmed that “[p]ublic health is advanced when

individuals are provided with complete and accurate information

about their health care options and the availability of health

22
care services. This is especially true for women who are facing

unintended pregnancies or seeking to control their fertility.”

Id. at 45. The Blum Affidavit elaborated:

Women seeking family planning services or pregnancy-
related care are at a disadvantage relative to service
providers in two ways. First, providers possess more
information than consumers. Second, providers possess
more power than consumers. As a result, full
disclosure of what services a provider is offering, as
well as what biases underlie the provision of those
services, is needed to ensure that consumers are not
deceived or taken advantage of; consumers are able to
make fully informed, autonomous decisions about family
planning or pregnancy-related care; and consumers have
timely access to the services they seek.

Id. at 45-46. According to the Blum Affidavit, the Ordinance

“serves important public health goals” by “provid[ing] women

with key information they need to make decisions about where to

go for reproductive health care.” Id. at 45. The City

indicated that the Blum Affidavit was representative of evidence

it sought to develop during discovery proceedings.

The state of the evidentiary record was discussed during a

motions hearing conducted by the district court on August 4,

2010. See J.A. 47-141. The City reiterated its need for

discovery to counter the plaintiffs’ summary judgment motion,

and it requested the opportunity to submit the Ordinance’s

entire legislative record so that the court could “review all of

23
it and not just the portions that” were included in the City’s

submission of July 16, 2010. Id. at 127.

For their part, the plaintiffs maintained that no discovery

was warranted, in that the district court could apply strict

scrutiny and “strike [the Ordinance] down on its face.” J.A.

90. In that regard, the plaintiffs asserted that the court

could “very clearly rule as a facial matter,” looking solely to

the Ordinance, its legislative history, and the pertinent case

law. Id. According to the plaintiffs, the court would need to

consider their as-applied challenge only if it rejected their

facial challenge, and even then discovery could be

circumscribed. See id. at 90-92 (explaining that the breadth of

any discovery, including discovery into the plaintiff Center’s

operations, “might depend on how wide [the court] feels [the

Ordinance is] not facially invalid”).

The district court indicated its agreement with the

plaintiffs that discovery was unnecessary for a facial review of

the Ordinance. See J.A. 108. The court assured the City,

however, that discovery would be authorized before the court

engaged in any as-applied analysis. Id. at 130. In the court’s

words, “if what [the Center] did is relevant in this case [the

City] will have the discovery . . . . But . . . I don’t see

where we would advance the ball one way or the other on the

24
facial challenge by knowing what these particular people did.”

Id.

Following the motions hearing, the City filed the

Ordinance’s entire legislative record, including written

opinions provided to the City Council by the City Solicitor and

Acting Health Commissioner prior to the Ordinance’s passage

vouching for its legality and efficacy. See J.A. 207-08

(October 23, 2009 letter from City Solicitor George A. Nilson

advising that, because the Ordinance “merely requires the

disclosure of truthful, non-misleading information relevant to a

woman’s decision to seek services at a particular location[, it]

does not violate the 1st Amendment right to freedom of speech”);

id. at 209 (October 21, 2009 memorandum of Acting Health

Commissioner Olivia D. Farrow supporting the Ordinance because

“[i]t is imperative that all Baltimore City women have the

ability to obtain factual and timely advice on all available

health care options”). Meanwhile, in response to the district

court’s inquiry during the motions hearing about whether the

plaintiffs might ever refer for abortion (e.g., in the case of

incest), the plaintiffs submitted an official statement of the

Catholic Church “affirm[ing] the moral evil of every procured

abortion.” Id. at 178. The court thereafter issued its summary

judgment decision and permanent injunction without allowing the

City any discovery.

25
C.

By its summary judgment decision of January 28, 2011, the

district court determined that, because the City had submitted

and relied upon materials beyond the plaintiffs’ Complaint —

i.e., the legislative record of the Ordinance — it was

appropriate to treat the City’s motion to dismiss as a cross-

motion for summary judgment. See O’Brien, 768 F. Supp. 2d at

809-10 (citing Fed. R. Civ. P. 12(d) (“If, on a motion under

Rule 12(b)(6) . . . , matters outside the pleadings are

presented to and not excluded by the court, the motion must be

treated as one for summary judgment under Rule 56.”)). The

court then rebuffed the City’s request for discovery,

characterizing it as an improper “attempt to generate

justifications for the Ordinance following its enactment.” Id.

at 810 (citing United States v. Virginia, 518 U.S. 515, 533

(1996)). In the court’s view, its duty was to “examine whether

the Ordinance, on its face, is subject to, and satisfies, the

applicable level of scrutiny” — an assessment confined to “the

evidence relied on by the Baltimore City Council at the time the

Ordinance was passed.” Id.

Focusing on the plaintiffs’ free speech claim and turning

to the question of the applicable standard for its facial

review, the district court rejected the City’s contention that

26
rational basis scrutiny applies because the Ordinance is

directed at misleading commercial speech. See O’Brien, 768 F.

Supp. 2d at 813-14. In doing so, the court looked to the

specific characteristics of the plaintiff Center, which the

court referred to as the “CENTER.” For example, the court

observed that

[t]he overall purpose of the advertisements, services,
and information offered by the CENTER is not to
propose a commercial transaction, nor is it related to
the CENTER’s economic interest. The CENTER engages in
speech relating to abortion and birth-control based on
strongly held religious and political beliefs rather
than commercial interests or profit motives. The
notion that human life must be respected and protected
absolutely from the moment of conception is a central
tenet of the CENTER’s belief system.

Id. at 813 (internal quotation marks omitted). The court deemed

it insignificant that “[t]he CENTER offers services that have

value in the commercial marketplace,” given that “the offering

of free services such as pregnancy tests and sonograms in

furtherance of a religious mission fails to equate with engaging

in a commercial transaction.” Id. at 813-14 (footnote omitted).

Indeed, the court likened the free services provided by the

Center with “sacramental wine, communion wafers, prayer beads,

[and] other objects with commercial value” offered by churches

to their congregants. Id. at 814. Tying the former to

commercial speech, the court warned, would “subject [the latter]

to diminished constitutional protection.” Id.

27
In any event, the district court concluded that strict

scrutiny would apply even if “the CENTER’s speech includes some

commercial elements,” because any commercial speech “‘is

inextricably intertwined with otherwise fully protected

speech.’” O’Brien, 768 F. Supp. 2d at 814 (quoting Riley v.

Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 796

(1988)). The court explained that “[t]he dialogue between a

limited-service pregnancy center and an expectant mother begins

when the client or prospective client enters the waiting room of

the center,” and that the presence of an Ordinance-mandated sign

(as “a stark and immediate statement about abortion and birth-

control”) would alter the course of the center’s communications

with its clients and prospective clients. Id. “At the very

least,” according to the court, “a disclaimer conspicuous to

anyone visiting the CENTER regarding the lack of abortion and

birth-control services, mandates the inclusion of a government

message concurrent, and intertwined with, [the CENTER’s]

delivery of fully protected speech.” Id.

As an additional reason to apply strict scrutiny, the

district court declared that the City “enacted the Ordinance out

of disagreement with Plaintiffs’ viewpoints on abortion and

birth-control,” thereby engaging in “a particularly offensive

form of content-based discrimination.” See O’Brien, 768 F.

Supp. 2d at 814-16 (citing Rosenberger v. Rector & Visitors of

28
the Univ. of Va., 515 U.S. 819, 829 (1995) (“The government must

abstain from regulating speech when the specific motivating

ideology or the opinion or perspective of the speaker is the

rationale for the restriction.”)). The court reasoned that,

because “the Ordinance is applicable only to those who will

never provide or refer for abortion or [certain] birth-control

services,” it must have been discriminatorily aimed at “those

with strict moral or religious qualms regarding abortion and

birth-control.” Id. at 815. Again raising the specific

characteristics of the plaintiff Center, the court emphasized

that “[t]he 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.

Applying strict scrutiny, the district court recognized

that the City was obliged to demonstrate that the Ordinance is

“‘narrowly tailored to promote a compelling [G]overnment

interest.’” O’Brien, 768 F. Supp. 2d at 816 (quoting United

States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813 (2000)).

On the “compelling interest” question, the court noted that the

Ordinance’s legislative record was “uneven when demonstrating

the depth and severity of the problem relating to limited-

service pregnancy centers and deceptive advertising.” Id.

Nevertheless, the court “assume[d], for purposes of discussion,

29
that the Ordinance was enacted in response to a compelling

governmental interest.” Id. at 817. Such an assumption was

appropriate because the court concluded that “the Ordinance

falls considerably short of meeting the ‘narrowly tailored’

standard.” Id.

There were two grounds for the district court’s ruling on

the narrow tailoring issue. First, “the Ordinance does not

provide a ‘carve-out’ provision for those limited-service

pregnancy centers which do not engage in any deceptive

practices”; rather, “[t]he disclaimer requirement is imposed

irrespective of how forthcoming and transparent a pregnancy

center presents itself.” O’Brien, 768 F. Supp. 2d at 817.

Second, “[i]n lieu of the disclaimer mandate of the Ordinance,

[the City] could use or modify existing regulations governing

fraudulent advertising to combat deceptive advertising practices

by limited-service pregnancy centers,” or it “could enact a new

content-neutral advertising ordinance applicable to

noncommercial entities that directly ameliorate [its] concerns

regarding deceptive advertising.” Id.

Having resolved that the Ordinance is not narrowly

tailored, the district court summarized “that the Ordinance does

not meet the strict scrutiny standard,” and, thus, “Plaintiffs

are entitled to summary judgment with regard to their Freedom of

30
Speech claim.” O’Brien, 768 F. Supp. 2d at 817. 7 The court

entered its permanent injunction three days later, prohibiting

“any action to enforce Baltimore City Ordinance 09-252” on the

premise that the Ordinance is facially unconstitutional. See

O’Brien v. Mayor of Balt., No. 1:10-cv-00760 (D. Md. Jan. 31,

2011), ECF No. 35.

Notably, although it referred throughout its summary

judgment decision to the claims and contentions of the

“Plaintiffs,” the district court ruled early therein that St.

Brigid’s and the Archbishop lack standing to be co-plaintiffs

with the Center. See O’Brien, 768 F. Supp. 2d at 811-12.

Specifically, the court determined that St. Brigid’s and the

Archbishop could not make the requisite showing of “the

existence of a concrete and particularized injury in fact.” Id.

at 811 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560

(1992) (outlining the three elements of standing, including “an

injury in fact” that is “concrete and particularized,” as well

as “actual or imminent” (internal quotation marks omitted))).

The court explained that — because St. Brigid’s and the

7
In view of its summary judgment award on the free speech
claim, the district court deemed the Complaint’s other claims to
be moot and dismissed them without prejudice. See O’Brien, 768
F. Supp. 2d at 817-18 (addressing free assembly, free exercise,
equal protection, and Maryland conscience clause claims).

31
Archbishop simply allow the Center to use a portion of their

facilities free of charge, and do not themselves operate any

limited-service pregnancy center — they are not subject to

either the requirements or penalties set forth in the Ordinance.

Id. Moreover, the court found “speculative, at best, the

contention that a sign required by the Ordinance on the CENTER’s

wall will be attributed to the landlord.” Id. at 812

(elaborating that “the sign refers to the services provided by

the CENTER and would have no reference to the owner of the

building in which the CENTER operates”).

Accordingly, the district court granted in part the City’s

dismissal motion, dismissing the claims made by St. Brigid’s and

the Archbishop for lack of standing. See O’Brien, 768 F. Supp.

2d at 812. Nevertheless, the court permitted St. Brigid’s and

the Archbishop to participate in the proceedings as amicus

curiae and persisted in referring to the “Plaintiffs”

collectively. Id.

The parties timely noted these cross-appeals, invoking our

jurisdiction under 28 U.S.C. § 1291. As explained below, in the

City’s appeal, we vacate the district court’s judgment and

remand for further proceedings on the claims asserted by the

Center. In the cross-appeal of St. Brigid’s and the Archbishop,

32
we affirm the court’s dismissal of their claims for lack of

standing.

II.

The City points to a multitude of flaws in the summary

judgment decision, going so far as to contend that we should

direct a final judgment in the City’s favor. We refrain today

from evaluating the ultimate merits of the Center’s claims,

however, focusing instead on the preliminary errors made by the

district court as it rushed to summary judgment. Those errors

include the court’s denial to the City of essential discovery,

its refusal to view in the City’s favor what evidence there is,

and its verboten factual findings, many premised on nothing more

than its own supposition. In these circumstances, it is fitting

to simply vacate and remand for properly conducted proceedings.

Chief among its errors was the district court’s award of

summary judgment to the Center without allowing the City any

discovery. As a general proposition, “summary judgment is

appropriate only after ‘adequate time for discovery.’” Evans v.

Techs. Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir.

1996) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986)). Discovery is usually essential in a contested

proceeding prior to summary judgment because “[a] party

33
asserting that a fact . . . is genuinely disputed must support

the assertion by,” inter alia, “citing to particular parts of

materials in the record, including depositions, documents,

electronically stored information, affidavits or declarations,

stipulations . . . , admissions, interrogatory answers, or other

materials.” Fed. R. Civ. P. 56(c)(1)(A). Obviously, “by its

very nature, the summary judgment process presupposes the

existence of an adequate record.” Doe v. Abington Friends Sch.,

480 F.3d 252, 257 (3d Cir. 2007). A district court therefore

“must refuse summary judgment ‘where the nonmoving party has not

had the opportunity to discover information that is essential to

[its] opposition.’” Nader v. Blair, 549 F.3d 953, 961 (4th Cir.

2008) (alteration in original) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 250 n.5 (1986)).

We review for abuse of discretion a district court’s denial

of discovery prior to ruling on a summary judgment motion. See

Nguyen v. CNA Corp., 44 F.3d 234, 242 (4th Cir. 1995). “Of

course, a district court by definition abuses its discretion

when it makes an error of law.” Rice v. Rivera, 617 F.3d 802,

811 (4th Cir. 2010) (internal quotation marks omitted). Here,

the district court’s rationale for denying the City its right to

discovery was patently erroneous.

34
1.

The City took “the proper course” when it filed the Rule

56(f) Affidavit, “stating that it could not properly oppose

. . . summary judgment without a chance to conduct discovery.”

See Harrods Ltd. v. Sixty Internet Domain Names, 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 request 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 quotation marks omitted);

accord Harrods Ltd., 302 F.3d at 245 n.18.

It is no justification for the district court’s denial of

discovery that the court first converted the City’s motion to

dismiss into a cross-motion for summary judgment. There are two

requirements for a proper Rule 12(d) conversion. The first is

that “all parties be given some indication by the court that it

is treating the 12(b)(6) motion as a motion for summary

judgment”; such notice exists, e.g., “[w]hen a party is aware

that material outside the pleadings is before the court.” Gay

v. Wall, 761 F.2d 175, 177 (4th Cir. 1985) (alterations and

internal quotation marks omitted). Here, the court deemed

35
conversion appropriate because the City had submitted and relied

upon materials that the court believed to be beyond the

plaintiffs’ Complaint — specifically, portions of the

legislative record of the Ordinance. The City had alerted the

court to precedent, however, that “[f]or purposes of Rule

12(b)(6), the legislative history of an ordinance is not a

matter beyond the pleadings but is an adjunct to the ordinance

which may be considered by the court as a matter of law.”

Anheuser-Busch, Inc. v. Schmoke, 63 F.3d 1305, 1312 (4th Cir.

1995), vacated on other grounds, 517 U.S. 1206, readopted with

modifications by 101 F.3d 325 (4th Cir. 1996).

Even more damaging to the district court’s summary judgment

decision, the second requirement for proper conversion of a Rule

12(b)(6) motion is that the parties first “be afforded a

reasonable opportunity for discovery.” Gay, 761 F.2d at 177

(internal quotation marks omitted); accord E.I. du Pont de

Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 450 (4th Cir.

2011) (relying on Gay for conclusion that, because record

indicated that parties had not had “opportunity to conduct

reasonable discovery,” court would have erred by converting

dismissal motion to one for summary judgment). Indeed, Rule

12(d) itself prescribes the same discovery required by our case

law. See Fed. R. Civ. P. 12(d) (instructing that, when a Rule

12(b)(6) motion is treated as a summary judgment motion, “[a]ll

36
parties must be given a reasonable opportunity to present all

the material that is pertinent to the motion”).

Despite the foregoing authorities, the district court

denied the City discovery on the theory that, because the Center

was pursuing a facial challenge to the Ordinance, discovery was

not warranted. 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, or

that the [law] lacks any plainly legitimate sweep.” United

States v. Stevens, 130 S. Ct. 1577, 1587 (2010) (citations and

internal quotation marks omitted). Second, the plaintiff may

show that the law is “overbroad [because] a substantial number

of its applications are unconstitutional, judged in relation to

the statute’s plainly legitimate sweep.” Id. (internal

quotation marks omitted). In this case, however, the district

court did not fairly examine whether the Ordinance is invalid in

all or even a substantial number of its applications. Rather,

the district court merely accepted the Center’s description of

itself, and then assumed that all limited-service pregnancy

centers share the Center’s self-described characteristics.

In effect, by focusing almost exclusively on the

Ordinance’s application to the Center, the district court

37
conducted an as-applied analysis, rather than a facial review.

But to properly employ an as-applied analysis, the court was

obliged to first afford the City discovery. See Richmond Med.

Ctr. for Women v. Herring, 570 F.3d 165, 172 (4th Cir. 2009) (en

banc) (explaining that as-applied challenges, i.e., those “based

on a developed factual record and the application of a statute

to a specific person,” entail “case-by-case analyses”). The

court acknowledged as much during its August 4, 2010 motions

hearing, when it recognized that discovery proceedings would be

necessary to properly evaluate an as-applied challenge to the

Ordinance. See J.A. 130 (promising that “if what [the Center]

did is relevant in this case [the City] will have the

discovery”); see also id. at 127-28 (explaining that the

plaintiffs would not presently be entitled to summary judgment

“if I’m concerned about what their individual status is”).

Furthermore, the City was also entitled to discovery as a

precursor to any true facial analysis. In the circumstances of

the Center’s facial challenge, the district court could not

properly evaluate the Ordinance’s validity in all or most of its

applications without evidence concerning the distinctive

characteristics of Baltimore’s various limited-service pregnancy

centers. Cf. Free Speech Coal., Inc. v. Att’y Gen. of the U.S.,

677 F.3d 519, 538 (3d Cir. 2012) (concluding that the district

court erred in dismissing a First Amendment facial claim without

38
the factual record needed to “intelligently weigh the legitimate

versus problematic applications of the [challenged statutes]”).

Thus, regardless of the type of analysis utilized — facial or

as-applied — the court abused its discretion by failing to

recognize and honor the City’s right to discovery.

The district court further abused its discretion by

restricting its analysis to the legislative record and

dismissing the City’s discovery request as a forbidden post-

enactment effort to justify the Ordinance. The court relied on

the Supreme Court’s decision in United States v. Virginia, 518

U.S. 515, 533 (1996), for the proposition that the City’s

justification cannot be “invented 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 pre-enactment legislative record,” id., that simply is

not the case here.

39
B.

In addition to indefensibly denying the City discovery, the

district court flouted the well-known and time-tested summary

judgment standard. Under that standard, summary judgment is

appropriate only if, as Rule 56 is currently written, “the

movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). It is elementary that, when a court

considers a summary judgment motion, “[t]he evidence of the non-

movant is to be believed, and all justifiable inferences are to

be drawn in his favor.” Liberty Lobby, 477 U.S. at 255.

Moreover, “the judge’s function is not himself to weigh the

evidence and determine the truth of the matter but to determine

whether there is a genuine issue for trial.” Id. at 249; see

also Redd v. N.Y. State Div. of Parole, 678 F.3d 166, 174 (2d

Cir. 2012) (“The court’s role in deciding a motion for summary

judgment is to identify factual issues, not to resolve them.”

(emphasis and internal quotation marks omitted)); PHP Healthcare

Corp. v. EMSA Ltd. P’ship, 14 F.3d 941, 944 n.3 (4th Cir. 1993)

(“By definition, no findings of material facts that were in

genuine issue are possible in granting summary judgment.”

(internal quotation marks omitted)).

We review an award of summary judgment de novo, guided by

the same legal principles that were applicable below. See News

40
& Observer Publ’g Co. v. Raleigh-Durham Airport Auth., 597 F.3d

570, 576 (4th Cir. 2010). Heeding those principles, we conclude

that summary judgment was inappropriate on the present record.

The district court’s denial of discovery and failure to

adhere to the summary judgment standard marred its assessment

of, inter alia, the City’s contention that the Ordinance targets

misleading commercial speech and thus is subject to rational

basis (rather than strict) scrutiny. While the strict scrutiny

standard generally applies to content-based regulations,

including compelled speech, see Turner Broad. Sys., Inc. v. FCC,

512 U.S. 622, 641-42 (1994), less-demanding standards apply

where the speech at issue is commercial. Disclosure

requirements aimed at misleading commercial speech need only

survive rational basis scrutiny, by being “reasonably related to

the State’s interest in preventing deception of consumers.”

Zauderer v. Office of Disciplinary Counsel of the Supreme Court,

471 U.S. 626, 651 (1985) (explaining that, “because disclosure

requirements trench much more narrowly on an advertiser’s

interests than do flat prohibitions on speech, warnings or

disclaimers might be appropriately required in order to

dissipate the possibility of consumer confusion or deception”

(alterations and internal quotation marks omitted)); accord

41
Milavetz, Gallop & Milavetz, P.A. v. United States, 130 S. Ct.

1324, 1339-40 (2010). 8

Although it may not ultimately prove meritorious, the

City’s commercial speech theory should not have been so easily

dismissed by the district court. Under that theory, a limited-

service pregnancy center

proposes a commercial transaction every time it offers
to provide commercially valuable goods and services,
such as pregnancy testing, sonograms, or options
counseling, to a consumer. Such an offer may take the
form of an advertisement in the phone book, on the
internet, or on a sign above the [center’s] door. It
may also take the form of an oral solicitation from a
[center] staff member to a consumer. The City Council
received evidence that many [centers] intentionally
mislead consumers about the scope of services they
offer to obtain the patronage of those seeking
abortion and comprehensive birth control services.
The Ordinance regulates a [center’s] offer to provide
services to consumers by making clear that the offer
does not include abortion and comprehensive birth
control services.

Reply Br. of Appellants 9-10 (citations omitted).

8
While disclosure requirements aimed at misleading
commercial speech are subject to the rational basis test,
“restrictions on nonmisleading commercial speech regarding
lawful activity must withstand intermediate scrutiny — that is,
they must ‘directly advanc[e]’ a substantial governmental
interest and be ‘n[o] more extensive than is necessary to serve
that interest.’” Milavetz, 130 S. Ct. at 1339 (alterations in
original) (quoting Cent. Hudson Gas & Elec. Corp. v. Pub. Serv.
Comm’n of N.Y., 447 U.S. 557, 566 (1980)). Because the City
contends that the Ordinance regulates misleading commercial
speech, our focus is on the potential applicability of rational
basis scrutiny.

42
The threshold question presented is whether the speech

regulated by the Ordinance is actually commercial. That

analysis is fact-driven, due to the inherent “difficulty of

drawing bright lines that will clearly cabin commercial speech

in a distinct category.” See City of Cincinnati v. Discovery

Network, Inc., 507 U.S. 410, 419 (1993). On one occasion, in

Central Hudson Gas & Electric Corp. v. Public Service Commission

of New York, the Supreme Court defined commercial speech as

“expression related solely to the economic interests of the

speaker and its audience.” 447 U.S. 557, 561 (1980). But the

Court has noted that commercial speech is “usually defined as

speech that does no more than propose a commercial transaction.”

United States v. United Foods, Inc., 533 U.S. 405, 409 (2001);

see also Bd. of Trs. of the State Univ. of N.Y. v. Fox, 492 U.S.

469, 473-74 (1989) (pronouncing “propose a commercial

transaction” to be “the test for identifying commercial speech”

(emphasis added)). The Court has also described the proposal of

a commercial transaction — e.g., “‘I will sell you the X

prescription drug at the Y price,’” Va. State Bd. of Pharmacy v.

Va. Citizens Consumer Council, 425 U.S. 748, 761 (1976) — as

“the core notion of commercial speech.” Bolger v. Youngs Drug

Prods. Corp., 463 U.S. 60, 66 (1983). The City insists that

limited-service pregnancy center advertising easily satisfies

the “propose a commercial transaction” test. See Br. of

43
Appellants 22 (“When a [center] proposes that a woman patronize

its establishment for the purpose of obtaining commercially

valuable goods and services[,] . . . it is proposing a

commercial transaction.”).

Nevertheless, even where speech “cannot be characterized

merely as proposals to engage in commercial transactions,” the

speech may yet be deemed commercial; in that event, “proper

classification as commercial or noncommercial speech . . .

presents a closer question.” Bolger, 463 U.S. at 66; see also

Adventure Commc’ns, Inc. v. Ky. Registry of Election Fin., 191

F.3d 429, 440 (4th Cir. 1999) (“In the abstract, the definition

of commercial speech appears to be fairly straightforward, if

somewhat circular: it is speech that proposes a commercial

transaction. In practice, however, application of this

definition is not always a simple matter.” (citations and

internal quotation marks omitted)). From Bolger, courts of

appeals have gleaned “three factors 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.” U.S. Healthcare, Inc. v. Blue Cross of Greater

Phila., 898 F.2d 914, 933 (3d Cir. 1990) (citing Bolger, 463

U.S. at 66-67); accord, e.g., Spirit Airlines, Inc. v. U.S.

Dep’t of Transp., 687 F.3d 403, 412 (D.C. Cir. 2012); United

44
States v. Benson, 561 F.3d 718, 725 (7th Cir. 2009); Adventure

Commc’ns, 191 F.3d at 440-41. While “[t]he combination of all

these characteristics . . . provides strong support for the

. . . conclusion that [speech is] properly characterized as

commercial speech,” Bolger, 463 U.S. at 67, it is not necessary

that each of the characteristics “be present in order for speech

to be commercial,” id. at 67 n.14.

Here, the district court abruptly concluded, “[u]nder both

Bolger and Central Hudson,” that “the speech regulated by the

Ordinance is not commercial speech.” O’Brien, 768 F. Supp. 2d

at 813. Focusing on the plaintiff Center, the court reasoned

that “[t]he overall purpose of the advertisements, services, and

information offered by the CENTER is not to propose a commercial

transaction, nor is it related to the CENTER’s economic

interest.” Id. Rather, the court determined, “[t]he CENTER

engages in speech relating to abortion and birth-control based

on strongly held religious and political beliefs rather than

commercial interests or profit motives.” Id. (citing official

statement of Catholic Church).

Ruling thusly, the district court accepted as fact the

Center’s assertion that its motives are entirely religious or

political. But that assertion was not at all undisputed. Thus,

discovery is needed to substantiate, inter alia, whether the

Center possesses economic interests apart from its ideological

45
motivations. Such discovery is “especially important” where, as

here, “the relevant facts are exclusively in the control of the

[summary judgment movant]” or the “case involves complex factual

questions about intent and motive.” See Harrods Ltd., 302 F.3d

at 247. 9

In any event, the potential commercial nature of speech

does not hinge solely on whether the Center has an economic

motive, as even Bolger does not preclude classification of

speech as commercial in the absence of the speaker’s economic

motivation. See 463 U.S. at 67 n.14. Because the Ordinance

compels a disclaimer, the “lodestars in deciding what level of

scrutiny to apply . . . must be the nature of the speech taken

9
Even though the Center has averred that it does not charge
women for its services, inquiring into the Center’s potential
profit motives may not be a futile endeavor. We know that
nonprofit entities with religious or political motives can
engage in commerce. See Camps Newfound/Owatonna, Inc. v. Town
of Harrison, Me., 520 U.S. 564, 573 (1997) (“Even though
petitioner’s camp does not make a profit, it is unquestionably
engaged in commerce, not only as a purchaser, but also as a
provider of goods and services.” (citations omitted)); Va.
Vermiculite, Ltd. v. W.R. Grace & Co.-Conn., 156 F.3d 535, 541
(4th Cir. 1998) (explaining that nonprofit land preservation
organization’s acceptance of land donation “was fundamentally
commercial”). Furthermore, although outwardly the Center
appears to be driven by religious purposes only, certain
operational intricacies may prove otherwise. For example, as
another court observed in a similar case at the preliminary
injunction stage, if the Center were “referring women to pro-
life doctors in exchange for ‘charitable’ contributions, the
analysis could change.” See Evergreen Ass’n, Inc. v. City of
N.Y., 801 F. Supp. 2d 197, 206 n.5 (S.D.N.Y. 2011).

46
as a whole and the effect of the compelled statement thereon.”

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 interest of the speaker, but also assists

consumers and furthers the societal interest in the fullest

possible dissemination of information.” See Cent. Hudson, 447

U.S. at 561-62; see also Va. State Bd. of Pharmacy, 425 U.S. at

756 (“Freedom of speech presupposes a willing speaker. But

where a speaker exists . . . the protection afforded is to the

communication, to its source and to its recipients both.”

(footnote omitted)).

The Supreme Court of North Dakota employed just such an

analysis in Fargo Women’s Health Organization, Inc. v. Larson,

381 N.W.2d 176 (N.D.), cert. denied, 476 U.S. 1108 (1986).

There, the plaintiffs alleged that the defendant Help Clinic,

“through false and deceptive advertising and related activity,

misleads persons into believing that abortions are conducted at

the clinic with the intent of deceptively luring those persons

to the clinic to unwittingly receive anti-abortion propaganda.”

Id. at 177. The trial court entered a preliminary injunction

barring “all deceptive advertising and related solicitation

practices,” and the Help Clinic appealed. Id. Notwithstanding

47
the Help Clinic’s assertion “that its communication is not

commercial speech because no financial charges are assessed

against persons receiving services from the clinic,” the state

supreme court deemed the clinic’s advertisements to be

commercial speech. Id. at 180-81. The court explained that

“the degree, if any, that monies are received by the Help Clinic

from its clients [is not] dispositive [of the commercial speech

issue].” Id. at 180. It was “[m]ore important[]” to the court

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.” Id. at 181. “In

effect,” the court concluded, “the Help Clinic’s advertisements

constitute promotional advertising of services through which

patronage of the clinic is solicited, and in that respect

constitute classic examples of commercial speech.” Id. 10

In contrast to the preliminary injunction at issue in

Larson, our review today is of a permanent injunction entered in

10
The Larson decision, though certainly not binding here,
illuminates the potential inefficacy of the analogy drawn by the
district court between the Center’s free services and
“sacramental wine, communion wafers, prayer beads, [and] other
objects with commercial value” offered by churches to their
congregants. See O’Brien, 768 F. Supp. 2d at 814. Unlike the
latter, the former are alleged by the City to be the subject of
advertisements “placed in a commercial context,” “directed at
the providing of services rather than toward an exchange of
ideas,” and designed to solicit patronage of the Center. See
Larson, 381 N.W.2d at 181.

48
the absence of a fully developed record. Without all the

pertinent evidence — including evidence concerning the Center’s

economic motivation (or lack thereof) and the scope and content

of its advertisements — we cannot properly analyze the speech

regulated by the Ordinance. Cf. Milavetz, 130 S. Ct. at 1344-45

(Thomas, J., concurring in part and concurring in the judgment)

(“[B]ecause no record evidence of Milavetz’s advertisements

exists to guide our review, we can only speculate about the ways

in which the [disclosure requirement] might be applied to

Milavetz’s speech.”). Put succinctly, the district court should

have likewise refrained from immediately deciding the commercial

speech issue. 11

11
Although discovery is needed before this matter can be
fairly decided, the existing record is not devoid of relevant
evidence. For example, the Maryland Report included in the
Ordinance’s legislative record contains an online advertisement
for Option Line, the “live contact center” co-established by
national umbrella organizations Heartbeat International and Care
Net that “provides 24/7 assistance to women and girls seeking
information about pregnancy resources.” J.A. 381. The
advertisement states, inter alia, that Option Line’s
“consultants will connect you to nearby pregnancy centers that
offer the following services”: “Free pregnancy tests and
pregnancy information”; “Abortion and Morning After Pill
information, including procedures and risks”; “Medical services,
including STD tests, early ultrasounds and pregnancy
confirmation”; and “Confidential pregnancy options.” Id.
(emphasis omitted). The City characterizes the advertisement as
deceptive, because it “does not indicate that the ‘medical
services’ and ‘confidential pregnancy options’ offered by the
centers exclude abortion and comprehensive birth control
services.” Br. of Appellants 8. Additionally, the City
connects the advertisement to the plaintiff Center and several
(Continued)
49
b.

The district court’s hasty decision cannot be excused by

its ruling that any commercial speech regulated by the Ordinance

“‘is inextricably intertwined with otherwise fully protected

speech,’” thus triggering strict scrutiny. See O’Brien, 768 F.

Supp. 2d at 814 (quoting Riley, 487 U.S. at 796). The Riley

decision addressed the constitutionality of North Carolina’s

“requirement that professional fundraisers disclose to potential

donors, before an appeal for funds, the percentage of charitable

contributions collected during the previous 12 months that were

actually turned over to charity.” 487 U.S. at 795. Defending

that statutory provision, the State argued that it “regulates

only commercial speech because it relates only to the

professional fundraiser’s profit from the solicited

contribution.” Id. The Supreme Court assumed “that such speech

in the abstract is indeed merely ‘commercial,’” but concluded

that the speech loses “its commercial character when it is

inextricably intertwined with otherwise fully protected speech,”

i.e., the informative and persuasive aspects of the fundraiser’s

solicitation. Id. at 796.

other Baltimore limited-service pregnancy centers, in that each
is an affiliate of Heartbeat International or Care Net. See
J.A. 228, 241.

50
Equating Baltimore’s Ordinance with the statutory

requirement at issue in Riley, the district court relied on its

own speculative finding that “[t]he dialogue between a limited-

service pregnancy center and an expectant mother begins when the

client or prospective client enters the waiting room of the

center.” See O’Brien, 768 F. Supp. 2d at 814. Furthermore, the

court prematurely and perhaps inaccurately characterized that

disclaimer as “a stark and immediate statement about abortion

and birth-control,” i.e., a declaration that abortion and birth

control are morally acceptable options. Id.

Significantly, discovery could refute the district court’s

factual assumptions. Discovery might also show that any

commercial aspects of a limited-service pregnancy center’s

speech are not “inextricably intertwined” with its fully

protected noncommercial speech. See Hunt v. City of L.A., 638

F.3d 703, 715 (9th Cir. 2011) (“[W]here the two components of

speech can be easily separated, they are not ‘inextricably

intertwined.’” (citing Fox, 492 U.S. at 473-74 (concluding that

commercial speech aspect of “Tupperware parties” was not

inextricably intertwined with noncommercial instruction on home

economics))). That is, a fully developed record could

demonstrate that “[n]othing in the [Ordinance] prevents [a

center] from conveying, or the audience from hearing, . . .

noncommercial messages, and nothing in the nature of things

51
requires them to be combined with commercial messages.” See

Fox, 492 U.S. at 474. In those circumstances, the rational

basis test would be the applicable one.

The district court further erred in precipitately

concluding that the Ordinance is an exercise of viewpoint

discrimination — the court’s additional basis for applying

strict scrutiny. See Sons of Confederate Veterans, Inc. v.

Comm’r of the Va. Dep’t of Motor Vehicles, 288 F.3d 610, 616 n.4

(4th Cir. 2002) (“The Supreme Court has indicated that a

viewpoint-based restriction of private speech rarely, if ever,

will withstand strict scrutiny review.” (citing R.A.V. v. City

of St. Paul, Minn., 505 U.S. 377, 395-96 (1992))). That is, the

court merely surmised that the Ordinance must have been

discriminatorily aimed at pregnancy centers “with strict moral

or religious qualms regarding abortion and birth-control,”

premised on its assumption that only those centers would never

provide or refer for abortion or birth control. See O’Brien,

768 F. Supp. 2d at 815. But see Madsen v. Women’s Health Ctr.,

Inc., 512 U.S. 753, 762-63 (1994) (explaining, in declining to

apply strict scrutiny to “an injunction that restricts only the

speech of antiabortion protestors,” that “the fact that the

injunction covered people with a particular viewpoint does not

itself render the injunction content or viewpoint based”).

52
The district court failed to view the legislative record in

the light most favorable to the City, and thus to credit

evidence for summary judgment purposes that the Ordinance was

enacted to counteract deceptive advertising and promote public

health. Moreover, the court ignored the possibility that there

may be limited-service pregnancy centers with no “moral or

religious qualms regarding abortion and birth-control,” and who

refrain from providing or referring for abortion or birth

control for other reasons.

Finally, applying strict scrutiny, the district court erred

by determining that the Ordinance is not narrowly tailored

because “a less restrictive alternative would serve the [City’s]

purpose.” See United States v. Playboy Entm’t Grp., Inc., 529

U.S. 803, 813 (2000). Even if strict scrutiny proves to be the

applicable standard, the City must be accorded the opportunity

to develop evidence relevant to the compelling governmental

interest and narrow tailoring issues, including, inter alia,

evidence substantiating the efficacy of the Ordinance in

promoting public health, as well as evidence disproving the

effectiveness of purported less restrictive alternatives to the

Ordinance’s disclaimer. See id. at 816 (“When 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.”).

53
C.

In sum, under the Federal Rules of Civil Procedure and

controlling precedent, it was essential to the City’s opposition

to the Center’s summary judgment motion — and to a fair and

proper exercise of judicial scrutiny — for the district court to

have awaited discovery and heeded the summary judgment standard.

Meanwhile, the court could have averted any constitutional

injuries that the Ordinance may inflict by preliminarily

enjoining its enforcement. See Fed. R. Civ. P. 65; see also,

e.g., Newsom ex rel. Newsom v. Albemarle Cnty. Sch. Bd., 354

F.3d 249, 261 (4th Cir. 2003) (concluding that Newsom was

entitled to a preliminary injunction on his First Amendment

overbreadth claim, while cautioning that “our holding, like any

ruling on a preliminary injunction, does not preclude a

different resolution of Newsom’s claims on a more fully

developed record”).

The district court in Centro Tepeyac v. Montgomery County,

another Maryland pregnancy center-compelled disclosure case,

proceeded in just that measured fashion. See 779 F. Supp. 2d

456 (D. Md. 2011). Mindful that the record was undeveloped and

the County therefore unprepared to show otherwise, the court

accepted at the preliminary injunction stage that strict

scrutiny applied to the challenged disclosure requirement. See

id. at 462-68. Importantly, however, the court did not

54
foreclose the possibility that evidence adduced in future

discovery proceedings might render lesser scrutiny appropriate,

e.g., if the County’s Resolution were shown to regulate

commercial speech. See id. at 463. Employing strict scrutiny

to resolve the motion before it, the court preliminarily

enjoined one portion of the Resolution’s disclosure requirement

(that “the Montgomery County Health Officer encourages women who

are or may be pregnant to consult with a licensed health care

provider”), but not the other (that “the Center does not have a

licensed medical professional on staff”). See id. at 469-72.

In doing so, the court credited the County’s asserted compelling

interest in preserving public health, and deemed “the record

. . . at least colorable at this stage to suggest that the [non-

enjoined portion of the disclosure requirement] is narrowly

tailored to meet the interest.” Id. at 471. The court further

concluded that the County was unlikely to prove narrow tailoring

of the enjoined portion of the disclosure requirement,

articulating particular concern that it constituted “unneeded

speech,” and also noting several possible less restrictive

alternatives. Id. at 468-69 & n.9, 471.

Today, alongside this opinion, we issue a separate opinion

in which we affirm the Centro Tepeyac preliminary injunction

decision, concluding that “the district court acted well within

its discretion” and “commend[ing] the court for its careful and

55
restrained analysis.” See Centro Tepeyac v. Montgomery Cnty.,

No. 11-1314(L), slip op. at 3, 18 (4th Cir. July __, 2013) (en

banc). Our good dissenting colleagues overplay Centro Tepeyac,

repeatedly invoking it as the ultimate word on the First

Amendment issues presented herein. See, e.g., post at 81

(Niemeyer, J., dissenting) (characterizing our remand of this

case for discovery on the commercial speech issue as “curious”

in view of our affirmance of “the district court’s conclusion in

Centro Tepeyac that a similar Montgomery County, Maryland

provision compelled noncommercial speech”); id. at 98 (asserting

that Centro Tepeyac “hold[s]” that the County is not entitled to

discovery on the effectiveness of purported less restrictive

alternatives); id. at 101 (citing Centro Tepeyac for the

proposition that City of Baltimore Ordinance 09-252, “[o]n its

face, . . . is overbroad and unconstitutional”). The dissenters

thereby ignore crucial differences between that case and this

one — most significantly, that Centro Tepeyac involves a mere

preliminary injunction decision, rather than a final judgment

bestowing permanent injunctive relief on the basis of a summary

judgment award.

As the Supreme Court has instructed, where a preliminary

injunction is under an interlocutory examination, determining

whether the district court abused its discretion “is the extent

of our appellate inquiry.” See Doran v. Salem Inn, Inc., 422

56
U.S. 922, 934 (1975), followed by Giovani Carandola, Ltd. v.

Bason, 303 F.3d 507, 521 (4th Cir. 2002) (“We make no prediction

as to the outcome at trial but simply hold, as the Supreme Court

did [in Doran], that ‘[i]n these circumstances, and in the light

of existing case law, we cannot conclude that the District Court

abused its discretion by granting preliminary injunctive

relief.’” (second alteration in original) (quoting Doran, 422

U.S. at 934)). Faithful to the abuse-of-discretion standard, we

are obliged to affirm in Centro Tepeyac because the district

court “applied a correct preliminary injunction standard, made

no clearly erroneous findings of material fact, and demonstrated

a firm grasp of the legal principles pertinent to the underlying

dispute.” See slip op. at 18. Neither the district court’s

Centro Tepeyac decision — nor ours in that case — settles the

constitutional questions posed; rather, both leave those issues

to be decided on a more fully developed record in properly

conducted proceedings.

Consistently with Centro Tepeyac, we conclude herein that

the district court erred by entering a permanent injunction

without allowing discovery or adhering to the applicable summary

judgment standard. Despite this prudent, restrained, and —

above all — evenhanded ruling, the dissenters accuse us of all

manner of improprieties. Most disappointingly, they depict us,

on the one hand, as pro-choice zealots who have engaged in

57
“gratuitous shaping of the issues” and “become seduced by [our]

own elaboration of abortion policy.” Post at 81-82 (Niemeyer,

J., dissenting); see also post at 74 (Wilkinson, J., dissenting)

(“In strongly implying that the Ordinance will survive First

Amendment scrutiny, the majority has established a principle

that will bite the very hands that feed it. For compelled

speech can serve a pro-life agenda for elected officials as well

as a pro-choice one.”).

On the other hand, we are reproached for “an amorous affair

with litigation,” an “enchantment with extended procedures,” and

an “infatuation with discovery,” as well as for “opin[ing] on

various points of civil procedure” when we could be discussing

“the dangers of state-compelled speech.” Post at 62, 68, 71

(Wilkinson, J., dissenting). The dissenters would wholly exempt

the Center from fundamental procedures to which all civil

litigants are both subject and entitled. And, though the

dissenters candidly acknowledge that “the district court engaged

hypothetically from time to time in discussion about the

potential relevance of facts,” they unhesitatingly endorse the

court’s summary judgment decision. Post at 82 (Niemeyer, J.,

dissenting). Indeed, the dissenters freely layer their own

supposition on the district court’s, admitting of no other

conclusion than that the Ordinance should be enjoined against

all Baltimore limited-service pregnancy centers for all time.

58
We, however, are not so dismissive of the Federal Rules of

Civil Procedure, which, as the Supreme Court has underscored,

“are designed to further the due process of law that the

Constitution guarantees.” Nelson v. Adams USA, Inc., 529 U.S.

460, 465 (2000). Esteem for our bedrock procedural rules should

be expected, rather than ridiculed. And it is particularly

appropriate here, where because of the ready availability of

preliminary injunctive relief, there simply is no need to

abridge the City’s due process rights in favor of the Center’s

free speech guarantee. 12

12
It bears noting that the dissenters find it necessary to
distort our decision in an effort to refute it. For example,
they erroneously say that we “fail[] to recognize that the
challenge addressed by the district court was the plaintiffs’
facial challenge,” and that we “recharacterize[] the proceeding
as an as-applied challenge” just so we can “identify questions
of fact to support [our] remand.” Post at 79 (Niemeyer, J.,
dissenting); see also post at 71-72 (Wilkinson, J., dissenting)
(asserting that, in “a tragedy for free expression,” we insist
the district court “undertook an as-applied analysis”). In
reality, we amply discuss the facial/as-applied distinction,
ultimately concluding that “regardless of the type of analysis
utilized — facial or as-applied — the court abused its
discretion by failing to recognize and honor the City’s right to
discovery.” Supra Part II.A.2.

The dissenters also incorrectly assert that we “fail[] to
recognize the scrutiny applicable to regulations that compel
speech,” going so far as to claim that we “do[] not even discuss
‘compelled speech.’” Post at 78-79 (Niemeyer, J., dissenting)
(citing Turner Broad. Sys., 512 U.S. at 641-42). But see supra
Part II.B.1 (explaining that, “[w]hile the strict scrutiny
standard generally applies to content-based regulations,
including compelled speech, less-demanding standards apply where
the speech at issue is commercial” (also citing Turner Broad.
(Continued)
59
Notwithstanding the dissenters’ unfair and overwrought

characterization, our ruling today is simply this: the district

court improperly denied the City essential discovery and

otherwise flouted the Federal Rules of Civil Procedure.

Sys., 512 U.S. at 641-42)). Even so, the dissenters concede
that the Ordinance regulates both commercial and noncommercial
speech, but surmise that enough noncommercial speech is
implicated to render the Ordinance facially unconstitutional.
See post at 92-93 (Niemeyer, J., dissenting) (contending that
any “commercial motive” of the plaintiff Center is irrelevant,
because the Ordinance “reaches beyond this one pregnancy center
and imposes the requirement of a disclaimer sign on every
speaker — commercial or not — who provides information ‘for a
fee or as a free service’”). But see Stevens, 130 S. Ct. at
1587 (explaining that, to prove overbreadth, a plaintiff may
show that “a substantial number of [a statute’s] applications
are unconstitutional, judged in relation to the statute’s
plainly legitimate sweep” (internal quotation marks omitted));
Bolger, 463 U.S. at 67 n.14 (declining to preclude
classification of speech as commercial in absence of speaker’s
economic motivation).

Finally, we note that the dissenters also distort the
existing record, repeatedly asserting that “the City’s stated
interest [is] in prohibiting [limited-service] pregnancy
centers, as a health concern, from misrepresenting information
about abortions.” Post at 77 (Niemeyer, J., dissenting); see
also id. at 83, 93-94, 100, 101. To be sure, the record
includes allegations that such centers provide misinformation
about abortion (e.g., that it causes breast cancer). The City
has clearly and consistently articulated its position, however,
that the Ordinance is aimed at the pregnancy center practice of
employing deceptive advertising to attract women seeking
abortion and comprehensive birth-control services, and then
using delay tactics to impede the women from accessing those
services. The City has not asserted, as the dissenters claim,
that the Ordinance is intended “to remedy misrepresentations
being made by these pregnancy centers about abortion.” See id.
at 100.

60
Consequently, we vacate the judgment and remand for further

proceedings.

III.

Nevertheless, we affirm the district court’s ruling that

St. Brigid’s and the Archbishop lack standing to be co-

plaintiffs in this action with the Center. See O’Brien, 768 F.

Supp. 2d at 811-12. We do so having carefully considered the

contentions made by St. Brigid’s and the Archbishop in their

cross-appeal, and having reviewed the dismissal of their claims

de novo. See Benham v. City of Charlotte, N.C., 635 F.3d 129,

134 (4th Cir. 2011) (“The issue of standing to sue is a legal

question that we assess de novo.”).

IV.

Pursuant to the foregoing, we vacate the district court’s

judgment against the City and remand for such other and further

proceedings as may be appropriate. We affirm, however, the

court’s dismissal of the claims of St. Brigid’s and the

Archbishop for lack of standing, leaving only the Center’s

claims for resolution on remand.

No. 11-1111 VACATED AND REMANDED
No. 11-1185 AFFIRMED

61
WILKINSON, Circuit Judge, dissenting:

In a case concerning a law that requires private,

noncommercial organizations to convey a government-authored

message, one would expect to find at least some acknowledgement

of the dangers of state-compelled speech. But one will search

the majority’s opinion in vain for any such recognition.

Instead, the majority opts to opine on various points of civil

procedure, apparently oblivious to the fact that litigation is

not an end in itself, but a means of vindicating the substantive

values underlying our legal order, among which I had hitherto

supposed were the freedoms of conscience and belief.

Those freedoms are at the heart of this case, though one

would never know it from the majority’s opinion, which glosses

over the impact of the Baltimore Ordinance on the right of the

plaintiff Center not to be compelled by the state to express a

message at odds with its most intimate beliefs. Today it is the

Center; tomorrow it is who knows what speaker and who can guess

what view. Because the majority fails to respect the Center’s

right not to utter a state-sponsored message that offends its

core moral and religious principles, and because it launches a

litigious fusillade aimed at smothering the Center’s right to

simple silence, I respectfully dissent.

62
I.

Given the dearth of discussion about the evils of compelled

speech in the majority opinion, it is worth pausing to consider

what is at stake when government forces private individuals or

organizations to speak on its behalf. We now take it for

granted that “[i]f there is any fixed star in our constitutional

constellation, it is that no official, high or petty, can

prescribe what shall be orthodox in politics, nationalism,

religion, or other matters of opinion or force citizens to

confess by word or act their faith therein.” W. Va. State Bd.

of Educ. v. Barnette, 319 U.S. 624, 642 (1943). Regrettably,

this constitutional star was not always so fixed. In fact, the

Supreme Court had earlier upheld a law that required school

children to participate in a daily flag-salute ceremony in

Minersville School District v. Gobitis, 310 U.S. 586 (1940). In

his opinion for the Court in Gobitis, Justice Frankfurter

declared the flag-salute ceremony an essential means of

fostering “[n]ational unity,” which, in turn, he regarded as

“the basis of national security.” Id. at 595. When opponents

of a compelled flag salute protested, Justice Frankfurter

retorted that forced salutes helped to inculcate “that unifying

sentiment without which there can ultimately be no liberties,

civil or religious.” Id. at 597.

63
In confusing mere statism with patriotism, Justice

Frankfurter also posited a cramped conception of the freedom of

speech. Specifically, he denied that the right to speak entails

a right not to speak. In a lone dissent, Frankfurter reaffirmed

this view even as the Court reversed course and declared

compulsory flag-salute laws unconstitutional. So long as a law

“suppresses no belief nor curbs it,” he insisted -- so long as

it permits individuals to “believe what they please, avow their

belief and practice it,” leaving “[a]ll channels of affirmative

free expression . . . open” -- it does not violate the freedom

of speech guaranteed by the First Amendment. Barnette, 319 U.S.

at 664 (Frankfurter, J., dissenting).

Justice Frankfurter’s opinions in the flag-salute cases

mark a singular blot on a long and storied career. He simply

failed to grasp a truth that had been “well known to the framers

of the Bill of Rights,” id. at 633 (majority opinion): that

“[t]he right to speak and the right to refrain from speaking are

complementary components of the broader concept of ‘individual

freedom of mind,’” Wooley v. Maynard, 430 U.S. 705, 714 (1977)

(quoting Barnette, 319 U.S. at 637). Because government can

infringe this freedom not only through naked censorship but by

compelling individuals to utter words that the state wishes

uttered, courts must scrutinize both kinds of regulation with

64
the same skepticism. No American is the mere mouthpiece of the

state. That is the enduring lesson of the flag-salute cases.

It is a lesson the majority has failed to learn. While it

perfunctorily acknowledges that laws compelling speech are

“generally” subject to strict scrutiny, maj. op. at 41, it

follows Justice Frankfurter in downplaying the impact of such

laws on the individuals who are compelled to speak. As the

majority apparently sees it, the Ordinance requires

organizations like the Center to make nothing more than an

anodyne factual statement identifying the services they do not

provide, without having to condone those services. See maj. op.

at 51-52.

But the majority utterly fails to appreciate the nature of

the Center’s beliefs. The Center has “sincerely held” “moral,

ideological, political, and religious beliefs” that abortion and

at least some forms of birth control are profoundly wrong and

thus are not to be chosen. Complaint ¶¶ 43, 40. The Ordinance

requires the Center to state that it “does not provide or make

referral for abortion or birth-control services.” J.A. 26. The

conflict between the Center’s beliefs and the mandated

disclosure is thus plain: where the Center wishes to guide women

toward alternatives to abortion and birth control, the Ordinance

65
requires it to indicate at the outset that those services are

readily available, just not at the Center itself.

The flag-salute ceremony may not have compelled Jehovah’s

Witnesses to affirm the American flag as an idol or the United

States as a deity in so many words, but from their perspective,

that was the import of the ritual. The same is true here.

Although the Ordinance does not compel the Center to explicitly

countenance abortion and birth control, it does compel the

Center to present them as viable options -- which, of course, is

precisely what the Center denies they are. Putting aside

altogether the matter of abortion, about which people of good

will may and do differ, imagine any of us being told by the

state to renounce ourselves in such a basic way.

Echoing Justice Frankfurter’s rejoinder to the Jehovah’s

Witnesses in the flag-salute cases, the City responds by noting

that pregnancy centers remain free to express their disapproval

of abortion and birth control alongside the mandatory

disclaimer. But the Supreme Court rightly found this response

unavailing in Barnette, and it is no more persuasive here. In

each case, the speaker is put in the position of having to

explain a statement made in its voice but not from its heart.

Only because the Ordinance compels the Center to mention

abortion and birth control in the first place must it start from

66
a stance of opposing those options, rather than from one of

simply advocating alternatives like adoption and abstinence.

Compelled speech can be all the more pernicious because of

its context. So it is here. Whether or not the Ordinance is

technically viewpoint-discriminatory, this much can be said: it

compels groups that oppose abortion to utter a government-

authored message without requiring any comparable disclosure --

or indeed any disclosure at all -- from abortion providers.

Seventy years after the flag-salute cases, it should be

axiomatic that the First Amendment prohibits the government from

dictating the terms of private expression, let alone in such a

one-sided manner. Faced with the inadequacy of its reasons, the

majority responds with only noise, making believe it has somehow

been accused of various “improprieties,” maj. op. at 57, and

“zealous” pro-choice views, id., when the only issue in reality

is that the grand neutrality at the heart of the First Amendment

has been compromised. Those who support most firmly a woman’s

right to reproductive choice should find it the most

disheartening that the court’s First Amendment jurisprudence is

trampling expressive privacy and marching backward through time.

II.

The majority would have us believe that it has issued

nothing more than a cut-and-dried procedural ruling, merely

67
ordering “essential discovery” into a few key factual questions

in the case. Maj. op. at 33. Don’t be fooled. The majority is

conducting an amorous affair with litigation that is anything

but benign. For the infatuation here is indiscriminate. The

majority neglects to pose the most relevant question: whether

its enchantment with extended procedures will serve to vindicate

the assertion of a constitutional right or to suffocate it.

Perhaps it evades this question because the answer is so

obvious. By bringing the full brunt of the litigative process

to bear on the Center, the majority is imposing a high price on

the Center (and by extension any speaker) for attempting to

vindicate its free-speech rights.

Most troubling, the majority has licensed a fishing

expedition into the Center’s motivations and operations on the

off chance that it might turn up some vaguely “commercial”

activity. The majority appears to recognize that the Center’s

speech clearly lies far from “the core notion of commercial

speech,” since none of its advertisements propose a commercial

transaction. Maj. op. at 43 (quoting Bolger v. Youngs Drug

Prods. Corp., 463 U.S. 60, 66 (1983)); see United States v.

United Foods, Inc., 533 U.S. 405, 409 (2001) (noting that

commercial speech is “usually defined as speech that does no

more than propose a commercial transaction”). Nevertheless, the

majority believes that “discovery is needed to substantiate,

68
inter alia, whether the Center possesses economic interests

apart from its ideological motivations.” Maj. op. at 45-46.

Not even the City had the temerity to second-guess the Center’s

motives in this way. And yet, the majority displays no

compunction about doing so, subjecting the Center to intrusive

and burdensome discovery based on a few far-fetched

hypotheticals regarding “the Center’s potential profit motives”

and its “operational intricacies.” Maj. op. at 46 n.9.

Ordering discovery on this tenuous a basis would entail

delays and costs even in the ordinary case. But the delays and

costs are especially onerous where, as here, the party that is

subjected to discovery has so plainly suffered a violation of

its constitutional rights. By encouraging the City to pry into

every corner of the Center’s operations, the majority heavily

penalizes this organization for attempting to defend its

constitutional rights, a penalty that will only dissuade future

victims of constitutional violations -- and especially those who

hold to the Center’s persuasion -- from bringing suit in the

first place. Where discovery should be a means of vindicating

constitutional rights, the majority converts it into a process

that strangles them.

The majority’s approach also excuses the City’s rush to

regulate the Center’s speech, rather than consider other ways of

achieving the purposes underlying the Ordinance. There has

69
never been any dispute that the Ordinance forces organizations

like the Center to communicate a message they would otherwise

never utter. Given the dangers of compelled speech, this kind

of mandated disclosure should be a last resort, not a first

recourse. See Riley v. Nat’l Fed’n of the Blind of N.C., Inc.,

487 U.S. 781, 800 (1988) (noting “the First Amendment directive

that government not dictate the content of speech absent

compelling necessity, and then, only by means precisely

tailored”).

Thus, before enacting the Ordinance, the City should at

least have considered less restrictive alternatives and

indicated why those alternatives would be ineffective. And yet,

the City points to not a single portion of the 239-page

legislative history submitted as part of this litigation

indicating that it ever took these elementary steps. See J.A.

192-430. What testimony was delivered and evidence presented

before the City Council appears to have focused on the City’s

interest in enacting the Ordinance rather than the question of

whether the Ordinance was a narrowly tailored means of serving

that interest. Especially telling is the absence of any

statement of legislative findings indicating why less

restrictive alternatives would come up short. This is not for a

lack of such alternatives. As the district court noted, many

suggest themselves. See O’Brien v. Mayor & City Council of

70
Balt., 768 F. Supp. 2d 804, 817 (D. Md. 2011). Posting warning

signs in its own voice outside the Center, undertaking a public

information effort of its own, or applying the anti-fraud

provisions in state law are all alternatives that the City now

seems eager to reject but nowhere indicates it ever considered

or tried.

Without ever having contemplated these options, the City

now asserts that they will prove ineffective, and based on that

bald assertion, the majority unlocks the doors of discovery.

The lesson of the majority’s ruling for other legislative bodies

is clear: compel speech before considering less restrictive

alternatives, and you will be granted discovery to prove why

those alternatives are ineffective after the fact. This upends

the notion that compelled speech should be a last resort,

encouraging legislatures to adopt the most constitutionally

offensive option rather than the least. In this respect as

well, the majority renders litigation a threat to liberty rather

than its safeguard.

The majority’s infatuation with discovery is compounded by

its similarly misguided affection for as-applied challenges.

Although the district court construed the Center’s claim as a

facial challenge, the majority insists it actually undertook an

as-applied analysis. See maj. op. at 37-38. But this

conclusion, aside from being incorrect, is a tragedy for free

71
expression. For it means that, even if the Center ultimately

prevails on its First Amendment claim, other centers with

similar moral or religious beliefs will each have to bring their

own suits challenging the Ordinance as applied to them. This is

a war of attrition. By requiring every pregnancy center to

bring its own as-applied challenge and to submit to separate

investigation, the majority invites piecemeal litigation that

will dramatically increase the costs for the centers of

vindicating their First Amendment rights. Free speech should

never be held hostage to this kind of duplicative and intrusive

litigation.

The majority responds by doubling down on the virtues of

extended litigation. It pens a final ode to discovery, maj. op.

at 59, again ignoring the question of when that discovery serves

a salutary purpose and when it simply chokes off constitutional

rights as it does here. This is by no means to suggest that

affording the government discovery is inappropriate in every

constitutional case. But one does not need discovery to

discover the obvious. Here, the infringement of the Center’s

free-speech rights is patent and profound, and the alternatives

to a mandatory disclaimer are myriad. I recognize that the

Center’s views on the issues surrounding abortion rights are

controversial. But the First Amendment is not needed to protect

speech that elicits broad popular approbation. “The test of

72
[freedom’s] substance is the right to differ as to things that

touch the heart of the existing order.” Barnette, 319 U.S. at

642. If there was ever a case for entering judgment in order to

forestall government action that threatens to deter disfavored

speakers from defending their First Amendment rights, this case

is it.

Indeed, the Supreme Court has only recently reiterated the

“basic First Amendment principle that freedom of speech

prohibits the government from telling people what they must

say.” Agency for Int’l Development v. Alliance for Open Society

Int’l, Inc., No. 12-10, slip op. at 6 (U.S. June 20, 2013)

(internal quotation marks omitted). Even when direct

appropriations are involved, the government may not control an

organization’s core message outside of the confines of the

program being funded. See id. at 15 (holding that a government

requirement that “compels as a condition of federal funding the

affirmation of a belief that by its nature cannot be confined

within the scope of the Government program. . . . violates the

First Amendment”). Here, of course, funding conditioned upon

speech is not at issue. Compelled speech becomes all the more

invasive when it is simply commanded without any corresponding

benefit to the recipient. The recipient of public funds at

least theoretically has some choice about whether to accept the

aid with its attendant conditions. Id. at 7. In the instant

73
case, the Center gains no benefit and has no choice but to

speak, and the coercion is complete.

III.

To my good colleagues in the majority, all I can say is,

“Be careful what you wish for.” In strongly implying that the

Ordinance will survive First Amendment scrutiny, the majority

has established a principle that will bite the very hands that

feed it. For compelled speech can serve a pro-life agenda for

elected officials as well as a pro-choice one. Cf. Planned

Parenthood Minn., N.D., S.D. v. Rounds, 686 F.3d 889 (8th Cir.

2012) (en banc). It is easy to imagine legislatures with

different ideological leanings from those of the Baltimore City

Council enacting measures that require organizations like

Planned Parenthood to post a statement in their waiting rooms

indicating what services they do not provide. Indeed, after

today’s decision, I would expect a flurry of such measures.

When this court finally confronts a pro-life analogue of

the Baltimore Ordinance, it will face a dilemma. Either it will

uphold the measure, in which case it will simply confirm what

today’s decision suggests: that the government does have the

power after all to “prescribe what shall be orthodox in

politics, nationalism, religion, or other matters of opinion

[and to] force citizens to confess by word or act their faith

74
therein.” Barnette, 319 U.S. at 642. Or it will invalidate the

measure, in which case the First Amendment will have ceased to

function as a neutral arbiter of our nation’s ideological

disputes, but will instead have become a tool to serve the

policy predilections of the judges who happen to be applying it

in any given case. Either way, we will have warped First

Amendment doctrine beyond recognition, and we shall have but

ourselves to blame.

IV.

Compelled speech can get tricky quickly. The state

possesses a broad police power to regulate for the health and

safety of its citizens, which includes the authority to require

the disclosure of limited amounts of accurate information. See,

e.g., Zauderer v. Office of Disciplinary Counsel of the Supreme

Court of Ohio, 471 U.S. 626, 650-53 (1985). Compelled speech is

thus not an all-or-nothing matter. See Centro Tepeyac v.

Montgomery Cnty., No. 11-1314 (4th Cir. 2013) (en banc)

(Wilkinson, J., concurring). But as the flag-salute cases teach

us, the state generally may not force individuals to utter

statements that conflict with beliefs so profound that they

define who we are. How to balance the state’s responsibility to

protect its citizens with the individual’s interest in staying

75
true to conscience is a perennial question that will prove

vexing in many cases.

This case, however, is not vexing. The Baltimore Ordinance

demands that organizations like the Center affirm a proposition

they vehemently deny. It is, moreover, a law in search of a

problem about which the City and majority speculate but cannot

identify. The City made no attempt to try or even consider

alternative approaches that would have allowed it to achieve its

purposes without compelling the Center to say a word. Wherever

the First Amendment might draw the line between state regulation

and individual conscience, this law crosses it. To the

infirmities of the law, the majority adds burdens beyond measure

on freedom of the mind.

I respectfully dissent.

76
NIEMEYER, Circuit Judge, dissenting:

Baltimore City Ordinance 09-252 mandates that pregnancy

centers that do not offer abortions or refer for abortions must

post one or more signs in their waiting rooms, stating that they

“do[] not provide or make referral for abortion or birth-control

services.” On the plaintiffs’ assertion that such a sign

requires them to speak contrary to their moral and religious

beliefs, the district court held, as a matter of law, (1) that

the ordinance, on its face, compels speech that is not content

neutral; (2) that such compelled speech is subject to strict

scrutiny; and (3) that the ordinance is not narrowly tailored to

serve the City’s stated interest in prohibiting such pregnancy

centers, as a health concern, from misrepresenting information

about abortions. It thus found the ordinance unconstitutional.

A ruling of this kind does not implicate a need to have

discovery of factual circumstances, as the majority opinion

orders, because every point on which the district court’s ruling

depended was a question of law that construed the ordinance on

its face and assessed its scope against well-established First

Amendment principles. In determining to vacate the district

court’s order and remand the case, the majority opinion

addresses a case not before us. The opinion fails in three

fundamental respects.

77
First, it fails to address the actual holding of the

district court insofar as the district court applied established

legal principles to conclude, as a matter of law, that the

ordinance was unconstitutional. Rather, it dismisses the

district court’s ruling as “laden with error,” pointing to a

raft of circumstantial factual questions, irrelevant to the

necessary legal propositions, and concluding that the legal

issues therefore cannot be resolved by summary judgment.

Second and more fundamentally, it fails to recognize the

scrutiny applicable to regulations that compel speech --

regulations that require a person to say that with which the

person would not otherwise say and might well disagree. Such

regulations are among the most pernicious invasions of First

Amendment rights, and for that reason, they are subject to “the

most exacting scrutiny.” Turner Broadcasting Sys., Inc. v. FCC,

512 U.S. 622, 641-42 (1994). Although distinct from laws that

regulate what persons have chosen to say, regulations that

compel people to speak the government’s message are equally

invasive of our most basic freedom. Id. “Mandating speech that

a speaker would not otherwise make necessarily alters the

content of the speech.” See Riley v. Nat’l Fed. of the Blind of

N.C., Inc., 487 U.S. 781, 795 (1988). And because it is

“content-based,” it is subject to strict scrutiny. Turner

Broadcasting, 512 U.S. at 642. Indeed, “[c]ontent-based

78
[speech] regulations are presumptively invalid.” R.A.V. v. City

of St. Paul, 505 U.S. 377, 382 (1992) (emphasis added). The

majority opinion not only fails to recognize these principles,

it does not even discuss “compelled speech.” Rather, it

implies, by its silence on the subject, that compelled speech or

content-based speech, when including potentially commercial

speech, is subject to a relaxed level of scrutiny, a position

never countenanced by the Supreme Court.

And third, it fails to recognize that the challenge

addressed by the district court was the plaintiffs’ facial

challenge. In an effort to identify questions of fact to

support its remand, the opinion ignores the issue presented --

i.e., whether a facial review would render the ordinance

unconstitutional -- and recharacterizes the proceeding as an as-

applied challenge. With that erroneous maneuver, it concludes

that facts need to be developed to conduct such an as-applied

challenge. Ante, at 38 (“But to properly employ an as-applied

analysis, the court was obliged to first afford the City

discovery”). To be sure, the complaint challenged the ordinance

both facially and as-applied, but the plaintiffs argued before

the district court that on Count I (violation of free speech),

the court could rule on the ordinance “as a facial matter.” And

in its opinion, the district court accepted this, repeating that

in the plaintiffs’ claims against the City, the plaintiffs

79
“contend[ed] that the Ordinance [was] facially invalid.”

O’Brien v. Mayor & City Council of Baltimore, 768 F. Supp. 2d

804, 808 (D. Md. 2011). The court then proceeded to address the

case as a facial challenge, stating, “In the instant case, the

Court must examine whether the Ordinance, on its face, is

subject to, and satisfies, the applicable level of scrutiny.”

Id. at 810 (emphasis added).

Thus, to conclude that the district court’s holding was

“laden with error,” ante, at 10, the majority opinion itself is

error-laden, giving the governing core principles the back of

the hand and broadening, by recharacterization, the issues so as

to be able to conclude that the City should have been given the

opportunity to engage in discovery, even as to subjects that

would be irrelevant or unnecessary to the legal questions

decided by the district court. It is apparent that the majority

opinion, which is some 50 typewritten pages, roams in

supposition about what pregnancy centers that do not offer

abortion have said to their clients; about whether their advice

could have been commercial in nature; and about the facts that

might have been misrepresented, as identified by pro-choice

groups in their stated policy positions. For example, the

majority opinion quotes at length: (1) the Waxman report, which

suggests the pregnancy centers “often mask their pro-life

mission” to mislead pregnant women; (2) the report of the NARAL

80
Pro-Choice Maryland Fund that pregnancy centers give “wildly

inaccurate information” about abortion; (3) the legislative

testimony of a woman who stated she had “felt tricked” by a

pregnancy center 16 years before; and (4) the legislative

testimony of a professor who stated that she was “distressed by

the existence of centers” that misrepresent their mission. The

majority sets forth no similar evidence provided by the

plaintiffs, yet it relies on the City’s claimed need to respond

to the plaintiffs’ facts.

In its gratuitous shaping of the issues, the majority also

devotes pages to speculation about whether the ordinance

regulates commercial speech or noncommercial speech -- failing

to recognize that, on its face, the ordinance regulates both.

The majority’s position is curious in view of the fact that it

has today affirmed the district court’s conclusion in Centro

Tepeyac that a similar Montgomery County, Maryland provision

compelled noncommercial speech and that any commercial speech

was intertwined with regulated noncommercial speech. See Centro

Tepeyac v. Montgomery Cnty., ___ F.3d ___, No. 11-1314(L), at

___ (4th Cir. June ___, 2013) (en banc) (observing that the

district court “demonstrated a firm grasp of the legal

principles”). Here, in contrast, the majority concludes that

resolution of the question must be “fact-driven.” It states,

“Without all the pertinent evidence -- including evidence

81
concerning the Center’s economic motivation (or lack thereof)

and the scope and content of its advertisements -- we cannot

properly analyze the speech regulated by the Ordinance.” Ante,

at 49. But this speculation is irrelevant because Ordinance 09-

252 regulates both commercial and noncommercial speech and

addresses all persons who provide pregnancy services without

providing abortions or referring for abortions.

Were our court grappling with the abortion issue itself,

the majority’s fulsome and overstated facts might mean

something. But the case before us presents the much narrower

question about the scope of the ordinance on its face. It

appears that the majority has become seduced by its own

elaboration of abortion policy from the viewpoint of some

interested groups, thereby blinding it from the narrow legal

issue raised by the terms of the ordinance.

The district court, on the other hand, correctly focused on

the relevant legal issue and, in a reasoned fashion, supported

its holding by analyzing the ordinance’s language. To be sure,

the district court engaged hypothetically from time to time in

discussion about the potential relevance of facts, but it

quickly left them, recognizing that the well-established First

Amendment principles on which it relied provided for a

resolution of the issue as a matter of law. As it stated, “In

the instant case, the Court must examine whether the Ordinance,

82
on its face, is subject to, and satisfies, the applicable level

of scrutiny.” O’Brien, 768 F. Supp. 2d at 810 (emphasis added).

And from the language of the ordinance, it concluded that the

strict-scrutiny standard applied and that the ordinance did not

meet that standard. Nowhere did the district court consider or

decide an as-applied review.

I respectfully submit that under the well-established First

Amendment principles relating to compelled speech, Baltimore

City Ordinance 09-252 cannot, on its face, withstand strict

scrutiny. The ordinance is content-based, telling a person, not

otherwise regulated, what to say to a client, even though the

person may disagree with the speech and would not otherwise say

what is commanded. The mandate is imposed on all pregnancy

centers not providing or referring for abortion, whether they

are commercial or noncommercial or whether they provide services

for free or for a fee. Although the City may have a compelling

interest in prohibiting the misrepresentation of information

about abortion, as it claims, the ordinance on its face does not

prohibit misrepresentation. Indeed, it mandates speech

regardless of whether the pregnancy center misrepresents or not.

These statutorily based observations lead to the legal

conclusion that the ordinance is overbroad and therefore

unconstitutional. To reach that conclusion does not require

discovery of the circumstantial facts about how the ordinance

83
might apply in any given circumstance. I conclude that the

majority’s decision to remand for the development of irrelevant

facts is simply misguided.

The district court’s decision should be affirmed.

By way of background, the City of Baltimore enacted

Ordinance 09-252 in December 2009, regulating all pregnancy

centers that provide pregnancy related services for free or for

a fee and that either do not provide abortions or refer for

abortions. The ordinance requires each one of those centers to

post one or more signs in its waiting room stating that the

center “does not provide or make referral for abortion or birth-

control services.”

The legislative record indicates that the President of the

Baltimore City Council introduced Bill 09–0406 (the future

Ordinance 09–252) after meeting with abortion-rights advocacy

groups. Those groups complained that some pregnancy clinics

provide inaccurate information to women about abortions. A

spokesperson for the City Council President explained in a

public statement: “The bill deals with whether women are told

up front what the facts are. Women need to know up front what

to expect when they go into these centers.” The “Bill Synopsis”

presented to the City Council stated that the Bill was

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“introduced because of the ‘importance of choice.’” And the

Baltimore City Health Department backed the Bill, based on the

“purpose of the bill to require limited-service pregnancy

centers to provide accurate information about available services

to clients and potential clients.” (Emphasis added). The Bill

was enacted in November and became law on December 4, 2009.

In March 2010, before any enforcement of Ordinance 09–252,

the Archbishop of Baltimore, St. Brigid’s Roman Catholic Church,

and the Greater Baltimore Center for Pregnancy Concerns, Inc.

(“the Pregnancy Center”) commenced this action against the Mayor

and City Council of Baltimore, challenging the constitutionality

of the ordinance and alleging that it violates the Free Speech

and Free 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 Ann., Health–Gen. § 20–214(a).

The complaint alleges that the Pregnancy Center is a

“limited-service pregnancy center,” as defined in Ordinance 09–

252, operating in Baltimore City from two locations. The Center

provides free services to pregnant women, such as pregnancy

testing; classes in prenatal development, post-pregnancy

parenting, and life skills; Bible studies; and material support

for women through its “Hannah’s Cupboard” program, including

diapers, formula, baby and maternity clothes, toys, and books.

85
It also provides women with information on “abstinence and

natural family planning, which are recognized forms of birth

control,” but does not provide referrals for abortions or other

methods of birth control, asserting that it does not do so

“[b]ased on moral and religious beliefs.” The Pregnancy Center

does not charge its clients for its services.

The complaint alleges that Ordinance 09–252 specifically

targets pro-life pregnancy centers such as the Pregnancy Center

and thus “regulates communications at the Pregnancy Center that

are personal, moral, religious, and political.” It also states

that “[b]y requiring a disclaimer that the Center does not

provide or refer for abortions, the Ordinance compels Plaintiffs

to deliver the implied message that these services are available

elsewhere and should be considered,” thus appearing to

legitimize such services, in violation of the plaintiffs’

beliefs. The complaint objects to the ordinance’s requirement

that the Pregnancy Center “post a sign saying that it does not

provide birth-control services,” when in fact it does “in the

form of education about abstinence and natural family planning.”

The plaintiffs seek a declaratory judgment that the ordinance is

unconstitutional on its face and/or as applied to them and an

injunction prohibiting the ordinance’s enforcement. Some two

months after they filed their complaint, but before the City

filed its answer, the plaintiffs also filed a motion for partial

86
summary judgment on their free speech and equal protection

claims.

The City argued that the plaintiffs’ summary judgment

request was premature in that the City had not been afforded the

opportunity to conduct discovery or to fully develop expert

testimony on key factual issues. The City contended that it

needed “to conduct discovery concerning the advertising that the

Pregnancy Center and other limited-service pregnancy centers

employ . . . [to] demonstrate its deceptive character.” The

City also asked for discovery “to develop factual support for

[the City’s] argument that the services offered by [the Center]

are a form of commerce, and, therefore, the disclaimer required

by the Ordinance is commercial speech, subject only to rational

basis scrutiny -- not strict scrutiny.” Finally, the City asked

for “the opportunity to develop expert testimony to provide

factual support for the propositions that deceptive advertising

by limited-service pregnancy centers threatens public health in

a variety of ways.”

Following a hearing on the motion for summary judgment, as

well as on other motions, the district court entered an order

dated January 28, 2011, denying the City’s request for further

discovery on the ground that it was not necessary to the issue

being decided; granting the Pregnancy Center’s motion for

summary judgment on its free speech claim; and entering a

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judgment permanently enjoining the enforcement of the ordinance.

In granting summary judgment to the Pregnancy Center, the court

held that Ordinance 09-252 was unconstitutional based on its

legal conclusions that the ordinance compelled speech; that it

was content-based and therefore subject to strict scrutiny; and

that it was not narrowly tailored to fit the City’s stated

interest in enacting the ordinance. O’Brien, 768 F. Supp. 2d at

812-14, 816-17.

This is not a hard case, and the First Amendment analysis

is straightforward.

For a facial challenge, we look to the face of the

ordinance and are “careful not to go beyond [its] facial

requirements and speculate about ‘hypothetical’ or ‘imaginary’

cases.” Wash. State Grange v. Wash. State Republican Party, 552

U.S. 442, 449-50 (2008). But the assessment may consider the

application of the regulation to others, not just to the

plaintiffs, to determine whether there are conceivable instances

of overbreadth. See Bd. of Trustees of State Univ. of N.Y. v.

Fox, 492 U.S. 469, 483-84 (1989). Thus, when conducting a

facial review under the First Amendment, we “construe the

statute and determine whether ‘a substantial number of its

applications are unconstitutional, judged in relation to the

88
statute’s plainly legitimate sweep.’” Preston v. Leake, 660

F.3d 726, 739 (4th Cir. 2011) (quoting United States v. Stevens,

559 U.S. 460, 130 S. Ct. 1577, 1587 (2010)).

Ordinance 09–252 targets “limited-service pregnancy

centers,” which are defined as “any person”

(1) whose primary purpose is to provide pregnancy-
related services; and

(2) who:

(i) for a fee or as a free service, provides
information about pregnancy-related services;
but

(ii) does not provide or refer for:

(A) abortions; or

(B) nondirective and comprehensive birth-
control services.

Baltimore City Health Code § 3–501 (emphasis added). Under the

ordinance, “[a] limited-service pregnancy center must provide

its clients and potential clients with a disclaimer

substantially to the effect that the center does not provide or

make referral for abortion or birth-control services.” Id.

§ 3-502(a). This disclaimer must be made through one or more

“easily readable” signs that are “conspicuously posted in the

center’s waiting room” and written in English and Spanish. Id.

§ 3–502(b). The failure to comply with the terms of the

ordinance is punishable by a citation carrying a maximum civil

penalty of $150. Id. § 3-506(a).

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On its face, Ordinance 09-252 compels speech. A pregnancy

center that does not provide or refer for abortions must post

the sign containing the mandated language. A pregnancy center

is thus required to participate in the City’s effort to tell

pregnant women that abortions are available elsewhere as a

presumably acceptable alternative, regardless of the moral and

religious beliefs of the center.

As a matter of logic and Supreme Court precedent,

“[m]andating speech that a speaker would not otherwise make

necessarily alters the content of the speech.” Riley, 487 U.S.

at 795. Accordingly, compelled speech must be addressed as “a

content-based regulation of speech.” Id. (citing Miami Herald

Publ’g Co. v. Tornillo, 418 U.S. 241, 256 (1974)). Of course, a

content-based speech regulation is subject to the “most exacting

scrutiny,” the strict scrutiny standard. Turner Broadcasting,

512 U.S. at 642; Riley, 487 U.S. at 796; see also United States

v. Playboy Entm’t Group, Inc., 529 U.S. 803, 813 (2000).

Indeed, strict scrutiny applies even in cases where the

compelled disclosure is limited to factually accurate or non-

ideological statements. Riley, 487 U.S. at 797-98; Hurley v.

Irish-Am. Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557,

573 (1995) (“[The] general rule that the speaker has the right

to tailor the speech, applies not only to expressions of value,

opinion, or endorsement, but equally to statements of fact”).

90
In an effort to avoid strict scrutiny of Ordinance 09-252,

the City contends that the ordinance compels only commercial

speech and therefore is subject to a lower level of scrutiny.

Commercial speech is defined as “expression related solely to

the economic interests of the speaker and its audience.”

Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y.,

447 U.S. 557, 561 (1980). 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 citation and quotation marks omitted). In some

circumstances, speech may be classified as commercial even when

it “cannot be characterized merely as proposals to engage in

commercial transactions.” Id.; see also id. at 67-68 (holding

that advertisements discussing the health benefits of

contraceptives were commercial speech); Wag More Dogs, LLC v.

Cozart, 680 F.3d 359, 370 (4th Cir. 2012) (holding that

business’ outdoor mural was commercial speech where business

conceded that the mural was advertising, the mural included part

of the business’ logo, and the business “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.

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Here, the enacted text forecloses the City’s argument that

the ordinance targets only commercial speech because the

ordinance imposes a disclosure requirement on all speakers,

regardless of economic motivation. The ordinance applies

wholesale to any person who “for a fee or as a free service”

provides information about pregnancy. The ordinance thus

imposes its disclosure requirement wholly indifferent to whether

the speaker “propos[es] a commercial transaction.” Central

Hudson, 447 U.S. at 562; see also Centro Tepeyac v. Montgomery

Cnty, 779 F. Supp. 2d 456, 463-65 (D. Md. 2011) (noting that

similar provisions applying to persons who provide services for

free “cannot rely on commercial speech cases”), affirmed, Centro

Tepeyac, ___ F.3d at ___, No. 11-1314(L), at 11-12.

In a similar effort to avoid the application of strict

scrutiny, the majority maintains that the commercial speech

inquiry is “fact-driven” and that therefore “discovery is needed

to substantiate . . . whether the Center possesses economic

interests apart from its ideological motivations.” Ante, at 45-

46. But this approach is flawed. The Pregnancy Center’s

motivation for its provision of free information is irrelevant

to the inquiry of whether the ordinance, on its face, compels

noncommercial speech. The ordinance reaches beyond this one

pregnancy center and imposes the requirement of a disclaimer

sign on every speaker -- commercial or not -- who provides

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information “for a fee or as a free service.” The plain

language of the ordinance focuses not on the economic motive of

the person, but on the content of the person’s speech. It is

therefore untenable for the majority to assert that the

commercial motive of this pregnancy center is a relevant fact

yet to be determined.

Thus, as a noncommercial, content-based regulation, the

ordinance is subject to strict scrutiny, see Centro Tepeyac, 779

F. Supp. 2d at 468 (holding, with respect to a similar

provision, that “strict scrutiny applies”), affirmed, Centro

Tepeyac, ___ F.3d at ___, No. 11-1314(L), at 12, and “[c]ontent-

based [speech] regulations are presumptively invalid,” R.A.V.,

505 U.S. at 382. The City bears the burden of rebutting the

presumption of invalidity. See Playboy Entm’t Group, 529 U.S.

at 816-17. 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.” Id. at 813. And to do this,

it must show that the ordinance is the least restrictive

alternative to serve the government’s purpose. Id.; Ashcroft v.

ACLU, 542 U.S. 656, 666 (2004).

The City maintains that it has a compelling government

interest in assuring, as a health concern, that pregnancy

93
centers do not misrepresent information about abortion, a

concern that it grounds in the Waxman Report and the report of

the NARAL Pro-Choice Maryland Fund. It also contends that the

ordinance narrowly addresses this concern by requiring pregnancy

centers to post the mandated sign in their waiting rooms.

The district court accepted the City’s stated interest in

the ordinance as a compelling one and elected to assess the

question of whether the ordinance was narrowly tailored to serve

that interest. I too would bypass any inquiry about the

sufficiency of the City’s stated government interest and address

the question of whether it is narrowly tailored. If the

ordinance is not narrowly tailored to serve the City’s stated

interest, then it must be invalidated as unconstitutional.

The inquiry into whether Ordinance 09-252 is narrowly

tailored is a purely legal question: “Whether [a] regulation

meets the ‘narrowly tailored’ requirement is of course a

question of law . . . .” United States v. Doe, 968 F.2d 86, 88

(D.C. Cir. 1992); see also Vill. of Schaumburg v. Citizens for a

Better Env’t, 444 U.S. 620, 634 (1980) (whether an ordinance is

overbroad is “a question of law that involved no dispute about

the characteristics of” the plaintiff). A statute is narrowly

tailored only “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

94
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 omitted).

A regulation is not narrowly tailored when, among other

things, (1) it does not advance the purported compelling

interest, e.g., Meyer v. Grant, 486 U.S. 414, 426 (1988); (2) it

is overinclusive, e.g., Simon & Schuster, Inc. v. Members of the

N.Y. State Crime Victims Bd., 502 U.S. 105, 121–23 (1991); or

(3) the government has other, less speech-restrictive

alternatives available, e.g., Playboy Entm’t Group, 529 U.S. at

816–17. Ordinance 09–252 fails under all three tests.

First, the ordinance does not target the stated government

interest of eliminating false advertising. It does not even

mention false advertising, and its substance does not address

it.

Second, the ordinance is overinclusive because it applies

equally to pregnancy centers regardless of whether they

advertise and, if they advertise, regardless of whether they

engage in false advertising. See FEC v. Mass. Citizens for

Life, Inc., 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

95
“must avoid infringing on speech that does not pose the danger

that has prompted regulation”).

Third, several alternatives to address the problems

purportedly targeted by the ordinance are available and would

impose a lesser burden on speech. Most obviously, the City

could speak with its own voice. It might, for example, use its

own resources to undertake public education campaigns addressing

the alleged dangers of pregnancy centers or, more generally,

promoting consultations with physicians for pregnant women. Cf.

44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 507 (1996)

(“It is perfectly obvious that alternative forms of regulation

that would not involve any restriction on speech would be more

likely to achieve the State’s goal of promoting

temperance. . . . [E]ducational campaigns focused on the

problems of excessive, or even moderate, drinking might prove to

be more effective”). This is the same alternative that the

district court found available in Centro Tepeyac, 779 F. Supp.

2d at 469 n.9, to support in part its finding that a similar

provision was likely unconstitutional and that this court

affirmed in Centro Tepeyac, ___ F.3d at ___, No. 11-1314(L) at

13-14.

As another alternative, the City could produce a document

or website listing local pregnancy centers and noting what

services are available at each. See Riley, 487 U.S. at 800

96
(“[T]he State may itself publish the detailed financial

disclosure 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 as yet another alternative, the City could always

pursue the option of prosecuting violations of its criminal and

civil laws that proscribe false or deceptive advertising. See

Riley, 487 U.S. at 800; see also Nefedro v. Montgomery Cnty.,

996 A.2d 850, 863 (Md. 2010) (holding that fraud laws were a

less restrictive alternative to a law prohibiting remuneration

for fortune-telling).

That the City resorted to speech restrictions before trying

these or other less restrictive alternatives is more than enough

to render the ordinance unconstitutional. See Thompson v.

Western States Med. Ctr., 535 U.S. 357, 373 (2002) (“If the

First Amendment means anything, it means that regulating speech

must be a last -- not first -- resort”).

The additional discovery ordered by the majority would not

eliminate or even mitigate these narrow-tailoring problems. The

ordinance’s infirmity in this regard is apparent on its face.

Cf. Sable Commc’ns of Cal., Inc. v. FCC, 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

97
there is no constitutionally acceptable less restrictive means,

short of a total ban, to achieve the Government’s interest”);

Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250, 1274

(11th Cir. 2005) (invalidating content-based sign regulation on

appeal from the denial of a preliminary injunction because

“[t]he First Amendment questions . . . [were] purely legal” and

“only minimally intertwined with the facts”).

Tellingly, the majority does not dispute the fact that

discovery would not be needed to determine whether the language

of the ordinance advances the stated government interest or is

overinclusive -- two of the three ways that can render an

ordinance not narrowly tailored. But it nonetheless states that

the City “must be accorded the opportunity to develop evidence

disproving the effectiveness of purported less restrictive

alternatives to the Ordinance’s disclaimer.” Ante, at 53; cf.

Centro Tepeyac, ___ F.3d at ___, No. 11-1314(L), at 13-14

(holding to the contrary with respect to a similar provision).

It is remarkable that this is discovery that the City never

requested.

Finally, the majority adds the careless declaration that:

[T]he City must be accorded the opportunity to develop
evidence relevant to the compelling governmental
interest and narrow tailoring issues, including, inter
alia, evidence substantiating the efficacy of the
Ordinance in promoting public health.

98
Ante, at 53. This declaration of loosely mixed principles is,

as it stands, irrelevant to any issue, but it appears mostly to

collapse two burdens that the government has under strict

scrutiny. First, the government was required to advance a

compelling governmental interest in mandating speech. With

respect to that, the majority fails to recognize that the

district court assumed that the government had appropriately

claimed a compelling interest in prohibiting the

misrepresentation of information about abortion. Thus, there is

no issue of fact to resolve. Second, the government had the

burden to show that its regulation of speech -- i.e., mandating

the posting of a sign with specific content in pregnancy

centers’ waiting rooms -- was narrowly tailored to serve the

compelling governmental interest. As to this, the majority

fails to recognize that that issue was a question of law. See

Village of Schaumburg, 444 U.S. at 634; Doe, 968 F.2d at 88. To

resolve such a question of law, all that need be done is an

analysis of the statute’s language to determine if it “targets

and eliminates no more than the exact source of the ‘evil’ it

seeks to remedy.” Frisby, 487 U.S. at 485.

In short, to respond to the self-evident proposition that

discovery is not needed in resolving questions of law, the

majority fabricates fact issues where none exist and then

criticizes the dissenting opinions, stating, “The dissenters

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would wholly exempt the Center from fundamental procedures to

which all civil litigants are both subject and entitled.” Ante,

at 58. Indeed, it inflates the postured balloon, suggesting

even a constitutional issue in denying discovery. See ante, at

59 (“We, however, are not so dismissive of the Federal Rules of

Civil Procedure, which, as the Supreme Court has underscored,

‘are designed to further the due process of law that the

Constitutional guarantees’”). The majority’s drama about its

role in protecting the Federal Rules of Civil Procedure and the

U.S. Constitution does not, however, advance its argument that

it can ignore the reality that the district court ruled on

questions of law, questions that do not need discovery to

resolve.

III

At bottom, we have a City ordinance that targets, on its

face and by design, all pregnancy centers that do not provide

abortions or do not refer clients for abortions. Purportedly to

remedy misrepresentations being made by these pregnancy centers

about abortion, the ordinance requires each center to put a sign

in its waiting room announcing to clients that the abortion

alternative is not provided at the center, even though such

center might hold the view that abortion should not be

considered as an alternative at all. Such an approach invades

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the most fundamental freedom of speech, mandating that the

pregnancy centers speak a message with which they profoundly

disagree. Even though the City may have a compelling interest

in preventing misrepresentations about abortion, it is not free

to impose a requirement of speech on those who do not

misrepresent. Ordinance 09-252 mandates the antidote on all

persons who refuse to provide or refer for abortion, regardless

of whether they have misrepresented or are misrepresenting

abortion information. On its face, the ordinance is overbroad

and unconstitutional. See Centro Tepeyac, 779 F. Supp. 2d at

468-69 (holding similar provision likely not narrowly tailored),

affirmed, Centro Tepeyac, ___ F.3d at ___, No. 11-1314(L), at

13-14.

The majority, however, refuses to consider the legal

questions raised by the Pregnancy Center’s facial challenge and

reaches, in its far-ranging opinion, irrelevant and ideological

facts about a case not presented to conclude that summary

judgment was inappropriate. I disagree and conclude that the

district court properly recognized the issues that could be

decided as a matter of law and found the ordinance

unconstitutional. That legal analysis is not a difficult one

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and, I submit, readily leads to the district court’s conclusion.

Accordingly, I would affirm. ∗

Judges Wilkinson, Shedd, and Agee have asked me to show

them as joining this opinion.

∗
While I dissent from the court’s remand, I concur in its
judgment that the Archbishop and St. Brigid’s Catholic Church
lack standing to challenge the ordinance.

102