Centro Tepeyac v. Montgomery County

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-1314

CENTRO TEPEYAC,

Plaintiff – Appellee,

v.

MONTGOMERY COUNTY; MONTGOMERY COUNTY COUNCIL, in its
capacity as the Montgomery County Board of Health,

Defendants – Appellants,

and

MONTGOMERY COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES;
MARC HANSEN, Acting County Counsel,

Defendants.

No. 11-1336

CENTRO TEPEYAC,

Plaintiff – Appellant,

v.

MONTGOMERY COUNTY; MONTGOMERY COUNTY COUNCIL, in its
capacity as the Montgomery County Board of Health,

Defendants – Appellees,

and

MONTGOMERY COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES;
MARC HANSEN, Acting County Counsel,
 Defendants.

Appeals from the United States District Court for the District
of Maryland, at Greenbelt. Deborah K. Chasanow, Chief District
Judge. (8:10-cv-01259-DKC)

ARGUED: December 6, 2012 Decided: July 3, 2013

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

Affirmed by published opinion. Judge King wrote the majority
opinion, in which Chief Judge Traxler and Judges Wilkinson,
Motz, Gregory, Duncan, Davis, Keenan, Wynn, Floyd, and Thacker
joined. Judge Wilkinson wrote a concurring opinion. Judge
Niemeyer wrote a dissenting opinion, in which Judges Shedd and
Agee joined.

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

2
KING, Circuit Judge:

These cross-appeals demand our review of the district

court’s decision to preliminarily enjoin enforcement of one

portion of a Montgomery County Resolution requiring limited

service pregnancy resource centers to post signs disclosing

(1) that “the Center does not have a licensed medical

professional on staff,” and (2) that “the Montgomery County

Health Officer encourages women who are or may be pregnant to

consult with a licensed health care provider.” See Centro

Tepeyac v. Montgomery Cnty., 779 F. Supp. 2d 456, 469-72 (D. Md.

2011). The injunction encompasses the second statement

compelled by the Resolution, but not the first one — leaving no

party to this dispute fully satisfied. Because the district

court acted well within its discretion, however, we affirm its

decision. 1

1
These appeals were initially heard by a three-judge panel
of our Court. The panel majority affirmed the district court’s
preliminary injunction decision with respect to the Resolution-
mandated second statement, but reversed as regards the first.
See Centro Tepeyac v. Montgomery Cnty., 683 F.3d 591 (4th Cir.
2012). The panel opinion was subsequently vacated, however,
with the grant of rehearing en banc. See Centro Tepeyac v.
Montgomery Cnty., No. 11-1314(L) (4th Cir. Aug. 15, 2012).

3
 I.

A.

On February 2, 2010, the Montgomery County Council, acting

as the Montgomery County Board of Health, adopted the Resolution

at issue, No. 16-1252. See J.A. 198-200. 2 The Resolution

applies to limited service pregnancy resource centers, defined

therein as

an organization, center, or individual that:

(A) has a primary purpose to provide pregnancy-
related services;

(B) does not have a licensed medical
professional on staff; and

(C) provides information about pregnancy-related
services, for a fee or as a free service.

Id. at 199. The Resolution requires each such center to “post

at least 1 sign in the Center” making the specified disclosures,

i.e., that “the Center does not have a licensed medical

professional on staff,” and that “the Montgomery County Health

Officer encourages women who are or may be pregnant to consult

with a licensed health care provider.” Id. The sign must be

“written in English and Spanish,” “easily readable,” and

“conspicuously posted in the Center’s waiting room or other area

where individuals await service.” Id.

2
Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in these appeals.

4
 The Resolution relays the County Council’s finding,

following a December 1, 2009 public hearing, “that requiring a

disclaimer for certain pregnancy resource centers is necessary

to protect the health of County residents.” J.A. 198.

Explaining that finding, the Resolution identifies the Council’s

“concern [as being] that clients may be misled into believing

that a Center is providing medical services when it is not,” and

that “[c]lients could therefore neglect to take action (such as

consulting a doctor) that would protect their health or prevent

adverse consequences, including disease, to the client or the

pregnancy.” Id.

The Montgomery County Department of Health and Human

Services is charged with “investigat[ing] each complaint

alleging a violation of [the Resolution] and tak[ing]

appropriate action, including issuing a civil citation when

compliance cannot be obtained otherwise.” J.A. 200. Prior to a

citation, however, the Department must “issue a written notice

ordering the Center to correct the violation within either” “10

days of the notice” or “a longer period that the Department

specifies in the notice.” Id. Where there are “repeated

violations” of the Resolution, “[t]he County Attorney may file

an action in a court with jurisdiction to enjoin [those]

violations.” Id.

5
 B.

On May 19, 2010, Centro Tepeyac initiated this 42 U.S.C.

§ 1983 action in the District of Maryland, claiming that the

Resolution is unconstitutional as applied and on its face, under

both the First and Fourteenth Amendments. The Complaint

identifies Centro Tepeyac as a not-for-profit corporation

operating a limited service pregnancy resource center located in

the Silver Spring area of Montgomery County. See Complaint

¶¶ 11, 45-47. According to the Complaint, Centro Tepeyac “does

not charge women for its services,” which include “pregnancy

testing, referral services, and confidential discussion of

pregnancy options,” plus “information on parenting,” “post-

abortion guidance,” and “practical support in the form of

diapers, baby clothes and other needed items.” Id. ¶¶ 12-13.

The Complaint asserts that Centro Tepeyac “does not refer or

provide for abortion” or birth-control services other than

“abstinence and natural family planning.” Id. ¶ 14. The

Complaint also alleges, inter alia, that the Resolution is

discriminatorily “aimed at pro-life pregnancy resource centers”

such as Centro Tepeyac, and that the Resolution forces Centro

Tepeyac “to suggest that [it is] not qualified to discuss

pregnancy options or to provide help to pregnant women.” Id.

¶¶ 30, 50. Attached as exhibits to the Complaint are a

declaration of Centro Tepeyac’s Executive Director corroborating

6
several of the Complaint’s factual allegations; an unofficial

version of the Resolution; a press release issued by the

Montgomery County Council announcing its adoption of the

Resolution; and miscellaneous documents, including portions of

the Resolution’s legislative record.

The Complaint seeks preliminary and permanent injunctions

barring enforcement of the Resolution, as well as monetary

damages and litigation costs. With the Complaint, Centro

Tepeyac filed a memorandum in support of its request for a

preliminary injunction. In response, on June 3, 2010, the four

defendants — including Montgomery County and the County Council

(together, the “County”) — submitted an opposition to the

preliminary injunction request, combined with a motion to

dismiss the Complaint pursuant to Federal Rule of Civil

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

relief can be granted. The sole exhibit to the County’s

submission was a copy of the Resolution as adopted. Thereafter,

on June 10, 2010, Centro Tepeyac filed a freestanding motion for

a preliminary injunction. The district court conducted a

motions hearing on July 23, 2010, and issued its preliminary

injunction decision on March 15, 2011.

In these interlocutory cross-appeals, the County contests

the district court’s decision to the extent that it enjoins

enforcement of the Resolution’s compelled pronouncement that

7
“the Montgomery County Health Officer encourages women who are

or may be pregnant to consult with a licensed health care

provider.” See Centro Tepeyac, 779 F. Supp. 2d at 471-72.

Meanwhile, Centro Tepeyac challenges the decision insofar as it

leaves in place the Resolution’s requirement for limited service

pregnancy resource centers to disclose that “the Center does not

have a licensed medical professional on staff.” See id. We

possess jurisdiction over these appeals pursuant to 28 U.S.C.

§ 1292(a)(1) (providing, in pertinent part, that “the courts of

appeals shall have jurisdiction of appeals from . . .

[i]nterlocutory orders of the district courts . . . granting,

continuing, modifying, refusing or dissolving injunctions”). 3

II.

A.

We review for abuse of discretion the district court’s

preliminary injunction decision. See Dewhurst v. Century

3
Also by its March 15, 2011 decision, the district court
granted in part the defendants’ Rule 12(b)(6) motion, dismissing
Centro Tepeyac’s First and Fourteenth Amendment claims against
the Montgomery County Department of Health and Human Services
and County Attorney Marc Hansen. See Centro Tepeyac, 779 F.
Supp. 2d at 461. The court refused, however, to dismiss the
same claims as to the remaining two defendants, whom we refer to
as the “County.” See id. at 461-69. Apparently recognizing the
limits of our jurisdiction over these interlocutory appeals, the
parties do not challenge the disposition of the Rule 12(b)(6)
motion.

8
Aluminum Co., 649 F.3d 287, 290 (4th Cir. 2011). As we have

expounded,

[t]he decision to issue or deny a preliminary
injunction is committed to the sound discretion of the
trial court. That decision will not be disturbed on
appeal unless the record shows an abuse of that
discretion, regardless of whether the appellate court
would, in the first instance, have decided the matter
differently.

Quince Orchard Valley Citizens Ass’n v. Hodel, 872 F.2d 75, 78

(4th Cir. 1989). In conducting our assessment, “we review the

district court’s factual findings for clear error and review its

legal conclusions de novo.” Pashby v. Delia, 709 F.3d 307, 319

(4th Cir. 2013). We may find an abuse of discretion if the

court “appl[ied] an incorrect preliminary injunction standard,”

“rest[ed] its decision on a clearly erroneous finding of a

material fact,” or “misapprehend[ed] the law with respect to

underlying issues in litigation.” Quince Orchard Valley, 872

F.2d at 78 (internal quotation marks omitted). Simply put,

however, the court committed no such error here.

First of all, the district court recognized the principle

that “[a] preliminary injunction is an extraordinary remedy.”

Centro Tepeyac, 779 F. Supp. 2d at 469 (internal quotation marks

omitted); see Direx Israel, Ltd. v. Breakthrough Med. Corp., 952

F.2d 802, 811 (4th Cir. 1991) (“Federal decisions have uniformly

characterized the grant of interim relief as an extraordinary

remedy involving the exercise of a very far-reaching power,

9
which is to be applied only in the limited circumstances which

clearly demand it.” (alteration and internal quotation marks

omitted)). The court also appropriately employed the

preliminary injunction standard recently spelled out by the

Supreme Court in Winter v. Natural Resources Defense Council,

Inc., 555 U.S. 7 (2008). Under the Winter standard, the movant

“must establish [1] that he is likely to succeed on the merits,

[2] that he is likely to suffer irreparable harm in the absence

of preliminary relief, [3] that the balance of equities tips in

his favor, and [4] that an injunction is in the public

interest.” 555 U.S. at 20.

Assessing the merits of Centro Tepeyac’s claims, pertinent

to the first Winter factor, the district court focused on the

First Amendment theory “that the Resolution requires [Centro

Tepeyac] to say something it might not otherwise say” and thus

constitutes a content-based regulation of speech. See Centro

Tepeyac, 779 F. Supp. 2d at 462 & n.5 (citing Riley v. Nat’l

Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 795 (1988)

(“Mandating speech that a speaker would not otherwise make

necessarily alters the content of the speech.”)). The court

observed that content-based speech regulations ordinarily are

subject to strict scrutiny, but that lesser degrees of scrutiny

may apply where the speech at issue is, inter alia, commercial

or professional. See id. at 462-68; see also, e.g., Turner

10
Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642 (1994) (explaining

that “[l]aws that compel speakers to utter or distribute speech

bearing a particular message are [generally] subject to the

[most exacting scrutiny]”); Zauderer v. Office of Disciplinary

Counsel of the Supreme Court, 471 U.S. 626, 651 (1985)

(recognizing that 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 customers”); Cent. Hudson Gas & Elec. Corp. v. Pub.

Serv. Comm’n of N.Y., 447 U.S. 557, 566 (1980) (concluding that

restrictions on nonmisleading commercial speech concerning

lawful activity must withstand intermediate scrutiny, by

“directly advanc[ing]” a “substantial” governmental interest and

being “no[] more extensive than is necessary to serve that

interest”); Moore-King v. Cnty. of Chesterfield, Va., 708 F.3d

560, 569 (4th Cir. 2013) (“Under the professional speech

doctrine, the government can license and regulate those who

would provide services to their clients for compensation without

running afoul of the First Amendment.”).

Because it could not determine otherwise on the undeveloped

record before it, the district court was constrained to accept

that the speech regulated by the Resolution is neither

commercial nor professional. In that regard, the court observed

that the County had not yet “taken any definite position as to

11
whether the Resolution regulates commercial speech,” and that

there currently was “no indication that [Centro Tepeyac] is

acting out of economic interest.” Centro Tepeyac, 779 F. Supp.

2d at 463. The court also noted that, “[e]ven if some aspects

of [Centro Tepeyac’s] speech were categorized as commercial, the

facts alleged suggest that such commercial speech would at least

be ‘intertwined with [fully protected] speech,’” in any event

triggering strict scrutiny. Id. at 464 n.7 (quoting Riley, 487

U.S. at 796). Further, the court deemed it impossible to rule

“at this stage that the Resolution is merely a regulation of a

profession with incidental effects on speech.” Id. at 467.

Thus applying strict scrutiny, the district court proceeded

to analyze whether “the Resolution is ‘1) narrowly tailored to

2) promote a compelling government interest.’” Centro Tepeyac,

779 F. Supp. 2d at 468 (quoting PSINet, Inc. v. Chapman, 362

F.3d 227, 233 (4th Cir. 2004)). Starting with the compelling

interest question, the court determined that “[i]t may be that

the government has a compelling interest in ensuring that its

citizenry are able to obtain needed medical care,” and that

“[t]he interest in ensuring patients obtain appropriate medical

care might fall within the ambit of the state’s broader interest

in preserving public health.” Id. (citing, inter alia,

Varandani v. Bowen, 824 F.2d 307, 311 (4th Cir. 1987)

(recognizing, in the due process context, “the government’s

12
compelling interest in assuring safe health care for the

public”)).

Nevertheless, the district court also concluded, with

regard to narrow tailoring, that the County had “not shown,

based on the facts alleged in the complaint, that the second

portion of the disclaimer required by the Resolution, which

‘encourages women who are or may be pregnant to consult with a

licensed health care provider,’” is narrowly tailored to promote

the County’s compelling interest. Centro Tepeyac, 779 F. Supp.

2d at 468 (citing United States v. Playboy Entm’t Grp., Inc.,

529 U.S. 803, 813 (2000) (“If a less restrictive alternative

would serve the Government’s purpose, the legislature must use

that alternative.”)). The court was particularly concerned

that, in light of the first compelled statement (that “the

Center does not have a licensed medical professional on staff”),

the second statement may constitute “unneeded speech,” because

the County’s interest in ensuring that women will not forgo

medical treatment “might be satisfied once women were aware that

[a pregnancy resource center does] not staff a medical

professional.” Id. Additionally, the court noted that “several

options less restrictive than compelled speech could be used to

encourage pregnant women to see a licensed medical

professional,” citing as examples that the County “could post

notices [in its own facilities] encouraging women to see a

13
doctor” or “launch a public awareness campaign.” Id. at 469

n.9.

On the other hand, the district court ruled that “the

record is at least colorable at this stage to suggest that [the

first portion of the Resolution-mandated disclaimer] is narrowly

tailored to meet the [County’s stated] interest.” Centro

Tepeyac, 779 F. Supp. 2d at 471. The court explained that the

first compelled statement merely notifies patients “that a

licensed medical professional is not on staff,” “does not

require any other specific message,” and “in neutral language

states the truth.” Id. Moreover, the court indicated that the

existing evidence was altogether inadequate to demonstrate that

less restrictive alternatives proposed by Centro Tepeyac “would

be at least as effective in achieving the legitimate purpose

that the [Resolution] was enacted to serve.” See Reno v. ACLU,

521 U.S. 844, 874 (1997).

Consequently, the district court determined that Centro

Tepeyac had failed to satisfy its burden of showing, as to the

initial factor of the Winter preliminary injunction standard,

that the Resolution’s first compelled statement “will fail to

survive strict scrutiny review.” Centro Tepeyac, 779 F. Supp.

2d at 471; cf. Beal v. Stern, 184 F.3d 117, 130 (2d Cir. 1999)

(“We are not prepared to find on this record that appellants

have shown a clear likelihood of success on the merits of either

14
[First Amendment] claim. As to narrow tailoring, we simply do

not have sufficient evidence to determine whether means chosen

by the [government] are substantially broader than necessary.”).

But because Centro Tepeyac had demonstrated likely success on

the merits of its First Amendment claim with respect to the

second compelled statement, the court continued its Winter

analysis with respect to that portion of the Resolution.

Addressing the second Winter factor (the likelihood of

irreparable harm), the district court acknowledged that, “‘in

the context of an alleged violation of First Amendment rights, a

plaintiff’s claimed irreparable harm is inseparably linked to

the likelihood of success on the merits of plaintiff’s First

Amendment claim.’” Centro Tepeyac, 779 F. Supp. 2d at 471

(quoting WV Ass’n of Club Owners & Fraternal Servs., Inc. v.

Musgrave, 553 F.3d 292, 298 (4th Cir. 2009)); see Newsom ex rel.

Newsom v. Albemarle Cnty. Sch. Bd., 354 F.3d 249, 261 (4th Cir.

2003) (“[T]he Supreme Court has explained that ‘loss of First

Amendment freedoms, for even minimal periods of time,

unquestionably constitutes irreparable injury.’” (quoting Elrod

v. Burns, 427 U.S. 347, 373 (1976))). Recognizing that there

was “no reason to depart from the ordinary rule in this case,”

the district court ruled that Centro Tepeyac had “shown

irreparable harm.” Centro Tepeyac, 779 F. Supp. 2d at 471.

15
 The district court jointly considered the third and fourth

Winter factors (the balance of equities and the public

interest), invoking precedent deeming those “factors established

when there is a likely First Amendment violation.” See Centro

Tepeyac, 779 F. Supp. 2d at 471-72. That precedent counsels

that “a state is in no way harmed by issuance of a preliminary

injunction which prevents the state from enforcing restrictions

likely to be found unconstitutional. If anything, the system is

improved by such an injunction.” Giovani Carandola, Ltd. v.

Bason, 303 F.3d 507, 521 (4th Cir. 2002) (internal quotation

marks omitted). It also teaches that “upholding constitutional

rights surely serves the public interest.” Id.

Having concluded that Centro Tepeyac satisfied each of the

four Winter factors with respect to the second compelled

statement, the district court enjoined enforcement of that

portion of the Resolution only. The court specified that the

County “will be enjoined from enforcing the Resolution’s

requirement that [limited service pregnancy resource centers]

post a sign indicating that ‘the Montgomery County Health

Officer encourages women who are or may be pregnant to consult

with a licensed health care provider.’” Centro Tepeyac, 779 F.

Supp. 2d at 472. That is, consistent with its determination

that the second compelled statement likely is not narrowly

tailored because it constitutes “unneeded speech,” the court

16
prohibited the County from requiring any center (and not merely

Centro Tepeyac) to make such disclosure. See United States v.

Stevens, 130 S. Ct. 1577, 1587 (2010) (instructing that facial

invalidation is appropriate where “no set of circumstances

exists under which [the law] would be valid, or [where the law]

lacks any plainly legitimate sweep,” and, alternatively, where

“a substantial number of [the law’s] applications are

unconstitutional, judged in relation to the [law’s] plainly

legitimate sweep” (citations and internal quotation marks

omitted)). 4

4
Additionally, the district court considered and rejected
Centro Tepeyac’s contention that the Resolution should be
preliminarily enjoined for being unconstitutionally vague. See
Centro Tepeyac, 779 F. Supp. 2d at 470 (recognizing that “[a]
potentially vague law that interferes with First Amendment
rights deserves greater scrutiny ‘because of its obvious
chilling effect on free speech’” (quoting Reno, 521 U.S. at
872)). The court determined that, although “[a] regulation may
be deemed impermissibly vague if it ‘fails to provide people of
ordinary intelligence a reasonable opportunity to understand
what conduct it prohibits,’” id. (quoting Hill v. Colorado, 530
U.S. 703, 732 (2000)), Centro Tepeyac’s allegation of undefined
phrases in the Resolution (such as “has a primary purpose” and
“medical-related services”) was insufficient to establish
vagueness, id. at 470-71. As the court explained, “[a] failure
by a statute to define all of its terms does not necessarily
render it impermissibly vague.” Id. at 471 (citing Rose v.
Locke, 423 U.S. 48, 50 (1975) (“Even trained lawyers may find it
necessary to consult legal dictionaries, treatises, and judicial
opinions before they may say with any certainty what some
statutes may compel or forbid.”)). The court emphasized that,
“[e]ven when a regulation implicates the First Amendment,
‘perfect clarity and precise guidance have never been
required.’” Id. (quoting Ward v. Rock Against Racism, 491 U.S.
781, 794 (1989)).

17
 In these circumstances, we cannot say that the district

court in any way abused its discretion. The 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. Indeed, we commend the court for its careful and

restrained analysis.

B.

Our good dissenting colleagues — who condemn the district

court’s decision not to enjoin the first compelled statement —

clearly “would, in the first instance, have decided the matter

differently”; that is no justification, however, for reversal.

See Quince Orchard Valley, 872 F.2d at 78. 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 U.S. 922, 934

(1975). The dissenters simply fail to grasp that controlling

principle when they suggest that our affirmance herein is

incompatible with today’s separate opinion in another Maryland

pregnancy center-compelled disclosure case — a case that, unlike

this one, came before us only after the district court entered a

permanent injunction on the basis of a summary judgment award.

See Greater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor of

18
Balt., No. 11-1111(L), slip op. at 60-61 (4th Cir. July __,

2013) (en banc) (explaining that, because “the district court

improperly denied the City essential discovery and otherwise

flouted the Federal Rules of Civil Procedure . . . , we vacate

the judgment and remand for further proceedings”).

Meanwhile, the dissenters search in vain for a legal error

to call an abuse of discretion. First, invoking the Supreme

Court’s decision in Riley, the dissenters assert that the

district court erred “by dividing its assessment of the

Resolution and approving one sentence but not the other.” Post

at 28 (Niemeyer, J., dissenting). Riley, however, is irrelevant

to the question of whether a court may evaluate separately the

constitutionality of two parts of a disclosure requirement. See

Riley, 487 U.S. at 796 (addressing different issue of “what

level of scrutiny to apply” where compelled speech is commercial

but “inextricably intertwined with otherwise fully protected

speech”). Furthermore, upon careful consideration, the district

court soundly determined “that there is nothing in the

Resolution to dispel [Maryland’s] ordinary presumption of

severability.” Centro Tepeyac, 779 F. Supp. 2d at 470 (citing

Montrose Christian Sch. Corp. v. Walsh, 770 A.2d 111, 129 (Md.

2001), for the proposition that, “[u]nder Maryland law, there is

a strong presumption that if a portion of an enactment is found

to be invalid, the intent of the legislative body is that such

19
portion be severed” (alterations and internal quotation marks

omitted)).

The dissenters also posit that the district court’s narrow

tailoring rulings on the first and second compelled statements

were inconsistent, in that “the court appropriately tested the

second sentence’s constitutionality against a range of less-

restrictive alternatives” that “applied equally to” the first.

Post at 28. In doing so, the dissenters obscure the court’s

primary reason for its second-compelled-statement ruling: that

the first compelled statement appeared to render the second

“unneeded speech.” Centro Tepeyac, 779 F. Supp. 2d at 468.

Finally, the dissenters assert that the district court

erroneously deemed the first compelled statement to be narrowly

tailored solely because it is “‘neutral’” and “‘true.’” See

post at 29. But the court’s actual reasoning was this:

As discussed above, the interest in public health and
access to medical care may be described as compelling.
And, the record is at least colorable at this stage to
suggest that the disclaimer is narrowly tailored to
meet the interest: only requiring those [limited
service pregnancy resource centers] to post a notice
that a licensed medical professional is not on staff.
It does not require any other specific message and in
neutral language states the truth.

Centro Tepeyac, 779 F. Supp. 2d at 471. The district court’s

reasoning is entirely consistent with the principle, recognized

by the court, see id. at 468, that “[a]ction taken to remedy an

‘evil’ will be considered ‘narrowly tailored if it targets and

20
eliminates no more than the exact source of the evil it seeks to

remedy.’” Columbia Union Coll. v. Clarke, 159 F.3d 151, 157 n.2

(4th Cir. 1998) (quoting Frisby v. Schultz, 487 U.S. 474, 485

(1988)). Accordingly, there is no merit to the dissenters’ view

that the court “misapprehend[ed] the law with respect to

underlying issues in litigation.” See Quince Orchard Valley,

872 F.2d at 78 (internal quotation marks omitted).

III.

Pursuant to the foregoing, we affirm the preliminary

injunction decision rendered by the district court.

AFFIRMED

21
WILKINSON, Circuit Judge, concurring:

I concur in Judge King’s opinion affirming the district

court’s decision to preliminarily enjoin the second disclaimer

mandated by the Montgomery County Resolution but not the first.

Compelled speech is not an all-or-nothing matter, and this case

illustrates why. Because the dangers of compelled speech are

real and grave, courts must be on guard whenever the state seeks

to force an individual or private organization to utter a

statement at odds with its most fundamental beliefs. See

Greater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor & City

Council of Balt., No. 11-1111 (4th Cir. 2013) (en banc)

(Wilkinson, J., dissenting). But in exercising its broad police

power to regulate for the health and safety of its citizens, the

state must also enjoy some leeway to require the disclosure of

the modicum of accurate information that individuals need in

order to make especially important medical and personal

decisions.

The first disclosure mandated by the Montgomery County

Resolution -- that a center “does not have a licensed medical

professional on staff” -- falls within the bounds of the state’s

authority to safeguard its citizens’ welfare. It requires the

centers merely to state both briefly and accurately the

professional credentials of their staff rather than to present

abortion and birth control as viable options right at the outset

22
of their personal interactions with their clients and

notwithstanding their beliefs to the contrary. And it relies on

the common-sense notion that pregnant women should at least be

aware of the qualifications of those who wish to counsel them

regarding what is, among other things, a medical condition.

Pregnancy can be a time of great joy and anticipation --

for both parents. But it can also be a time of apprehension and

medical anxiety. I thus do not think it remiss for the state to

require organizations like Centro Tepeyac to provide a scrap of

accurate medical information to pregnant women at what can be a

fraught moment, information that can neutrally assist with their

search for licensed medical care.

My esteemed colleagues on both sides of this question

insist upon seeing the Baltimore Pregnancy Center case and the

Centro Tepeyac case as the same, but they decidedly are not. In

the Baltimore case, the Center was forced to convey an

ideologically freighted message, one directly referencing

abortion in a manner directly contrary to the Center’s views.

In the Centro Tepeyac case, the required disclosure involved a

scintilla of manifestly neutral and medically accurate

information in a manner likely to reach the intended recipient.

While my dissenting colleague complains that other sources, such

as “internet sites, bookstores, or houses of worship . . . are

left unregulated,” a woman would be far less likely to turn to

23
these sources under the impression that she would find there

personal interaction with a “licensed medical professional.”

Post at 36.

For pregnancy centers like those in Baltimore and Centro

Tepeyac, opposition to abortion and support for healthy

pregnancies are core values. Seen in this light, the compelled

speech in Baltimore involves the state imprinting its ideology

on an unwilling speaker. The compelled speech in Centro Tepeyac

involves the de minimis exercise of the basic state

responsibility to protect the health of its citizens, nowhere

more so than in periods of possible confusion and stress.

This distinction makes all the difference. In Wooley v.

Maynard, 430 U.S. 705, 715 (1977), the Court quite explicitly

noted that state action “which forces an individual . . . to be

an instrument for fostering public adherence to an ideological

point of view” was unacceptable under the First Amendment. And

W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943),

rested on the principle that the state cannot press ideological

speech onto the lips of nonconforming individuals. The state

tried to do exactly this in the Baltimore case, but it did not

overstep in the upheld disclosure here.

These two cases underscore the drawbacks of addressing in

stark absolutes a problem that is one of degree and gradation.

The fact that litigants bring before courts a set of strongly

24
competing interests and strenuously opposing views does not mark

the perspective of either side as illegitimate. On a problem

this difficult, courts should not fall off the cliff in either

direction.

For these reasons, I think the first disclaimer mandated by

the Resolution is permissible. And for the reasons given by the

district court, I also agree with its decision to preliminarily

enjoin the second disclaimer as an unconstitutional form of

compelled speech.

25
NIEMEYER, Circuit Judge, dissenting:

The Montgomery County Council enacted, at the urging of

pro-choice groups, Resolution 16-1252, requiring pregnancy

centers that provide pregnancy advice but not medical services

to display a sign on their premises, stating that “the Center

does not have a licensed medical professional on staff” and “the

Montgomery County Health Officer encourages women who are or may

be pregnant to consult with a licensed health care provider.”

All of the pregnancy centers in Montgomery County that provide

abortions have licensed medical professionals on staff. The

Resolution addressed the County Council’s concern that clients

of pregnancy centers without licensed medical professionals are

being “misled into believing that a Center is providing medical

services when it is not.”

Centro Tepeyac is a nonprofit pregnancy center that

provides information about pregnancy and other services to

pregnant women. The center does not, however, provide

abortions, comprehensive birth control, or other medical

services, nor does it have any licensed medical professional on

staff. Shortly after Resolution 16-1252 was enacted, Centro

Tepeyac commenced this action challenging the law under the

First Amendment.

In its assessment of the Resolution, the district court

appropriately noted that the entire mandated message was

26
compelled speech and was therefore content-based. Centro

Tepeyac v. Montgomery Cnty., 779 F. Supp. 2d 456, 462 (D. Md.

2011). Recognizing that commercial speech is subject to a lower

level of scrutiny, the court found that Resolution 16-1252

applied at least in part to noncommercial speech and therefore

was subject to strict scrutiny. Id. at 463-65. In applying

strict scrutiny to the entire mandated speech, the court said,

“[I]t cannot be said as a matter of law that the entire

Resolution was narrowly tailored to promote [the County’s

compelling government interest in preserving public health].”

Id. at 468.

As far as this analysis went, the district court applied

established First Amendment jurisprudence. But then it

abandoned that course when it divided the mandated speech and

assessed each sentence independently. As to the first sentence,

the court found that it was narrowly tailored to serve the

government’s interest in public health and therefore was likely

constitutional, explaining that “[i]t does not require any other

specific message [than to announce that a licensed medical

professional is not on staff] and in neutral language states the

truth.” Centro Tepeyac, 779 F. Supp. 2d at 471. As to the

second sentence, it found that it was “unneeded” to serve the

government interest, was not “the least restrictive means of

achieving [the] relevant government interest,” and therefore was

27
likely unconstitutional. Id. at 468-69. The court backed up

its assessment of the second sentence by listing “several

options less restrictive than compelled speech.” Id. at 469

n.9.

Surprisingly, the majority affirms the district court’s

analysis and judgment, concluding that the court “demonstrated a

firm grasp of the legal principles pertinent to the underlying

dispute.” Ante, at 18. But, by dividing its assessment of the

Resolution and approving one sentence but not the other, the

district court effectively and impermissibly rewrote the message

compelled by the Resolution, reducing it to a form that the

court believed would make it constitutional. Compounding the

error, the district court engaged in something novel to First

Amendment jurisprudence -- a selective application of strict

scrutiny -- which is inappropriate. See Riley v. Nat’l Fed’n of

the Blind of N.C., Inc., 487 U.S. 781, 796 (1988) (“[W]e cannot

parcel out the speech, applying one test to one phrase and

another test to another phrase”). One need only consider the

district court’s entire opinion to see the infirmity. Whereas

the court appropriately tested the second sentence’s

constitutionality against a range of less-restrictive

alternatives, it did not do so for the first. In fact, the

alternatives identified by the district court applied equally to

both sentences. Rather than recognize this basic inconsistency,

28
the majority affirms the analysis without explanation. Finally,

the majority approves the inappropriate reasons given by the

district court for upholding the first sentence -- that it was

“neutral” and “true” -- without providing any legal

justification.

With its affirmance, the majority places itself in a

curious position in view of its holding today in Greater

Baltimore Center for Pregnancy Concerns, Inc. v. Mayor & City

Council of Baltimore, F.3d , No. 11-1111(L) (4th Cir. July

__, 2013) (en banc). In Greater Baltimore Center, the majority

concluded that the plaintiffs had not demonstrated, as a matter

of law, that an ordinance compelling certain pregnancy centers

to post a sign stating that the center did not provide or refer

for abortion was unconstitutional, because facts as to the

applicability of the ordinance and its effect were either

disputed or factually undeveloped. The record in Greater

Baltimore Center contained the full legislative history. Yet,

in this case, where the Resolution mandates similarly, although

less explicitly, that the pregnancy center post a sign about the

limitations of its services, the majority affirms the district

court’s conclusion that the order is likely unconstitutional as

a matter of law, based on the same record that existed in

Greater Baltimore Center.

29
 By affirming the district court’s decision, the majority

effectively approves novel and erroneous First Amendment

principles. It upholds the ruling that one sentence of the

compelled speech is likely unconstitutional while the other is

likely constitutional, even though both are mandated and are

subject to strict scrutiny. It also approves an analysis that

is internally inconsistent. If the second sentence was not

narrowly tailored because it was not the least restrictive means

of serving the County’s interests, so must the first sentence

not be the least restrictive means available, as the

alternatives identified by the district court applied equally to

both sentences. And finally, the majority approves the totally

new and legally inappropriate reasons given by the district

court for finding that the first sentence satisfied the

narrowly-tailored test -- that the mandated speech was “neutral”

and “true.”

As does the majority, I would affirm the district court’s

conclusion that Resolution 16-1252 compelled speech; that it is

subject to strict scrutiny; and that, as a whole, it is not

narrowly tailored to serve the government’s asserted compelling

interests. But I would also conclude that even if the first

sentence were considered independently, it is unconstitutional

for the same reasons that the whole message and the second

sentence taken alone are unconstitutional. In my view, the

30
district court “misapprehend[ed] the law” with respect to (1)

its authority to parse the compelled message and (2) its

conclusion that the first sentence was narrowly tailored. See

Quince Orchard Valley Citizens Ass’n, Inc. v. Hodel, 872 F.2d

75, 78 (4th Cir. 1989). Because of these legal errors, its

ruling amounted to an abuse of discretion. See id.

I

As a matter of background, Centro Tepeyac is a Montgomery

County nonprofit corporation that provides information and

services to pregnant women, including free pregnancy tests,

diapers, baby clothes, parenting assistance, and confidential

conversations about pregnancy options. Critically, Centro

Tepeyac does not provide abortions, comprehensive birth control,

or any other medical services, and it does not, therefore, have

licensed medical professionals on staff. It commenced this

action challenging Resolution 16-1252, contending that the

Resolution compels it to speak in a manner that it would not

otherwise choose to speak and therefore violates its First and

Fourteenth Amendment rights.

Resolution 16-1252 requires that all pregnancy centers,

defined as those (1) having “a primary purpose to provide

pregnancy-related services”; (2) not having “a licensed medical

professional on staff”; and (3) providing “information about

31
pregnancy-related services, for a fee or as a free service,”

conspicuously display a sign, stating that “the Center does not

have a licensed medical professional on staff” and “the

Montgomery County Health Officer encourages women who are or may

be pregnant to consult with a licensed health care provider.” A

violation of the Resolution is punishable as a Class A civil

violation.

II

At the outset, I agree with the district court and the

majority that the entire Resolution, as well as the second

sentence alone, likely violates Centro Tepeyac’s First Amendment

rights. I would go further and conclude additionally that when

the first sentence is considered alone, it also violates Centro

Tepeyac’s First Amendment rights.

All agree that the first sentence compels speech and that

it is subject to strict scrutiny. But then, in determining

whether the first sentence was narrowly tailored, the district

court accepted as compelling the County’s stated interest in

addressing its concern “that clients may be misled into

believing that a Center is providing medical services when it is

not” and concluded:

As discussed above, the interest in public health and
access to medical care may be described as compelling.
And, the record is at least colorable at this stage to

32
 suggest that the disclaimer is narrowly tailored to
meet the interest: only requiring those [pregnancy
centers] to post a notice that a licensed medical
professional is not on staff. It does not require any
other specific message and in neutral language states
the truth.

Centro Tepeyac, 779 F. Supp. 2d at 471 (emphasis added). This

conclusion about how the first sentence is narrowly tailored is

undoubtedly inconsistent with First Amendment principles.

The first reason the district court gave -- that the

required speech “does not require any other specific message” --

is merely a positive evaluation about the content of the speech,

essentially concluding that a pregnancy center should not find

it troubling to speak the message. But this overlooks that

Centro Tepeyac does indeed object to being compelled to speak

this mandated statement, for reasons relating to its mission.

The record also shows that several other pregnancy centers

likewise objected to the mandated sign during hearings on the

Resolution. More specific to First Amendment jurisprudence, the

court overlooked the fact that mandating speech is a content-

based restriction on speech that infringes freedom by merely

denying the regulated pregnancy centers’ right to not speak at

all. See Riley, 487 U.S. at 796-97 (“[T]he First Amendment

guarantees ‘freedom of speech,’ a term necessarily comprising

the decision of both what to say and what not to say”). “[T]he

government, even with the purest of motives, may not substitute

33
its judgment as to how best to speak for that of speakers and

listeners.” Id. at 791.

The second reason the district court gave for finding the

first sentence was narrowly tailored was that the mandated

speech speaks “the truth” in neutral language. But this is also

not a legitimate or sufficient justification for compelling

speech. As the Supreme Court stated, “[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,” Hurley v. Irish-American Gay, Lesbian, &

Bisexual Group of Boston, 515 U.S. 557, 573 (1995), even if the

compelled statements are factually accurate, see Riley, 487 U.S.

at 797-98.

In addition to its flawed analysis of the first sentence,

the district court made another First Amendment error. It

failed to address the available alternatives to compelling

speech. This is a curious omission, given that the court ably

identified alternatives that rendered the second sentence

unconstitutional. See Centro Tepeyac, 779 F. Supp. 2d at 469

n.9. In fact, the very same available alternatives to the

second sentence also apply to the first. This alone should

require reversal of the district court’s conclusion. See

Thompson v. Western States Med. Ctr., 535 U.S. 357, 373 (2002)

34
(“If the First Amendment means anything, it means that

regulating speech must be a last -- not first -- resort”).

At bottom, it is clear that the district court failed to

apply the proper First Amendment analysis.

A correct assessment of whether the Resolution, including

the first sentence of the mandated speech, was narrowly tailored

is a question of law. See Village 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). And any casual

assessment of the first sentence leads inevitably to the

conclusion that it is not narrowly tailored and therefore is

unconstitutional.

First, Resolution 16-1252 (and its first sentence) is

overinclusive in that it applies to pregnancy centers regardless

of whether they accurately represent whether they have a

licensed medical professional on staff. See FEC v. Mass.

Citizens for Life, Inc., 479 U.S. 238, 265 (1986) (stating that

the “government must curtail speech only to the degree necessary

to meet the particular problem at hand” and “must avoid

infringing on speech that does not pose the danger that has

prompted regulation”).

Second, the first sentence is underinclusive, posing

special problems in the First Amendment context because it

35
“raises serious doubts about whether the government is in fact

pursuing the interest it invokes, rather than disfavoring a

particular speaker or viewpoint.” Brown v. Entm’t Merchants

Ass’n, 131 S. Ct. 2729, 2740 (2011); see also City of Ladue v.

Gilleo, 512 U.S. 43, 51 (1994) (“[A]n exemption from an

otherwise permissible regulation of speech may represent a

governmental attempt to give one side of a debatable public

question an advantage in expressing its views to the people”

(internal quotation marks omitted)). In this case, centers like

Centro Tepeyac are singled out for disfavored treatment while

many other sources that pregnant women may consult for advice --

internet sites, bookstores, or houses of worship -- are left

unregulated, regardless of whether the advice they give comes

from a “licensed medical professional.” Where, as here, the

government seeks to burden speech in the name of some public

interest, it must “demonstrate its commitment to advancing this

interest by applying its prohibition evenhandedly.” Fla. Star

v. B.J.F., 491 U.S. 524, 540 (1989).

Third, there are several available alternatives to

compelling speech. Both the available alternatives on which the

district court relied to find the second sentence

unconstitutional, as well as others not considered by the

district court, reflect Resolution 16-1252’s

unconstitutionality. First, Montgomery County could speak with

36
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 promotion temperance. . . .

[E]ducational campaigns focused on the problems of excessive, or

even moderate, drinking might prove to be more effective”).

As another alternative, the County could produce a document

or website listing local pregnancy centers and noting whether

medical professionals are available at each. See Riley, 487

U.S. at 800 (“[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 County could always

pursue the option of prosecuting violations of laws against

practicing medicine without a license or laws proscribing false

or deceptive advertising. See Riley, 487 U.S. at 800; see also

Nefedro v. Montgomery Cnty., 996 A.2d 850, 863-64 (Md. 2010)

37
(holding that fraud laws were a less restrictive alternative to

a law prohibiting remuneration for fortune telling).

Without first trying these or similar options, the County

could not have adopted a speech-restrictive strategy. See

Thompson, 535 U.S. at 373.

The majority affirms the district court’s analysis without

recognizing or justifying its erroneous application of First

Amendment law. Rather, it abdicates, noting that the court

demonstrated “a firm grasp of the legal principles.”

Because I conclude that Resolution 16-1252 is

unconstitutional on its face, I would affirm the district

court’s conclusion that the second sentence of the mandated

speech was likely unconstitutional and reverse its conclusion

that the first sentence could be separated from the second

sentence. Additionally, I would reverse the district court’s

finding that the first sentence was narrowly tailored.

Judges Shedd and Agee have asked me to show them as joining

this opinion.

38