Fourth Circuit affirms invalidation of pregnancy center disclosure law

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

--- F.3d ----, 2012 WL 2402573 (4^th Cir.)

Because of the special way in which abortion interacts with free speech, I’m not inclined to say that this case has any relevance for other subject matter, but in theory it should, so here you go.

Baltimore enacted an ordinace requiring that “limited-service pregnancy centers,” such as the Pregnancy Center challenging the law, post signs disclaiming that they “do[ ] not provide or make referral for abortion or birth control services.”  The district court granted summary judgment to the Pregnancy Center on its First Amendment claim, holding that the ordinance unconstitutionally compelled speech that altered the Center’s communications based, at least in part, on disagreement with the Center’s viewpoint.  The court of appeals affirmed.

The legislative record indicated that the ordinance was introduced “after the City Council President had met with abortion rights advocacy groups, which complained that some pregnancy clinics provide inaccurate information to women about abortions.”  (This is an interesting description of legislative history, and it gives some force to the dissent’s objections.)  The City Council President’s spokesperson said, “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.” Pro-choice and pro-life groups testified for and against the ordinance.

The Pregnancy Center is covered by the ordinance.  It provides services to pregnant women such as pregnancy testing; classes in prenatal development, post-pregnancy parenting, and life skills; Bible studies; and diapers, formula, baby and maternity clothes, toys, and books. It provides information on “abstinence and natural family planning,” but does not provide referrals “for abortions or other methods of birth control.”  These services are free, and provided by paid employees and volunteers, each of whom must sign a statement affirming his or her Christian faith and belief that abortion is immoral.

After the lawsuit began, the city requested further discovery, but the district court denied that request and granted the Pregnancy Center’s motion for summary judgment.

The court of appeals first upheld the district court’s ruling the church in which the Pregnancy Center was physically located lacked standing; it suffered no concrete and particularized injury, wasn’t governed by the ordinance, wasn’t likely to have the sign attributed to it, and was basically just trying to advance its anti-abortion interests, which isn’t enough for standing.

The City first argued that the ordinance governed commercial speech and wasn’t subject to strict scrutiny.  In the alternative, it argued that election and abortion disclosure cases provided the right model.

The court began by finding that the ordinance compelled speech, requiring the Pregnancy Center “to participate in the City's effort to tell pregnant women that abortions are available elsewhere as a morally acceptable alternative, contrary to the moral and religious beliefs of the Pregnancy Center.”  Compelled speech is content-based speech regulation subject to strict scrutiny, even when the disclosure is factually accurate or non-ideological.

So was this commercial speech?  The City argued that, though many pregnancy centers are non-profit, they effectively engage in commerce by offering pregnancy testing, sonograms, and options counseling, “all of which have commercial value, garnering payments and fees in the marketplace” (citing Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 573 (1997) (holding that a nonprofit summer camp was engaged in commerce for purposes of the dormant Commerce Clause)). The court of appeals disagreed.

The ordinance targeted speech about free services.  That alone might not be dispositive, but was here because there was no indication that the Pregnancy Center was motivated by any economic interest or was proposing any commercial transaction.  The ideologically driven speech offered by the Pregnancy Center was afforded the highest levels of First Amendment protection “even when accompanied by offers of commercially valuable services.”  The city’s definition of commercial speech was too expansive: “it is difficult to imagine any charitable organization whose speech would not be considered ‘commercial’ under the City's proposed broad definition.”

What about the election and abortion cases upholding disclosure requirements, both lines of which apply less-than-strict scrutiny?  The “differing contexts” rendered them inapplicable.  The abortion cases “focused on the speech of licensed medical professionals, and the regulations were upheld because, even though they implicated a physician's right not to speak, they did so ‘only as part of the practice of medicine, subject to reasonable licensing and regulation by the State.’”   Those regulations facilitated informed consent.  But the Pregnancy Center didn’t practice medicine, wasn’t staffed by licensed professionals, and didn’t need to provide informed consent. (My guess is that there are those who’d call this bootstrapping, though that wouldn’t help this ordinance any.)

So too with campaign finance laws. “The Supreme Court has never suggested that Buckley's holding that disclosure requirements do not substantially burden speech applies to speech regulations more generally.… While disclosure of campaign contributions or expenditures will always be limited to factual information, the line between fact and opinion in most compelled speech cases will be much harder to draw. Thus, campaign finance disclosure laws are less likely to be impermissibly content- or viewpoint-based and pose a lower risk of altering the speaker's message.”  The ordinance here burdened the content of speech “generally, requiring pregnancy centers to speak in a manner that they might otherwise wish to avoid.”  The majority, in a footnote, also found that the ordinance was viewpoint-based because it targeted only pro-life speakers.

Content-based speech regulations are presumptively invalid, and this one didn’t rebut the presumption. The city argued that it had a compelling interest in fighting deceptive business practices of certain pregnancy centers: “deceptive advertising, delaying tactics intended to prevent women from obtaining abortions, and misleading statements about the medical and psychological impact of abortion.”  It also argued that it had a compelling interest in protecting the health of pregnant women and in ensuring that pregnant women who seek abortions have prompt access to medical services, given that the risks and costs of abortion increase with delay, and delayed access to birth control can also be harmful.

But the government must identify an “actual problem,” with more than “anecdote and supposition.”  The record showed “at most, only isolated instances of misconduct by pregnancy centers generally, and, as the City concedes, none by the Pregnancy Center itself.”  There was no evidence that any woman had been misled in Baltimore.  Also, the court thought the city was only selectively pursuing its interest, calling that interest into question. The ordinance didn’t target “the vast majority of sources that pregnant women would likely consult. Bookstores, websites, religious leaders, and pregnant women's friends and family—all of whom might potentially provide a woman with ‘incorrect’ information about her pregnancy—are unaffected by the ordinance.”  Such underinclusiveness raised doubts about the purported government interest.

This interest was also undermined by the City’s failure to do anything else to combat misleading information, such as posting public notices in City facilities or on City websites.  The City, indeed, refers women to the Pregnancy Center without any forewarning.
Anyway, even if there were a compelling interest, the ordinance wasn’t narrowly tailored.  The ordinance didn’t limit itself to deceptive practices/false advertising; it covered all pregnancy centers even if they don’t advertise.  Also, it overinclusively applied to pregnancy centers whose speech was entirely truthful.  In addition, the City could use its own resources on public education about the alleged dangers of pregnancy centers, or urging women to consult with doctors.  “The City could also produce a document or website listing local pregnancy centers and noting what services are available at each.”  And it can prosecute violations of criminal and civil laws against deceptive advertising.

Additional discovery was unnecessary because the district court assumed that the ordinance served the compelling interests claimed by the city and struck it down for want of narrow tailoring, a question of law.  Nor was discovery needed to show that pregnancy centers engage in commercial speech, since the law on its face regulates noncommercial speech and the individual characteristics of any pregnancy center are irrelevant.  Anyway, even if some of the speech was commercial, it would be inextricably entertwined with fully protected speech: “an advertisement offering a pregnant woman the opportunity to ‘see a picture of your baby’ is both an offer to provide a service—a sonogram—and a political statement regarding the status of fetal life.”

Judge King dissented, arguing that the district court and the majority erred in denying discovery to the City while making factual findings against it, “often premised on nothing more than the court's own supposition.”  The majority went further by opining on the City’s asserted compelling interests, leaving the case to follow “a course more fitting a kangaroo court than a court of the United States.”

In the dissent’s view, the ordinance responded to “congressional and statewide reports that women were being deceived by limited-service pregnancy centers.”  Congress and NARAL produced reports “documenting a pattern of deceptive practices by limited-service pregnancy centers nationwide.”  NARAL identified deceptive practices in Maryland, including in Baltimore.  “During its 2009 hearings, the City Council heard evidence from a number of women complaining about being deceived by pregnancy center advertising. One witness related her experience as a teenager, being subjected to anti-abortion advocacy when she visited a pregnancy center because it advertised in the telephone book under ‘Abortion Counseling.’ A college professor referenced ‘countless stories’ from female students who had similar experiences when they visited pregnancy centers.”  (There is of course a substantial concern about when anecdotes become data.  If only our institutions were consistent on this; but of course they aren’t.)

The City Council heard about delaying tactics used to prevent women from getting abortions they wanted, such as “counseling women to undergo pregnancy tests and sonograms that were scheduled weeks after their initial pregnancy center visit, and misinforming women about abortion services, including when abortions could be lawfully obtained.”  This risked the health of women who nonetheless chose abortion, since abortions are safest in the first trimester.

When the Pregnancy Center moved for summary judgment, the City asked for discovery to support the proposition that deceptive advertising by limited-service pregnancy centers threatened public health and to develop evidence about the advertising used by the Center and other limited-service pregnancy centers.  It also sought to develop factual support for its argument that the services were a form of commerce and therefore the required disclaimer was commercial speech.

Summary judgment should be denied when a party needs a chance to conduct discovery; this rule was ignored here.  The dissent also argued that the district court and the majority wrongly used an as-applied analysis to rule the ordinance facially invalid, by not asking whether there were fee-for-service institutions covered and by focusing on the specific characteristics of the Pregnancy Center’s ads, services, and ideological beliefs.  As-applied challenges are fine, but should be distinguished from disfavored facial challenges that rest on speculation and don’t assess all the facts.  Given that the district court used an as-applied analysis, the City should have been entitled to conduct discovery.  And as a facial challenge, the case deserved discovery even more: even if the Center wasn’t engaged in commercial transactions, other centers that charged fees could be.

Thus, there were issues outstanding about whether the speech covered here was commercial speech.  The ordinance definitely regulated ads referring to a specific service.  The question was whether the Pregnancy Center had any economic interest.  “Ironically, my good colleagues fault the City for not addressing ‘what economic interest motivates the Pregnancy Center's speech,’ while ratifying the district court's denial of the City's discovery requests that were aimed at, inter alia, obtaining such information.”  The district court and the majority shouldn’t simply have accepted the assertion that the Center’s motives were entirely religious/political.

In any event, the Center might not need an economic motive to be engaged in commercial speech.  Context matters: an ad presented as an ad for services rather than as an exchange of ideas can fall into the commercial speech category. (Citing Fargo Women's Health Org., Inc. v. Larson, 381 N.W.2d 176 (N.D. 1986) (holding that false and deceptive ads by a pregnancy center constituted commercial speech despite provision of free services).  Without record evidence of the Center’s ads, there was no way to assess them. 

It was error to conclude that the Center’s ads contained inextricably intertwined noncommercial and commercial elements without examining any examples of such ads.  The district court premised its conclusion on the idea that the dialogue between a center and a pregnant woman begins when she enters the waiting room.  “But such a dialogue may actually begin much earlier, when a prospective client views a limited-service pregnancy center's advertisements.”  Plus, the disclaimer doesn’t convey a message that abortion and birth control are morally acceptable; it doesn’t say anything about morals.  The disclaimer “relates to the services offered, not to the religious or ideological beliefs of a pregnancy center.”  In any event, when two components of speech can be easily separated, they aren’t inextricably intertwined.  The required disclosure doesn’t specify language or terminology, and “a limited-service pregnancy center would be free to express its disapproval alongside the disclaimer, or otherwise qualify its viewpoint vis-à-vis the disclaimer.”  More to the point, nothing in the ordinance bars the pregnancy center from conveying noncommercial messages.

In addition, the dissent was uncertain that the ordinance didn’t implicate professional speech.  “I am simply unable to understand how the majority can make such factual findings. In truth, there may be licensed professionals who are subject to the Ordinance. Indeed, [amici, other pregnancy centers] assert that some of its affiliates ‘operate under the licensure of a physician-medical director [and] provide medical services ... by certified and licensed professionals,’ and that “there are 750 such clinics nationwide, including [the Center].’ Therefore, discovery concerning the possible professional nature of the regulated speech is also warranted.”

Another reason discovery was needed was to bolster the record supporting the ordinance.  This was no made-up post-enactment justification; there was a substantial pre-enactment record, though the majority deemed it insufficient to establish a compelling interest.  “But criticizing the record as somehow lacking merely begs the real question underlying the errors of the district court: Why was the City denied a full and fair opportunity to conduct discovery and present a proper record?”  When a record is limited, the government is generally permitted to marshal relevant evidence, as in the Turner Broadcasting cases.

The district court also erred in finding the ordinance not viewpoint neutral.  The majority said that the ordinance burdened only “pro-life speakers,” but that’s not true.  Lamaze instructors, doulas, pregnancy shelters that choose not to make referrals to avoid any liability stemming from the fact that they don’t have licensed or trained professionals to address those subjects, and adoption/surrogacy centers are covered by the ordinance.  The majority suggested that the legislative history demonstrated animus against the Center’s viewpoint.  But, as the majority noted, the City has referred and continues to refer women to the Center, which speaks against animus. “In any event, the record validates the City's uncontradicted contention that the Ordinance was enacted to curtail deceptive advertising, not because the City disagreed with or wanted to suppress the Center's speech.”

The majority disparaged the City’s asserted compelling interest in protecting the public against deceptive practices and ensuring prompt access to birth control and abortion for those who seek them.  The majority argued that the ordinance was underinclusive because it didn’t regulate every possible source of information.  “The City, however, had an obligation to deal with existing public health problems, without addressing the likelihood of deception from every possible source of information available to pregnant women.”  The City could, the majority suggested, have put a notice on its own website, but that was a critique of the means of serving compelling interests, not a valid argument that the interests were not compelling.

In any event, the majority focused on the first compelling interest and basically ignored the second, timely information and medical care.  The City provided a declaration from a public health expert attesting to the relevance of disclosure to this interest, and the district court never mentioned it, though this alone at least created a genuine issue of material fact on the compelling interest.

The ordinance was minimally burdensome (which led the majority to condemn it as underinclusive).  The preferred remedy for false or misleading advertising is more disclosure, not less.  Going further in specifying what pregnancy centers could say risked constitutional problems of its own.

The dissent also criticized the district court’s comparison of the ordinance to a regulation requiring a non-American car dealership to post a sign that says “We do not offer cars built in the United States.”  This would be impermissible, the court suggested, because it would “handicap[]” dealers who didn’t want their customers to think about that issue.  (Of course, federal law actually does require origin labeling for non-US goods, as do many state laws, and I sincerely hope the district court didn’t really mean to throw the constitutionality of those statutes into doubt, especially since they plainly do regulate commercial speech.)  The district court suggested that, likewise, the ordinance would harm the Center because when a woman “comes in and [the Center] says we don't offer abortions” the woman thinks, “Oh, abortions, yeah, I guess I better ask about that.”  The dissent remarked that “[c]omparing a woman's right to seek lawful medical treatment to a salesperson's economic interest in keeping his customers ignorant is, as the court initially thought before it made the comparison anyway, ‘a stupid example.’”

The majority didn’t like that the ordinance applied to all pregnancy centers, regardless of whether there’d been a specific finding of deception as to each.  “But the Ordinance applies equally to all limited-service pregnancy centers, due to the inherent potential for consumer confusion and deception concerning the services provided.”

Turning to the City’s alternatives, such as distributing information of its own, the City had never been offered a meaningful chance to show that this less restrictive alternative wouldn’t work.  “The Center did not, until it replied concerning its own summary judgment request, propose any less restrictive alternatives. Thereafter, the district court denied the City its right to conduct discovery and awarded summary judgment to the Center. In so doing, the court suggested other less restrictive alternatives. Of course, the City has argued—in both the district court and on appeal—that these alternatives would be ineffectual or less effective. Importantly, however, the City has never had a chance to adduce evidence with respect to those alternatives.”

At least, there was a genuine dispute on narrow tailoring.  A disclosure is a less restrictive alternative to more comprehensive regulations, and the First Amendment interests implicated by disclosure are weaker than those implicated by actual suppression of speech. “ Public education campaigns and websites may be successful to some degree, but they do not ensure that every woman who visits a limited-service pregnancy center will be apprised of the services offered there, at a time when such information is most needed. Inadequate or unenforceable deceptive advertising statutes, problems of proof, and scarcity of resources can also impact efforts to prosecute limited-service pregnancy centers.”  A less restrictive alternative must be as effective as the regulation in order to count as an alternative.