Panel
opinion discussed here. Once again,
though this walks like a First Amendment case, the fact that it is an abortion
case makes it of likely limited practical significance for any other type of speech,
but because hope reigns eternal I cover it here. Also, plenty of grist here for those who
believe that procedure is substance.
The district court permanently enjoined Baltimore’s
ordinance requiring limited-service pregnancy centers to post disclaimers that
they don’t provide or make referrals for abortion or birth control
services. The majority reversed because
the district court improperly denied the city discovery and otherwise
disregarded basic rules of civil procedure.
Before an answer had been filed, plaintiffs sought summary
judgment, arguing that the ordinance discriminated based on viewpoint and
failed strict scrutiny. They argued that
the disclaimer ensured that “every conversation at a limited-service pregnancy
center begins with the subject of abortion, and convey[ed] the morally
offensive message that abortion is available elsewhere and might be considered
a good option.” The city, by contrast,
characterized the ordinance as a consumer protection regulation, referring to
legislative history finding that limited-service pregnancy centers often engage
in deceptive advertising to attract women seeking abortion and comprehensive
birth control centers and then use delay tactics to keep women from getting
those services, thus threatening their health because the risks and costs of
abortion increase as a woman advances through her pregnancy, and because delays
in access to birth control can leave the woman vulnerable to unintended
pregnancy and sexually transmitted diseases. The city submitted four pieces of evidence
from the legislative record relating to false advertising by pro-life pregnancy
centers—a US congressional report on misleading practices including attempts to
advertise as providing “abortion” services; a NARAL report on misleading
practices in Maryland specifically; written testimony from a woman who, 16
years previous, as a 16-year-old was misled by a center advertising under
“Abortion Counseling”; and written testimony from a doctor at U Md. who
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.” The city also argued that summary judgment was
premature and that discovery into the Center’s advertising practices was
justified, as well as discovery into whether the Center’s services were a form
of commerce and thus the ordinance regulated commercial speech. The city also said that it would provide
further evidence of the harms from delays in access to birth control/abortion
services, and the vulnerability of women seeking family planning/pregnancy care
to deception.
The district court found that, by submitting the legislative
record, the city had converted its motion to dismiss into a motion for summary
judgment. It rejected the city’s request
for discover as an improper “attempt to generate justifications for the Ordinance
following its enactment.” It defined its
task as to determine whether the ordinance on its face was subject to and
satisfied the applicable level of scrutiny, confining itself only to the
evidence relied on by the city counsel when the ordinance was passed. The district court then found that strict
scrutiny applied, because the services it offered were free despite having
commercial value, like sacramental wine, communion wafers, and prayer beads;
that any commercial and noncommercial elements were inextricably intertwined;
and that the ordinance failed strict scrutiny because the dialogue between the
centers and women begins when women enter the waiting room, and the mandated
sign would alter the course of the center’s communications with them. Plus, the district court found that the
ordinance was enacted out of disagreement with plaintiffs’ viewpoints, because,
being targeted at those who don’t offer abortion or birth control, it therefore
was discriminatorily aimed at those with objections to such services. Even assuming a compelling interest, the
ordinance wasn’t narrowly tailored to target only centers engaging in deceptive
practices; the city could use existing regulations on false advertising or a
new content-neutral ordinance applicable to noncommercial entities.
The majority didn’t evaluate the ultimate merits,
though. The chief error was awarding
summary judgment without discovery, which was an abuse of discretion based on
an error of law, since there wasn’t proper notice by the court that it was
going to treat the motion to dismiss as a motion for summary judgment. Submitting the legislative record doesn’t, as
a matter of clear circuit precedent, constitute submission of material beyond
the pleadings justifying such a conversion.
Moreover, conversion is only justified if the parties are afforded a
reasonable opportunity for discovery.
The district court denied discovery on the theory that a
facial challenge made discovery unwarranted.
But the district court didn’t “fairly examine” whether the ordinance was
invalid in all or even a substantial number of applications, as required for a
facial challenge. Instead, the district court accepted the center’s description
of itself and then assumed that all limited-service pregnancy centers shared
the same characteristics. This was as-applied rather than facial review, but a
proper as-applied challenge would’ve required discovery.
A further abuse of discretion came when the district court
restricted its analysis to the legislative record. A justification for a law can’t be invented
post hoc in response to litigation, but the record can be augmented with
evidence to support the existing justification, which was all the city sought
to do.
The district court additionally failed to draw all
justifiable inferences in the nonmovant’s favor. The divide between noncommercial and
commercial speech is very important here, since disclosure requirements aimed
at misleading commercial speech need only survive rational basis scrutiny by
being reasonably related to the prevention of deception. The city’s commercial
speech theory shouldn’t have been rejected so early by the district court,
though it might not ultimately succeed.
The city argued that limited-service pregnancy centers proposed
commercial transactions every time they offered to provide commercially
valuable goods and services, such as pregnancy testing, sonograms, or options
counseling, to a consumer. Whether
speech is actually commercial is fact-driven.
Speech beyond “I will sell you X good at Y price” can be commercial,
depending on the circumstances. The
district court reasoned that the plaintiff’s purpose in advertising wasn’t to
propose a commercial transaction, nor was its speech related to the center’s
economic interest. But it wasn’t
undisputed that the plaintiff’s motives were entirely religious or political;
discovery was needed to determine whether, for example, centers were referring
women to pro-life doctors in exchange for charitable contributions.
Anyway, commercial speech doesn’t depend entirely on the
center’s economic motive. Context
matters, including the listener’s viewpoint, since commercial speech’s level of
constitutional protection is predicated not just on the speaker’s interest but
on the way in which such speech assists consumers and disseminates
information. See Fargo Women’s Health
Organization, Inc. v. Larson, 381 N.W.2d 176 (N.D. 1986) (enjoining deceptive
advertising misleading women to believe that a clinic provided abortions in
order to lure them in for anti-abortion counseling; though services were free
to women, speech was still commercial if the ads were in a commercial context
and directed at providing services and soliciting patronage rather than
exchanging ideas). This context
differentiated the services here from sacramental wine, etc.; no one alleged
that churches were advertising their provision of the latter in a commercial
context to solicit patronage. Without
all the pertinent evidence, it was impossible to analyze the regulated speech.
The existing record did have some relevant evidence,
including ads for Option Line, with which the plaintiff had a
relationship. Option Line advertised
that its “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.” The city argued that the ad was deceptive.
Nor was any commercial speech inextricably intertwined with
fully protected speech as a matter of law.
The district court merely speculated 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 it “prematurely
and perhaps inaccurately characterized [the required] 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.” Discovery
could refute these factual assumptions and show that any commercial aspects of
a limited-service center’s speech weren’t inextricably intertwined with fully
protected noncommercial speech by showing that nothing in the ordinance
prevented the center from conveying noncommercial messages.
And the district court precipitately concluded that the
ordinance discriminated based on viewpoint, surmising that it must have been
aimed at centers with moral or religious qualms about abortion or birth
control. But the fact that a regulation
covers people with a particular viewpoint doesn’t itself render the regulation
content or viewpoint based. Viewing the
legislative record in the light most favorable to the city, there was evidence
that the ordinance was enacted to fight deceptive advertising and promote
health. Also, there might be
limited-service pregnancy centers without moral or religious qualms that
refrain from providing or referring for abortion or birth control for other
reasons.
And finally, the district court erred by determining that
the ordinance wasn’t narrowly tailored. If strict scrutiny applied, the city had
to be given the opportunity to develop evidence relevant to the compelling
government interest and narrow tailoring issues, including evidence on the
purportedly less restrictive alternatives.
The majority noted that, on the same day, the 4th
Circuit approved a partial preliminary injunction against a similar law in
Montgomery County (enjoining a required disclosure that “the Montgomery County
Health Officer encourages women who are or may be pregnant to consult with a
licensed health care provider” but not a required disclosure that “the Center
does not have a licensed medical professional on staff”). This procedure avoided constitutional
injuries to the plaintiff, assuming strict scrutiny applied, but paid attention
to the fact that the record was undeveloped.
That preliminary decision was not an abuse of discretion.
The majority took the position that the two cases were
therefore perfectly consistent, while the dissenters here “would wholly exempt
the Center from fundamental procedures to which all civil litigants are both
subject and entitled.” The dissenters “candidly
acknowledge[d] that ‘the district court engaged hypothetically from time to
time in discussion about the potential relevance of facts,’” but didn’t deal
with that problem. The Federal Rules
exist to further due process and deserve respect, especially given the ready
availability of preliminary injunctive relief.
Among other things, the dissenters mischaracterized the city’s aim as
avoiding misrepresentations about abortions; though there was record evidence
that limited-service centers did provide misinformation about abortion, such as
that it caused breast cancer, the city always took the position that the
ordinance was aimed at deceptive
advertising aimed at women seeking abortion and birth control services and
then using delay tactics to keep women from those services.
Judge Wilkinson dissented, saying a lot about “the dangers
of state-compelled speech.” The Center
really, really doesn’t want to post the disclosure, because it believes that
abortion and birth control are profoundly wrong and that even to mention them
suggests that they’re readily available elsewhere, thus suggesting that they
are viable options. It may not be
technically viewpoint discriminatory, but 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.” (Planned Parenthood feels
your pain.)
What about the procedure stuff? This was an “indiscriminate,” “amorous affair
with litigation that is anything but benign.”
The question was whether drawing out the case would “vindicate the
assertion of a constitutional right or suffocate it.” Requiring the Center to suffer through
discovery imposed a high price on it for attempting to vindicate its free
speech rights, and here the majority authorized a fishing expedition into its
motives and operations looking for some vaguely “commercial” activity. Potential profit motives were “far-fetched
hypotheticals.” The resulting delays and costs were especially onerous given
the plain violation of the plaintiff’s constitutional rights.
Plus, the city rushed to regulate speech rather than
considering other alternatives; mandated speech should be a last resort, but
the legislative history didn’t indicate any attempt to consider alternatives. “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.”
Based on the city’s “bald assertion” that these wouldn’t work, the
majority authorized discovery. Authorizing
discovery without a showing that less restrictive alternatives had been
considered encourages legislatures to adopt “the most constitutionally
offensive option rather than the least.”
The majority also erroneously treated the plaintiffs’ challenge
as as-applied rather than facial, forcing other centers with similar beliefs to
sue in a war of attrition.
Sometimes the government can get discovery. “But one does not need discovery to discover
the obvious.” (But are the ads
misleading? Why wouldn’t discovery help
illuminate that question?)
Judge Wilkinson noted that compelled speech can further a
pro-life agenda as well as a pro-choice one, and argued that the majority’s
rule would “bite the very hands that feed it.”
“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.” (Myself, I think legislatures are too busy
mandating four-foot-wide doorways and hospital admission privileges to truck
with trivialities like signs on the wall, but who knows?)
(Aside from the assumption that the majority was acting only
to further an abortion rights agenda, though, the dissent has an important
point, except that the horse is well out of the barn. It’s notable that Judge
Wilkinson didn’t have any precedent to cite showing that abortion providers
receive meaningful First Amendment protection right now, because
they don’t. His posited “services we
don’t provide” disclosures are highly beside the point, given the mandated
disclosures about risks etc. that have already been approved despite their much
greater factual contestability. If
courts presently applied the same compelled speech analysis to abortion
providers that they did to anyone else, the dissent would have a good point. Also, we might still want to discuss advertising for the services separately,
as opposed to statements made in the course of delivering the services.)
Finally, Judge Wilkinson noted, the state did have broad
police powers to regulate for health and safety, “which includes the authority
to require the disclosure of limited amounts of accurate information.” (Perhaps he has remembered the existing
disclosure requirements on abortion providers after all?) But “the state generally may not force
individuals to utter statements that conflict with beliefs so profound that
they define who we are.” (Note that
statements like “abortion ends a human life” have at least a structural
similarity to “we don’t provide abortions”—the problem for both sides is what
they imply, not the brute fact.
Uncharitably, I suspect that lurking underneath Judge Wilkinson’s
formulation is the idea that the belief that women should be able to choose
whether to bring pregnancies to term, and the belief that such choices are
vitally important to their well-being, are not beliefs “so profound” as to
define who a person is.)
Judge Niemeyer separately dissented. There was no need for discovery, because
everything here was a question of law.
Compelled speech and content-based regulations always impose huge
burdens and are subject to strict scrutiny, even when the regulated speech
includes potentially commercial speech. Because the ordinance regulates both
commercial and noncommercial speech by addressing all providers of limited
pregnancy services regardless of their motives, and because it didn’t prohibit
misrepresentations but rather mandated speech regardless of what the pregnancy
center represented, the facial challenge should’ve succeeded.
(One of the majority’s theories of why the speech might be
commercial, and the more plausible one it seems to me, is not primarily a
factual question—the idea is that by looking
to consumers like a commercial service provider, which is part of the deceptiveness,
the center is engaging in commercial speech, since an economic motive is not
absolutely required to be commercial speech under Bolger and since the center appears to be offering services rather
than offering an invitation to engage in discourse. While discovery might not be needed on this
point (though evidence of consumer reception might well be relevant), if it is
still the case that an economic motive isn’t absolutely required—that is, if Bolger is still good law—then the
dissent isn’t really engaging with the issue, which is the proper definition of commercial speech.)
The city had the burden of justifying the restriction, and
it failed. Less restrictive alternatives
included public education campaigns on the “alleged” dangers of pregnancy centers
or promotion of consultation with doctors for pregnant women, along with
prosecuting violations of false advertising laws. (I wonder how the dissenters would feel about
a lawsuit charging a limited-service center with advertising a service it
didn’t intend to provide: classic bait and switch. If, as the dissenters are sure, the centers
are not engaging in commercial speech, are they subject to such laws?) Discovery wouldn’t be needed to tell whether
the ordinance was overinclusive. Narrow
tailoring is a question of law, determining whether the challenged law “targets
and eliminates no more than the exact source of the ‘evil’ it seeks to remedy.”
(Still seems like one might occasionally want facts about that, especially if
the alternatives don’t work.)
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