morning your honor suzanne representing the mayor and city council all to more district court found baltimore's disclosure ordinance violates the appellee center's free speech rights because number one there is insufficient evidence to demonstrate deception actually takes place and number two that the health harms are in fact being caused by delays resulting from deceptive advertising reversal is appropriate because the district court was required the evidence in the light most favorable to the nonmoving party city in this case and the evidence is undisputed that concerns were deceived by the centers deceptive advertising which alone is constitutional justification for the disclosure ordinance center's executive the executive director carolyn clues it manage at their advertising is quote purposefully vague that's at j a seventy eight why is that deceptive well and you can look at the various many examples of the ads which are in the record and i can cite to the if you want but what matters is that women were actually misled by these center's director of their helpline stated that women exposed to their ads were actually misled about the services that the center offers and contacting the center in order to obtain abortion s three six ninety eight and six ninety six you'll see that the center is marketing itself by offering abortion and morning after pill abortion alternatives medical services and the ads don't mention anywhere years j a seven zero zero three is the option line ad which says it's offering medical services abortion and morning after pill six ninety eight and six ninety six aren't the us campaign said camping at the center ran in baltimore city in two thousand and ten offering abortion alternatives and certainly can disagree about whether that ad is inherently deceptive in itself but the evidence shows that women were actually misled about what that ad men and they sought and they called the center to schedule abortions they don't actually provide abortion services but they do indicate in their ads that they provide abortion services and medical services and women coming to the center believe that they can obtain abortion services there they presenting themselves to the public as medical clinics offering medical services and lay people who come there are receiving that gentle sonograms they are receiving pregnancy test they think they're at a clinic a teen in medical services and a simple neutral factual disclosure on the wall could easily dispel that impression by telling them no coercion or comprehensive contraception is provided not appear to need how someone addresses what you have articulated and the difficult it addresses it because it mediately clears up the consumer's confusion about what services are offered no only enjoined misleading advertising it also in joint quote falsely lulling people that come to them into thinking they are in fact an abortion clinic but did you see the junction here  intrusive it is the least intrusive and effective means requiring a disclosure on advertising baltimore city wouldn't have been able to reach the third party national groups that advertise on the internet and refer women i disagree are on are and in fact the executive director carol clues also disagree she acknowledged in testimony that the only conversation that is interrupted by the disclosure sign is that of a woman who is seeking an abortion at the center and has it messed led to think that she can obtain an abortion there that's the only conversation that would be interrupted and the so that disclosure that's their argument that's not the testimony that's not what the evidence shows city council tory mcdonald's herself sixteen years ago was misled by such as dr lamb not at that particular center but this is a calm in the testimony before th the best evidence for this center is from the helpline director but there was ample other evidence before the city council and now before this court of college counsellors and health care providers who were treating women city council is like most legislatures is not out by the rules of evidence and kirner turner broadcasting systems versus sought to further and the evidence supporting that is what was before the city council as well as a supplementary evidence that was added to the record during the litigation so my  disclosure on the wall both many gates the harm as well as prevent set it mitigates the harm because the second compelling government interest that served is delay and access to time sensitive reproductive health services cetera it also prevents the harm because once this deceptive marketing tactic doesn't work in order to obtain new clients for the center that the center will stop in gauging in this as a promotional endeavor so it reaches every woman who is misled putting a disclosure on advertising won't reach the third party national groups that are doing advertising on the internet and they're beyond baltimore's jurisdiction we can't require them to put disclosures on their ads women are still going to be referred by the option line and the decision line to come to the baltimore centers even though there might be disclosure on the bus as if the center were to continue doing bus a yes i'm glad you brought that up again so that evergreen case in the second circuit upheld a requirement that there be a neutral factual disclosure both on the waiting room wall as well as orally that there is no license health care provider present they struck down the services disclosure part of evergreen was struck down as redundant there's no need to delineate what medical services are not provided if you already know there's no licensed medical provider and the interest fact that neutral disclosure of what license services are provided they weren't provided there and then the second part was redundant that was the basis for their holding and in that case new york as to the neutral factual disclosure that there was no licensed medical provider available and struck down the second part it what montgomery county's interest in that case was that women pregnant women thought they were a teeny prenatal care at this clinic that's what they stated their interest was and there was no evidence of any deceptive advertising offering abortion services at the center and there was no evidence that they were presenting themselves as medical clinic i can respond your honor but i'm out of time can i go ahead so i would say the ninth circuit and this and the second circuit looked at those less restrictive alternatives that you mention that rest i think baltimore would have a hard time getting an injunction against option line and decision line at are based outside jurisdictional boundaries of baltimore city and yet there were furring women to the centers offering portion and morning after pill there was a sad campaign in baltimore in december of two thousand and ten some of it is local there's a bunch of stuff that's local the pennysaver ads radio ads but there's all these national organizations that are on the internet if you put in a portion baltimore up pops the option line you put in your zip code or first you to the center as well as the other pregnancy centers in baltimore we can't require them to do the parenting support the free pregnancy that's in theory correct so we're not trying to put them out of business perhaps it would be helpful your honor to remove this from the politically charged context  advertising free cancer treatment medical services cancer patients show up at the center and find that all that's being offered is prayer and advocacy that you should only treat cancer with prayer i think it be well within the city disclosure sign really fosters the same principles that you fostered in the stewart became its decision it is allowing accurate information to women who are searching personal and time sensitive medical services so that they can make their own decisions and it is not explained exact argument made by the north carolina legislature and stewart not a woman even even while she's on the table should be told this is what she she should look at sonograms of the baby if it was the same argument that was made in behalf of health and you differ you disagree i completely understand that it's the same type of we are telling a provider we are providing we are sent to a provider you have to say you have to say in the main we tell you to in the form in which you know the provider doesn't have to say it it's a government disclosure on the wall no one has to say anything and it's simple neutral it's not in fact that regulation says they can and they can use their own words they can say we don't know for offer abortion because we don't think it's moral or we think it's too risky it's no more expressing an approval of abortion practices which are widespread throughout the pregnancy center industry and there's ample evidence in the record that i reserve the rest of my time for all we want to thank you  before i get into my prepared remarks by correcting i feel the need to correct a point of the record that missing green made multiple times when i asked her best evidence of deception she pointed to join a x seven o three and she said repeatedly it's an ad that says we offer abortion and morning after pills in fact she deleted the important word that is included in that an ad which says we provide abortion a morning after pill information which is something we definitely do she said that three times i want to make sure your honour's understood the record thank you on the key issue in this case is whether the speech of plaintiff's greater baltimore center a christian ministry staffed largely by volunteers all of whom sign a christian faith statement and provide entirely free services including free diapers e b formula and bible study whether their speech in their small waiting room located in rent three space where that speech is commercial speech as this court instructed the lower court and the parties to engage in discovery context matters that the parties in the court engage in a context based discussion and as your honour's discussion just indicated the narrow tailoring question turns largely on the fact that this sort of this disclaimer this chosen remedy is overly broad because of the impact it has in the undisputed evidence of the record the impact it has on our center absolutely so tell me well you know airily well there are many alternatives that have been suggested by the supreme court and other courts ask they start with prohibiting absolutely prohibiting false advertising directly which government has the direct authority to do it's what was  honor the city has some laws regarding false advertising which they have never attempted to a force there is no record at all that they have looked at enforcing their false advertising laws that they have  amended if necessary as they can under their police powers their existing anti fraud laws to cover false advertising by pregnancy centers and it is very clear this was another basis on which four years ago this court us back for discovery so that the city could prove those kind of less restrictive alternatives are ineffective there is zero proof in the record that they even considered let alone have proven ineffective those  alternatives of prohibiting free speech of prohibiting excuse me prohibiting we don't want them to do that prohibiting false advertising maybe at a stretch requiring a disclaimer on allegedly false advertising itself and certainly gauging in the government's own educational campaigns which it does and other issues the record is replete with we go through and we talk to those the city's health commissioner about real health issues in the city  substance abuse needle exchange programs hiv testing they talk about those things those are on their website and they engage in public information campaigns they never thought about or attempted public education around this and yet as your honour's just heard the city refers women to our center including on their website through their website for free pregnancy tests they don't know what the women what services the women are or are not looking for and yet they do not include a disclaimer telling those women who they are sending to our center of the services we don't provide your honor the underside of facts in the discovery tell us what kind of speech is at issue here it's undisputed that the center itself tries to convey in the place where this disclaimer would would hang a welcome comfort security or warm spiritual matches that's what they're trying to convey in their way the materials in this waiting room include copies of the bible children's books and toys and a small statue of jesus christ there in the waiting room and it's undisputed in the waiting room this court said context matters including the viewpoint of the listener there is only one testimony from someone who's been to the waiting room to receive services in the record nephew david from a woman named ambrose here's what she says she says that i went to the center for emotional spiritual and material support she came with her family they prayed in this waiting room with the center staff in the in the center's waiting room at her request the center provided her with non judgmental emotional support and the center also provided her with free diapers free wipes free clothes free baby formula free stroller to assist her in caring for the child she always found center's waiting room to be open and inviting they never discussed abortion because they say she saw this is her testimony she sought the centers help in order to keep her children and here's the key to the context i think your honor the ordinance disclaimer would have been upsetting almost since the organization yes it's well absolutely your honor the record is replete with testimony despite missing griese attempt to minimize the center's testimony about the impact that this right it undermines their attempt to convey care and support it implies that abortion could be considered a good  extensive depositions including the city noted depositions from national national pro life groups around the country they conducted depositions throughout the united states and got every piece of document they wanted from us  absolutely your honor it was it was extensive is there anything you would feel comfortable saying that you think would be could be communicated non disruptive well let me get to that and your honor i'm glad you're on a raise to because also in the context of the allegedly problematic advertising staff is trained and it's undisputed that they tell every woman who asks about abortion services that they are not provided at the center and the center will not refer for them so it's undisputed in the record that every woman who was momentarily confused by any ad was told immediately when they called about their confusion the center does not provide a referral for abortions and we also the center also has its own commitment of care it's in the joint appendix and it is it's welcoming supportive context of what it tries to convey and one of the items one of the nine items on the center's commitment of care sets very clearly that the center does not provide a referral for orson's or birth control services and it's in the context of commitments like nondiscrimination honesty kindness training care and support so it's said very much in the center's way and supportive way and in a way that allows the woman who they're talking to understand that she can have a baby with the support of the center not that she would see a stark cold government warning and the government's intention is clear in the record they want women to come in and immediately leave the center if they see that sign and they're not interested we want to talk with women about the kind of care that the center provides and in the riley case and in the evergreen decision that's been discussed here there's a clear discussion about the problem with how the government mandates this information be provided there is nothing in the record that any woman has ever been has ever come to the center thinking that she can get an abortion it's a man's catholic church case your honor there are no there's no where there was some de minimus money coming back from a couple of the clients as a donation there's none of that in our record absolutely everyone services director marshal i completely agree your honor now the city just to preview i don't want the city had concerns about the scope of their discovery as to the out of state national organizations they filed a motion to compel and there was some dispute about that decided by the first magistrate judge below and then the district court below they've waived that here on appeal that had nothing to do with our waiting room or our center it ended do with how far they could go exploring with these national pro life groups so i had the city may come up and say that but they waived that and there's no doubt that in the three plus years discovery city had every opportunity and they deposed our people they got all of our records and there is nothing about know your honor thank you for that question because quite to the contrary both the city's thirty sixth deponent their designee and the city's own public health say expressly that there is no evidence of any harm or delay  woman who's visited a pregnancy center that said join appendix one thousand and eight cities thirty six designee one thousand and eight and the city's expert let me quote the city's expert on public health d blum he says quote i'm not aware of harm that has been caused by going to a crisis pregnancy center that's joint appendix eleven forty three it's undisputed that there's not a single woman who has gone to a pregnancy center in baltimore city thinking to receive an abortion no woman has gone to a pregnancy center in baltimore city and harmed no woman has gone to a pregnancy center and been delayed some almost out of time i've addressed most of us well i thought your owners might appreciate that i know it's already been a one day are most welcome to answer any questions you all might have but i think we've covered a lot of it is that harm yes and yes and he also talks in his declaration that women's access to abortion girls who enter the center were delayed days and weeks and casey recognizes that access to services is time sensitive he cited one instance where up girl was pushed into the second and into a second trimester abortion which increases the cost and risk sent judge duncan identify the first source of delay which is a misleading advertising which brings the women to the center in the first place seeking an abortion that's not offered there that's the first source of delay then in the record at nine o three zero four seven fifty eight women are required to undergo at least forty five minutes of counseling before they're provided with a pregnancy test that's in the center's manual and if they say i don't want counseling i just want the pregnancy test they're told no sorry you can come back another time when you have more time in addition they're encouraged if they're abortion minded meaning they made up their mind to have an abortion they're encouraged to have a before they go ahead with that decision and yet the sun so nagra for is not their day and they're encouraged to come back you know days if not weeks later to have the sonogram before well those are delay asked if this into providing abortions and was misled about we don't have that but we have a statement from clues that if a woman doesn't specifically she's the executive director of the plaintiffs a center you're sense of where the misunderstanding seems to me it's a little easier to think about the best way to fix it yes so for example when a woman comes in and says i know what you mean ok what we have concerning the baltimore center is statement from carol includes that unless a woman specifically asked whether you provide abortions that she will not be told and so she claims you know one place that she tells everyone and then she acknowledges no you see where this is another example that that was really my question a woman is not told that we provide abortion that's not affirmative objection is that it is not affirmatively present it has to be asked and that's why we have it i'm not quite sure why it's a problem with that ok your honor there is evidence in the record before the city council the center committed communicating with a woman who comes in who mentions abortion i'm sorry we do not provide abortions that was a part of their discussion and that was upheld in and as well as and that's in an evergreen that both they have to be told we don't provide abortion and post on the wall no licensed health care provider here don't go past my question ok because i'm really trying to come up with something addresses that addresses a very legitimate concern about your about the city putting words in your mouth  discussion with a woman these are the services we offer and doesn't include abortion i'm not sure where the deception there ari here there are legitimate sensitivities and i'm trying to flesh out if there's any way to address concerns of our concerns about the so that was why i was asking stay with me on my question well for example in the test the act case there wasn't any evidence of a misrepresentation of what services the center there offered and and so a disclosure sign was deemed to be inappropriate there's you know women are being told you can get prenatal care here and so why would that or have to post a sign you can't get it here but in our case women are being told they can get abortion alternatives morning after pill sonograms medical services but those are not offered about the evergreen just so they don't use the word redundant that was my shorthand in my notes but if you look at he says to forty nine of the decision seven forty f thirty to forty nine the top left column however on this record the status disclosure by itself might narrowly tailored the city's interest well as it alerts consumers to a small bit of accurate information about the type of services each center provides medical or non medical even though it does not discuss those services so it had just up held the status disclosure saying no licensed medical providers here and now it's in the services disclosure saying striking it down because the status disclosure has already fulfilled the government's purpose well i i disagree with you on that point your honor i think the second circuit up held the status disclosure on the wall and said that fulfilled the government's purpose of clarifying what types of services are offered there so you didn't need to then delineate ours is different because what's being marketed is not licensed medical services specifically it's abortion services morning after pill medical services are also being marketed but the baltimore council responding to the public health advice of its health commissioner that we need to our public health messages to be at a fifth grade reading level women are seeing abortion alternatives advertise or coming to the center to obtain shins provided or referred for it wasn't a concern that pregnant women were coming to get prenatal care or other licensed medical care there so our disclosure our status disclosure as you will of what services are offered is tailored to the problem in baltimore and as we know that a city is not required to wait until after a harm has already occurred in order to remedy it that's from the turner broadcasting supreme court decision and so