PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GREATER BALTIMORE CENTER FOR 

PREGNANCY CONCERNS,

INCORPORATED,

Plaintiff-Appellee,

and

ST. BRIGID’S ROMAN CATHOLIC

CONGREGATION INCORPORATED;

ARCHBISHOP EDWIN F. O’BRIEN,

ARCHBISHOP OF BALTIMORE AND HIS

SUCCESSORS IN OFFICE, A

CORPORATION SOLE,  No. 11-1111

Plaintiffs,

v.

MAYOR AND CITY COUNCIL OF

BALTIMORE; STEPHANIE RAWLINGSBLAKE, Mayor of Baltimore, in her

Official Capacity; OXIRIS BARBOT,

Baltimore City Health

Commissioner,

Defendants-Appellants,

and 
OLIVIA FARROW; BALTIMORE CITY 

HEALTH DEPARTMENT,

Defendants.

TAUNYA LOVELL BANKS, Jacob A.

France Professor of Equality

Jurisprudence, University of

Maryland School of Law; C.

CHRISTOPHER BROWN, Jacob A.

France Professor of Equality

Jurisprudence, University of

Maryland School of Law; ERWIN

CHEMERINSKY, Jacob A. France

Professor of Equality  Jurisprudence, University of

Maryland School of Law; ROBERT

J. CONDLIN, Jacob A. France

Professor of Equality

Jurisprudence, University of

Maryland School of Law; NORMAN

DORSEN, Jacob A. France Professor

of Equality Jurisprudence,

University of Maryland School of

Law; LEIGH GOODMARK, Jacob A.

France Professor of Equality

Jurisprudence, University of

Maryland School of Law; STEVEN

P. GROSSMAN, Jacob A. France

Professor of Equality 

2 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
Jurisprudence, University of 

Maryland School of Law; MARTIN

GUGGENHEIM, Jacob A. France

Professor of Equality

Jurisprudence, University of

Maryland School of Law;

DEBORAH HELLMAN, Jacob A.

France Professor of Equality

Jurisprudence, University of

Maryland School of Law;

MARGARET E. JOHNSON, Jacob A.

France Professor of Equality

Jurisprudence, University of

Maryland School of Law;  KENNETH LASSON, Jacob A. France

Professor of Equality

Jurisprudence, University of

Maryland School of Law; SYLVIA

A. LAW, Jacob A. France

Professor of Equality

Jurisprudence, University of

Maryland School of Law; SUSAN

PAULA LEVITON, Jacob A. France

Professor of Equality

Jurisprudence, University of

Maryland School of Law; AUDREY

MCFARLANE, Jacob A. France

Professor of Equality 

GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 3
Jurisprudence, University of 

Maryland School of Law; PAULA

A. MONOPOLI, Jacob A. France

Professor of Equality

Jurisprudence, University of

Maryland School of Law; BURT

NEUBORNE, Jacob A. France

Professor of Equality

Jurisprudence, University of

Maryland School of Law; JOHN T.

NOCKLEBY, Jacob A. France

Professor of Equality

Jurisprudence, University of

Maryland School of Law; HELEN

L. NORTON, Jacob A. France

Professor of Equality

Jurisprudence, University of 

Maryland School of Law; DAVID

A. J. RICHARDS, Jacob A. France

Professor of Equality

Jurisprudence, University of

Maryland School of Law;

ELIZABETH J. SAMUELS, Jacob A.

France Professor of Equality

Jurisprudence, University of

Maryland School of Law;

ELIZABETH M. SCHNEIDER, Jacob A.

France Professor of Equality

Jurisprudence, University of

Maryland School of Law; JANA B.

SINGER, Jacob A. France Professor

of Equality Jurisprudence,

University of Maryland School of 

4 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
Law; BARBARA ANN WHITE, Jacob 

A. France Professor of Equality

Jurisprudence, University of

Maryland School of Law; TOBIAS

BARRINGTON WOLFF, Jacob A.

France Professor of Equality

Jurisprudence, University of

Maryland School of Law; DIANE

L. ZIMMERMAN, Jacob A. France

Professor of Equality

Jurisprudence, University of

Maryland School of Law;

INTERNATIONAL MUNICIPAL LAWYERS

ASSOCIATION; AMERICAN MEDICAL

WOMEN’S ASSOCIATION; ROBERT

BLUM; WILLARD CATES, JR.;

CHESAPEAKE REGIONAL CHAPTER OF  THE SOCIETY FOR ADOLESCENT

HEALTH AND MEDICINE; ERIC LEVEY;

MATERNAL AND CHILD HEALH

ACCESS; NADINE PEACOCK;

PHYSICIANS FOR REPRODUCTIVE

CHOICE AND HEALTH; MARK SEIGEL;

LAURIE SCHWAB ZABIN; CATHOLICS

FOR CHOICE; DC ABORTION FUND;

DIANA DEGETTE; DONNA EDWARDS;

LAW STUDENTS FOR REPRODUCTIVE

JUSTICE; CAROLYN MALONEY;

MARYLAND CHAPTER FOR THE

NATIONAL ORGANIZATION FOR

WOMEN; NARAL PRO-CHOICE

AMERICA; NARAL PRO-CHOICE

MARYLAND; NATIONAL ABORTION

FEDERATION; 

GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 5
NATIONAL ADVOCATES FOR 

PREGNANT WOMEN; NATIONAL

ASIAN PACIFIC AMERICAN WOMEN’S

FORUM; PLANNED PARENTHOOD OF

MARYLAND; MIKE QUIGLEY;

RELIGIOUS COALITION FOR

REPRODUCTIVE CHOICE; SISTERSONG

WOMEN OF COLOR REPRODUCTIVE

JUSTICE COLLECTIVE; LOUISE

SLAUGHTER; JACKIE SPEIER; WHOLE

WOMAN’S HEALTH OF BALTIMORE;

WOMEN’S LAW CENTER OF

MARYLAND, INCORPORATED; HUMAN

RIGHTS WATCH; SUSAN DELLER

ROSS, Professor,

Amici Supporting Appellant,

PREGNANCY CARE ORGANIZATIONS 

CARE NET; HEARTBEAT

INTERNATIONAL, INCORPORATED;

NATIONAL INSTITUTE OF FAMILY AND

LIFE ADVOCATES; ROCKA-MY-BABY

PREGNANCY CRISIS CENTER; BOWIE

CROFTON PREGNANCY CLINIC,

INCORPORATED; CARE NET

PREGNANCY CENTER OF FREDERICK;

CARE NET PREGNANCY CENTER OF

SOUTHERN MARYLAND; LAUREL

PREGNANCY CENTER; ROCKVILLE

PREGNANCY CENTER, INCORPORATED;

AMERICAN CENTER FOR LAW AND

JUSTICE; AMERICAN ASSOCIATION OF

PRO-LIFE OBSTETRICIANS AND

GYNECOLOGISTS; 

6 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
CHRISTIAN MEDICAL & DENTAL 

ASSOCIATIONS; CATHOLIC MEDICAL

ASSOCIATION; HELEN M. ALVARE,

Associate Professor of Law,

George Mason University School

of Law; ROBERT JOHN ARAUJO, S.J.,

John Courtney Murray, S.J.

University Professor, Loyola

University of Chicago School of

Law; ROBERT F. COCHRAN, JR.,

Louis D. Brandeis Professor of

Law, Pepperdine University

School of Law; DAVID DEWOLF,

Professor, Gonzaga University  School of Law; DWIGHT G.

DUNCAN, Professor of Law,

University of Massachusetts

Dartmouth School of Law; JOHN

C. EASTMAN, Henry Salvatori

Professor of Law & Community

Service, former Dean, Chapman

University School of Law; SCOTT

T. FITZGIBBON, Professor, Boston

College Law School; RICHARD W.

GARNETT, Associate Dean and

Professor of Law, Notre Dame

Law School; BRADLEY P. JACOB,

Associate Professor, 

GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 7
Regent University School of Law; 

DREW L. KERSHEN, Earl Sneed

Centennial Professor of Law,

University of Oklahoma College

of Law; LYNNE MARIE KOHM, John

Brown McCarty Professor of

Family Law, Regent University

School of Law; RICHARD S.

MYERS, Professor of Law, Ave

Maria School of Law; MICHAEL

STOKES PAULSEN, Distinguished

University Chair and Professor,

University of St. Thomas School

of Law; ROBERT J. PUSHAW, James

Wilson Endowed Professor of

Law, Pepperdine University  School of Law; MICHAEL

SCAPERLANDA, Professor of Law,

Gene & Elaine Edwards Family

Chair in Law, The University of

Oklahoma College of Law;

GREGORY C. SISK, Pio Cardinal

Laghi Distinguished Chair in Law

and Professor, University of St.

Thomas School of Law; O.

CARTER SNEAD, Professor of Law,

Notre Dame Law School; RICHARD

STITH, Professor of Law,

Valparaiso University School of

Law; TIMOTHY J. TRACEY, Assistant

Professor of Law, Ave Maria

School of Law; 

8 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
LYNN D. WARDLE, Bruce C. Hafen 

Professor of Law, J. Reuben Clark

Law School, Brigham Young 

University,

Amici Supporting Appellee. 

ST. BRIGID’S ROMAN CATHOLIC 

CONGREGATION INCORPORATED;

ARCHBISHOP EDWIN F. O’BRIEN,

ARCHBISHOP OF BALTIMORE AND HIS

SUCCESSORS IN OFFICE, A

CORPORATION SOLE,

Plaintiffs-Appellants,

and

GREATER BALTIMORE CENTER FOR

PREGNANCY CONCERNS,

INCORPORATED,  No. 11-1885

Plaintiff,

v.

MAYOR AND CITY COUNCIL OF

BALTIMORE; STEPHANIE RAWLINGSBLAKE, Mayor of Baltimore, in her

Official Capacity; OXIRIS BARBOT,

Baltimore City Health

Commissioner,

Defendants-Appellees,

and 

GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 9
OLIVIA FARROW; BALTIMORE CITY 

HEALTH DEPARTMENT,

Defendants.

HELEN M. ALVARE, Associate

Professor of Law, George Mason

University School of Law;

AMERICAN CENTER FOR LAW AND

JUSTICE; AMERICAN ASSOCIATION OF

PRO - LIFE OBSTETRICIANS AND

GYNECOLOGISTS; ROBERT JOHN

ARAUJO, S.J., John Courtney

Murray, S.J. University Professor,

Loyola University of Chicago

School of Law; BOWIE CROFTON 

PREGNANCY CLINIC, INCORPORATED;

CARE NET PREGNANCY CENTER OF

FREDERICK; CARE NET PREGNANCY

CENTER OF SOUTHERN MARYLAND;

CHRISTIAN MEDICAL & DENTAL

ASSOCIATIONS; CATHOLIC MEDICAL

ASSOCIATION; ROBERT F. COCHRAN,

JR., Louis D. Brandeis Professor

of Law, Pepperdine University

School of Law; DAVID DEWOLF,

Professor, Gonzaga University

School of Law; DWIGHT G.

DUNCAN, Professor of Law,

University of Massachusetts

Dartmouth School of Law; 

10 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
JOHN C. EASTMAN, Henry Salvatori 

Professor of Law & Community

Service, former Dean, Chapman

University School of Law; SCOTT

T. FITZGIBBON, Professor, Boston

College Law School; RICHARD W.

GARNETT, Associate Dean and

Professor of Law, Notre Dame

Law School; HEARTBEAT

INTERNATIONAL, INCORPORATED;

BRADLEY P. JACOB, Associate

Professor, Regent University

School of Law; DREW L. KERSHEN,

Earl Sneed Centennial Professor of

Law, University of Oklahoma

College of Law; LYNNE MARIE  KOHM, John Brown McCarty

Professor of Family Law, Regent

University School of Law; LAUREL

PREGNANCY CENTER; RICHARD S.

MYERS, PROFESSOR oF LAW, AVE

MARIA SCHOOL oF LAW; NATIONAL

INSTITUTE OF FAMILY AND LIFE

ADVOCATES; MICHAEL STOKES

PAULSEN, Distinguished University

Chair and Professor, University of

St. Thomas School of Law;

PREGNANCY CARE ORGANIZATIONS

CARE NET; ROBERT J. PUSHAW,

James Wilson Endowed Professor

of Law, Pepperdine University

School of Law; 

GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 11
ROCKA-MY-BABY PREGNANCY CRISIS 

CENTER; ROCKVILLE PREGNANCY

CENTER, INCORPORATED; MICHAEL

SCAPERLANDA, Professor of Law,

Gene & Elaine Edwards Family

Chair in Law, The University of

Oklahoma College of Law;

GREGORY C. SISK, Pio Cardinal

Laghi Distinguished Chair in Law

and Professor, University of St.

Thomas School of Law; O.

CARTER SNEAD, Professor of Law,

Notre Dame Law School; RICHARD

STITH, Professor of Law,

Valparaiso University School of

Law; TIMOTHY J. TRACEY, Assistant

Professor of Law, Ave Maria  School of Law; LYNN D. WARDLE,

Bruce C. Hafen Professor of Law,

J. Reuben Clark Law School,

Brigham Young University,

Amici Supporting Appellant,

TAUNYA LOVELL BANKS, Jacob A.

France Professor of Equality

Jurisprudence, University of

Maryland School of Law; C.

CHRISTOPHER BROWN, Jacob A.

France Professor of Equality

Jurisprudence, University of

Maryland School of Law; ERWIN

CHEMERINSKY, Jacob A. France

Professor of Equality

Jurisprudence, University of 

12 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
Maryland School of Law; ROBERT 

J. CONDLIN, Jacob A. France

Professor of Equality

Jurisprudence, University of

Maryland School of Law; NORMAN

DORSEN, Jacob A. France Professor

of Equality Jurisprudence,

University of Maryland School of

Law; LEIGH GOODMARK, Jacob A.

France Professor of Equality

Jurisprudence, University of

Maryland School of Law; STEVEN

P. GROSSMAN, Jacob A. France

Professor of Equality

Jurisprudence, University of

Maryland School of Law; M  ARTIN

GUGGENHEIM, Jacob A. France

Professor of Equality

Jurisprudence, University of

Maryland School of Law;

DEBORAH HELLMAN, Jacob A.

France Professor of Equality

Jurisprudence, University of

Maryland School of Law;

MARGARET E. JOHNSON, Jacob A.

France Professor of Equality

Jurisprudence, University of

Maryland School of Law;

KENNETH LASSON, Jacob A. France

Professor of Equality 

GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 13
Jurisprudence, University of 

Maryland School of Law; SUSAN

PAULA LEVITON, Jacob A. France

Professor of Equality

Jurisprudence, University of

Maryland School of Law; SYLVIA

A. LAW, Jacob A. France

Professor of Equality

Jurisprudence, University of

Maryland School of Law; AUDREY

MCFARLANE, Jacob A. France

Professor of Equality

Jurisprudence, University of

Maryland School of Law; PAULA

A. MONOPOLI, Jacob A. France

Professor of Equality 

Jurisprudence, University of

Maryland School of Law; BURT

NEUBORNE, Jacob A. France

Professor of Equality

Jurisprudence, University of

Maryland School of Law; JOHN T.

NOCKLEBY, Jacob A. France

Professor of Equality

Jurisprudence, University of

Maryland School of Law; HELEN

L. NORTON, Jacob A. France

Professor of Equality

Jurisprudence, University of

Maryland School of Law; DAVID

A . J. RICHARDS, Jacob A. France 

14 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
Professor of Equality 

Jurisprudence, University of

Maryland School of Law;

ELIZABETH M. SCHNEIDER, Jacob A.

France Professor of Equality

Jurisprudence, University of

Maryland School of Law;

ELIZABETH J. SAMUELS, Jacob A.

France Professor of Equality

Jurisprudence, University of

Maryland School of Law; JANA B.

SINGER, Jacob A. France Professor

of Equality Jurisprudence,

University of Maryland School of

Law; BARBARA ANN WHITE, Jacob

A. France Professor of Equality  Jurisprudence, University of

Maryland School of Law; TOBIAS

BARRINGTON WOLFF, Jacob A.

France Professor of Equality

Jurisprudence, University of

Maryland School of Law; DIANE

L. ZIMMERMAN, Jacob A. France

Professor of Equality

Jurisprudence, University of

Maryland School of Law;

INTERNATIONAL MUNICIPAL LAWYERS

ASSOCIATION; AMERICAN MEDICAL

WOMEN’S ASSOCIATION; MATERNAL

AND CHILD HEALH ACCESS;

PHYSICIANS FOR REPRODUCTIVE

CHOICE AND HEALTH; CHESAPEAKE 

GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 15
REGIONAL CHAPTER OF THE SOCIETY 

FOR ADOLESCENT HEALTH AND

MEDICINE; ROBERT BLUM; WILLARD

CATES, JR.; ERIC LEVEY; NADINE

PEACOCK; MARK SEIGEL; LAURIE

SCHWAB ZABIN; NARAL PRO-CHOICE

MARYLAND; NARAL PRO-CHOICE

AMERICA; CATHOLICS FOR CHOICE;

DC ABORTION FUND; LAW

STUDENTS FOR REPRODUCTIVE

JUSTICE; NATIONAL ABORTION

FEDERATION; MARYLAND CHAPTER

FOR THE NATIONAL ORGANIZATION

FOR WOMEN; NATIONAL ADVOCATES

FOR PREGNANT WOMEN; NATIONAL

ASIAN PACIFIC AMERICAN WOMEN’S 

FORUM; PLANNED PARENTHOOD OF

MARYLAND; RELIGIOUS COALITION

FOR REPRODUCTIVE CHOICE;

SISTERSONG WOMEN OF COLOR

REPRODUCTIVE JUSTICE COLLECTIVE;

WHOLE WOMAN’S HEALTH OF

BALTIMORE; WOMEN’S LAW CENTER

OF MARYLAND, INCORPORATED;

DIANA DEGETTE; DONNA EDWARDS;

CAROLYN MALONEY; MIKE QUIGLEY;

LOUISE SLAUGHTER; JACKIE SPEIER;

HUMAN RIGHTS WATCH; SUSAN

DELLER ROSS, Professor,

Amici Supporting Appellee. 

16 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
Appeals from the United States District Court

for the District of Maryland, at Baltimore.

Marvin J. Garbis, Senior District Judge.

(1:10-cv-00760-MJG)

Argued: March 23, 2012

Decided: June 27, 2012

Before NIEMEYER, KING, and AGEE, Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the

opinion, in which Judge Agee joined. Judge King wrote a dissenting opinion.

COUNSEL

ARGUED: Suzanne Sangree, BALTIMORE CITY

DEPARTMENT OF LAW, Baltimore, Maryland, for Mayor

and City Council of Baltimore, Stephanie Rawlings-Blake,

Mayor of Baltimore, in her Official Capacity, and Oxiris Barbot, Baltimore City Health Commissioner. David William

Kinkopf, GALLAGHER EVELIUS & JONES, LLP, Baltimore, Maryland, for Greater Baltimore Center for Pregnancy

Concerns, Incorporated, St. Brigid’s Roman Catholic Congregation, Incorporated, Archbishop Edwin F. O’Brien, Archbishop of Baltimore and His Successors in Office, A

Corporation Sole. ON BRIEF: Stephanie Toti, Special Assistant City Solicitor, Dipti Singh, Special Assistant City Solicitor, CENTER FOR REPRODUCTIVE RIGHTS, New York,

New York, for Mayor and City Council of Baltimore, Stephanie Rawlings-Blake, Mayor of Baltimore, in her Official

Capacity, and Oxiris Barbot, Baltimore City Health Commissioner. Peter J. Basile, FERGUSON, SHETELICH & BALGREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 17
LEW, PA, Baltimore, Maryland; Steven G. Metzger,

GALLAGHER EVELIUS & JONES, LLP, Baltimore, Maryland; Mark L. Rienzi, COLUMBUS SCHOOL OF LAW,

Catholic University of America, Washington, D.C., for

Greater Baltimore Center for Pregnancy Concerns, Incorporated, St. Brigid’s Roman Catholic Congregation, Incorporated, Archbishop Edwin F. O’Brien, Archbishop of

Baltimore and His Successors in Office, A Corporation Sole.

Maria T. Vullo, PAUL, WEISS, RIFKIND, WHARTON &

GARRISON LLP, New York, New York, for Amici Curiae

Law Professors in Support of Mayor and City Council of Baltimore, Stephanie Rawlings-Blake, Mayor of Baltimore, in

her Official Capacity, and Oxiris Barbot, Baltimore City

Health Commissioner. Douglas W. Baruch, FRIED, FRANK,

HARRIS, SHRIVER & JACOBSON LLP, Washington, D.C.;

Janice Mac Avoy, Alexander T. Korn, FRIED, FRANK,

HARRIS, SHRIVER & JACOBSON LLP, New York, New

York, for International Municipal Lawyers Association,

Amicus Curiae in Support of Mayor and City Council of Baltimore, Stephanie Rawlings-Blake, Mayor of Baltimore, in

her Official Capacity, and Oxiris Barbot, Baltimore City

Health Commissioner. Simona G. Strauss, Melissa M. Derr,

SIMPSON THACHER & BARTLETT LLP, Palo Alto, California; Jayma M. Meyer, Sarah L. Dunn, SIMPSON

THACHER & BARTLESS LLP, New York, New York, for

Amici Curiae Public Health Advocates in Support of Mayor

and City Council of Baltimore, Stephanie Rawlings-Blake,

Mayor of Baltimore, in her Official Capacity, and Oxiris Barbot, Baltimore City Health Commissioner. Kimberly A. Parker, Zaid A. Zaid, Stephanie Wright, WILMER CUTLER

PICKERING HALE AND DORR LLP, Washington, D.C.,

for Catholics for Choice, DC Abortion Fund, Diana Degette,

Donna Edwards, Law Students for Reproductive Justice, Carolyn Maloney, Maryland Chapter for the National Organization for Women, Naral Pro-Choice America, Naral ProChoice Maryland, National Abortion Federation, National

Advocates for Pregnant Women, National Asian Pacific

18 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
American Women’s Forum, Planned Parenthood of Maryland,

Mike Quigley, Religious Coalition for Reproductive Choice,

Sistersong Women of Color Reproductive Justice Collective,

Louise Slaughter, Jackie Speier, Whole Woman’s Health of

Baltimore, Women’s Law Center of Maryland, Incorporated,

Amici Curiae in Support of Mayor and City Council of Baltimore, Stephanie Rawlings-Blake, Mayor of Baltimore, in her

Official Capacity, and Oxiris Barbot, Baltimore City Health

Commissioner. Priscilla J. Smith, YALE LAW SCHOOL

INFORMATION SOCIETY PROJECT, Brooklyn, New

York, for Human Rights Watch and Susan Deller Ross, Amici

Curiae in Support of Mayor and City Council of Baltimore,

Stephanie Rawlings-Blake, Mayor of Baltimore, in her Official Capacity, and Oxiris Barbot, Baltimore City Health Commissioner. Anna Franzonello, Mailee R. Smith,

AMERICANS UNITED FOR LIFE, Washington, D.C., for

Pregnancy Care Organizations Care Net, Heartbeat International, Incorporated, National Institute of Family and Life

Advocates, Rocka-My-Baby Pregnancy Crisis Center, Bowie

Crofton Pregnancy Clinic, Incorporated, Care Net Pregnancy

Center of Frederick, Care Net Pregnancy Center of Southern

Maryland, Laurel Pregnancy Center, and Rockville Pregnancy

Center, Incorporated, Amici Curiae in Support of Greater Baltimore Center for Pregnancy Concerns, Incorporated, St. Brigid’s Roman Catholic Congregation, Incorporated, Archbishop

Edwin F. O’Brien, Archbishop of Baltimore and His Successors in Office, A Corporation Sole. Cecilia N. Heil, Erik M.

Zimmerman, AMERICAN CENTER FOR LAW & JUSTICE, Virginia Beach, Virginia; Carly F. Gammill, AMERICAN CENTER FOR LAW & JUSTICE, Brentwood,

Tennessee; Colby M. May, James Matthew Henderson, Sr.,

Thomas J. Dolan, III, Tiffany N. Barrans, AMERICAN CENTER FOR LAW & JUSTICE, Washington, D.C., for American Center for Law and Justice, Amicus Curiae in Support of

Greater Baltimore Center for Pregnancy Concerns, Incorporated, St. Brigid’s Roman Catholic Congregation, Incorporated, Archbishop Edwin F. O’Brien, Archbishop of

GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 19
Baltimore and His Successors in Office, A Corporation Sole.

Matthew S. Bowman, ALLIANCE DEFENSE FUND, Washington, D.C.; Samuel B. Casey, David B. Waxman, JUBILEE

CAMPAIGN-LAW OF LIFE PROJECT, Washington, D.C.,

for American Association of Pro-Life Obstetricians and

Gynecologists, Christian Medical & Dental Associations, and

Catholic Medical Association, Amici Curiae in Support of

Greater Baltimore Center for Pregnancy Concerns, Incorporated, St. Brigid’s Roman Catholic Congregation, Incorporated, Archbishop Edwin F. O’Brien, Archbishop of

Baltimore and His Successors in Office, A Corporation Sole.

John C. Eastman, CENTER FOR CONSTITUTIONAL

JURISPRUDENCE, Chapman University School of Law,

Orange, California; David T. Raimer, Noel J. Francisco,

JONES DAY, Washington, D.C., for Amici Curiae Professors

in Support of Greater Baltimore Center for Pregnancy Concerns, Incorporated, St. Brigid’s Roman Catholic Congregation, Incorporated, Archbishop Edwin F. O’Brien, Archbishop

of Baltimore and His Successors in Office, A Corporation

Sole.

OPINION

NIEMEYER, Circuit Judge:

Archbishop Edward F. O’Brien, St. Brigid’s Roman Catholic Congregation, Inc., and the Greater Baltimore Center for

Pregnancy Concerns, Inc. ("the Pregnancy Center") commenced this action against the Mayor and City Council of

Baltimore, challenging the constitutionality of the City’s

Ordinance 09-252, which requires that "limited-service pregnancy centers," such as the Pregnancy Center, post signs disclaiming that they "do[ ] not provide or make referral for

abortion or birth control services." The complaint alleges that

the ordinance, both facially and as applied to the plaintiffs,

violates the plaintiffs’ free speech, free exercise, and equal

20 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
protection rights under the First and Fourteenth Amendments

to the U.S. Constitution, as well as the plaintiffs’ rights under

the Conscience Clause of Maryland’s health law.

The district court granted summary judgment to the Pregnancy Center on its freedom of speech count, dismissed the

Archbishop and St. Brigid’s as plaintiffs for lack of standing,

and dismissed the remaining counts without prejudice, in

view of its free speech ruling. The court held that the disclaimer required by Ordinance 09-252 is "a form of compelled speech" that "alters the course of a [pregnancy]

center’s communication with a client or prospective client

about abortion and birth-control" and "is based, at least in

part, on disagreement with the viewpoint of the speaker." The

court entered a permanent injunction barring enforcement of

the ordinance. For the reasons that follow, we affirm.

I

In December 2009, the City of Baltimore enacted Ordinance 09-252. The ordinance applies to "limited-service pregnancy centers," which are defined as "any person"

(1) whose primary purpose is to provide pregnancyrelated services; and 

(2) who:

(i) for a fee or as a free service, provides

information about pregnancy-related services; but

(ii) does not provide or refer for: 

(A) abortions; or

(B) nondirective and comprehensive

birth-control services.

GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 21
Baltimore City Health Code § 3-501. Under the ordinance,

"[a] limited-service pregnancy center must provide its clients

and potential clients with a disclaimer substantially to the

effect that the center does not provide or make referral for

abortion or birth-control services." Id. § 3-502(a). This disclaimer must be made through one or more "easily readable"

signs that are "conspicuously posted in the center’s waiting

room" and written in English and Spanish. Id. § 3-502(b). The

failure to comply with the terms of the ordinance is punishable by a citation carrying a maximum civil penalty of $150.

Id. § 3-506.1

The legislative record indicates that the President of the

Baltimore City Council introduced Bill 09-406 (later to

become Ordinance 09-252), 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. A spokesperson for the

City Council President explained in a public statement: "The

Bill deals with whether women are told up front what the

facts are. Women need to know up front what to expect when

they go into these centers." The "Bill Synopsis" presented to

the City Council stated that the Bill was "introduced because

of the ‘importance of choice.’" 

At the hearings on the Bill, representatives of Planned Parenthood of Maryland, NARAL Pro-Choice Maryland, and

other pro-choice groups spoke in favor of the Bill, and repre1The Baltimore City Health Department enacted a regulation clarifying

certain aspects of its enforcement of the ordinance, which it made effective July 15, 2010. Among other things, the regulation provides a definition of "non-directive and comprehensive birth-control services" and

allows a pregnancy center to indicate on its disclaimer sign what birthcontrol services it does provide and/or refer for. The regulation’s definition of "non-directive and comprehensive birth-control services" was subsequently amended to define that term as including all "birth-control

services which only a licensed health care professional may prescribe or

provide." 

22 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
sentatives of the Archbishop, the Maryland Right to Life

Committee, and other pro-life groups spoke in opposition.

The Bill was enacted in November and became law on

December 4, 2009.

The Pregnancy Center is a "limited-service pregnancy center," as defined in Ordinance 09-252, operating in Baltimore

City from two locations and providing services to pregnant

women, such as pregnancy testing; classes in prenatal development, post-pregnancy parenting, and life skills; Bible

studies; and material support for women through its "Hannah’s Cupboard" program, including diapers, formula, baby

and maternity clothes, toys, and books. It also provides

women with information on "abstinence and natural family

planning, a form of birth control," but does not provide referrals "for abortions or other methods of birth control." The

Pregnancy Center does not charge its clients for any of its services, which it provides through paid employees and volunteers, each of whom must sign a statement affirming his or her

Christian faith and belief that abortion is immoral.

Archbishop Edward F. O’Brien, the Archbishop of Baltimore, is a corporate entity that owns the property on which

the Pregnancy Center operates one of its locations and on

which St. Brigid’s Roman Catholic Church operates. Neither

the Archbishop nor St. Brigid’s charges the Pregnancy Center

for the use of its space on the property.

In March 2010, before any enforcement of Ordinance 09-

252, the Archbishop, St. Brigid’s, and the Pregnancy Center

commenced this action against the Mayor and City Council of

Baltimore,2 alleging violations of the Free Speech and Free

2The complaint names as defendants the Mayor and City Council of

Baltimore, the Baltimore Health Department, Stephanie Rawlings-Blake,

in her official capacity as Mayor of Baltimore, and Olivia Farrow, in her

official capacity as Acting Baltimore City Health Commissioner. Dr.

Oxiris Barbot became Baltimore City Health Commissioner on June 7,

2010, and he was then substituted as a defendant in place of Olivia Farrow. 

GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 23
Assembly Clauses of the First Amendment, the Free Exercise

Clause of the First Amendment, the Equal Protection Clause

of the Fourteenth Amendment, and the Conscience Clause in

Maryland Code, Health-General, § 20-214(a)(1) (providing

that a "person may not be required to . . . refer . . . for . . .

any medical procedure that results in . . . termination of pregnancy" and that the refusal to provide abortion referrals "may

not be a basis for . . . [c]ivil liability to another person . . . or

. . . [d]isciplinary or other recriminatory action"). The complaint alleges that the Pregnancy Center does not provide or

refer for abortions, "based on moral and religious beliefs,"

and that Ordinance 09-252 specifically targets pro-life pregnancy centers such as the Pregnancy Center and thus "regulates communications at the Pregnancy Center that are

personal, moral, political, and religious." It also states that "by

requiring a disclaimer that the [pregnancy] center does not

provide or refer for abortions, the ordinance compels plaintiffs to deliver the implied message that these services are

available elsewhere and should be considered," thus appearing to legitimize such services, in violation of the plaintiffs’

beliefs. The complaint also objects to the ordinance’s requirement that the Pregnancy Center "post a sign saying that it

does not provide birth control services," when in fact it does

"in the form of education about abstinence and natural family

planning," which, the complaint asserts, are medically recognized means of birth control. The plaintiffs seek a declaratory

judgment that the ordinance is unconstitutional on its face

and/or as applied to plaintiffs and an injunction prohibiting

the ordinance’s enforcement. Some two months after they

filed their complaint but before the City filed its answer, the

plaintiffs also filed a motion for partial summary judgment on

their free speech and equal protection claims.

The City filed a motion to dismiss under Federal Rules of

Civil Procedure 12(b)(1) and 12(b)(6), alleging that the Archbishop and St. Brigid’s lacked standing to sue and that the

complaint otherwise failed to state a claim on which relief

could be granted. In response to the plaintiffs’ motion for

24 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
summary judgment, the City submitted an affidavit of an

expert witness, along with a motion under Rule 56(f), requesting further discovery to amplify its response.

Following a hearing on the motions, the district court

entered an order dated January 31, 2011, granting the City’s

motion to dismiss the Archbishop and St. Brigid’s for lack of

standing; denying the City’s motion to dismiss, which it converted to a motion for summary judgment in view of the additional materials submitted by the parties; denying the City’s

request for further discovery as not necessary to the issue

being decided; granting the Pregnancy Center’s motion for

summary judgment on its free speech claim, as set forth in

Count 1; dismissing without prejudice the plaintiffs’ remaining claims in view of its ruling on the free speech claim; and

entering a judgment permanently enjoining the enforcement

of the ordinance. In granting summary judgment to the Pregnancy Center on its free speech claim, the court applied strict

scrutiny as the result of its conclusion that the ordinance compelled speech and was not viewpoint neutral and concluded

that the ordinance violated the Pregnancy Center’s free speech

rights.

From the district court’s judgment, the City appealed, challenging all of the court’s rulings except the dismissal of the

Archbishop and St. Brigid’s. And the Archbishop and St.

Brigid’s filed a cross-appeal, challenging their dismissal for

lack of standing.

II

We address first the plaintiffs’ cross-appeal challenging the

district court’s dismissal of the Archbishop and St. Brigid’s

for lack of standing to challenge Ordinance 09-252. The district court reasoned that because the Archbishop and St. Brigid’s "are not, and do not operate, limited-service pregnancy

centers subject to the Ordinance," the ordinance "does not

require the Archbishop and St. Brigid’s to take any action and

GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 25
does not subject them to liability" under the law. The court

concluded, therefore, that the Archbishop and St. Brigid’s did

not suffer a "concrete and particularized" injury, as required

under Lujan v. Defenders of Wildlife, 504 U.S. 555, 560

(1992).

The Archbishop and St. Brigid’s argue that the district

court ignored the injury that they suffer as a result of the ordinance’s infringement of their right to freedom of speech. They

maintain that because they own the building in which the

Pregnancy Center is located, they "suffer a constitutional

harm when they are forced ‘to use their private property as a

. . . billboard for the State’s ideological’ message" (quoting

Wooley v. Maynard, 430 U.S. 705, 715 (1977)). They also

argue that "the Baltimore City Health Code leaves open the

possibility that the City might seek to enforce the ordinance

against the owner of the property [used by the Pregnancy

Center]," citing Baltimore City Health Code § 5-201.

Although Ordinance 09-252 does require speech to be

posted on property owned by the Archbishop and St. Brigid’s,

its mandate only applies to the space operated by the Pregnancy Center. The Archbishop and St. Brigid’s do not qualify

as a pregnancy center and they do not operate the Pregnancy

Center. Indeed, the space where the disclosure would be

located is separate from the church-operated portions of the

building, and a regular visitor to the church would not see the

disclaimer sign unless visiting the Pregnancy Center itself. In

these circumstances it would be most doubtful that anyone

would attribute the government’s message to the Archbishop

or St. Brigid’s, rather than to the Pregnancy Center or the

City.

The Archbishop and St. Brigid’s suggestion that they do

not charge for the use of their space and thus are not "ordinary

landlords" does not change the analysis. If anything, this fact

might cut against them because, by their own admission, their

interest in the ordinance is related primarily to a "desire to

26 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
promote life over abortion." Ideological injuries of this sort,

without more, have routinely been held insufficient to support

standing, see, e.g., Sierra Club v. Morton, 405 U.S. 727, 739

(1972), even when those ideologies are intertwined with religious beliefs, see, e.g., Harris v. McRae, 448 U.S. 297, 320-

21 (1980).

We also conclude that there is little likelihood that the

Archbishop or St. Brigid’s could face liability if the Pregnancy Center violated Ordinance 09-252. By its terms, the

ordinance only authorizes the issuance of environmental or

civil citations to pregnancy centers themselves, and contains

no provisions for joint-and-several liability of landlords. See

Baltimore City Health Code § 3-506. And the portion of the

City Health Code that the Archbishop and St. Brigid’s cite as

a potential basis for liability, § 5-201, relates only to nuisance

abatement; it has no connection to Ordinance 09-252 and does

not indicate that a failure to comply with the other, nonnuisance-related regulations can be penalized. See Baltimore

City Health Code § 5-101 (defining nuisances); id. § 5-209

(enforcement provisions).

Accordingly, we affirm the district court’s ruling that the

Archbishop and St. Brigid’s lack standing to challenge the

ordinance.

III

In its appeal, the City contends first that the district court

erred in applying strict scrutiny to the ordinance. It argues that

the ordinance, even though compelling speech, compels commercial speech, which is subject to a lower level of scrutiny,

involving the determination of whether the "disclosure

requirements are reasonably related to the State’s interest in

preventing deception of customers." Alternatively, the City

urges us to draw on the disclosure requirements of election

law and abortion regulation, with respect to which cases have

GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 27
applied an "exacting" scrutiny standard or other intermediate

scrutiny standard.

The Pregnancy Center contends that compelling someone

to speak a message that the speaker would not otherwise make

is a content-based regulation that is subject to strict scrutiny.

Responding to the City’s argument that Ordinance 09-252

compels commercial speech, the Pregnancy Center maintains

that, to the contrary, the ordinance targets its free provision of

information about pregnancy and not any proposal for a commercial transaction. Indeed, it notes that it does not sell any

goods or services. At bottom, it asserts that no case supports

the City’s claim that "government can require private speakers to post a government-mandated message in their waiting

room (to all visitors, at all times) unrelated to any commercial

transaction being proposed by the speaker."

We begin by noting that the ordinance does indeed compel

the Pregnancy Center to speak, mandating it to post a sign that

it "does not provide or make referral for abortion or birthcontrol services." Moreover, in compelling that speech, the

Pregnancy Center is, in this case, required 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. A

representative of the Pregnancy Center stated that absent the

ordinance’s mandate, the Pregnancy Center would not speak

to clients and potential clients in the manner required by the

ordinance.

It is well-established that a regulation compelling noncommercial speech is subject to strict scrutiny and must be

narrowly tailored to serve a compelling governmental interest.

United States v. Playboy Entm’t Group, Inc., 529 U.S. 803,

813 (2000); Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487

U.S. 781, 796 (1988). The First Amendment protects not only

"the right to speak freely," but also "the right to refrain from

speaking at all." Wooley v. Maynard, 430 U.S. 705, 714

28 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
(1977); see also Hurley v. Irish-American Gay, Lesbian, &

Bisexual Group of Boston, 515 U.S. 557, 573 (1995) ("[O]ne

important manifestation of the principle of free speech is that

one who chooses to speak may also decide what not to say"

(internal quotation marks omitted)). Because "[m]andating

speech that a speaker would not otherwise make necessarily

alters the content of the speech," laws that compel speech are

normally considered "content-based regulation[s] of speech"

and therefore are subject to strict scrutiny. Riley, 487 U.S. at

795. Indeed, strict scrutiny applies even in cases where the

compelled disclosure is limited to factually accurate or nonideological statements. Id. at 797-98 (invalidating a requirement that professional fund-raisers disclose to potential

donors the percentage of charitable contributions collected

during the previous 12 months that were actually turned over

to the charity); see also Hurley, 515 U.S. at 573 (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").

The City does not take issue with these First Amendment

principles, generally. Rather, it argues that the speech mandated here is commercial speech and therefore is subject to

the lower standard of judicial scrutiny applicable to commercial speech. Alternatively, it argues that the speech mandated

here is analogous to election-law disclosures or abortionregulation disclosures, both of which have been evaluated

under a lower level of scrutiny than strict scrutiny. We

address each of these arguments in order.

A

In making the argument that Ordinance 09-252 regulates

commercial speech, the City contends that "when a Pregnancy

Center offers to provide commercially valuable, pregnancyrelated goods or services to a consumer, the Pregnancy Center

is proposing a commercial transaction." Specifically, the City

asserts that although many pregnancy centers operate as nonGREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 29
profits, 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." Appellants Br. at 16 (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 City’s formulation of the commercial speech

doctrine, however, is not supported by the law.

The Supreme Court has defined commercial speech as "expression related solely to the economic interests of the

speaker and its audience." Cent. Hudson Gas & Elec. Corp.

v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 561 (1980).

Stated in another way, the hallmark of commercial speech is

that it "does no more than propose a commercial transaction."

Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 66 (1983)

(internal quotation marks omitted); see also Martin H. Redish,

Commercial Speech, First Amendment Intuitionism and the

Twilight Zone of Viewpoint Discrimination, 41 Loy. L.A. L.

Rev., 67, 75 (2007) ("[T]he [Supreme] Court has unambiguously adopted the view that commercial speech is confined to

expression advocating purchase"). In some circumstances,

such as when expression clearly promotes a speaker’s economic interests, speech may be classified as commercial even

when it "cannot be characterized merely as proposals to

engage in commercial transactions." Bolger, 463 U.S. at 67-

68 (holding that advertisements discussing the health benefits

of contraceptives were commercial speech); see also Wag

More Dogs, Ltd. Liab. Corp. v. Cozart, __ F.3d __, 2012 WL

1851326 (4th Cir. May 22, 2012) (holding that business’s outdoor mural was commercial speech where business conceded

mural was advertising and "had an economic motivation for

displaying the painting"). But speech does not "retain[ ] its

commercial character when it is inextricably intertwined with

otherwise fully protected speech." Riley, 487 U.S. at 796.

Rather than regulating traditional commercial advertising,

Ordinance 09-252 targets speech regarding the provision of

30 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
"free services." While this fact alone might not be dispositive,

it becomes so in this case because there is no indication that

the Pregnancy Center is motivated by any economic interest

or that it is proposing any commercial transaction. The Pregnancy Center seeks to provide free information about pregnancy, abortion, and birth control as informed by a religious

and political belief. This kind of ideologically driven speech

has routinely been afforded the highest levels of First Amendment protection, even when accompanied by offers of commercially valuable services. See, e.g., In re Primus, 436 U.S.

412, 422, 439 (1978) (holding that a lawyer’s solicitation of

pro-bono client was protected by the First Amendment

because the lawyer’s actions "were undertaken to express personal political beliefs and to advance . . . civil-liberties objectives . . . rather than to derive financial gain").

The City’s argument does not address what commercial

transaction is proposed by the Pregnancy Center’s speech or

what economic interest motivates the Pregnancy Center’s

speech. Instead, the City would define commercial speech to

include any speech that offers services "which have commercial value, garnering payments and fees in the marketplace"

generally. Adopting this definition of commercial speech

would effect an unprecedented expansion of the commercial

speech doctrine and is unsupported by citation to any applicable Supreme Court precedent. As the district court explained,

the City’s position would mean that "any house of worship

offering their congregants sacramental wine, communion

wafers, prayer beads, or other objects with commercial value,

would find their accompanying speech subject to diminished

constitutional protection." Indeed, it is difficult to imagine

any charitable organization whose speech would not be considered "commercial" under the City’s proposed broad definition.

In short, we agree with the district court that the pregnancy

centers are not engaged in commercial speech and that their

GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 31
speech cannot be denied the full protection of strict scrutiny

on that basis.

B

The City argues alternatively that if the Pregnancy Center’s

speech is not considered commercial speech, it should still be

accorded reduced protection because the disclaimer required

by Ordinance 09-252 is analogous to the disclosure requirements imposed on abortion providers and in campaign finance

laws, both of which are subject to a lower level of scrutiny

than strict scrutiny. See Planned Parenthood of Southeastern

Pa. v. Casey, 505 U.S. 833 (1992) (plurality opinion) (applying intermediate scrutiny to disclosure requirements under

Pennsylvania’s abortion law); Citizens United v. Fed. Election

Comm’n, 130 S. Ct. 876, 914 (2010) (applying "exacting scrutiny" to campaign finance disclosure requirements).

The differing contexts of the speech restrictions in those

cases, however, render the cases inapplicable to the compelled

speech before us. In Casey, the mandatory disclosures 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." Casey, 505 U.S. at 884. More particularly, the regulations there were permissible because they

facilitated the process of obtaining a patient’s informed consent prior to performing a medical procedure. Thus the regulation of such professional speech was imposed incidental to the

broader governmental regulation of a profession and was justified by this larger context. In contrast, the pregnancy centers

that are subject to Ordinance 09-252 do not practice medicine,

are not staffed by licensed professionals, and need not satisfy

the informed consent requirement.3

3The Supreme Court has not recognized the notion that "professional

speech," unconnected to state regulation or licensing, is entitled to less

32 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
Similarly, the exacting scrutiny standard applied to finance

disclosure laws in the campaign finance cases is justified by

circumstances that are also not applicable here. In the

Supreme Court’s cases of Citizens United and Buckley v.

Valeo, 424 U.S. 1 (1976), the Court drew a distinction

between regulations that limit campaign contributions and

restrict campaign activities and regulations that merely

require the disclosure of objective financial information. The

Supreme Court has never suggested that Buckley’s holding

that disclosure requirements do not substantially burden

speech applies to speech regulations more generally. See Doe

v. Reed, 130 S. Ct. 2811, 2818 (2001) ("We have a series of

precedents considering First Amendment challenges to disclosure requirements in the electoral context" (emphasis added)).

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

regulation imposed by Ordinance 09-252, however, burdens

the content of speech generally, requiring pregnancy centers

to speak in a manner that they might otherwise wish to avoid.

This type of regulation is significantly more analogous to the

restrictions on campaign speech that the Court held were subject to strict scrutiny. See Citizens United, 130 S. Ct. at 898;

Buckley, 424 U.S. at 58-59.

protection under the First Amendment. We have, however, recognized that

the government may regulate the professions and, as necessary to serve the

state’s interest in such regulation, so regulate the professionals’ speech.

See Accountant’s Soc’y of Va. v. Bowman, 860 F.2d 602, 603-05 (4th Cir.

1988) (noting that "governmental regulation of the professions is constitutional if the regulations have a rational connection with the applicant’s fitness or capacity to practice the profession" (internal quotation marks

omitted)). The City, however, does not claim that the Pregnancy Center’s

employees and volunteers are state-regulated professionals. 

GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 33
Accordingly, we affirm the district court’s conclusion that

Ordinance 09-252 regulates the Pregnancy Center’s fully protected, non-commercial speech and therefore is subject to

strict scrutiny.4

IV

"Content-based [speech] regulations are presumptively

invalid." R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992).

The City thus bears the burden of rebutting the presumption

of invalidity. Playboy Entm’t Group, 529 U.S. at 817. Indeed,

"[i]t is rare that a regulation restricting speech because of its

content will ever be permissible." Id. at 818. The City can,

nonetheless, rebut the presumption if it is able to show that

the ordinance is "narrowly tailored to promote a compelling

Government interest," such that the ordinance is the "least

restrictive alternative" to serve the government’s purpose. Id.

at 813; Ashcroft v. ACLU, 542 U.S. 656, 666 (2004).

The City claims it can satisfy this strict scrutiny standard,

arguing that it has at least two compelling interests served by

the ordinance and that the ordinance is narrowly tailored to

promote those interests. First, the City claims that it has an

interest in countering what it maintains are the "deceptive

4Strict scrutiny would generally be appropriate also because the Ordinance is not viewpoint neutral. By its terms, Ordinance 09-252 does not

apply to all speakers who "provide information" about pregnancy. Rather,

the law targets only those speakers who refuse to provide or refer for abortions or certain types of birth control. This qualification effectively limits

the law’s disclosure obligations to organizations whose moral or religious

codes lead them to oppose abortion and birth control. Cf. Sorrell v. IMS

Health, Inc., 131 S. Ct. 2653, 2663 (2011) (concluding that law was

speaker- and content-based where the "practical effect" was to burden one

group of speakers). These speakers are disfavored because they have chosen, for whatever reason, not to adopt the City’s preferred perspective on

appropriate reproductive decisions. Although it is true that disparate

impact alone is not enough to make a law viewpoint discriminatory, see

Hill v. Colorado, 530 U.S. 703, 724–25 (2000), the text of the ordinance

and its legislative history demonstrate that it burdens only the expression

of pro-life speakers, as it was intended to do. 

34 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
business practices" of certain pregnancy centers. According to

the City, these practices include deceptive advertising, delaying tactics intended to prevent women from obtaining abortions, and misleading statements about the medical and

psychological impact of abortion. To support this argument,

the City cites two reports that purport to document the deceptive practices of pregnancy centers: A 2006 report prepared

for U.S. Representative Henry Waxman, and a 2008 report

compiled by the NARAL Pro-Choice Maryland Fund detailing the results of its investigation of pregnancy centers in

Maryland.

Second, the City argues that it has an interest in protecting

the health of pregnant women and in ensuring that pregnant

women who seek abortions have prompt access to medical

services. The City notes that the risks and costs associated

with abortion increase as a woman advances through her

pregnancy. Similarly, the City contends that "delays in access

to the birth-control method of an individual’s choice can leave

the individual and his or her partner vulnerable to unintended

pregnancy and sexually transmitted disease." Thus, the City

argues, delays in obtaining abortion services pose a clear

threat to public health.

To be sure, the City has a considerable interest in promoting the general health and well-being of its citizens. But as the

Supreme Court recently reiterated, to demonstrate the existence of a compelling interest, a government "must specifically identify an ‘actual problem’ in need of solving." Brown

v. Entm’t Merchants Ass’n, 131 S. Ct. 2729, 2740 (2011)

(quoting Playboy Entm’t Group, 529 U.S. at 822-23).

Although the existence of such a problem need not be exhaustively documented, "the Government must present more than

anecdote and supposition" to support a speech restriction.

Playboy Entm’t Group, 529 U.S. at 822. With respect to Ordinance 09-252, and the Pregnancy Center, the City failed to

carry its burden to show a compelling interest.

GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 35
Here, the record establishes, at most, only isolated

instances of misconduct by pregnancy centers generally, and,

as the City concedes, none by the Pregnancy Center itself.

Indeed, the record contains no evidence that any woman has

been misled into believing that any pregnancy center subject

to Ordinance 09-252 was a medical clinic or that a woman in

Baltimore delayed seeking medical services because of such

a misconception. The City instead cites allegations of deceptive practices occurring in other locations or second-hand

reports of "stories about harassment." The City’s failure to

provide more than speculative evidence of problems at Baltimore’s pregnancy centers strongly suggests that the need for

regulation of those centers is not as pressing as the City

asserts.

The City’s claim of a compelling interest is also called into

question by its selective pursuit of its interest. While the City

asserts that it is primarily concerned with ensuring that

women receive accurate information about their pregnancies,

Ordinance 09-252 does not focus on or reach 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. This kind of underinclusiveness "raises serious doubts about whether the government is

in fact pursuing the interest it invokes, rather than disfavoring

a particular speaker or viewpoint." Brown, 131 S. Ct. at 2740;

see also Church of the Lukumi Babalu Aye, Inc. v. City of

Hialeah, 508 U.S. 520, 546-47 (1993) ("Where government

restricts only conduct protected by the First Amendment and

fails to enact feasible measures to restrict other conduct producing substantial harm or alleged harm of the same sort, the

interest given in justification of the restriction is not compelling").

Moreover, the City’s claim to be promoting a compelling

interest is seriously undermined by its failure to pursue any

36 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
other course to promote its interest other than to restrict the

Pregnancy Center’s speech. This fact is particularly salient

based on the City’s admission that the record reflects that it

has done nothing other than enact Ordinance 09-252 to combat the perceived danger of misleading information from the

Pregnancy Center and like facilities. The need was thus not so

compelling as to cause the City to post a single notice in any

City building or facility, to place a warning on its own website, or to give any public service information in furtherance

of its interest. The City also conceded that it has referred and

continues to refer women to the Pregnancy Center without

any forewarning as to the danger of misinformation the City

believes the women will encounter there. To find, with these

facts, that the City has shown a compelling interest would be

dubious at best.

We need not, however, rely entirely on the weakness of the

City’s demonstration that in enacting the ordinance, it was

promoting a compelling government interest, because the

more significant problem for the City — the one that we find

fatal—is that the ordinance is not narrowly tailored to serve

the City’s interest. "A statute is narrowly tailored if it targets

and eliminates no more than the exact source of the ‘evil’ it

seeks to remedy." Frisby v. Schultz, 487 U.S. 474, 485 (1988).

"Broad prophylactic rules in the area of free expression are

suspect. Precision of regulation must be the touchstone in an

area so closely touching our most precious freedoms."

NAACP v. Button, 371 U.S. 415, 438 (1963) (citations omitted). Courts may find that a statute is not narrowly tailored

when, among other things, the statute does not advance the

purported compelling interests, e.g., Meyer v. Grant, 486 U.S.

414, 426 (1988); or when the statute is overinclusive, e.g.,

Simon & Schuster, Inc. v. Members of the N.Y. State Crime

Victims Bd., 502 U.S. 105, 120-21 (1991); or when the government has other, less speech-restrictive alternatives available, e.g., Playboy Entm’t Group, 529 U.S. at 816-17. We

conclude that Ordinance 09-252 is an example of all three of

these indicators.

GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 37
First, the ordinance purports to target false advertising, yet

it fails actually to regulate "deceptive practices" or false

advertising. Further, the ordinance applies to all pregnancy

centers regardless of whether they advertise at all.

Second, the ordinance is overinclusive in that it applies

equally to pregnancy centers that engage in deceptive practices and those whose speech is entirely truthful. See Fed.

Election Comm’n v. Mass. Citizens for Life, Inc., 479 U.S.

238, 265 (1986) (stating that for a law to be narrowly tailored

"government must curtail speech only to the degree necessary

to meet the particular problem at hand" and "must avoid

infringing on speech that does not pose the danger that has

prompted regulation").

Finally, there are also several alternatives that would

address the problems targeted by the ordinance while imposing a lesser burden on speech. Most obviously, the City could

speak with its own voice. It might, for example, use its own

resources to undertake public education campaigns addressing

the alleged dangers of pregnancy centers, or more generally,

promoting consultation with physicians for pregnant women.

Cf. Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 507

(1996) ("It is perfectly obvious that alternative forms of regulation that would not involve any restriction on speech would

be more likely to achieve the State’s goal of promoting temperance. . . . [E]ducational campaigns focused on the problems of excessive, or even moderate, drinking might prove to

be more effective"). The City could also produce a document

or website listing local pregnancy centers and noting what

services 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 the City always retains the option of prosecuting violations of its criminal and civil laws that proscribe deceptive

advertising and deceptive statements made by pregnancy cen38 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
ters. See Riley, 487 U.S. at 800; see also Nefedro v. Montgomery Cnty., 996 A.2d 850, 863 (Md. 2010) (holding that fraud

laws were a less restrictive alternative to a law prohibiting

remuneration for fortunetelling).

That the City resorted to speech restrictions before trying

these or other similar options is more than enough to doom

the ordinance. See Thompson v. Western States Med. Ctr., 535

U.S. 357, 373 (2002) ("If the First Amendment means anything, it means that regulating speech must be a last—not first

—resort").

The City seeks to salvage the ordinance by arguing that it

imposes on pregnancy centers a burden that is de minimis, and

that the signage requirement is less restrictive than other

methods of communicating the disclaimer. The City suggests,

for example, that it could have required the disclaimer to be

included on "every page of a pregnancy center’s website, as

well as text in all paid advertisements, brochures, and other

written materials." But this argument does not save the law.

First, the impact is not minimal. As the district court found

below, the ordinance inevitably "alters the course of a center’s

communications with a client or potential client" by requiring

that the Pregnancy Center’s initial communication occur in

"the presence of a stark and immediate statement about abortion and birth-control." Second, even a de minimis restriction

on speech would not make the ordinance the least restrictive

option, as required to survive strict scrutiny. See Playboy

Entm’t Group, 529 U.S. at 813.

In sum, while the city has not demonstrated a compelling

government interest rather than simply its disfavor with a particular speaker’s speech, we do not rest on that failure because

Ordinance 09-252 is not narrowly tailored to promote the

City’s interest so as to justify its intrusion on the Pregnancy

Center’s speech. Accordingly, we hold that Ordinance 09-252

is invalid, in violation of the First Amendment presumption

GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 39
that "speakers, not the government, know best both what they

want to say and how to say it." Riley, 487 U.S. at 791.

V

Finally, the City contends that the district court abused its

discretion (1) in converting its motion to dismiss into a

motion for summary judgment, without giving it prior notice

and without allowing it discovery before deciding the motion,

and (2) in dismissing the plaintiffs’ remaining counts (other

than the free speech count) without prejudice, rather than with

prejudice. We find no error in these rulings and also see no

prejudice to the City.

By converting the City’s Rule 12(b)(6) motion into a summary judgment motion, the district court did not deny the City

its opportunity to press its claim that the complaint failed to

state a claim upon which relief could be granted. This procedural ruling, in the context of the plaintiffs’ pending motion

for summary judgment, simply gave recognition to the fact

that the court would be looking at the case more broadly on

plaintiffs’ summary judgment motion. Because of that

motion, the City was on notice that the court would be considering matters beyond the complaint to resolve the plaintiffs’

free speech claim and that the City should, if it wished, file

a response to that motion for summary judgment. The procedural conversion in this context had the effect simply of

allowing the court to consider the parties’ dispositive motions

as cross-motions for summary judgment and take into account

any evidence that the parties might wish to submit. And

indeed, the City did submit matters outside of the complaint

and its motion to dismiss for consideration by the court.

The City argues that additional discovery would have given

it "the opportunity to gather additional support for key factual

propositions, including that Pregnancy Centers engage in

deceptive advertising, such deception threatens public health,

and the provision of services by Pregnancy Centers is a form

40 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
commerce." The dissent adopts the same position. But as the

district court explained, additional discovery was unnecessary. The district court assumed for purposes of its analysis

that the Ordinance served the compelling interests that the

City claimed. Instead of exploring any factual context that

might be relevant to that proposition, the court struck down

Ordinance 09-252 because it was not narrowly tailored, a

problem that was apparent on the face of the Ordinance.

"Whether [a] regulation meets the ‘narrowly tailored’ requirement is of course a question of law." United States v. Doe,

968 F.2d 86, 88 (D.C. Cir. 1992); see also Vill. of Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620, 634 (1980)

(overbreadth is "a question of law that involved no dispute

about the characteristics of" the law being challenged).

Because additional discovery could not eliminate the narrow

tailoring problems, as we have discussed above, the court was

well within its rights to decide the First Amendment issues on

the record before it. Cf. Sable Commc’ns of Cal., Inc. v.

F.C.C., 492 U.S. 115, 129 (1989) (affirming district court’s

grant of preliminary injunction where the pre-enactment

record contained "no legislative findings that would justify us

in concluding that there is no constitutionally acceptable less

restrictive means, short of a total ban, to achieve the Government’s interest"); Solantic, LLC v. City of Neptune Beach, 410

F.3d 1250, 1274 (11th Cir. 2005) (invalidating content-based

sign regulation without discovery because "[t]he First Amendment questions [were] purely legal" and "only minimally

intertwined with the facts"). 

The City’s remaining justification for discovery—that it

was necessary to show that pregnancy centers engage in commercial speech—is also unavailing. The district court found

that the law on its face regulated protected, non-commercial

speech. The individual characteristics of any particular pregnancy center would thus be irrelevant to this determination, a

fact the City itself acknowledged during a hearing on the parties’ motions:

GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 41
The Court: [T]he City Council wasn’t concerned

about this individual center. There’s the legislative

history. They were concerned about the generalities

of it. So I don’t see where we would advance the ball

one way or the other on the facial challenge by

knowing what these particular people [i.e. the plaintiffs] did.

Counsel for the City: I agree with you.

J.A. 130.

Moreover, as the district court recognized, even if some

speech of regulated pregnancy centers included commercial

elements, strict scrutiny would still apply because those elements would be "inextricably intertwined" with otherwise

fully protected speech. Thus, for example, 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. Contrary to the dissent’s claims, the commercial and

political aspects of a statement of this kind cannot be "easily

separated," as the dissent suggests. Indeed, the Supreme Court

rejected precisely this argument in Riley in the course of holding that solicitations by professional fundraisers were not

commercial speech. See Riley, 487 U.S. at 796 ("[W]e cannot

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

another test to another phrase. Such an endeavor would be

both artificial and impractical. Therefore, we apply our test

for fully protected expression"). Thus, even if additional discovery could somehow uncover facts suggesting that the

Pregnancy Center itself or other pregnancy centers engaged in

some amount of commercial speech (because, for instance,

they may have charged money for some of their services), the

district court’s reasoning would still have led to the application of strict scrutiny.

42 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
In sum, the city has been unable to point to any item of discovery or fact that would have assisted the district court in

addressing the issues that have been appealed.

Finally, the City’s contention that the district court abused

its discretion in dismissing the Pregnancy Center’s remaining

counts without prejudice, rather than with prejudice, lacks

merit. The district court did not reach the merits of the Pregnancy Center’s other claims, which on their face were not

frivolous. It simply dismissed those counts because it awarded

the Pregnancy Center all the relief that it had requested, based

on its ruling on the free speech count.

For the reasons given, the judgment of the district court is

AFFIRMED.

KING, Circuit Judge, dissenting: 

I lament that, in its haste to wholly and permanently enjoin

the City of Baltimore’s enforcement of its duly enacted Ordinance, the district court has flouted foundational legal principles. Rushing to summary judgment, the court subverted the

Federal Rules of Civil Procedure — time-tested rules

designed to further the venerable constitutional principle of

due process, see Nelson v. Adams USA, Inc., 529 U.S. 460,

465 (2000) — by, inter alia, denying the City essential discovery, refusing to view in the City’s favor what evidence there

is, and making untoward findings of fact, often premised on

nothing more than the court’s own supposition. Meanwhile,

thinly disguising its First Amendment as-applied analysis of

the Ordinance as a facial review, the court prematurely and

unfairly discounted the real possibility that the Ordinance targets only commercial speech, condemned the Ordinance as

viewpoint discriminatory, and, applying strict scrutiny, nullified the Ordinance for lack of narrow tailoring. The court’s

decision is, in a word, indefensible.

GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 43
Nevertheless, the panel majority not only endorses the district court’s unseemly approach, but engages in further imprudence. As but one example, while the district court was at

least willing to assume that the Ordinance is undergirded by

a compelling interest, the majority opines at length on the

insufficiency and insincerity of the interests and positions

advanced by the City. Because these proceedings have thus

followed a course more fitting a kangaroo court than a court

of the United States, I write separately in dissent.1

I.

In order to properly explain the defective rulings of the district court and the panel majority, I briefly retrace the genesis

of the Ordinance and the fleeting procedural history of this

case. 

A.

In response to congressional and statewide reports that

women were being deceived by limited-service pregnancy

centers, Baltimore’s City Council conducted hearings on the

issue in 2009. As the majority acknowledges, the City Council, prior to its adoption of the Ordinance, specifically considered the 2006 Waxman and 2008 NARAL reports

documenting a pattern of deceptive practices by limitedservice pregnancy centers nationwide. The Waxman report

found that several such centers throughout the county were

using deceptive advertising techniques to attract women seeking abortions and comprehensive birth-control services. Those

techniques included placing ads in the telephone book’s yellow pages under "abortion services" and on the Internet generated by keyword searches of "abortion" and "abortion

1

I dissent from the majority’s constitutional ruling in the City’s appeal,

No. 11-1111. I have no quarrel with its disposition of the cross-appeal, No.

11-1885, deeming plaintiffs St. Brigid’s and the Archbishop to be without

standing. 

44 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
clinics." See J.A. 417-18.2

 The NARAL report found that similar deceptive practices were being used by limited-service

pregnancy centers in Maryland, including in the City of Baltimore. During its 2009 hearings, the City Council heard evidence from a number of women complaining about being

deceived by pregnancy center advertising. See id. at 212. 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." Id. at 261. A college professor referenced

"countless stories" from female students who had similar

experiences when they visited pregnancy centers. Id. at 273.

The evidence relied on by the City Council revealed that

limited-service pregnancy centers were using questionable

tactics to delay women from accessing abortions. Such tactics

included 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. Such delays placed the health of women who

decided to have abortions at risk, as "[n]umerous studies have

shown that it is safest to have an abortion within the first trimester." See J.A. 331.

Importantly, the City’s Health Department studied the matter and supported the Council’s adoption of the proposed

Ordinance, agreeing that it was "imperative that all Baltimore

City women have the ability to obtain factual and timely

advice on all available health care options." J.A. 209. Before

taking action, the City Council prudently sought the views of

the City Solicitor, who concluded that the proposed Ordinance did not contravene the First Amendment. By letter

opinion of October 23, 2009, the Solicitor advised the Council

that 

2Citations herein to "J.A.___" refer to the contents of the Joint Appendix filed by the parties in these appeals. 

GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 45
[the Ordinance] requires disclosure of factual, truthful, non-misleading information; namely, whether or

not abortion or birth control services are provided at

a given facility. The [Ordinance] serves the purpose

of preventing misleading advertising practices of

pregnancy services centers and furthers the City’s

interest in ensuring a woman seeking these services

in the City is fully informed of what services are

available at any given location and can find the services that she needs in a timely manner whether they

be abortion or birth control services or any of the

many other pregnancy related services that a woman

may be seeking. . . . The [Ordinance], therefore, does

not violate the 1st Amendment right to freedom of

speech.

Id. at 208. During a public hearing on the proposed Ordinance, its sponsor in the Council clarified that the "bill is not

about an abortion debate, but a simple sign . . . to make sure

no one is misled and [pregnancy center clients] know what to

expect." Id. at 211. 

Thus, after considering the matter thoroughly, the Council

concluded that the various deceptive practices of limitedservice pregnancy centers posed a danger to public health. As

a result, on December 5, 2009, the City Council enacted the

Ordinance, which took effect on January 4, 2010.

B.

On March 29, 2010, the plaintiffs in this case — including

the Greater Baltimore Center for Pregnancy Concerns, Incorporated (the "Center") — challenged the Ordinance in federal

court, asserting various constitutional defects, including free

speech, free assembly, free exercise, and equal protection,

plus related state law claims. On June 4, 2010, barely two

months after service of the Complaint — and four days before

the City’s responsive pleading was due — the Center moved

46 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
for summary judgment on its free speech and equal protection

challenges. No party had by then either initiated or conducted

discovery.3 Consistent with the lack of discovery, the City, on

June 8, 2010, filed a Rule 12(b)(6) motion seeking dismissal

of the Complaint. Then, on July 16, 2010, in response to the

Center’s summary judgment motion, the City filed a declaration pursuant to Rule 56(f), averring that it could not adequately oppose summary judgment without first conducting

discovery (the "Declaration").4

The Declaration specified that the City needed "the opportunity to develop expert testimony to provide factual support

for the propositions that deceptive advertising by limitedservice pregnancy centers threatens public health in a variety

of ways." J.A. 41. The Declaration also explained that the

City desired and required "the opportunity to conduct discovery concerning the advertising that the Center and other

limited-service pregnancy centers employ, so [it] may demonstrate [the advertising’s] deceptive character." Id. at 42. The

3By applicable rule, no party had the right to serve or seek discovery

when the Center’s summary judgment motion was filed. See Fed. R. Civ.

P. 26(d)(1) (providing that, unless otherwise stipulated or ordered, "[a]

party may not seek discovery from any source before the parties have conferred as required by Rule 26(f)"). 

4The Declaration was filed pursuant to the version of Rule 56(f) then in

effect. Under the 2010 Amendments to the Civil Rules, "[s]ubdivision (d)

carries forward without substantial change the provisions of former subdivision (f)." Fed. R. Civ. P. 56 advisory committee’s note. The current subdivision (d) of Rule 56 provides: 

If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: 

(1) defer considering the motion or deny it; 

(2) allow time to obtain affidavits or declarations or to take discovery; or 

(3) issue any other appropriate order. 

Fed. R. Civ. P. 56(d). 

GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 47
City requested "discovery to develop factual support for [its]

argument that the services offered by [the Center] are a form

of commerce, and, therefore, the disclaimer required by the

Ordinance is commercial speech." Id. 

Additionally, the City filed the declaration of an expert,

Robert W. Blum, M.D., M.P.H., Ph.D. (the "Blum declaration"), seeking to substantiate the City’s compelling interests

advanced by the Ordinance. More specifically, Dr. Blum

explained that, because family planning improves "the health

and well-being" of women and their children, public health is

promoted by providing "complete and accurate information to

women about their health care options." J.A. 45. "Women

who can plan the number and timing of their births," Dr.

Blum observed, "experience fewer unwanted pregnancies and

births and have lower rates of abortion." Id. Young and poor

women, however, are "particularly vulnerable to being

deceived by limited-service pregnancy centers that fail to disclose the scope of services that they provide." Id. at 46.

On August 4, 2010, the district court heard argument on the

City’s motion to dismiss and the Center’s summary judgment

motion. The court advised the parties, however, that if it

intended to award summary judgment to the Center on its asapplied challenge, discovery would be necessary. By its January 28, 2011 decision, the court denied the City’s discovery

requests and converted the City’s pending Rule 12(b)(6)

motion to dismiss into a Rule 56 motion for summary judgment. See O’Brien v. Mayor of Balt., 768 F. Supp. 2d 804,

809-10 (D. Md. 2011). The court then treated the parties’

respective submissions as cross-motions for summary judgment, ruling for the Center on its free speech claim and dismissing without prejudice (and as moot) each of the Center’s

remaining claims. On January 31, 2011, the court fully and

permanently enjoined enforcement of the Ordinance.5

5At the outset of this litigation, the City agreed not to enforce the Ordinance until December 31, 2010, or until the district court had made a final

48 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
II.

A.

As a general proposition, "summary judgment is appropriate only after adequate time for discovery." Evans v. Tech.

Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996)

(internal quotation marks omitted). In the main, discovery is

essential in a contested proceeding prior to summary judgment because a party can show that the relevant facts are

undisputed only by: 

(A) citing to particular parts of materials in the

record, including depositions, documents, electronically stored information, affidavits or declarations,

stipulations . . . , admissions, interrogatory answers,

or other materials; or 

(B) showing that the materials cited do not establish

the absence or presence of a genuine dispute, or that

an adverse party cannot produce admissible evidence

to support the fact.

Fed. R. Civ. P. 56(c)(1). Hence, "by its very nature, the summary judgment process presupposes the existence of an adequate record." Doe v. Abington Friends Sch., 480 F.3d 252,

257 (3d Cir. 2007). At minimum, a court "must refuse summary judgment where the nonmoving party has not had the

decision, whichever was earlier. That commitment apparently expired at

the end of 2010, prior to the summary judgment award. Nevertheless, had

the district court reasonably ascertained from the parties’ submissions that,

inter alia, the Center was likely to succeed on its free speech claim, the

court should have adhered to Rule 65 and entered a temporary restraining

order ("TRO") against the Ordinance. After entering a TRO, the court

should have conducted appropriate proceedings to entertain preliminary

and permanent injunction requests. Instead, the court elected to award

summary judgment on the merits of the free speech issue, entering a permanent injunction based on an undeveloped record. 

GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 49
opportunity to discover information that is essential to [its]

opposition." See Nader v. Blair, 549 F.3d 953, 961 (4th Cir.

2008) (internal quotation marks omitted). 

The City took "the proper course" when it filed the Declaration, "stating that it could not properly oppose . . . summary

judgment without a chance to conduct discovery." See Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244

(4th Cir. 2002) (internal quotation marks omitted) (deeming

summary judgment award premature where, inter alia, court

made its award only six weeks after complaint was filed,

before significant discovery). Such a declaration is "broadly

favored and should be liberally granted because the rule is

designed to safeguard non-moving parties from summary

judgment motions that they cannot adequately oppose." Raby

v. Livingston, 600 F.3d 552, 561 (5th Cir. 2010) (internal quotation marks omitted); accord Harrods Ltd., 302 F.3d at 245

n.18. Nevertheless, the district court decided that the City’s

discovery requests were merely "an attempt to generate justifications for the Ordinance following its enactment." O’Brien,

768 F. Supp. 2d at 810. The court explained that discovery

was unnecessary in examining "whether the Ordinance, on its

face, is subject to, and satisfies, the applicable level of scrutiny." Id. Indeed, the court considered itself constrained to

"base its decision on the evidence relied on by the [City] at

the time the Ordinance was passed." Id.

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

of "discovery before ruling on a summary judgment motion."

Nader, 549 F.3d at 959-60. A court abuses its discretion, however, when "its conclusion is guided by erroneous legal principles or rests upon a clearly erroneous factual finding." Belk,

Inc. v. Meyer Corp., U.S., No. 10-1664, ___ F.3d ___ (4th

Cir. 2012) (internal quotation marks omitted). As explained

below, the district court’s rationale for denying the City its

right to discovery was patently erroneous. 

50 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
1.

As an initial matter, the district court legally erred in denying discovery prior to converting the City’s motion to dismiss

into a request for summary judgment. The majority states that

"the City was on notice that the court would be considering

matters beyond the complaint to resolve the plaintiffs’ free

speech claim." Ante at 40. As we have previously explained,

however, "notification that a Rule 12(b)(6) motion may be

converted is only one of the requirements" for a proper conversion; "[o]nce notified, a party must be afforded a reasonable opportunity for discovery before a Rule 12(b)(6) motion

may be converted and summary judgment granted." Gay v.

Wall, 761 F.2d 175, 177 (4th Cir. 1985) (internal quotation

marks omitted); see E.I. du Pont de Nemours & Co. v. Kolon

Indus., Inc., 637 F.3d 435, 450 (4th Cir. 2011) (concluding

that the court erred in converting a motion to dismiss to a

summary judgment motion where the "record indicates that

the parties had not yet had the opportunity to conduct reasonable discovery"). The explicit authorization of discovery articulated by Judge Ervin in the Gay decision is applicable

precedent here, and is also prescribed by Rule 12(d). That rule

provides that, when a Rule 12(b)(6) motion is "treated as one

for summary judgment under Rule 56," the "parties must be

given a reasonable opportunity to present all the material that

is pertinent to the motion." Fed. R. Civ. P. 12(d) (emphasis

added). This controlling authority has been ignored entirely

by the district court and by the majority.

The district court’s justification for refusing to authorize or

permit the City to conduct discovery rested on an erroneous

perception that further factual development was not germane

to the Center’s facial free speech challenge to the Ordinance.

I acknowledge that a court may, in the proper circumstances,

rule on a "summary judgment motion without allowing further discovery," where "a facial challenge to an ordinance . . .

may be resolved as a question of law." Penn Adver. of Balt.,

Inc. v. Mayor of Balt., 63 F.3d 1318, 1322-23 (4th Cir. 1995),

GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 51
vacated on other grounds, 518 U.S. 1030 (1996). In such limited circumstances, discovery is unnecessary because "the

court’s inquiry is limited to consideration of the ordinance on

its face against the background of the government’s objective

and the prospect of the ordinance’s general effect," id. at

1323, "without regard to [an ordinance’s] impact on the plaintiff asserting the facial challenge," Educ. Media Co. at Va.

Tech, Inc. v. Swecker, 602 F.3d 583, 588 (4th Cir. 2010). In

this situation, however, the court neither undertook nor properly conducted a facial analysis of the constitutionality of the

Ordinance. 

In the First Amendment context, there are two ways for a

plaintiff to mount a facial challenge to a statute. First, the

plaintiff may demonstrate "that no set of circumstances exists

under which the [law] would be valid, i.e., that the law is

unconstitutional in all of its applications." Wash. State

Grange v. Wash. State Republican Party, 552 U.S. 442, 449

(2008) (internal quotation marks omitted). Or, second, the

plaintiff may show that the law is "overbroad [because] a substantial number of its applications are unconstitutional, judged

in relation to the statute’s plainly legitimate sweep." United

States v. Stevens, 130 S. Ct. 1577, 1587 (2010) (internal quotation marks omitted). Here, the district court did not conclude that the Ordinance is invalid in all its applications. For

example, it never assessed the potential application of the

Ordinance to limited-service pregnancy centers that charge a

fee for their services. Indeed, the majority emphasizes instead

the Ordinance’s application to "the provision of ‘free services.’" Ante at 30-31.6

The district court also failed to address "a substantial number" of the Ordinance’s other applications. Put succinctly, its

analysis was an as-applied one, focusing almost exclusively

6The majority also excludes from its analysis limited-service pregnancy

centers that practice medicine or are staffed by licensed professionals. See

ante at 32. 

52 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
on the Ordinance’s application to the Center. For example, on

the question of whether the Ordinance regulates commercial

or noncommercial speech, the court conducted an as-applied

free speech analysis, amply demonstrated by its repeated (and

inappropriate) findings on the specific characteristics of the

Center:

• "The overall purpose of the advertisements, services, and information offered by the CENTER is

not to propose a commercial transaction, nor is it

related to the CENTER’s economic interest."

O’Brien, 768 F. Supp. 2d at 813 (emphasis

added);

• "The CENTER engages in speech relating to

abortion and birth-control based on strongly held

religious and political beliefs rather than commercial interests or profit motives." Id. (emphasis

added);

• "The notion that ‘human life must be respected

and protected absolutely from the moment of

conception’ is a central tenet of the CENTER’s

belief system." Id. (emphasis added);

• "[T]he disclaimer mandated by the Ordinance

introduces the topics of abortion and birthcontrol. This has an immediate effect on any

speech and information offered by the CENTER

on these subjects." Id. at 814 (emphasis added);

and

• "At the very least, a disclaimer conspicuous to

anyone visiting the CENTER regarding the lack

of abortion and birth-control services, mandates

the inclusion of a government message concurrent, and intertwined with, Plaintiffs’ delivery of

GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 53
fully protected speech." Id. at 814 (emphasis

added).

Similarly, in assessing whether the Ordinance is viewpoint

neutral, the Opinion made what can only be deemed to be asapplied findings. More specifically, it related that:

• "The CENTER’s viewpoint, formed on the basis

of sensitive religious, moral, and political beliefs,

is the overarching reason for its stark refusal to

perform or refer for abortions and certain types of

birth-control." Id. at 815 (emphasis added); and

• "It is revealing that Defendants refer to the Ordinance as a means of mitigating the ‘harm’ caused

by Plaintiffs’ underlying ‘propaganda’ speech

relating to abortion and contraception. Such

descriptions can only support the conclusion that

Defendants enacted the Ordinance out of disagreement with Plaintiffs’ viewpoints on abortion

and birth-control." Id. at 816 (emphasis added).

The panel majority elaborates on several of these same factual

points. See ante at 31, 32, 34, 36-37.

In dissenting, I cast no aspersions on the use of the asapplied approach in the proper setting. Indeed, it is clear that

"[a]s-applied challenges," with specific factual records, "are

the basic building blocks of constitutional adjudication." Gonzales v. Carhart, 550 U.S. 124, 168 (2007) (internal quotation

marks omitted). For a variety of reasons, a court should entertain an as-applied constitutional challenge prior to assessing

a facial one and, if the as-applied challenge succeeds, neither

reach nor rule on the facial one. See Brockett v. Spokane

Arcades, Inc., 472 U.S. 491, 501-02 (1985). As the Supreme

Court has explained, "[f]acial challenges are disfavored"

because they "often rest on speculation" and thus "raise the

risk of premature interpretation of [laws] on the basis of factu54 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
ally barebones records." Wash. State Grange, 552 U.S. at 450

(internal quotation marks omitted). Moreover, a facial challenge may contravene "the principle of judicial restraint that

courts should [not] formulate a rule of constitutional law

broader than is required by the precise facts to which it is to

be applied." Id. (internal quotation marks omitted). As my

friend Judge Niemeyer has emphasized, a facial challenge

"must be treated cautiously . . . because slipping into the

embrace of a facial challenge can tend to leave behind the

limitations imposed by Article III and [thus] trample on legislative prerogatives, in violation of separation of powers principles." Preston v. Leake, 660 F.3d 726, 738 (4th Cir. 2011)

(internal quotation marks omitted).

Because an as-applied analysis was employed by the district court in this case, the City was unquestionably entitled to

conduct discovery proceedings. See Anheuser-Busch, Inc. v.

Schmoke, 63 F.3d 1305, 1312 (4th Cir. 1995) (Niemeyer, J.)

(explaining that, when confronted with an as-applied challenge, a "court is given the task of finding the facts defining

that circumstance and determining how the circumstance is

impacted by the . . . enactment"), vacated on other grounds,

517 U.S. 1206 (1996). The district court acknowledged as

much during its August 4, 2010 hearing on the parties’

respective motions, when it recognized that discovery proceedings would be necessary to properly evaluate an asapplied challenge to the Ordinance. See J.A. 127-28, 130

(observing that "[the Center] can’t prevail on [summary judgment] if I’m concerned about [its] individual status," and

assuring that "if what [the Center] did is relevant in this case[,

the City] will have the discovery").

Alternatively, discovery would be warranted if we were to

"treat[ ] this as a true facial challenge, rather than . . . an asapplied challenge in the guise of a facial attack." Cf. Martin

v. Stewart, 499 F.3d 360, 378 (4th Cir. 2007) (Wilkinson, J.,

dissenting). As the City points out, a facial challenge would

"weigh[ ] in favor of discovery, not against it." Reply Br. of

GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 55
Appellants 26. For example, "even if [the Center] did not

engage in commercial transactions, it [would not necessarily]

prevail on a facial challenge [even] if other [limited-service

pregnancy centers] in Baltimore did," including those within

the Ordinance’s scope that charge fees. Id. at 26-27 & n.12.

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

as-applied — the district court abused its discretion by denying the City its right to conduct discovery. 

2.

In declining to approve the City’s discovery requests concerning the potential commercial nature of speech targeted by

the Ordinance, the district court short-circuited the analysis

that was essential to properly deciding the appropriate level of

judicial scrutiny. That analysis should have been fact-driven,

due to the inherent "difficulty of drawing bright lines that . . .

clearly cabin commercial speech in a distinct category." See

City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410,

419 (1993). The Supreme Court has long grappled with the

concept of commercial speech, describing it at various times

as speech "confined to the promotion of specific goods or services," Metromedia, Inc. v. City of San Diego, 453 U.S. 490,

505 n.12 (1981), or "related solely to the economic interests

of the speaker and its audience," In re R.M.J., 455 U.S. 191,

204 n.17 (1982) (internal quotation marks omitted). More

recently, the Court has explained that it "usually define[s]"

commercial speech "as speech that does no more than propose

a commercial transaction." United States v. United Foods,

Inc., 533 U.S. 405, 409 (2001).7 The proposition of a commercial transaction — "I will sell you the X . . . at the Y price,"

see Va. State Bd. of Pharmacy v. Va. Citizens Consumer

7Notably, we have recognized that, although "speech that proposes a

commercial transaction" is "a fairly straightforward" definition of commercial speech, it is also "somewhat circular." Adventure Commc’ns, Inc.

v. Ky. Registry of Election Fin., 191 F.3d 429, 440 (4th Cir. 1999) (alteration and internal quotation marks omitted). 

56 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
Council, Inc., 425 U.S. 748, 761 (1976) — is the "core

notion" of commercial speech. See Bolger v. Youngs Drug

Prods. Corp., 463 U.S. 60, 66 (1983).

On the periphery, the distinction between commercial and

noncommercial speech "presents a closer question." Bolger,

463 U.S. at 66. The Supreme Court has identified "three factors to consider in deciding whether speech is commercial: (1)

is the speech an advertisement; (2) does the speech refer to a

specific product or service; and (3) does the speaker have an

economic motivation for the speech." Facenda v. NFL Films,

Inc., 542 F.3d 1007, 1017 (3d Cir. 2008) (internal quotation

marks omitted); accord Adventure Commc’ns, Inc. v. Ky. Registry of Election Fin., 191 F.3d 429, 441 (4th Cir. 1999). We

have recognized that, although none of the factors is dispositive, "the confluence of these considerations may permit the

conclusion that the speech at issue is commercial in nature."

Adventure Commc’ns, 191 F.3d at 441.

a.

The speech targeted by the Ordinance indubitably satisfies

the first two of the Bolger factors — i.e., advertisements

referring to a service. The majority surmises, however, that

the third factor is absent, because "there is no indication that

the Pregnancy Center is motivated by any economic interest."

Ante at 31. Ironically, my good colleagues fault the City for

not addressing "what economic interest motivates the Pregnancy Center’s speech," id., while ratifying the district court’s

denial of the City’s discovery requests that were aimed at,

inter alia, obtaining such information. The majority simply

accepts — as did the district court — the Center’s assertion

(by counsel only) that its motives are entirely religious or

political. But that assertion — although quite material — was

not at all undisputed. The City’s discovery proceedings

should have substantiated, inter alia, whether the Center possesses economic interests apart from its ideological motivaGREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 57
tions.8

 Such discovery is "especially important when the

relevant facts are exclusively in the control of [the movant]"

or "when a case involves complex factual questions about

intent and motive." See Harrods Ltd., 302 F.3d at 247.

In any event, the potential commercial nature of its speech

does not hinge solely on whether the Center has an economic

motive. Not all of the Bolger factors "must necessarily be

present for speech to be commercial." Bolger, 463 U.S. at 67

n.14. Because the Ordinance compels a disclaimer, a court’s

"lodestars" in distinguishing commercial from noncommercial

speech are the "nature of the speech" regulated by the Ordinance "taken as a whole and the effect of the compelled [disclaimer] thereon." See Riley v. Nat’l Fed’n of the Blind of

N.C., Inc., 487 U.S. 781, 796 (1988). In other words, context

matters. From a First Amendment free speech perspective,

that context includes the viewpoint of the listener, for

"[c]ommercial expression not only serves the economic interest of the speaker, but also assists consumers and furthers the

8

Inquiring into the Center’s potential profit motives may not be a futile

endeavor. We know that nonprofit entities with religious or political

motives can engage in commerce. See Camps Newfound/Owatonna, Inc.

v. Town of Harrison, Me., 520 U.S. 564, 573 (1997) (summer camp sponsored by Christian Science nonprofit substantially affected interstate commerce though camp was not profitable and indeed at times operated on

deficit); Va. Vermiculite, Ltd. v. W.R. Grace & Co.-Conn., 156 F.3d 535,

541 (4th Cir. 1998) (nonprofit land preservation organization’s acceptance

of land donation "was commercial"). And, although outwardly the Center

appears to be driven by religious purposes only, certain operational intricacies may prove otherwise. For instance, as observed in a similar case,

if the Center were "referring women to pro-life doctors in exchange for

‘charitable’ contributions, the analysis could change." Evergreen Ass’n,

Inc. v. City of N.Y., 801 F. Supp. 2d 197, 206 n.5 (S.D.N.Y. 2011). There

was "no such evidence" of referrals in exchange for charitable contributions in Evergreen Association, but there the parties had an opportunity to

conduct discovery. Id. Here, the prospect that such evidence exists is not

so farfetched. According to certain of the amici curiae — national organizations that network individual pregnancy care centers ("Amici PCCs") —

all of their affiliated centers "make referrals to prenatal care providers for

their patients who are pregnant." Br. of Amici PCCs 7. 

58 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
societal interest in the fullest possible dissemination of information." See Cent. Hudson Gas & Elec. Corp. v. Pub. Serv.

Comm’n of N.Y., 447 U.S. 557, 561-62, 567 (1980) (evaluating commercial nature of regulated speech based in part on

impact to consumers of electricity); Robert Post, The Constitutional Status of Commercial Speech, 48 UCLA L. Rev. 1,

14 (2000) (observing that "[t]he Court has . . . focused its

analysis on the need to receive information, rather than on the

rights of the speakers").

The Supreme Court of North Dakota’s decision in Fargo

Women’s Health Org., Inc. v. Larson, 381 N.W.2d 176 (N.D.

1986), cert. denied, 476 U.S. 1108 (1986), illustrates the

proper contextual analysis. The Larson case involved false

and deceptive advertising by the Help Clinic, which, like the

Center, provided pregnancy tests and anti-abortion counseling

services to its clients at no cost. In determining that the Help

Clinic’s advertising constituted commercial speech, the Larson court concluded that the provision of free services was not

"dispositive." 381 N.W.2d at 181. Rather, the court emphasized that 

the Help Clinic’s advertisements are placed in a

commercial context and are directed at the providing

of services rather than toward an exchange of ideas

. . . . In effect, the Help Clinic’s advertisements constitute promotional advertising of services through

which patronage of the clinic is solicited, and in that

respect constitute classic examples of commercial

speech.

Id.

We are unable to properly assess the context of any speech

regulated by the Ordinance "because no record evidence of

[the Center’s] advertisements exists to guide our review,

[thus] we can only speculate about the ways in which the

[Ordinance] might be applied to [the Center’s] speech." See

GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 59
Milavetz, Gallop & Milavetz, P.A. v. United States, 130 S. Ct.

1324, 1344-45 (2010) (Thomas, J., concurring in part)

(observing that neither as-applied nor facial challenges could

be reviewed properly where there was no evidence of subject

advertisements). Nor is there any evidence concerning the

Ordinance’s impact on consumers of such information. In ruling as it did, the district court was unconcerned with the full

context, because it decided that, even if the Center’s speech

"includes some commercial elements, strict scrutiny would

nonetheless apply," since any commercial element was "‘inextricably intertwined with otherwise fully protected

speech.’" O’Brien, 768 F. Supp. 2d at 814 (quoting Riley, 487

U.S. at 796). 

b.

In my view, it was legally erroneous for the district court

to conclude, without the benefit of discovery, that the speech

at issue blends commercial and noncommercial elements. The

court necessarily premised that conclusion on its own finding

that the "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." O’Brien, 768 F.

Supp. 2d at 814. But such a dialogue may actually begin

much earlier, when a prospective client views a limitedservice pregnancy center’s advertisements. Indeed, the purpose of the Ordinance was to curb any deceptive advertising.

Even if the disclaimer in the waiting room were the "initial

communication," however, the court mischaracterized the disclaimer as "a stark and immediate statement about abortion

and birth-control." Id. The disclaimer does not, as the majority suggests, convey a message that abortion and birth control

are "morally acceptable alternative[s]." Ante at 28. The disclaimer simply does not speak to what is or may be morally

acceptable. It merely discloses that a particular pregnancy

center does not provide or refer for abortions or nondirective

and comprehensive birth-control services. That is, the dis60 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
claimer relates to the services offered, not to the religious or

ideological beliefs of a pregnancy center. 

Moreover, "where the two components of speech can be

easily separated, they are not ‘inextricably intertwined.’" Hunt

v. City of L.A., 638 F.3d 703, 715 (9th Cir. 2011) (citing Bd.

of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 473-

74 (1989)). Because the Ordinance merely requires a disclosure that "the center does not provide or make referrals for

abortion or birth-control services" — but does not otherwise

prescribe the language or terminology to be used — a limitedservice pregnancy center could disassociate itself completely

from the required disclaimer. Indeed, a limited-service pregnancy center would be free to express its disapproval alongside the disclaimer, or otherwise qualify its viewpoint vis-àvis the disclaimer.9

 More to the point, however, "[n]othing in

the [Ordinance] prevents [a pregnancy center] from conveying, or the audience from hearing, . . . noncommercial messages, and nothing in the nature of things requires them to be

combined with commercial messages." See Fox, 492 U.S. at

474; see also Fargo, 381 N.W.2d at 181 (concluding it was

unnecessary to extend First Amendment protections to the

clinic’s "commercial solicitation of clientele" because the

clinic could "advocat[e] . . . outside the commercial context

9Notably, had the City been permitted to conduct discovery, it could

have shown that the Center’s website already provides a disclaimer

explaining its position: "Our mission is to protect the physical, emotional

and spiritual lives of women and their unborn children. We do not perform

or refer for abortions because of the physical and emotional risks

involved." Center For Pregnancy Concerns, http://www.cpcforhelp.org

(last visited June 19, 2012). The existence of such a disclaimer featured

conspicuously on the website contradicts the assertion of the Center’s

"representative," referenced by the majority, that "the Pregnancy Center

would not speak to clients and potential clients in the manner required by

the ordinance." Ante at 28. Furthermore, Amici PCCs inform us that they

counsel their affiliates to disclose that they do not offer or refer for abortions and, in their advertisements, to "avoid implying that abortion services or professional counseling is available." See Br. of Amici PCCs 9,

21-22. 

GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 61
and receive full First Amendment protection"). Put simply,

the Ordinance does not prohibit or restrict a limited-service

pregnancy center’s speech about abortion and birth-control.

In sum, the district court’s finding that the Ordinance targeted noncommercial speech or, at most, intertwined commercial and noncommercial speech — as echoed by the

majority — was premature and inappropriate. Under the

applicable rules of procedure and our precedent, it was essential to the City’s opposition to the Center’s summary judgment motion — and to a fair and proper exercise of judicial

scrutiny — for the court to have the benefit of discovery. See,

e.g., Gay, 761 F.2d at 177; Fed. R. Civ. P. 12(d) (providing

reasonable opportunity for discovery after conversion of Rule

12(b)(6) motion to summary judgment motion). Those discovery proceedings should have yielded, inter alia, any economic

motivations of the Center, the context of the Center’s advertisements in relation to the disclaimer, and the degree of

entanglement, if any, of the commercial and noncommercial

elements of the regulated speech.10

10Although not addressed by the district court, and raised only indirectly

by the City on appeal, there may well be a legitimate question as to

whether the speech targeted by the Ordinance constitutes professional

speech. The majority dismisses that possibility because "the pregnancy

centers that are subject to Ordinance 09-252 do not practice medicine, are

not staffed by licensed professionals, and need not satisfy the informed

consent requirement." Ante at 32. 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

PCCs 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]." Br. of Amici PCCs 6-7. Therefore, discovery concerning the possible professional nature of the regulated speech is

also warranted. 

62 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
3.

In rejecting the City’s right to conduct discovery proceedings regarding the compelling interests advanced by the Ordinance, the district court improperly characterized the City’s

request as solely "an attempt to generate justifications for the

Ordinance following its enactment." O’Brien, 786 F. Supp. 2d

at 810. The court relied on the Supreme Court’s decision in

United States v. Virginia, 518 U.S. 515, 533 (1996), for the

proposition that the City’s justification should not be "invented post-hoc in response to litigation." The City, however,

sought only to augment the record with evidence to support

its existing justification — not to invent a new one. As we

have previously observed, "courts have routinely admitted

evidence . . . to supplement a legislative record or explain the

stated interests behind challenged regulations." 11126 Balt.

Blvd. v. Prince George’s Cnty., Md., 886 F.2d 1415, 1425

(4th Cir. 1989), vacated on other grounds, 496 U.S. 901

(1990). Although "‘supplemental’ materials cannot sustain

regulations where there is no evidence in the preenactment

legislative record[, that] is not the case here." Id.

The majority does not deny that there was a substantial preenactment record supporting adoption of the Ordinance;

rather, my colleagues simply deem that record insufficient to

establish a compelling interest. See Ante at 36 (observing that

"the record establishes, at most, only isolated instances of

misconduct by pregnancy centers generally" and "the record

contains no evidence that any woman has been misled into

believing that any pregnancy center . . . was a medical clinic

or that a woman in Baltimore delayed seeking medical services because of such a misconception"). 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? 

As Judge Niemeyer recently explained, "the Constitution

does not mandate a specific method by which the government

GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 63
must satisfy its burden under heightened judicial scrutiny. . . .

[I]t may resort to a wide range of sources, such as legislative

text and history, empirical evidence, case law, and common

sense, as circumstances and context require." United States v.

Carter, 669 F.3d 411, 418 (4th Cir. 2012) (remanding "to

allow the government to develop a record sufficient to justify

its argument" concerning interests advanced by statute). And,

when the court’s record is deficient, the government has been

permitted to marshal the relevant evidence. See, e.g., Turner

Broad. Sys., Inc. v. FCC, 512 U.S. 622, 668 (1994) (remanding "to permit the parties to develop a more thorough factual

record" because government had failed to demonstrate "that

the recited harms are real, not merely conjectural, and that the

regulation will in fact alleviate these harms in a direct and

material way"); see also Hayes v. N. State Law Enforcement

Officers Ass’n, 10 F.3d 207, 215 (4th Cir. 1993) (indicating

that remand for discovery would be warranted had the "City

. . . asked the district court for additional discovery to respond

to . . . summary judgment, or for additional time to ‘develop

the factual record’ in support of its alleged compelling state

interest"). We have no discernible reason to stray from such

precedent. 

B.

Apart from abusing its discretion by denying the City of

Baltimore its right to conduct discovery, the district court also

erred in concluding that the Ordinance is not viewpoint neutral — its alternative basis for applying strict scrutiny. See

O’Brien, 768 F. Supp. 2d at 815-16. The majority endorses

that conclusion by way of footnote only, agreeing that,

because the Ordinance applies solely to persons who do not

provide or refer for abortions or nondirective and comprehensive birth-control services, it burdens only "pro-life speakers,"

"whose moral or religious codes lead them to oppose abortion

and birth control." Ante at 34 n.4. It requires no lengthy deliberation to specify examples that entirely undermine the majority’s supposition: 

64 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
• A Lamaze instructor, who teaches pregnant

women and their partners strategies for having a

natural, healthy pregnancy and childbirth, may

not provide referrals for abortion or birth-control

services simply because that is not the objective

of her job; 

• A doula, who gives advice and emotional assistance to pregnant women during childbirth,

would have no cause to even discuss abortion or

birth-control, much less make referrals; 

• A pregnancy shelter, supplying material assistance and information about pregnancy-related

products, may not make referrals for abortion or

nondirective and comprehensive birth-control

services so as to avoid liability because it has no

licensed or trained professionals to address those

subjects; and 

• A center, encouraging or facilitating adoption

services or surrogate pregnancies, may be neither

qualified nor disposed to make referrals for abortion or birth-control services.11

11The foregoing examples are more appropriate than the district court’s

effort, made during its hearing on the parties’ respective motions, to compare 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.’" J.A. 131. The court posed the hypothetical dealership regulation

to suggest that in the same way that "BMW salespeople would . . . be

handicapped by having their customers read the sign that they don’t want

their customers to think about that issue," the Ordinance disfavors 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." Id. The court thus remarked the Ordinance is "not neutral." Id. Comparing 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." Id.

GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 65
Absent the premise that the Ordinance burdens only prolife speakers, the majority’s fallback position is legislative

history, which, it asserts, demonstrates that the Ordinance was

enacted because of an improper animus of the City Council

against the Center’s viewpoint on abortion and birth-control.

As the majority points out, however, the City "has referred

and continues to refer women to the Pregnancy Center." Ante

at 37. If the City disfavors the Center’s viewpoint, or possesses an improper animus against the Center, its continual

referrals of women to the Center constitutes an unexplained

oddity. 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.12 And the majority

has failed to identify any aspects of the record that show otherwise. If there were some ambiguity, however, that would be

more reason to conduct full discovery.13

C.

Even if all I have said to this point misses the mark, the district court’s award of summary judgment to the Center must

nevertheless be vacated. Put simply, there are genuine disputes of material fact regarding the issues of compelling interests and narrow tailoring that must be assessed. 

12 As explained in Part I.A supra, the City Council acted carefully and

prudently in its adoption of the Ordinance. Even on this limited record, the

evidence supports its action, and the record shows that the Council secured

and relied on the advice of counsel. That record, which must be viewed

in the light most favorable to the City, fatally undermines any assertion of

improper animus against the Center or other limited-service pregnancy

centers. Indeed, the record shows conclusively that the animus assertion

has been created from whole cloth. 

13Notably, the need for discovery was evident in the Opinion’s description of the legislative record as "uneven when demonstrating the depth and

severity of the problem relating to limited-service pregnancy centers and

deceptive advertising." O’Brien, 768 F. Supp. 2d at 816. 

66 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
1.

Although the district court assumed that the Ordinance

serves a compelling interest, the majority disparages the two

such interests espoused by the City: (1) an "interest in protecting the public from ongoing deceptive business practices";

and (2) a "public health interest in ensuring that individuals

who seek abortion or comprehensive birth-control services

have prompt access to those services." Br. of Appellants 35-

36. In addition to criticizing the incompleteness of the preenactment record — which, as previously explained, would be

readily remedied with discovery — the majority "question[s]

[the City’s] selective pursuit of its interest." Ante at 36. My

fine colleagues protest in their majority opinion that the City

is not actually interested in combating inaccurate information

about pregnancy services, because the Ordinance does not

regulate "the vast majority of sources that pregnant women

would likely consult." Id.

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. See Buckley v. Valeo, 424 U.S. 1, 105

(1976) (observing that a "statute is not invalid under the Constitution because it might have gone farther than it did, that a

legislature need not strike at all evils at the same time, and

that reform may take one step at a time, addressing itself to

the phase of the problem which seems most acute to the legislative mind" (citations and internal quotation marks omitted)).

The majority persists, however, that the City could have

posted a "notice," placed a "warning on its own website," or

provided "public service information," rather than target a

pregnancy center’s speech, if it were really interested in combating deceptive practices. Ante at 37. But such criticisms by

unelected judges are more a critique on the particular means

of serving the City’s compelling interests, discussed infra,

than a valid argument that those interests are not compelling.

GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 67
In any event, the majority’s criticisms are lodged against

the City’s first identified compelling interest, with no more

than a nod to the second. The City undoubtedly possesses a

compelling interest in defending a woman’s right to obtain

timely information and medical care in connection with her

pregnancy. See Madsen v. Women’s Health Ctr., Inc., 512

U.S. 753, 767 (1994) (agreeing that Florida had a "strong

interest in protecting a woman’s freedom to seek lawful medical or counseling services in connection with her pregnancy").

Indeed, the City filed the Blum declaration to further substantiate that very interest. See J.A. 44. Dr. Blum therein

explained that public health is advanced by providing complete and accurate information to women about their health

care options because, inter alia: 

• "The evidence is crystal clear that family planning is one of the best strategies for women in the

United States . . . to improve their health and

well-being, as well as that of their offspring." Id.

at 45;

• "Women who can plan the number and timing of

their births experience fewer unwanted pregnancies and births and have lower rates of abortion."

Id.; and

• "Certain people are particularly vulnerable to

being deceived by limited-service pregnancy centers that fail to disclose the scope of services that

they provide. Those people include adolescents

and those who are poor or otherwise marginalized in society." Id. at 46.

Notwithstanding the foregoing, the Blum declaration —

which is uncontroverted — was never referenced by the district court. And, because this is an appeal from summary judgment, the Blum declaration must be viewed in the light most

favorable to the City. See Kubicko v. Ogden Logistics Servs.,

68 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
181 F.3d 544, 551 (4th Cir. 1999) (observing that, in reviewing the propriety of summary judgment, an appellate court

considers "the facts in the light most favorable to the nonmoving party, drawing all reasonable inferences from the affidavits . . . submitted below in his or her favor"). Dr. Blum’s

evidence alone was more than sufficient to create a genuine

dispute of material fact on the compelling interest requirement. Cf. TFWS, Inc. v. Shaefer, 325 F.3d 234, 241-42 (4th

Cir. 2003) (vacating summary judgment award because nonmoving party proffered expert reports demonstrating genuine

disputes of material fact); McTernan v. City of York, Pa., 564

F.3d 636, 651 (3d Cir. 2009) (concluding factual disputes

concerning city’s compelling interests barred summary judgment).

2.

Both the district court and the panel majority described the

lack of narrow tailoring as the Ordinance’s "fatal" constitutional defect. See ante at 37; O’Brien, 768 F. Supp. 2d at 817.

On this record, however, such a conclusion simply cannot be

sustained. 

a.

Notwithstanding all the controversy and litigation this

Ordinance has engendered, we must be mindful that we are

dealing with a one-sentence, non-verbal, truthful disclaimer

posted on a sign in a waiting room. The Ordinance does not

otherwise prohibit or inhibit a limited-service pregnancy center’s speech. Indeed, the Ordinance is so minimally burdensome that the majority condemns it as underinclusive —

failing "to regulate ‘deceptive practices’ or false advertising,"

the City’s first identified compelling interest. Ante at 38.

The courts have consistently recognized, however, that,

when confronted with false or misleading advertising, "the

preferred remedy is more disclosure, rather than less." See

GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 69
Bates v. State Bar of Ariz., 433 U.S. 350, 375 (1977);

Zauderer v. Office of Disciplinary Counsel of Supreme Court

of Ohio, 471 U.S. 626, 651 (1985) (observing that a "disclaimer might be appropriately required . . . in order to dissipate the possibility of consumer confusion or deception"

(alteration and internal quotation marks omitted)). As we have

explained, "[d]isclosure laws perform the important function

of deterring actual corruption and avoiding the appearance of

corruption, but unlike other types of restrictive laws," disclosures have the added advantage of promoting "speech by

making more information available to the public and thereby

bolstering the ‘marketplace of ideas.’" Master Printers of Am.

v. Donovan, 751 F.2d 700, 710 (4th Cir. 1984). Nevertheless,

to go further than a simple waiting room sign — by, for

example, legislating precisely what a limited-service pregnancy center must say in an advertisement — could "chase

[the City] into overbroad restraints of speech." Cf. Nat’l Fed’n

of the Blind v. FTC, 420 F.3d 331, 345-46 (4th Cir. 2005).

b.

In the same vein that it condemns the Ordinance as

underinclusive, the majority maintains that the disclaimer is

overinclusive because "it applies equally to pregnancy centers

that engage in deceptive practices and those whose speech is

entirely truthful." Ante at 38. 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. Cf. Fed. Election Comm’n v.

Nat’l Right to Work Comm., 459 U.S. 197, 210 (1982) (rejecting contention that statute likely applicable to violators and

nonviolators alike was overinclusive because it aimed "to prevent both actual and apparent corruption" and "it is the potential for such influence that demands regulation"). In that

regard, exempting certain limited-service pregnancy centers

could undermine "the efficacy of [the Ordinance’s] overall

scheme." See Am. Legion Post 7 of Durham, N.C. v. City of

Durham, 239 F.3d 601, 610 (4th Cir. 2001) (deeming ordi70 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
nance applicable to commercial and noncommercial entities

as nevertheless narrowly tailored); cf. Borgner v. Brooks, 284

F.3d 1204, 1214 (11th Cir. 2002) (concluding that disclaimer

constituted "constitutional alternative, one which is less

restrictive, yet sufficient to cure the potential deception and

ultimately serving the state’s interest").

c.

Finally, my good colleagues of the majority suggest that the

Ordinance is not the least restrictive means of preventing

deceptive advertising by limited-service pregnancy centers.

They insist that the City could have undertaken a public education campaign to raise awareness, that it could have distributed information or operated a website about the services

offered by such pregnancy centers, or that it simply could

have prosecuted offenders of deceptive advertising laws. Pursuant to Supreme Court precedent, "[w]hen a plausible, less

restrictive alternative is offered to a content-based speech

restriction, it is the Government’s obligation to prove that the

alternative will be ineffective to achieve its goals." United

States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 816

(2000). Put simply, however, the City has never been

accorded a meaningful opportunity to satisfy that burden. 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 the very least, however, the City has identified a genuine

dispute of material fact on the narrow tailoring requirement.

The Ordinance requires only the disclaimer, which is critical

GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 71
to the analysis. As the Supreme Court has most recently again

emphasized, a "disclosure is a less restrictive alternative to

more comprehensive regulations of speech." See Citizens

United v. Fed. Election Comm’n, 130 S. Ct. 876, 915 (2010).

Moreover, "the First Amendment interests implicated by disclosure requirements are substantially weaker than those at

stake when speech is actually suppressed." Zauderer, 471

U.S. at 651 n.14 (1985) (observing that "disclosure requirements trench much more narrowly . . . than do flat prohibitions on 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 limitedservice pregnancy centers. It is worth reiterating that the least

restrictive alternatives must be "as effective in achieving the

[Ordinance’s] legitimate purpose." See Reno v. Am. Civil Liberties Union, 521 U.S. 844, 846 (1997) (emphasis added). 

Summary judgment is never appropriate where, as here,

there are genuine disputes of material fact on the narrow tailoring requirement. See, e.g., Snell v. City of York, Pa., 564

F.3d 659, 669-70 (3d Cir. 2009) (identifying factual issues

regarding whether police officer’s restrictions against protester were narrowly tailored to meet government’s compelling interests); Greene v. Solano Cnty. Jail, 513 F.3d 982, 989

(9th Cir. 2008) (holding that the court erred in awarding summary judgment "[b]ecause disputed issues of material fact

exist as to whether the policy of prohibiting group worship by

maximum security prisoners is the least restrictive means of

maintaining security"); 729, Inc. v. Kenton Cnty. Fiscal

Court, 515 F.3d 485, 504-05 (6th Cir. 2008) (vacating summary judgment award where factual issues were apparent on

whether ordinance regulating sexually oriented businesses

was narrowly tailored); Cmty. for Creative Non-Violence v.

Turner, 893 F.2d 1387, 1395 (D.C. Cir. 1990) (remanding for

72 GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL
development of factual issues concerning whether regulation

was sufficiently narrowly tailored to survive First Amendment scrutiny).

III.

Because the district court erred in denying discovery to the

City, and in awarding summary judgment to the Center in the

face of genuine disputes of material fact, I would vacate the

judgment and remand for such further proceedings as may be

appropriate. 

In these circumstances, I respectfully dissent. 

GREATER BALTIMORE CENTER v. MAYOR AND CITY COUNCIL 73