A Fourth Circuit panel consisting of Judge Niemeyer, Judge King, and Judge Agee heard oral arguments yesterday in two First Amendment challenges brought by pregnancy resource centers in Maryland. I attended both arguments. From the content and tenor of the proceedings, it seems very likely that the court will affirm the two district courts whose rulings were at issue, both of which held that ordinances compelling speech by pregnancy resource centers violate the First Amendment.
The first argument was an appeal by Baltimore from a grant of summary judgment in favor of The Greater Baltimore Center for Pregnancy Concerns on their First Amendment challenge to a city ordinance. See O’Brien v. Baltimore, 768 F. Supp. 2d 804 (D. Md. Jan. 28, 2011) (Garbis, J.). At issue is the constitutionality of a city ordinance requiring legislatively defined “limited-service pregnancy centers” to conspicuously post, in English and Spanish, an “easily readable” “disclaimer substantially to the effect that the center does not provide or make referral for abortion or birth-control services.”
The second argument was an appeal by Montgomery County from the grant of a preliminary injunction prohibiting the enforcement of a county ordinance against Centro Tepeyac, which is a pregnancy resource center in Montgomery County. (Centro Tepeyac also cross-appealed the partial denial of preliminary injunctive relief.) See Tepeyac v. Montgomery County, 779 F. Supp. 2d 456 (D. Md. Mar. 15, 2011) (Chasanow, J.). At issue is the constitutionality of a county resolution that requires statutorily defined “Limited Service Pregnancy Resource Centers” to conspicuously post, in English and Spanish, an “easily readable” sign stating that “the Center does not have a licensed medical professional on staff” and that “the Montgomery County Health Officer encourages women who are or may be pregnant to consult with a licensed health care provider.”
Counsel for Baltimore and Montgomery County ran into very tough questioning from Judge Niemeyer, who repeatedly pressed them to explain why the ordinances should not be subject to strict scrutiny under the controlling precedent of Riley v. National Federation of Blind of NC, Inc., 487 U.S. 781 (1988). Based on the interchange between court and counsel, it does not appear that the appellants will be successful in escaping strict scrutiny.
Judge Agee’s questions focused primarily on the apparent absence of narrow tailoring. Judge Agee asked, for example, whether Baltimore or Montgomery County had tried anything short of the compelled speech requirements to advance their claimed interest in combatting consumer confusion about the nature of services offered at the centers. It did not appear as if the answers given by counsel for either the city or the county were satisfactory. A particularly problematic fact for Montgomery County appeared to be that the County occasionally referred individuals to Centro Tepeyac without warning them about the limited nature of the services they would receive there.
Judge King’s questions at times seemed more favorable for the appellants. Judge King seemed most interested in potentially applying a lesser form of scrutiny based either on commercial speech doctrine or some kind of professional speech doctrine. But the commercial speech doctrine seems plainly inapplicable, as both district courts found, and as found by Judge Pauley of the Southern District of New York in a similar case. See Evergreen Association, Inc. v. City of New York, 801 F. Supp. 2d 197 (S.D.N.Y. July 13, 2011). Judge King also asked about a lower form of scrutiny based on cases involving speech regulations incidental to the regulation of a profession. One question referred particularly to a “1988 opinion by Judge Butzner.” See Accountant’s Society of Virginia v. Bowman, 860 F.2d 602 (4th Cir. 1988). As the arguments developed, though, it is difficult to see how to shoehorn the compelled disclosures required by Baltimore and Montgomery County into caselaw about speech restrictions incidental to the carrying out of a licensed profession.
All four counsel that argued in these two appeals were excellent. The arguments were crisp and each remained poised in the face of sometimes difficult questioning.
The principal question that I left the arguments with was whether Judge King would dissent from opinions affirming the district court determinations. It would be foolhardy to venture a prediction about that, for even though his questions seemed mostly favorable to the appellants, those questions received forceful answers from counsel, particularly counsel for Centro Tepeyac. And the substance of those answers seems well-grounded in the caselaw. Even if Judge King were to conclude that something less than strict scrutiny applied, a vote to reverse would not necessarily follow. Whatever the level of scrutiny applied, it appeared from the questioning that both Baltimore and Montgomery County not only had the tailoring problems brought out by Judge Agee’s questioning, but also weak factual predicates supporting their claimed interests in imposing speech regulations. Given the stringency of last Term’s Supreme Court decision Brown v. Entertainment Merchants Association, the weakness of the legislative predicate for action could be independently damning under the First Amendment.