The Fourth Circuit issued its opinions yesterday in two pregnancy center compelled speech cases: Centro Tepeyac v. Montgomery County and Greater Baltimore Center for Pregnancy Concerns, Inc. v. Baltimore. The decisions tracked the tentative predictions I made after observing oral argument: a narrow, procedure-based decision to vacate and remand the permanent injunction against enforcement in the Baltimore case, and affirmance of the preliminary injunction against enforcement in the Montgomery case.
In the Baltimore case, Judge King wrote for an eight-judge majority (consisting of himself, Chief Judge Traxler, and Judges Motz,
Gregory, Duncan, Davis, Keenan, Wynn, Floyd, and Thacker). Judge Niemeyer authored a dissenting opinion, in which Judges Wilkinson, Shedd, and Agee joined. Judge Wilkinson authored a separate dissent.
In the Montgomery County case, Judge King wrote for
a nine an eleven-judge majority. Judge Gregory and Judge Davis, who did not hear the Baltimore case, joined the judges from the Baltimore case, as did Judge Wilkinson. In addition to joining Judge King’s opinion, Judge Wilkinson wrote a solo concurrence. Judges Niemeyer, Shedd, and Agee dissented. [Editorial note: This paragraph edited from the original version to correct error noted in the first comment.]
The combined opinions add up to about 140 pages and it’s July 4th, so detailed legal analysis will have to wait.
With respect to First Amendment law standing alone, my preliminary impression is that the decisions have the potential to inject confusion into what should otherwise be a straightforward application of First Amendment law for these ordinances. As Judge Wilkinson notes in his Greater Baltimore dissent, “[t]here has never been any dispute that the Ordinance forces organizations like the Center to communicate a message they would otherwise never utter. Given the dangers of compelled speech, this kind of mandated disclosure should be a last resort, not a first recourse.” Yet the majority opinion remands to allow Baltimore to try to establish that its ordinance was somehow a regulation of commercial speech. In support of this decision, the court provides a diffuse statement of the law surrounding commercial speech. The opinion does not endorse the application of the standard of review appropriate to commercial speech but instead asserts that the district court erred by rejecting application of this standard of review based on insufficient facts.
Instead of training its analysis on the speech actually regulated–the speech that takes place in the centers where the government-ordered messages must be posted–the majority opinion sweeps in the need for considering things like “the scope and content of [the Center's] advertisements.” This focus apparently derives from Fargo Women’s Health Organization, Inc. v. Larson, 381 N.W. 2d 176 (1986), which the majority discusses in detail. But that case dealt with a preliminary injunction that prohibited deceptive advertising rather than legislation compelling delivery of the government’s message in conjunction with in-person speech about pregnancy. Indeed, the North Dakota Supreme Court struck out the compelled-speech portion of the underlying injunction in Larson even though–unlike the Baltimore and Montgomery County ordinances–that injunction directly regulated advertising rather than the in-person provision of information. (It may also be worth noting that this non-binding decision of the North Dakota Supreme Court predated the binding decision of the Supreme Court of the United States discussing the boundaries of commercial speech doctrine in Riley v. National Federation of the Blind, 487 U.S. 781 (1988).)
Although en banc rehearing is typically reserved for “questions of exceptional importance” (FRAP 35), it does not follow that en banc decisions actually resolve questions of exceptional importance. The Greater Baltimore decision does not. From the perspective of First Amendment law, its principal defect is failure to delineate the operative legal principles for separating commercial speech from non-commercial speech and explain why those principles called for the kind of discovery it thought necessary. To the extent that it does discuss these principles, the majority’s analysis drifts from focus on the nature of the speech directly burdened by the in-center positing requirement. But this drift is largely a consequence of its focus on discovery and procedure rather than elaboration of First Amendment law. Hopefully the opinion’s diffuse discussion of commercial speech doctrine may at least avoid doing serious damage to First Amendment law precisely because it is so diffuse.
Nor does the Centro Tepeyac decision resolve any questions of exceptional importance. Its affirmance of the district court’s conclusion that strict scrutiny applies to the challenged ordinance is noteworthy but uncontroversial. Had it not relied so heavily on the “abuse of discretion” standard of review, parts of that opinion would be more problematic. The challengers bore the burden of showing a likelihood of success on the merits, but once the court properly recognized that strict scrutiny was necessary, it should have required the government to demonstrate narrow tailoring. It did so, in part. But as Judge Niemeyer points out in dissent, this should have included consideration of less restrictive alternatives to compelled speech for both sentences of the compelled speech.
Given how little these decisions actually decided as a matter of First Amendment law, it seems the principal legal effect of the court’s en banc consideration in that area was to deprive the panel opinions in these cases of their precedential force. As someone who thinks those panel opinions were correctly decided in the first instance, that consequence is unfortunate. But the litigation will continue. And barring some surprising fact development or substantial change in governing law, I remain hopeful that the cases will ultimately end up yielding results close to the initial panel decisions.