In a clear victory for the First Amendment of the United States Constitution, the Greater Baltimore Center for Pregnancy Concerns won a Summary Judgment against Baltimore City when a City ordinance requiring the posting of signs at pregnancy centers was struck down as unconstitutional. Ferguson, Schetelich & Ballew was among the attorneys representing the Center and defending its First Amendment rights.
The case concerned a 2009 City Ordinance requiring “limited service pregnancy centers” to post signs in their waiting room stating that they do not provide or refer for abortion, or provide birth control. The Center (which provides a clear statement it does not provide or refer for abortion on its website) strongly objected to a government ordinance that would dictate how it communicated with those it served.
The case was originally heard in 2011, and the ordinance was struck down as unconstitutional, consistent with similar rulings in other parts of the Country. The decision was initially affirmed by a panel of the United States Court of Appeals for the Fourth Circuit. In an en banc review, the case was returned to the District Court to allow the City opportunity for discovery to demonstrate that the Center engages in commercial or professional speech that justifies the government mandating signs in its waiting room.
After “extensive discovery” was completed, the Court again heard the matter, and again declared the ordinance unconstitutional.
The Court found expressly that the Center (and its staff and volunteers) “have no economic interest in their actions or speech with clients, nor does the Center propose any commercial transactions with clients.” The Court found the Center’s motivation to be “deeply spiritual and religious” and that it thus provides all services free of charge.
The Court noted that communications with women who seek the services of the Center are related to “personal, religious, and moral concerns” and that these include conversations in the waiting room where the signs would be required. The waiting room is therefore made as welcoming and inviting as possible, with “copies of the Bible, children’s books and toys, a poster of pre-natal development, and a small statue of Jesus Christ.” There are no advertisements, and no goods or services are offered for sale.
The Court found that the disclaimer was an unconstitutional intrusion into those communications. It would force the Center “to begin their conversations with a stark government disclaimer, divorced from the support offered by the Center.” This is “a content-based regulation that regulates noncommercial speech” and must pass “strict scrutiny” to be constitutional – meaning that it must be “narrowly tailored to promote a compelling Government interest and it must use the least restrictive means possible.”
The City argued that because the Center advertises its services, the City could impose this disclaimer regulation. But the Court determined that if the City wanted to regulate the Center’s advertising, it should do so directly, and not by mandating other speech it considered corrective. Therefore, the Court found the regulation not responsive to a compelling interest and not narrowly tailored.
The Court’s decision is very narrow. It does not strike down the ordinance as unconstitutional in all circumstances, and the law remains on the books. Rather, the Court ruled that “as applied” to the Baltimore Center it was an unconstitutional infringement on its freedom of speech rights.
Thomas J. Schetelich is general legal counsel to the Greater Baltimore Center for Pregnancy Concerns. Peter J. Basile was among the attorneys who represented the Center in this litigation.