NIEMEYER, Circuit Judge:
Centro Tepeyac, a Montgomery County nonprofit corporation that provides pregnancy services but does not refer for or provide abortions, commenced this action against Montgomery County, Maryland, the Montgomery County Council, the Montgomery County Department of Health and Human Services, and Marc Hansen, the acting County Counsel (collectively, "Montgomery County" or "the County"), challenging the constitutionality of Montgomery County Resolution No. 16-1252. In its complaint, it contended that in compelling speech, the resolution violates its free speech rights under the First and Fourteenth Amendments to the U.S. Constitution.
Resolution 16-1252 requires "limited service pregnancy resource centers,"
For relief, Centro Tepeyac sought a declaratory judgment that Resolution 16-1252 is unconstitutional and preliminary and permanent injunctive relief against its enforcement.
Applying strict scrutiny, the district court entered an order dated March 15, 2011, denying Centro Tepeyac's motion for a preliminary injunction as to the first statement required by Resolution 16-1252 — "the Center does not have a licensed medical professional on staff" — and granting its motion as to the second mandated statement — "the Montgomery County Health Officer encourages women who are or may be pregnant to consult with a licensed health care provider." The court concluded that the first statement could likely be justified under the strict scrutiny standard but that the second statement compelled "unneeded speech" and therefore would not be "the least restrictive means of achieving a relevant government interest."
Montgomery County appealed the district court's preliminary injunction prohibiting enforcement of the second mandated
On Montgomery County's appeal, we conclude that strict scrutiny is appropriate because Resolution 16-1252 compels noncommercial speech. And, as we found with respect to the ordinance in Greater Baltimore Center, the second statement mandated by the resolution cannot withstand such scrutiny because it is not narrowly tailored. If Montgomery County wishes to "encourage[] women who are or may be pregnant to consult with a licensed health care provider," it must, at a minimum, first do so using its own voice. See Greater Baltimore Center, 683 F.3d at 556-58.
On Centro Tepeyac's cross-appeal, we reverse the district court's denial of injunctive relief with respect to the first mandated statement — "the Center does not have a licensed medical professional on staff." The district court concluded that mandating that statement was likely permissible because the statement "does not require any other specific message and in neutral language states the truth." This basis for approving the compelled speech, however, does not apply the governing standards that have been announced by the Supreme Court. As the Court has explained, even supposedly neutral and fact-based compelled disclosures can imperil free speech. See Riley v. Nat'l Fed'n of the Blind of N.C., Inc., 487 U.S. 781, 797-98, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988). The Riley Court noted, "[T]he government, even with the purest of motives, may not substitute its judgment as to how best to speak for that of speakers and listeners." Id. at 791, 108 S.Ct. 2667. Thus, while the first mandated statement of Resolution 16-1252 may impose a comparatively less severe First Amendment burden, it still amounts to an impermissible government control of speech. The government-mandated statement, which must be posted "conspicuously" on a pregnancy center's wall, suggests to potential clients that the center is not to be trusted and that a pregnancy center's services, like religious counseling or job placement assistance, will usually be inferior to those offered by medical professionals. To be sure, Montgomery County is entitled to believe that pregnancy is first and foremost a medical condition, but it may not compel unwilling speakers to express that view.
Like the ordinance in Greater Baltimore Center, the first mandated statement in Resolution 16-1252 also suffers from serious underinclusiveness. Although underinclusive government regulations are often permissible, they pose a special problem in the First Amendment context because such regulations "raise[] serious doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint." Brown v. Entm't Merchants Ass'n, ___ U.S. ___, 131 S.Ct. 2729, 2740, 180 L.Ed.2d 708 (2011); see also City of Ladue v. Gilleo, 512 U.S. 43, 51, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994) ("[A]n exemption from an otherwise permissible regulation of speech may represent a governmental attempt to give one side of a debatable public question an advantage in expressing its views to the people" (internal quotation marks omitted)). In this case, pregnancy centers are singled out for disfavored treatment while
Finally, we note that the goals of the "no licensed medical professional" disclosure could readily be achieved through less speech-restrictive methods. Such methods might include a more vigorous enforcement of laws against practicing medicine without a license. Or the County could simply publicize the names of the small number of pregnancy centers within its jurisdiction and explain that the centers do not employ doctors. Without first trying these or similar options, the County may not adopt a speech-restrictive strategy. See Thompson v. Western States Med. Ctr., 535 U.S. 357, 373, 122 S.Ct. 1497, 152 L.Ed.2d 563 (2002).
Accordingly, we affirm the district court's order, dated March 15, 2011, to the extent that it grants Centro Tepeyac's motion for a preliminary injunction and reverse to the extent that it denies Centro Tepeyac's requested preliminary injunction.
It is so ordered.
KING, Circuit Judge, dissenting:
I am somewhat bemused by the panel majority's resoluteness in deciding that an innocuous and truthful disclaimer — "the Center does not have a licensed medical professional on staff" — patently offends the First Amendment. Equally disconcerting, the majority makes this conclusion — concerning the first statement prescribed by the Resolution — in apparent disregard for the deference accorded to a district court in ruling on a preliminary injunction request. That is, "regardless of whether [we] would, in the first instance, have decided the matter differently," the court's discretionary decision to grant or deny an injunction request "will not be disturbed on appeal unless the record shows an abuse of that discretion." Quince Orchard Valley Citizens Ass'n, Inc. v. Hodel, 872 F.2d 75, 78 (4th Cir. 1989). Had I been the trial judge entertaining the injunction request in the first instance, I may well have denied it, not only as to the first statement, but also as to the second one (that "the Montgomery County Health Officer encourages women who are or may be pregnant to consult a licensed health care provider"). Regarding either statement, however, I am not at all left with the "definite and firm conviction" that the court "abuse[d] its discretion by applying an incorrect preliminary injunction standard, by resting its decision on a clearly erroneous finding of a material fact, or by misapprehending the law with respect to underlying issues in litigation." Id. (internal quotation marks omitted).
The majority contends that the district court misapplied the Supreme Court's governing standards concerning compelled speech by making a preliminary finding that the first statement "does not require any other specific message and in neutral language states the truth." See Centro Tepeyac v. Montgomery Cnty., 779 F.Supp.2d 456, 471 (D.Md.2011). My colleagues observe that the Supreme Court has recognized that even "neutral and fact-based compelled disclosures can imperil free speech." Ante at 594 (citing Riley v. Nat'l Fed'n of the Blind of N.C., Inc., 487 U.S. 781, 797-98, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988)). True enough, but the district court concluded that the first statement
Put simply, I cannot identify in the first statement the messages ascribed by the majority — without contravening the cardinal rule of construction that "we give the words of a statute their plain and ordinary meaning." See Broughman v. Carver, 624 F.3d 670, 675 (4th Cir.2010) (Agee, J.) (internal quotation marks omitted). The Supreme Court instructed long ago that "the plain, obvious and rational meaning of a statute is always to be preferred to any curious, narrow, hidden sense that nothing but the exigency of a hard case and the ingenuity and study of an acute and powerful intellect would discover." Lynch v. Alworth-Stephens Co., 267 U.S. 364, 370, 45 S.Ct. 274, 69 L.Ed. 660 (1925). Of course, because we are dealing with a disclaimer, context matters. See Riley, 487 U.S. at 796, 108 S.Ct. 2667 (instructing that consideration be given to "the nature of the speech taken as a whole and the effect of the compelled statement thereon"). But to borrow the majority's example, there is no reason to believe that a pregnant woman in need of religious counseling or a job would be instinctively distrustful or think less of a pregnancy center just because it does not have a licensed medical professional on staff. The disclaimer would cause only those women in need of medical services to reassess a pregnancy center's proficiency in that regard — the Resolution's intended effect. Indeed, if the Resolution were somehow ambiguous, "we must ascertain the interpretation... that best implements [the legislative] intent and gives effect to the [Resolution's] purpose." See Long v. Merrifield Town Ctr. Ltd. P'ship, 611 F.3d 240, 244 (4th Cir.2010) (Niemeyer, J.). The County's intent with respect to the Resolution was clear — to promote the health of women by ensuring that they have access to medical services, as reflected in the Resolution's stated purpose:
J.A. 198.
The majority also concludes that the district court's strict scrutiny analysis was faulty with respect to the narrow tailoring requirement. Once again, however, the majority merely disagrees with the court's assessment that the Resolution's first statement is narrowly tailored without identifying exactly how the court misapprehended the law. In my view, the majority simply disagrees with the ruling of the district court, believing instead that the first statement is underinclusive and
The district court made no finding that the first statement is viewpoint discriminatory.
Finally, the district court committed no error regarding least restrictive alternatives. Significantly, my good colleagues in the majority point to nothing in this limited record to demonstrate that their proposed alternatives would be least restrictive, yet "as effective in achieving the [Resolution's] legitimate purpose." See Reno v. Am. Civil Liberties Union, 521 U.S. 844, 874, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) (emphasis added). Publicizing "the names of ... the centers [that] do not employ doctors," as the majority suggests, ante at 595, would "not ensure that every woman who visits a ... pregnancy center will be apprised of the services offered there, at a time when such information is most needed." See Greater Balt. Ctr., 683 F.3d at 576 (King, J., dissenting). Likewise, "[i]nadequate or unenforceable... statutes, problems of proof, and scarcity of resources," id., may significantly hamper the majority's suggested "enforcement of laws against practicing medicine without a license," ante at 595.
Accordingly, and in recognition of the proposition that injunction requests are "extraordinary remedies involving the exercise of very far-reaching power to be granted only sparingly and in limited circumstances," Scotts Co. v. United Indus. Corp., 315 F.3d 264, 272 (4th Cir.2002) (internal quotation marks omitted), the district court did not abuse its discretion in ruling as it did.
Because I would affirm the rulings of the district court, I respectfully dissent.