                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-1111


GREATER   BALTIMORE    CENTER      FOR      PREGNANCY   CONCERNS,
INCORPORATED,

                Plaintiff – Appellee,

          and

ST. BRIGID’S ROMAN CATHOLIC CONGREGATION INCORPORATED;
ARCHBISHOP WILLIAM E. LORI, as successor to Archbishop
Edwin F. O’Brien, Archbishop of Baltimore, and his
successor in office, a corporation sole,

                Plaintiffs,

          v.

MAYOR AND CITY COUNCIL OF BALTIMORE; STEPHANIE RAWLINGS-
BLAKE, 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, Associate Professor Emeritus of Law,
University of Maryland School of Law; ERWIN CHEMERINSKY,
Dean and Distinguished Professor of Law, University of
California, Irvine School of Law; ROBERT J. CONDLIN,
Professor of Law, University of Maryland School of Law;
NORMAN DORSEN, Frederick I. and Grace A. Stokes Professor
of Law, New York University School of Law; LEIGH GOODMARK,
Associate Professor of Law, University of Baltimore School
of Law; STEVEN P. GROSSMAN, Dean Julius Isaacson Professor
of Law, University of Baltimore School of Law; MARTIN
GUGGENHEIM, Fiorello LaGuardia Professor of Clinical Law,
New York University School of Law; DEBORAH HELLMAN,
Professor of Law and Jacob France Research Professor,
University of Maryland School of Law; MARGARET E. JOHNSON,
Assistant Professor of Law, University of Baltimore School
of Law; KENNETH LASSON, Professor of Law, University of
Baltimore School of Law; SYLVIA A. LAW, Elizabeth K.
Dollard Professor of Law, Medicine and Psychiatry, New York
University School of Law; SUSAN PAULA LEVITON, Professor of
Law,   University   of   Maryland    School of   Law;   AUDREY
MCFARLANE, Professor of Law, University of Baltimore School
of Law; PAULA A. MONOPOLI, Professor of Law, University of
Maryland School of Law; BURT NEUBORNE, Inez Milholland
Professor of Civil Liberties, New York University School of
Law; JOHN T. NOCKLEBY, Professor of Law, Loyola Law School;
HELEN L. NORTON, Associate Professor of Law, University of
Colorado School of Law; DAVID A.J. RICHARDS, Edwin D. Webb
Professor of Law, New York University School of Law;
ELIZABETH J. SAMUELS, Professor of Law, University of
Baltimore School of Law; ELIZABETH M. SCHNEIDER, Rose L.
Hoffer Professor of Law, Brooklyn Law School; JANA B.
SINGER, Professor of Law, University of Maryland School of
Law; BARBARA ANN WHITE, Professor of Law, University of
Baltimore School of Law; TOBIAS BARRINGTON WOLFF, Professor
of Law, University of Pennsylvania Law School; DIANE L.
ZIMMERMAN, Samuel Tilden Professor of Law Emerita, New York
University 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   HEALTH    ACCESS; NADINE    PEACOCK;
PHYSICIANS FOR REPRODUCTIVE CHOICE AND HEALTH; MARK SEIGEL;
LAURIE SCHWAB ZABIN; EVA MOORE; 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; 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

                                 2
MARYLAND, INCORPORATED; HUMAN RIGHTS   WATCH;   SUSAN   DELLER
ROSS, Professor; ELIJAH CUMMINGS,

              Amici Supporting Appellants,

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; 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, 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; LYNN
D. WARDLE, Bruce C. Hafen Professor of Law, J. Reuben Clark
Law School, Brigham Young University; THE NATIONAL LEGAL
FOUNDATION,

                               3
                Amici Supporting Appellees.



                              No. 11-1185


ST. BRIGID’S ROMAN CATHOLIC CONGREGATION INCORPORATED;
ARCHBISHOP WILLIAM E. LORI, as successor to Archbishop
Edwin F. O’Brien, Archbishop of Baltimore, and his
successor in office, a corporation sole,

                Plaintiffs – Appellants,

          and

GREATER   BALTIMORE    CENTER      FOR      PREGNANCY   CONCERNS,
INCORPORATED,

                Plaintiff,

          v.

MAYOR AND CITY COUNCIL OF BALTIMORE; STEPHANIE RAWLINGS-
BLAKE, Mayor of Baltimore, in her Official Capacity; OXIRIS
BARBOT, Baltimore City Health Commissioner,

                Defendants – Appellees,

          and

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

                                   4
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; 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; 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; THE NATIONAL LEGAL FOUNDATION,

               Amici Supporting Appellants,

TAUNYA LOVELL BANKS, Jacob A. France Professor of Equality
Jurisprudence, University of Maryland School of Law; C.
CHRISTOPHER BROWN, Associate Professor Emeritus of Law,
University of Maryland School of Law; ERWIN CHEMERINSKY,
Dean and Distinguished Professor of Law, University of
California, Irvine School of Law; ROBERT J. CONDLIN,
Professor of Law, University of Maryland School of Law;
NORMAN DORSEN, Frederick I. and Grace A. Stokes Professor
of Law, New York University School of Law; LEIGH GOODMARK,
Associate Professor of Law, University of Baltimore School
of Law; STEVEN P. GROSSMAN, Dean Julius Isaacson Professor

                                 5
of Law, University of Baltimore School of Law; MARTIN
GUGGENHEIM, Fiorello LaGuardia Professor of Clinical Law,
New York University School of Law; DEBORAH HELLMAN,
Professor of Law and Jacob France Research Professor,
University of Maryland School of Law; MARGARET E. JOHNSON,
Assistant Professor of Law, University of Baltimore School
of Law; KENNETH LASSON, Professor of Law, University of
Baltimore School of Law; SUSAN PAULA LEVITON, Professor of
Law, University of Maryland School of Law; SYLVIA A. LAW,
Elizabeth K. Dollard Professor of Law, Medicine and
Psychiatry, New York University School of Law; AUDREY
MCFARLANE, Professor of Law, University of Baltimore School
of Law; PAULA A. MONOPOLI, Professor of Law, University of
Maryland School of Law; BURT NEUBORNE, Inez Milholland
Professor of Civil Liberties, New York University School of
Law; JOHN T. NOCKLEBY, Professor of Law, Loyola Law School;
HELEN L. NORTON, Associate Professor of Law, University of
Colorado School of Law; DAVID A.J. RICHARDS, Edwin D. Webb
Professor of Law, New York University School of Law;
ELIZABETH M. SCHNEIDER, Rose L. Hoffer Professor of Law,
Brooklyn Law School; ELIZABETH J. SAMUELS, Professor of
Law, University of Baltimore School of Law; JANA B. SINGER,
Professor of Law, University of Maryland School of Law;
BARBARA ANN WHITE, Professor of Law, University of
Baltimore School of Law; TOBIAS BARRINGTON WOLFF, Professor
of Law, University of Pennsylvania Law School; DIANE L.
ZIMMERMAN, Samuel Tilden Professor of Law Emerita, New York
University School of Law; INTERNATIONAL MUNICIPAL LAWYERS
ASSOCIATION; AMERICAN MEDICAL WOMEN’S ASSOCIATION; MATERNAL
AND CHILD HEALTH ACCESS; PHYSICIANS FOR REPRODUCTIVE CHOICE
AND HEALTH; CHESAPEAKE REGIONAL CHAPTER OF THE SOCIETY FOR
ADOLESCENT HEALTH AND MEDICINE; ROBERT BLUM; WILLARD CATES,
JR.; ERIC LEVEY; NADINE PEACOCK; MARK SEIGEL; LAURIE SCHWAB
ZABIN; EVA MOORE; 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;
ELIJAH CUMMINGS,


                               6
                Amici Supporting Appellees.



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:   December 6, 2012                    Decided:   July 3, 2013


Before TRAXLER, Chief Judge, and WILKINSON, NIEMEYER, MOTZ,
KING, SHEDD, DUNCAN, AGEE, KEENAN, WYNN, FLOYD, and THACKER,
Circuit Judges.


No. 11-1111 vacated and remanded, and No. 11-1185 affirmed, by
published opinion.   Judge King wrote the majority opinion, in
which Chief Judge Traxler and Judges Motz, Duncan, Keenan, Wynn,
Floyd, and Thacker joined.    Judge Wilkinson wrote a dissenting
opinion.   Judge Niemeyer wrote a dissenting opinion, in which
Judges Wilkinson, Shedd, and Agee joined.


ARGUED: Suzanne Sangree, CITY OF BALTIMORE LAW DEPARTMENT,
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 William E. Lori.         ON
BRIEF: Stephanie Toti, 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 & BALLEW, 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 William E. Lori.      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,

                                 7
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
D. Schmidt, SIMPSON THACHER & BARTLETT LLP, Palo Alto,
California; Jayma M. Meyer, SIMPSON THACHER & BARTLETT 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, Lesley Fredin, WILMER CUTLER PICKERING
HALE AND DORR LLP, Washington, D.C., for Catholics for Choice,
DC Abortion Fund, Donna Edwards, Maryland Chapter for the
National Organization for Women, Naral Pro-Choice America, Naral
Pro-Choice Maryland, National Abortion Federation, National
Advocates for Pregnant Women, National Asian Pacific American
Women's Forum, Planned Parenthood of Maryland, Mike Quigley,
Religious Coalition for Reproductive Choice, Louise Slaughter,
Jackie Speier, Whole Woman’s Health of Baltimore, Women's Law
Center of Maryland, Incorporated, Elijah Cummings, 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 R.
Franzonello, Mailee R. Smith, Mary E. Harned, Denise M. Burke,
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 William E. Lori.        Colby M. May, James
Matthew Henderson, Sr., Tiffany N. Barrans, AMERICAN CENTER FOR
LAW & JUSTICE, Washington, D.C.; Cecilia N. Heil, Erik M.
Zimmerman, AMERICAN CENTER FOR LAW & JUSTICE, Virginia Beach,
Virginia; Carly F. Gammill, AMERICAN CENTER FOR LAW & JUSTICE,
Franklin, Tennessee, 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 William E. Lori. Matthew

                                  8
S. Bowman, ALLIANCE DEFENDING FREEDOM, 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 William E. Lori.         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 William E. Lori.       Steven
W. Fitschen, THE NATIONAL LEGAL FOUNDATION, Virginia Beach,
Virginia; John P. Tuskey, BINGHAM AND LOUGHLIN, P.C., Mishawaka,
Indiana, for The National Legal Foundation, Amicus Curiae in
Support of Greater Baltimore Center for Pregnancy Concerns,
Incorporated,   St.   Brigid’s    Roman    Catholic    Congregation,
Incorporated, Archbishop William E. Lori.




                                 9
KING, Circuit Judge:

      Invoking the First Amendment, the district court fully and

permanently       enjoined       enforcement       of     a     City    of     Baltimore

Ordinance    requiring      limited-service        pregnancy       centers      to    post

disclaimers       that   they     do   not    provide     or    make   referrals       for

abortions    or    certain       birth-control     services.           The    injunction

emanated from the court’s award of summary judgment to plaintiff

Greater Baltimore Center for Pregnancy Concerns, Incorporated,

on its claim that the Ordinance is facially invalid under the

Free Speech Clause.         See O’Brien v. Mayor of Balt., 768 F. Supp.

2d 804, 812-17 (D. Md. 2011).                 Crucially, however, the summary

judgment decision was laden with error, in that the court denied

the   defendants        essential      discovery    and       otherwise      disregarded

basic     rules    of    civil    procedure.        We        therefore      vacate    the

judgment and remand for further proceedings, without comment on

how this matter ultimately should be resolved. 1


      1
       To be clear, we vacate and remand in the appeal (No. 11-
1111) noted by defendants Mayor and City Council of Baltimore;
Stephanie Rawlings-Blake, in her official capacity as Mayor of
Baltimore; and Oxiris Barbot, in her official capacity as
Baltimore City Health Commissioner. We affirm, however, in the
cross-appeal (No. 11-1185) of St. Brigid’s Roman Catholic
Congregation Incorporated and Archbishop William E. Lori,
contesting the district court’s ruling that they lack standing
to be co-plaintiffs with the Greater Baltimore Center for
Pregnancy Concerns. See O’Brien, 768 F. Supp. 2d at 811-12. On
initial review by a three-judge panel of our Court, the majority
affirmed both the district court’s summary judgment decision and
its standing ruling.     See Greater Balt. Ctr. for Pregnancy
(Continued)
                                             10
                                       I.

                                       A.

      The challenged Ordinance — City of Baltimore Ordinance 09-

252 — was passed by the City Council on November 23, 2009, and

approved by the Mayor on December 4, 2009.              See J.A. 25-28. 2    The

Ordinance applies to limited-service pregnancy centers, defined

as “any person”:

      (1)   whose primary purpose           is   to   provide   pregnancy-
            related 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.

Id.   at    25-26.       Under   the   Ordinance,       “[a]    limited-service

pregnancy center must provide its clients and potential clients



Concerns,   Inc. v. Mayor of Balt., 683 F.3d 539 (4th Cir. 2012).
The panel    opinion was subsequently vacated, however, with the
grant of     rehearing en banc.     See Greater Balt. Ctr. for
Pregnancy   Concerns, Inc. v. Mayor of Balt., No. 11-1111(L) (4th
Cir. Aug.   15, 2012).
      2
       Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in these appeals.



                                       11
with a disclaimer substantially to the effect that the center

does not provide or make referral for abortion or birth-control

services.”          Id. at 26.        The disclaimer is to be given by way of

one or more signs that are “written in English and Spanish,”

“easily       readable,”       and    “conspicuously     posted    in    the     center’s

waiting room or other area where individuals await service.”

Id.

       By an implementing Regulation of the Baltimore City Health

Department,           nondirective        and       comprehensive       birth-control

services are defined as “birth-control services which only a

licensed healthcare professional may prescribe or provide.”                            See

J.A.       39-40. 3     The    Regulation       specifies   that,       if   a   “center

provides       or     refers    for    some   birth-control       services,       it   may

indicate on the disclaimer sign what birth-control services it

does provide and/or refer for.”                    Id. at 40.     Additionally, the

Regulation authorizes a center to “indicate on the disclaimer

sign that the sign is required by Baltimore City ordinance.”

Id.


       3
       The Joint Appendix contains the original version of the
Regulation, adopted on July 15, 2010, which indicated that
nondirective and comprehensive birth-control services “may also
include other birth-control services.” J.A. 39. That language
was deleted from the Regulation on September 27, 2010, after
being deemed problematic in the course of this litigation.
Otherwise, there are no substantive differences between the
original and superseding versions of the Regulation.



                                              12
      The    Ordinance      vests      enforcement         powers     in    the   Baltimore

City Health Commissioner, who, upon “learn[ing] that a pregnancy

center     is    in    violation       of    [the      Ordinance],”        must   “issue      a

written     notice      ordering       the    center      to    correct     the   violation

within 10 days of the notice or within any longer period that

the Commissioner specifies in the notice.”                             J.A. 26.            If a

center fails to comply with a violation notice, the Commissioner

may issue an environmental or a civil citation pursuant to the

Baltimore City Code.              Id. at 27.             The Commissioner may also

“pursu[e]       any    other   civil        or    criminal      remedy     or   enforcement

action authorized by law.”              Id.

                                                 B.

      This       42     U.S.C.      § 1983            action     —    challenging           the

constitutionality         of     the    Ordinance         —     was   initiated       in    the

District of Maryland on March 29, 2010, by the Greater Baltimore

Center for Pregnancy Concerns (the “Center”), together with St.

Brigid’s Roman Catholic Congregation and then-Archbishop Edwin

F. O’Brien.           The plaintiffs’ Complaint names as defendants the

Mayor and City Council of Baltimore; Stephanie Rawlings-Blake,

in   her    official      capacity      as       Mayor    of    Baltimore;      and   Olivia

Farrow, in her official capacity as then-Acting Baltimore City

Health Commissioner (collectively, the “City”).                            Since then, two

of the parties have been succeeded:                            now-Cardinal O’Brien by



                                                 13
Archbishop William E. Lori, and Farrow by Baltimore City Health

Commissioner Oxiris Barbot. 4

                                       1.

       The Complaint reflects that the Center qualifies under the

Ordinance as a limited-service pregnancy center, in that it “has

as its primary purpose providing pregnancy-related services and

provides information about pregnancy-related services as a free

service”; “does not refer for or provide abortions”; and “does

not refer for, or provide information regarding birth control,

other than natural family planning and abstinence.”                  Complaint

¶¶ 25-26.       The Center offers pregnancy-related services at two

locations in Baltimore, including a space owned by St. Brigid’s

and    the    Archbishop.      Id.   ¶¶ 10,    16-18.       According   to   the

Complaint, the plaintiffs share sincerely held religious beliefs

that cause them to oppose abortion and certain forms of birth

control.       Id. ¶¶ 40-41, 43-44.         The Complaint alleges that the

Ordinance violates the First Amendment rights of free speech,

free       assembly,   and   free    exercise      of   religion,    plus    the

Fourteenth       Amendment     guarantee      of    equal     protection     and

Maryland’s      statutory    “conscience     clause,”   see   Md.   Code    Ann.,

       4
       The plaintiffs consented to dismiss without prejudice
their claims against an additional defendant, the Baltimore City
Health Department.   See O’Brien, 768 F. Supp. 2d at 808 n.5.
Meanwhile, the City voluntarily refrained from enforcing the
Ordinance prior to the entry of the district court’s judgment.



                                       14
Health-Gen.       § 20-214(a)(1)          (providing,       inter    alia,    that    “[a]

person may not be required to . . . refer to any source for[]

any    medical    procedure        that    results     in    . . .    termination        of

pregnancy”).       The Ordinance is attached to the Complaint as its

sole exhibit.

        On June 4, 2010, before the City even had answered the

Complaint and when there were four days remaining for it to do

so, the plaintiffs filed a motion for partial summary judgment

under     Rule    56   of     the    Federal     Rules        of    Civil     Procedure.

Specifically,       the     plaintiffs       sought     judgment      on     their    free

speech, free assembly, and equal protection claims, contending

that    the   Ordinance      is     unconstitutional         on     its    face    and   as

applied    to    them.       The     plaintiffs       insisted      that     the     strict

scrutiny standard applies and cannot be satisfied, because the

Ordinance     fosters       viewpoint      discrimination          against    what    they

termed    “pro-life       pregnancy       centers”    and    unjustifiably         compels

only those centers to engage in government-mandated speech.                              The

plaintiffs       portrayed     the    Ordinance-mandated            sign    as    ensuring

that every conversation at a limited-service pregnancy center

begins with the subject of abortion, and conveying the morally

offensive message that abortion is available elsewhere and might

be considered a good option.

       The plaintiffs supported their summary judgment motion with

an affidavit of Carol Clews, the Center’s Executive Director,

                                            15
corroborating     several         of    the        factual       allegations    in    the

Complaint.      See J.A. 29-31 (the “Clews Affidavit” of June 3,

2010).    The Clews Affidavit asserted that, “[i]f not required by

law,    the   Center   would      not    post       the    disclaimer    compelled     by

Baltimore City Ordinance 09-252.”                       Id. at 30.      The plaintiffs

also proffered an excerpt from the “Journal of the City Council”

reflecting that the Council rejected proposed amendments to the

Ordinance     aimed    at   expanding         its    disclosure      requirements      to,

e.g.,    pregnancy     centers         that    refer       for    abortions    but    not

adoptions.     Id. at 296-99.

       On June 8, 2010, the City filed a motion to dismiss the

Complaint in its entirety, pursuant to Federal Rule of Civil

Procedure     12(b)(6),     for     failure        to    state   a   claim   upon    which

relief can be granted, or alternatively to dismiss the claims of

St. Brigid’s and the Archbishop, under Rule 12(b)(1), for lack

of standing.     The City characterized the Ordinance as a consumer

protection regulation, referring to evidence in the Ordinance’s

legislative      record      showing          that       limited-service       pregnancy

centers often engage in deceptive advertising to attract women

seeking abortion and comprehensive birth-control services, and

then use delay tactics to impede the women from accessing those

services.       According      to      the    City,       limited-service      pregnancy

centers thereby pose a threat to public health, in that the

risks and costs of abortion increase as a woman advances through

                                              16
her pregnancy, and that delays in access to the birth control of

a woman’s choice can leave the woman vulnerable to unintended

pregnancy and sexually transmitted diseases.

      The    parties’       respective    dispositive        motions    prompted   the

district court to enter a Scheduling Order specifying deadlines

for   further       related      submissions.          In    compliance     with   the

Scheduling Order, the plaintiffs filed a response to the City’s

motion to dismiss on July 2, 2010; the City submitted a reply

concerning its dismissal motion, combined with a response to the

plaintiffs’ motion for summary judgment, on July 16, 2010; and

the   plaintiffs      filed      a   reply    with    respect    to    their   summary

judgment motion on July 23, 2010.

                                             2.

                                             a.

      The City’s July 16, 2010 submission included four pieces of

evidence     from     the     Ordinance’s         legislative    record     that   had

previously been referenced in the City’s motion to dismiss.                        The

first such piece of evidence was a July 2006 report prepared for

Congressman     Henry       A.   Waxman      entitled       “False    and   Misleading

Health      Information       Provided       by    Federally     Funded      Pregnancy

Resource Centers.”           See J.A. 413-30 (the “Waxman Report”).                The

Waxman Report concerned pro-life pregnancy centers referred to

as “pregnancy resource centers,” and it recited, in pertinent

part, that

                                             17
     [p]regnancy resource centers often mask their pro-life
     mission in order to attract “abortion-vulnerable
     clients.” This can take the form of advertising under
     “abortion services” in the yellow pages or obscuring
     the fact that the center does not provide referrals to
     abortions in the text of an advertisement.          Some
     centers   purchase   advertising   on  internet   search
     engines under keywords that include “abortion” or
     “abortion clinics.”     Other advertisements represent
     that the center will provide pregnant teenagers and
     women with an understanding of all of their options.
     For example, “Option Line,” a joint venture of
     [national     umbrella      organizations]     Heartbeat
     International and Care Net, is a 24-hour telephone
     hotline that connects pregnant teenagers and women
     with pregnancy resource centers in their communities.
     The main page of Option Line’s website states at the
     top, “Pregnant?    Need Help?    You Have Options,” but
     does not reveal that both Heartbeat International and
     Care Net represent only pro-life centers or that only
     non-abortion options will be counseled.

Id. at 417-18 (footnotes omitted).   Otherwise, the Waxman Report

focused on information that was provided over the telephone by

federally funded pregnancy resource centers in fifteen states to

investigators posing as pregnant seventeen-year-old girls.

     The City’s second piece of evidence from the Ordinance’s

legislative history — a January 2008 report of the NARAL Pro-

Choice Maryland Fund entitled “The Truth Revealed:       Maryland

Crisis Pregnancy Center Investigations” — was premised on visits

by investigators to “crisis pregnancy centers” or “CPCs” all

located in Maryland.   See J.A. 326-412 (the “Maryland Report”).

The Maryland Report’s findings included the following:

     Maryland Crisis Pregnancy Centers attract clients with
     their advertisements offering free pregnancy tests and
     “pregnancy options counseling.”      This is a very

                               18
      appealing offer for women in a vulnerable time in
      their lives.    After providing free urine pregnancy
      tests (the kind available at any drug store), women
      are counseled with only negative information about the
      option of abortion.   They are given wildly inaccurate
      information about the physical and mental health risks
      associated with abortion, and informed only about the
      joys of parenting and adoption. If a client continues
      to consider abortion, she is given false information
      about abortion service availability and encouraged to
      delay her decision.   CPCs that offer ultrasounds and
      [sexually transmitted infection] testing are able to
      delay clients further through appointment wait times,
      while   also  gaining   a   sense   of  authority  and
      credibility in their client’s eyes as a medical
      service provider.     However, CPCs are not medical
      centers. They are operated by volunteers who are, in
      general, poorly trained in women’s reproductive health
      issues and well trained in anti-choice propaganda.

Id. at 334.

      The City’s third and fourth pieces of evidence from the

Ordinance’s legislative record consisted of written testimony.

Tori McReynolds recounted that, sixteen years earlier, when she

was   a   sixteen-year-old   girl   who    needed    to   know       if   she   was

pregnant, her mother arranged for her to visit a limited-service

pregnancy center in central Maryland that “was listed in the

phone book under ‘Abortion Counseling.’”                 J.A. 261 (emphasis

omitted).     McReynolds produced a urine sample for a pregnancy

test “and was told that it would take about 45 minutes to know

the result.”     Id.   During the waiting period, a woman at the

center subjected McReynolds to anti-abortion propaganda.                        Id.

McReynolds    testified:     “I   felt    tricked;   I    was    a    frightened

teenager expecting a discussion about my options and instead I

                                    19
was bullied by an opinionated adult twice my age.          . . .   Had my

mother and I seen a sign at that reception desk informing us

that we could not get referrals for abortion or birth control,

we would have simply moved on.”       Id.

      Dr.   Jodi   Kelber-Kaye   of    the   University    of   Maryland,

Baltimore County, testified that, “[a]s an educator of college-

aged women,” she had “heard countless stories from students who

go [to limited-service pregnancy centers], assuming they will

get a full range of services and counseling and wind up feeling

harassed, coerced, and misinformed.”         J.A. 273.    Dr. Kelber-Kaye

also said she was “distressed by the existence of centers that,

on purpose, appear to be medical facilities and are not staffed

by licensed medical personnel, nor even licensed counselors.”

Id.   “Simply put,” Kelber-Kaye concluded, “there should be truth

in advertising and, like all consumer products, limited-service

pregnancy centers need to be kept honest about what services

they actually provide.”    Id.

                                  b.

      In addition to discussing the foregoing evidence, the City

asserted in its July 16, 2010 submission that the plaintiffs’

summary judgment request was premature, in that the City had not

been afforded the opportunity to conduct discovery or to fully




                                  20
develop   expert     testimony    on    key    factual   issues. 5         The   City

contended that discovery was needed to test the veracity of the

plaintiffs’       allegations    and   to     develop    evidence     tending      to

refute their claims.         Pursuant to former Rule 56(f), the City

submitted    an     affidavit    of    Special      Assistant   City       Solicitor

Stephanie Toti, identifying issues that required discovery.                       See

J.A. 41-43 (the “Rule 56(f) Affidavit” of July 16, 2010); see

also Fed. R. Civ. P. 56(f) (2010) (providing that, “[i]f a party

opposing the motion [for summary judgment] shows by affidavit

that, for specified reasons, it cannot present facts essential

to justify its opposition, the court may,” inter alia, “deny the

motion” or “order a continuance to enable . . . discovery to be

undertaken”). 6

      The Rule 56(f) Affidavit specified that the City needed “to

conduct     discovery       concerning        the     advertising      that       the

[plaintiff] Center and other limited-service pregnancy centers

employ, [to] demonstrate its deceptive character.”                         J.A. 42.

The   Affidavit      also   deemed     discovery      necessary      “to     develop


      5
        In accordance with Federal Rule of Civil Procedure
26(d)(1), the City was constrained to respond to the plaintiffs’
summary judgment motion without the benefit of discovery because
the parties had not yet conferred as required by Rule 26(f).
      6
       By amendment that took effect on December 1, 2010, former
Rule 56(f) was carried forward into subdivision (d) without
substantial change.



                                        21
factual     support     for   [the     City’s]      argument       that     the    services

offered by [the Center] are a form of commerce, and, therefore,

the disclaimer required by the Ordinance is commercial speech,

subject only to rational basis scrutiny — not strict scrutiny.”

Id.     Additionally,         the    Affidavit        maintained         that     the   City

“require[d]      the     opportunity       to      develop    expert       testimony       to

provide     factual     support      for     the    propositions         that     deceptive

advertising      by     limited-service            pregnancy       centers        threatens

public health in a variety of ways.”                    Id. at 41.         The Affidavit

explained that one potential expert, Dr. Laurie Schwab Zabin,

had “agreed to provide [the City] with a declaration detailing

the   harms    that    can    result      from     delays    in    women’s        access   to

abortion or comprehensive birth control services.”                              Id. at 42.

Dr. Zabin had not completed her declaration, however, and was

then abroad on vacation.            Id.

      The     Rule    56(f)   Affidavit       further       disclosed       that    another

potential      expert,     Dr.      Robert      Blum,   had       already       provided    a

declaration to the City, which the City in turn included in its

July 16, 2010 submission to the district court.                           See J.A. 44-46

(the “Blum Affidavit” of June 17, 2010).                      In his Affidavit, Dr.

Blum, the Director of the Johns Hopkins University Urban Health

Institute,      confirmed     that     “[p]ublic        health      is    advanced      when

individuals are provided with complete and accurate information

about their health care options and the availability of health

                                             22
care services.        This is especially true for women who are facing

unintended pregnancies or seeking to control their fertility.”

Id. at 45.        The Blum Affidavit elaborated:

       Women seeking family planning services or pregnancy-
       related care are at a disadvantage relative to service
       providers in two ways.   First, providers possess more
       information than consumers. Second, providers possess
       more power than consumers.        As a result, full
       disclosure of what services a provider is offering, as
       well as what biases underlie the provision of those
       services, is needed to ensure that consumers are not
       deceived or taken advantage of; consumers are able to
       make fully informed, autonomous decisions about family
       planning or pregnancy-related care; and consumers have
       timely access to the services they seek.

Id. at 45-46.         According to the Blum Affidavit, the Ordinance

“serves     important     public    health      goals”    by   “provid[ing]       women

with key information they need to make decisions about where to

go    for   reproductive        health    care.”        Id.    at   45.     The    City

indicated that the Blum Affidavit was representative of evidence

it sought to develop during discovery proceedings.

                                           3.

       The state of the evidentiary record was discussed during a

motions hearing conducted by the district court on August 4,

2010.       See    J.A.   47-141.        The    City    reiterated    its   need   for

discovery to counter the plaintiffs’ summary judgment motion,

and   it    requested     the    opportunity       to    submit     the   Ordinance’s

entire legislative record so that the court could “review all of




                                           23
it and not just the portions that” were included in the City’s

submission of July 16, 2010.        Id. at 127.

       For their part, the plaintiffs maintained that no discovery

was warranted, in that the district court could apply strict

scrutiny and “strike [the Ordinance] down on its face.”                    J.A.

90.      In that regard, the plaintiffs asserted that the court

could “very clearly rule as a facial matter,” looking solely to

the Ordinance, its legislative history, and the pertinent case

law.     Id.    According to the plaintiffs, the court would need to

consider their as-applied challenge only if it rejected their

facial       challenge,    and    even    then       discovery     could     be

circumscribed.      See id. at 90-92 (explaining that the breadth of

any discovery, including discovery into the plaintiff Center’s

operations, “might depend on how wide [the court] feels [the

Ordinance is] not facially invalid”).

       The     district   court   indicated    its     agreement   with    the

plaintiffs that discovery was unnecessary for a facial review of

the Ordinance.        See J.A. 108.       The court assured the City,

however, that discovery would be authorized before the court

engaged in any as-applied analysis.           Id. at 130.    In the court’s

words, “if what [the Center] did is relevant in this case [the

City] will have the discovery . . . .                But . . . I don’t see

where we would advance the ball one way or the other on the



                                     24
facial challenge by knowing what these particular people did.”

Id.

      Following         the     motions        hearing,      the        City     filed     the

Ordinance’s          entire     legislative           record,      including           written

opinions provided to the City Council by the City Solicitor and

Acting     Health      Commissioner          prior    to   the    Ordinance’s          passage

vouching       for    its     legality       and     efficacy.          See     J.A.    207-08

(October 23, 2009 letter from City Solicitor George A. Nilson

advising       that,     because       the     Ordinance     “merely           requires    the

disclosure of truthful, non-misleading information relevant to a

woman’s decision to seek services at a particular location[, it]

does not violate the 1st Amendment right to freedom of speech”);

id.   at      209    (October     21,    2009        memorandum     of     Acting      Health

Commissioner Olivia D. Farrow supporting the Ordinance because

“[i]t    is    imperative       that     all    Baltimore        City    women     have   the

ability to obtain factual and timely advice on all available

health care options”).             Meanwhile, in response to the district

court’s inquiry during the motions hearing about whether the

plaintiffs might ever refer for abortion (e.g., in the case of

incest), the plaintiffs submitted an official statement of the

Catholic Church “affirm[ing] the moral evil of every procured

abortion.”          Id. at 178.    The court thereafter issued its summary

judgment decision and permanent injunction without allowing the

City any discovery.

                                               25
                                             C.

                                             1.

       By its summary judgment decision of January 28, 2011, the

district court determined that, because the City had submitted

and relied upon materials beyond the plaintiffs’ Complaint —

i.e.,      the    legislative       record        of     the     Ordinance      —     it   was

appropriate to treat the City’s motion to dismiss as a cross-

motion for summary judgment.                 See O’Brien, 768 F. Supp. 2d at

809-10 (citing Fed. R. Civ. P. 12(d) (“If, on a motion under

Rule    12(b)(6)       . . . ,       matters           outside     the    pleadings        are

presented to and not excluded by the court, the motion must be

treated as one for summary judgment under Rule 56.”)).                                     The

court      then     rebuffed        the     City’s        request        for        discovery,

characterizing         it     as     an     improper           “attempt        to     generate

justifications for the Ordinance following its enactment.”                                 Id.

at 810 (citing United States v. Virginia, 518 U.S. 515, 533

(1996)).         In the court’s view, its duty was to “examine whether

the Ordinance, on its face, is subject to, and satisfies, the

applicable level of scrutiny” — an assessment confined to “the

evidence relied on by the Baltimore City Council at the time the

Ordinance was passed.”             Id.

       Focusing on the plaintiffs’ free speech claim and turning

to   the    question     of    the       applicable       standard       for    its    facial

review, the district court rejected the City’s contention that

                                             26
rational      basis    scrutiny         applies      because         the    Ordinance       is

directed at misleading commercial speech.                        See O’Brien, 768 F.

Supp.   2d    at   813-14.        In    doing      so,   the    court      looked      to   the

specific      characteristics          of    the   plaintiff         Center,     which      the

court   referred      to   as     the   “CENTER.”         For     example,       the    court

observed that

      [t]he 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. 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.       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. at 813 (internal quotation marks omitted).                         The court deemed

it insignificant that “[t]he CENTER offers services that have

value in the commercial marketplace,” given that “the offering

of   free     services     such    as       pregnancy     tests      and    sonograms        in

furtherance of a religious mission fails to equate with engaging

in a commercial transaction.”                 Id. at 813-14 (footnote omitted).

Indeed,      the   court   likened       the    free     services      provided        by   the

Center with “sacramental wine, communion wafers, prayer beads,

[and] other objects with commercial value” offered by churches

to   their     congregants.            Id.    at   814.        Tying       the   former      to

commercial speech, the court warned, would “subject [the latter]

to diminished constitutional protection.”                      Id.


                                              27
       In    any    event,     the    district       court      concluded       that   strict

scrutiny would apply even if “the CENTER’s speech includes some

commercial         elements,”        because        any     commercial        speech       “‘is

inextricably         intertwined         with        otherwise          fully       protected

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

Nat’l   Fed’n       of   the     Blind   of    N.C.,       Inc.,   487       U.S.   781,     796

(1988)).          The court explained that “[t]he 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,” and that the presence of an Ordinance-mandated sign

(as “a stark and immediate statement about abortion and birth-

control”) would alter the course of the center’s communications

with its clients and prospective clients.                           Id.       “At the very

least,” according to the court, “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,     [the      CENTER’s]

delivery of fully protected speech.”                      Id.

       As    an    additional        reason    to    apply       strict      scrutiny,       the

district court declared that the City “enacted the Ordinance out

of   disagreement         with    Plaintiffs’        viewpoints         on    abortion       and

birth-control,”          thereby     engaging       in    “a    particularly        offensive

form    of   content-based         discrimination.”              See    O’Brien,       768    F.

Supp. 2d at 814-16 (citing Rosenberger v. Rector & Visitors of

                                              28
the Univ. of Va., 515 U.S. 819, 829 (1995) (“The government must

abstain   from      regulating       speech       when      the     specific       motivating

ideology or the opinion or perspective of the speaker is the

rationale for the restriction.”)).                         The court reasoned that,

because   “the   Ordinance       is       applicable         only    to    those       who   will

never provide or refer for abortion or [certain] birth-control

services,” it must have been discriminatorily aimed at “those

with strict moral or religious qualms regarding abortion and

birth-control.”         Id.     at    815.             Again   raising       the       specific

characteristics of the plaintiff Center, the court emphasized

that “[t]he 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.

      Applying      strict    scrutiny,          the       district       court    recognized

that the City was obliged to demonstrate that the Ordinance is

“‘narrowly    tailored         to     promote          a     compelling         [G]overnment

interest.’”      O’Brien, 768 F. Supp. 2d at 816 (quoting United

States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813 (2000)).

On the “compelling interest” question, the court noted that the

Ordinance’s    legislative          record       was    “uneven       when   demonstrating

the   depth   and    severity        of    the    problem         relating        to   limited-

service   pregnancy      centers          and     deceptive         advertising.”            Id.

Nevertheless, the court “assume[d], for purposes of discussion,

                                             29
that    the       Ordinance     was     enacted       in    response         to    a    compelling

governmental interest.”                 Id. at 817.               Such an assumption was

appropriate         because     the     court        concluded      that      “the          Ordinance

falls    considerably         short      of     meeting      the     ‘narrowly              tailored’

standard.”         Id.

       There were two grounds for the district court’s ruling on

the    narrow      tailoring      issue.         First,      “the       Ordinance            does   not

provide       a     ‘carve-out’         provision          for     those      limited-service

pregnancy         centers       which     do     not       engage       in        any       deceptive

practices”;         rather,     “[t]he     disclaimer            requirement            is    imposed

irrespective         of   how    forthcoming          and    transparent            a       pregnancy

center    presents        itself.”        O’Brien,          768    F.    Supp.         2d    at     817.

Second, “[i]n lieu of the disclaimer mandate of the Ordinance,

[the City] could use or modify existing regulations governing

fraudulent advertising to combat deceptive advertising practices

by limited-service pregnancy centers,” or it “could enact a new

content-neutral             advertising               ordinance              applicable              to

noncommercial entities that directly ameliorate [its] concerns

regarding deceptive advertising.”                     Id.

       Having       resolved       that        the     Ordinance         is       not        narrowly

tailored, the district court summarized “that the Ordinance does

not meet the strict scrutiny standard,” and, thus, “Plaintiffs

are entitled to summary judgment with regard to their Freedom of



                                                30
Speech claim.”            O’Brien, 768 F. Supp. 2d at 817. 7                     The court

entered its permanent injunction three days later, prohibiting

“any action to enforce Baltimore City Ordinance 09-252” on the

premise that the Ordinance is facially unconstitutional.                                  See

O’Brien v. Mayor of Balt., No. 1:10-cv-00760 (D. Md. Jan. 31,

2011), ECF No. 35.

                                              2.

       Notably,      although       it    referred         throughout         its    summary

judgment         decision    to    the    claims          and     contentions       of    the

“Plaintiffs,” the district court ruled early therein that St.

Brigid’s and the Archbishop lack standing to be co-plaintiffs

with       the   Center.     See    O’Brien,        768    F.    Supp.   2d    at    811-12.

Specifically, the court determined that St. Brigid’s and the

Archbishop        could     not    make       the   requisite         showing       of    “the

existence of a concrete and particularized injury in fact.”                               Id.

at 811 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560

(1992) (outlining the three elements of standing, including “an

injury in fact” that is “concrete and particularized,” as well

as “actual or imminent” (internal quotation marks omitted))).

The    court      explained       that    —    because          St.   Brigid’s      and    the

       7
       In view of its summary judgment award on the free speech
claim, the district court deemed the Complaint’s other claims to
be moot and dismissed them without prejudice. See O’Brien, 768
F. Supp. 2d at 817-18 (addressing free assembly, free exercise,
equal protection, and Maryland conscience clause claims).



                                              31
Archbishop simply allow the Center to use a portion of their

facilities free of charge, and do not themselves operate any

limited-service         pregnancy      center       —    they      are   not    subject     to

either the requirements or penalties set forth in the Ordinance.

Id.      Moreover,       the   court     found        “speculative,        at    best,     the

contention that a sign required by the Ordinance on the CENTER’s

wall     will    be     attributed       to     the     landlord.”             Id.    at   812

(elaborating that “the sign refers to the services provided by

the CENTER and would have no reference to the owner of the

building in which the CENTER operates”).

       Accordingly, the district court granted in part the City’s

dismissal motion, dismissing the claims made by St. Brigid’s and

the Archbishop for lack of standing.                     See O’Brien, 768 F. Supp.

2d at 812.       Nevertheless, the court permitted St. Brigid’s and

the    Archbishop       to   participate        in      the   proceedings        as    amicus

curiae     and        persisted     in        referring       to     the       “Plaintiffs”

collectively.         Id.

                                               D.

       The parties timely noted these cross-appeals, invoking our

jurisdiction under 28 U.S.C. § 1291.                     As explained below, in the

City’s    appeal,       we   vacate      the    district        court’s    judgment        and

remand for further proceedings on the claims asserted by the

Center.     In the cross-appeal of St. Brigid’s and the Archbishop,



                                               32
we affirm the court’s dismissal of their claims for lack of

standing.



                                          II.

        The City points to a multitude of flaws in the summary

judgment decision, going so far as to contend that we should

direct a final judgment in the City’s favor.                     We refrain today

from    evaluating    the      ultimate    merits     of   the   Center’s     claims,

however, focusing instead on the preliminary errors made by the

district court as it rushed to summary judgment.                       Those errors

include the court’s denial to the City of essential discovery,

its refusal to view in the City’s favor what evidence there is,

and its verboten factual findings, many premised on nothing more

than its own supposition.            In these circumstances, it is fitting

to simply vacate and remand for properly conducted proceedings.

                                           A.

       Chief among its errors was the district court’s award of

summary judgment to the Center without allowing the City any

discovery.     As     a   general     proposition,         “summary    judgment    is

appropriate only after ‘adequate time for discovery.’”                      Evans v.

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

1996)    (quoting    Celotex      Corp.    v.     Catrett,    477   U.S.   317,   322

(1986)).      Discovery         is   usually       essential     in    a   contested

proceeding    prior       to     summary        judgment     because   “[a]    party

                                           33
asserting that a fact . . . is genuinely disputed must support

the assertion by,” inter alia, “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.”        Fed. R. Civ. P. 56(c)(1)(A).        Obviously, “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).               A district court therefore

“must refuse summary judgment ‘where the nonmoving party has not

had the opportunity to discover information that is essential to

[its] opposition.’”        Nader v. Blair, 549 F.3d 953, 961 (4th Cir.

2008)   (alteration       in   original)   (quoting   Anderson   v.   Liberty

Lobby, Inc., 477 U.S. 242, 250 n.5 (1986)).

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

of discovery prior to ruling on a summary judgment motion.                 See

Nguyen v. CNA Corp., 44 F.3d 234, 242 (4th Cir. 1995).                    “Of

course, a district court by definition abuses its discretion

when it makes an error of law.”            Rice v. Rivera, 617 F.3d 802,

811 (4th Cir. 2010) (internal quotation marks omitted).                  Here,

the district court’s rationale for denying the City its right to

discovery was patently erroneous.




                                      34
                                           1.

      The City took “the proper course” when it filed the Rule

56(f)    Affidavit,      “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 request 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.

      It is no justification for the district court’s denial of

discovery that the court first converted the City’s motion to

dismiss into a cross-motion for summary judgment.                            There are two

requirements for a proper Rule 12(d) conversion.                             The first is

that “all parties be given some indication by the court that it

is    treating    the     12(b)(6)       motion      as    a   motion         for    summary

judgment”; such notice exists, e.g., “[w]hen a party is aware

that material outside the pleadings is before the court.”                                Gay

v. Wall, 761 F.2d 175, 177 (4th Cir. 1985) (alterations and

internal      quotation       marks    omitted).          Here,   the        court   deemed

                                           35
conversion appropriate because the City had submitted and relied

upon    materials      that     the     court      believed         to    be     beyond        the

plaintiffs’         Complaint       —      specifically,            portions           of      the

legislative record of the Ordinance.                       The City had alerted the

court   to    precedent,        however,       that      “[f]or         purposes       of     Rule

12(b)(6),     the    legislative        history       of    an    ordinance           is    not    a

matter beyond the pleadings but is an adjunct to the ordinance

which   may    be    considered       by   the     court     as     a    matter       of     law.”

Anheuser-Busch, Inc. v. Schmoke, 63 F.3d 1305, 1312 (4th Cir.

1995), vacated on other grounds, 517 U.S. 1206, readopted with

modifications by 101 F.3d 325 (4th Cir. 1996).

       Even more damaging to the district court’s summary judgment

decision, the second requirement for proper conversion of a Rule

12(b)(6)      motion    is    that      the    parties       first        “be    afforded          a

reasonable opportunity for discovery.”                          Gay, 761 F.2d at 177

(internal     quotation       marks     omitted);          accord       E.I.     du    Pont       de

Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 450 (4th Cir.

2011)   (relying       on    Gay     for   conclusion            that,     because          record

indicated     that     parties     had     not     had     “opportunity          to        conduct

reasonable     discovery,”         court      would      have     erred     by     converting

dismissal motion to one for summary judgment).                                  Indeed, Rule

12(d) itself prescribes the same discovery required by our case

law.    See Fed. R. Civ. P. 12(d) (instructing that, when a Rule

12(b)(6) motion is treated as a summary judgment motion, “[a]ll

                                              36
parties must be given a reasonable opportunity to present all

the material that is pertinent to the motion”).

                                           2.

       Despite      the     foregoing     authorities,       the    district       court

denied the City discovery on the theory that, because the Center

was pursuing a facial challenge to the Ordinance, discovery was

not warranted.            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, or

that   the    [law]    lacks     any    plainly    legitimate      sweep.”     United

States v. Stevens, 130 S. Ct. 1577, 1587 (2010) (citations and

internal quotation marks omitted).                    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.”        Id.     (internal

quotation marks omitted).               In this case, however, the district

court did not fairly examine whether the Ordinance is invalid in

all or even a substantial number of its applications.                          Rather,

the district court merely accepted the Center’s description of

itself,      and   then     assumed     that    all   limited-service        pregnancy

centers share the Center’s self-described characteristics.

       In    effect,        by   focusing       almost      exclusively       on     the

Ordinance’s        application     to     the     Center,    the    district       court

                                           37
conducted an as-applied analysis, rather than a facial review.

But to properly employ an as-applied analysis, the court was

obliged to first afford the City discovery.                  See Richmond Med.

Ctr. for Women v. Herring, 570 F.3d 165, 172 (4th Cir. 2009) (en

banc) (explaining that as-applied challenges, i.e., those “based

on a developed factual record and the application of a statute

to a specific person,” entail “case-by-case analyses”).                        The

court acknowledged as much during its August 4, 2010 motions

hearing, when it recognized that discovery proceedings would be

necessary to properly evaluate an as-applied challenge to the

Ordinance.     See J.A. 130 (promising that “if what [the Center]

did   is   relevant    in     this   case     [the   City]     will    have    the

discovery”);     see   also    id.   at     127-28    (explaining      that    the

plaintiffs would not presently be entitled to summary judgment

“if I’m concerned about what their individual status is”).

      Furthermore, the City was also entitled to discovery as a

precursor to any true facial analysis.               In the circumstances of

the   Center’s   facial     challenge,      the   district    court    could   not

properly evaluate the Ordinance’s validity in all or most of its

applications     without      evidence       concerning      the      distinctive

characteristics of Baltimore’s various limited-service pregnancy

centers.     Cf. Free Speech Coal., Inc. v. Att’y Gen. of the U.S.,

677 F.3d 519, 538 (3d Cir. 2012) (concluding that the district

court erred in dismissing a First Amendment facial claim without

                                      38
the factual record needed to “intelligently weigh the legitimate

versus problematic applications of the [challenged statutes]”).

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

as-applied     —     the    court     abused     its   discretion      by    failing     to

recognize and honor the City’s right to discovery.

                                            3.

       The    district       court     further       abused     its    discretion       by

restricting        its      analysis      to     the    legislative         record      and

dismissing the City’s discovery request as a forbidden post-

enactment effort to justify the Ordinance.                      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        cannot    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 pre-enactment legislative record,” id., that simply is

not the case here.

                                            39
                                              B.

       In addition to indefensibly denying the City discovery, the

district court flouted the well-known and time-tested summary

judgment standard.               Under that standard, summary judgment is

appropriate        only    if,    as   Rule    56       is    currently       written,     “the

movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a).                 It is elementary that, when a court

considers a summary judgment motion, “[t]he evidence of the non-

movant is to be believed, and all justifiable inferences are to

be   drawn    in     his   favor.”         Liberty           Lobby,    477    U.S.   at    255.

Moreover,     “the    judge’s       function       is    not     himself      to   weigh    the

evidence and determine the truth of the matter but to determine

whether there is a genuine issue for trial.”                              Id. at 249; see

also Redd v. N.Y. State Div. of Parole, 678 F.3d 166, 174 (2d

Cir. 2012) (“The court’s role in deciding a motion for summary

judgment is to identify factual issues, not to resolve them.”

(emphasis and internal quotation marks omitted)); PHP Healthcare

Corp. v. EMSA Ltd. P’ship, 14 F.3d 941, 944 n.3 (4th Cir. 1993)

(“By   definition,         no    findings     of    material          facts   that   were    in

genuine      issue    are       possible      in    granting          summary      judgment.”

(internal quotation marks omitted)).

       We review an award of summary judgment de novo, guided by

the same legal principles that were applicable below.                                See News

                                              40
& Observer Publ’g Co. v. Raleigh-Durham Airport Auth., 597 F.3d

570, 576 (4th Cir. 2010).             Heeding those principles, we conclude

that summary judgment was inappropriate on the present record.

                                             1.

      The district court’s denial of discovery and failure to

adhere to the summary judgment standard marred its assessment

of, inter alia, the City’s contention that the Ordinance targets

misleading commercial speech and thus is subject to rational

basis (rather than strict) scrutiny.                     While the strict scrutiny

standard      generally         applies      to        content-based        regulations,

including compelled speech, see Turner Broad. Sys., Inc. v. FCC,

512   U.S.    622,   641-42      (1994),      less-demanding          standards        apply

where   the     speech      at       issue        is    commercial.            Disclosure

requirements     aimed     at    misleading        commercial       speech      need    only

survive rational basis scrutiny, by being “reasonably related to

the   State’s    interest       in   preventing          deception     of      consumers.”

Zauderer v. Office of Disciplinary Counsel of the Supreme Court,

471 U.S. 626, 651 (1985) (explaining that, “because disclosure

requirements     trench      much     more        narrowly     on    an     advertiser’s

interests     than   do    flat      prohibitions         on   speech,      warnings     or

disclaimers     might      be     appropriately           required        in    order     to

dissipate the possibility of consumer confusion or deception”

(alterations     and      internal     quotation         marks      omitted));      accord



                                             41
Milavetz, Gallop & Milavetz, P.A. v. United States, 130 S. Ct.

1324, 1339-40 (2010). 8

                                   a.

     Although   it   may   not   ultimately   prove   meritorious,   the

City’s commercial speech theory should not have been so easily

dismissed by the district court.        Under that theory, a limited-

service pregnancy center

     proposes a commercial transaction every time it offers
     to provide commercially valuable goods and services,
     such as pregnancy testing, sonograms, or options
     counseling, to a consumer. Such an offer may take the
     form of an advertisement in the phone book, on the
     internet, or on a sign above the [center’s] door. It
     may also take the form of an oral solicitation from a
     [center] staff member to a consumer. The City Council
     received evidence that many [centers] intentionally
     mislead consumers about the scope of services they
     offer to obtain the patronage of those seeking
     abortion and comprehensive birth control services.
     The Ordinance regulates a [center’s] offer to provide
     services to consumers by making clear that the offer
     does not include abortion and comprehensive birth
     control services.

Reply Br. of Appellants 9-10 (citations omitted).

     8
        While   disclosure  requirements  aimed   at   misleading
commercial speech are subject to the rational basis test,
“restrictions on nonmisleading commercial speech regarding
lawful activity must withstand intermediate scrutiny — that is,
they must ‘directly advanc[e]’ a substantial governmental
interest and be ‘n[o] more extensive than is necessary to serve
that interest.’”   Milavetz, 130 S. Ct. at 1339 (alterations in
original) (quoting Cent. Hudson Gas & Elec. Corp. v. Pub. Serv.
Comm’n of N.Y., 447 U.S. 557, 566 (1980)).      Because the City
contends that the Ordinance regulates misleading commercial
speech, our focus is on the potential applicability of rational
basis scrutiny.



                                   42
       The    threshold       question       presented       is    whether     the    speech

regulated       by    the     Ordinance         is   actually       commercial.           That

analysis      is     fact-driven,      due      to   the   inherent       “difficulty       of

drawing bright lines that will clearly cabin commercial speech

in a distinct category.”                See City of Cincinnati v. Discovery

Network, Inc., 507 U.S. 410, 419 (1993).                           On one occasion, in

Central Hudson Gas & Electric Corp. v. Public Service Commission

of    New    York,    the    Supreme     Court       defined      commercial    speech      as

“expression        related     solely      to    the   economic       interests      of    the

speaker and its audience.”                 447 U.S. 557, 561 (1980).                 But the

Court has noted that commercial speech is “usually defined as

speech that does no more than propose a commercial transaction.”

United States v. United Foods, Inc., 533 U.S. 405, 409 (2001);

see also Bd. of Trs. of the State Univ. of N.Y. v. Fox, 492 U.S.

469,        473-74     (1989)     (pronouncing             “propose       a     commercial

transaction” to be “the test for identifying commercial speech”

(emphasis added)).            The Court has also described the proposal of

a    commercial       transaction      —     e.g.,     “‘I     will    sell    you    the    X

prescription drug at the Y price,’” Va. State Bd. of Pharmacy v.

Va. Citizens Consumer Council, 425 U.S. 748, 761 (1976) — as

“the core notion of commercial speech.”                        Bolger v. Youngs Drug

Prods. Corp., 463 U.S. 60, 66 (1983).                          The City insists that

limited-service           pregnancy     center       advertising      easily     satisfies

the    “propose       a     commercial     transaction”           test.       See    Br.    of

                                                43
Appellants 22 (“When a [center] proposes that a woman patronize

its    establishment       for     the    purpose      of    obtaining         commercially

valuable     goods     and       services[,]        . . .        it     is     proposing       a

commercial transaction.”).

       Nevertheless,       even    where      speech    “cannot         be     characterized

merely as proposals to engage in commercial transactions,” the

speech may     yet    be    deemed       commercial;        in    that       event,    “proper

classification       as     commercial        or    noncommercial             speech        . . .

presents a closer question.”                 Bolger, 463 U.S. at 66; see also

Adventure Commc’ns, Inc. v. Ky. Registry of Election Fin., 191

F.3d 429, 440 (4th Cir. 1999) (“In the abstract, the definition

of commercial speech appears to be fairly straightforward, if

somewhat    circular:         it    is    speech    that     proposes          a   commercial

transaction.          In     practice,        however,           application          of    this

definition     is    not     always      a    simple    matter.”          (citations          and

internal     quotation      marks     omitted)).            From       Bolger,       courts    of

appeals     have    gleaned      “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.”          U.S. Healthcare, Inc. v. Blue Cross of Greater

Phila., 898 F.2d 914, 933 (3d Cir. 1990) (citing Bolger, 463

U.S.   at   66-67);    accord,       e.g.,     Spirit       Airlines,         Inc.     v.    U.S.

Dep’t of Transp., 687 F.3d 403, 412 (D.C. Cir. 2012); United

                                             44
States v. Benson, 561 F.3d 718, 725 (7th Cir. 2009); Adventure

Commc’ns, 191 F.3d at 440-41.            While “[t]he combination of all

these   characteristics       . . .    provides      strong    support   for    the

. . .   conclusion     that    [speech    is]    properly      characterized     as

commercial speech,” Bolger, 463 U.S. at 67, it is not necessary

that each of the characteristics “be present in order for speech

to be commercial,” id. at 67 n.14.

     Here, the district court abruptly concluded, “[u]nder both

Bolger and Central Hudson,” that “the speech regulated by the

Ordinance is not commercial speech.”                 O’Brien, 768 F. Supp. 2d

at 813.      Focusing on the plaintiff Center, the court reasoned

that “[t]he 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.”     Id.     Rather, the court determined, “[t]he 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. (citing official

statement of Catholic Church).

     Ruling    thusly,   the       district   court    accepted    as    fact   the

Center’s assertion that its motives are entirely religious or

political.     But that assertion was not at all undisputed.                Thus,

discovery is needed to substantiate, inter alia, whether the

Center possesses economic interests apart from its ideological

                                        45
motivations.      Such discovery is “especially important” where, as

here, “the relevant facts are exclusively in the control of the

[summary judgment movant]” or the “case involves complex factual

questions about intent and motive.”           See Harrods Ltd., 302 F.3d

at 247. 9

     In any event, the potential commercial nature of speech

does not hinge solely on whether the Center has an economic

motive,     as   even   Bolger   does   not   preclude   classification   of

speech as commercial in the absence of the speaker’s economic

motivation.       See 463 U.S. at 67 n.14.         Because the Ordinance

compels a disclaimer, the “lodestars in deciding what level of

scrutiny to apply . . . must be the nature of the speech taken


     9
       Even though the Center has averred that it does not charge
women for its services, 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) (“Even though
petitioner’s camp does not make a profit, it is unquestionably
engaged in commerce, not only as a purchaser, but also as a
provider of goods and services.” (citations omitted)); Va.
Vermiculite, Ltd. v. W.R. Grace & Co.-Conn., 156 F.3d 535, 541
(4th Cir. 1998) (explaining that nonprofit land preservation
organization’s acceptance of land donation “was fundamentally
commercial”).     Furthermore, although outwardly the Center
appears to be driven by religious purposes only, certain
operational intricacies may prove otherwise.     For example, as
another court observed in a similar case at the preliminary
injunction stage, if the Center were “referring women to pro-
life doctors in exchange for ‘charitable’ contributions, the
analysis could change.”    See Evergreen Ass’n, Inc. v. City of
N.Y., 801 F. Supp. 2d 197, 206 n.5 (S.D.N.Y. 2011).



                                        46
as a whole and the effect of the compelled statement thereon.”

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   societal   interest        in    the   fullest

possible dissemination of information.”                   See Cent. Hudson, 447

U.S. at 561-62; see also Va. State Bd. of Pharmacy, 425 U.S. at

756   (“Freedom    of     speech    presupposes     a     willing      speaker.      But

where a speaker exists . . . the protection afforded is to the

communication,       to    its     source    and   to     its   recipients        both.”

(footnote omitted)).

      The Supreme Court of North Dakota employed just such an

analysis in Fargo Women’s Health Organization, Inc. v. Larson,

381   N.W.2d   176      (N.D.),     cert.    denied,    476     U.S.     1108   (1986).

There, the plaintiffs alleged that the defendant Help Clinic,

“through false and deceptive advertising and related activity,

misleads persons into believing that abortions are conducted at

the clinic with the intent of deceptively luring those persons

to the clinic to unwittingly receive anti-abortion propaganda.”

Id. at 177.       The trial court entered a preliminary injunction

barring   “all     deceptive       advertising      and    related       solicitation

practices,” and the Help Clinic appealed.                   Id.     Notwithstanding

                                            47
the    Help        Clinic’s    assertion         “that   its     communication         is    not

commercial          speech    because       no    financial      charges     are      assessed

against persons receiving services from the clinic,” the state

supreme        court       deemed         the    clinic’s       advertisements         to     be

commercial speech.                 Id. at 180-81.             The court explained that

“the degree, if any, that monies are received by the Help Clinic

from its clients [is not] dispositive [of the commercial speech

issue].”       Id. at 180.           It was “[m]ore important[]” to the court

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.”                              Id. at 181.           “In

effect,” the court concluded, “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. 10

       In     contrast        to    the    preliminary        injunction      at   issue      in

Larson, our review today is of a permanent injunction entered in

       10
        The Larson decision, though certainly not binding here,
illuminates the potential inefficacy of the analogy drawn by the
district   court   between  the   Center’s  free   services  and
“sacramental wine, communion wafers, prayer beads, [and] other
objects with commercial value” offered by churches to their
congregants.   See O’Brien, 768 F. Supp. 2d at 814.   Unlike the
latter, the former are alleged by the City to be the subject of
advertisements “placed in a commercial context,” “directed at
the providing of services rather than toward an exchange of
ideas,” and designed to solicit patronage of the Center.     See
Larson, 381 N.W.2d at 181.



                                                  48
the   absence   of    a   fully   developed      record.      Without   all   the

pertinent evidence — including evidence concerning the Center’s

economic motivation (or lack thereof) and the scope and content

of its advertisements — we cannot properly analyze the speech

regulated by the Ordinance.         Cf. Milavetz, 130 S. Ct. at 1344-45

(Thomas, J., concurring in part and concurring in the judgment)

(“[B]ecause     no    record    evidence    of    Milavetz’s    advertisements

exists to guide our review, we can only speculate about the ways

in    which   the    [disclosure    requirement]      might    be   applied   to

Milavetz’s speech.”).          Put succinctly, the district court should

have likewise refrained from immediately deciding the commercial

speech issue. 11


      11
        Although discovery is needed before this matter can be
fairly decided, the existing record is not devoid of relevant
evidence.    For example, the Maryland Report included in the
Ordinance’s legislative record contains an online advertisement
for Option Line, the “live contact center” co-established by
national umbrella organizations Heartbeat International and Care
Net that “provides 24/7 assistance to women and girls seeking
information about pregnancy resources.”             J.A. 381.       The
advertisement    states,   inter     alia,     that    Option    Line’s
“consultants will connect you to nearby pregnancy centers that
offer the following services”:          “Free pregnancy tests and
pregnancy   information”;    “Abortion    and   Morning    After   Pill
information, including procedures and risks”; “Medical services,
including    STD   tests,     early    ultrasounds     and    pregnancy
confirmation”; and “Confidential pregnancy options.”                Id.
(emphasis omitted). The City characterizes the advertisement as
deceptive, because it “does not indicate that the ‘medical
services’ and ‘confidential pregnancy options’ offered by the
centers   exclude   abortion    and   comprehensive     birth   control
services.”     Br. of Appellants 8.          Additionally, the City
connects the advertisement to the plaintiff Center and several
(Continued)
                                       49
                                         b.

       The district court’s hasty decision cannot be excused by

its ruling that any commercial speech regulated by the Ordinance

“‘is   inextricably      intertwined      with    otherwise     fully   protected

speech,’” thus triggering strict scrutiny.               See O’Brien, 768 F.

Supp. 2d at 814 (quoting Riley, 487 U.S. at 796).                       The Riley

decision     addressed    the     constitutionality     of    North     Carolina’s

“requirement that professional fundraisers disclose to potential

donors, before an appeal for funds, the percentage of charitable

contributions collected during the previous 12 months that were

actually turned over to charity.”                487 U.S. at 795.       Defending

that statutory provision, the State argued that it “regulates

only    commercial       speech     because      it   relates    only        to    the

professional      fundraiser’s           profit       from      the     solicited

contribution.”     Id.     The Supreme Court assumed “that such speech

in the abstract is indeed merely ‘commercial,’” but concluded

that   the   speech   loses       “its   commercial    character      when    it    is

inextricably intertwined with otherwise fully protected speech,”

i.e., the informative and persuasive aspects of the fundraiser’s

solicitation.     Id. at 796.




other Baltimore limited-service pregnancy centers, in that each
is an affiliate of Heartbeat International or Care Net.     See
J.A. 228, 241.



                                         50
     Equating           Baltimore’s         Ordinance            with      the      statutory

requirement at issue in Riley, the district court relied on its

own speculative finding that “[t]he 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.”       See O’Brien, 768 F. Supp. 2d at 814.                        Furthermore, the

court prematurely          and     perhaps      inaccurately           characterized          that

disclaimer as “a stark and immediate statement about abortion

and birth-control,” i.e., a declaration that abortion and birth

control are morally acceptable options.                       Id.

     Significantly, discovery could refute the district court’s

factual    assumptions.             Discovery          might      also     show    that        any

commercial       aspects     of     a     limited-service              pregnancy       center’s

speech     are     not     “inextricably             intertwined”        with     its        fully

protected noncommercial speech.                      See Hunt v. City of L.A., 638

F.3d 703, 715 (9th Cir. 2011) (“[W]here the two components of

speech    can     be     easily    separated,          they     are     not    ‘inextricably

intertwined.’” (citing Fox, 492 U.S. at 473-74 (concluding that

commercial       speech     aspect        of        “Tupperware        parties”        was    not

inextricably intertwined with noncommercial instruction on home

economics))).             That     is,    a     fully       developed          record        could

demonstrate       that     “[n]othing          in    the   [Ordinance]           prevents       [a

center]    from     conveying,       or     the      audience       from      hearing,       . . .

noncommercial          messages,    and     nothing        in    the    nature     of    things

                                               51
requires them to be combined with commercial messages.”                                    See

Fox, 492 U.S. at 474.                In those circumstances, the rational

basis test would be the applicable one.

                                             2.

       The      district       court      further        erred     in      precipitately

concluding       that    the     Ordinance        is   an   exercise       of     viewpoint

discrimination       —     the     court’s      additional        basis    for     applying

strict    scrutiny.        See     Sons    of     Confederate      Veterans,       Inc.     v.

Comm’r of the Va. Dep’t of Motor Vehicles, 288 F.3d 610, 616 n.4

(4th     Cir.    2002)     (“The    Supreme       Court     has    indicated        that    a

viewpoint-based restriction of private speech rarely, if ever,

will withstand strict scrutiny review.” (citing R.A.V. v. City

of St. Paul, Minn., 505 U.S. 377, 395-96 (1992))).                            That is, the

court     merely    surmised        that     the       Ordinance       must      have    been

discriminatorily aimed at pregnancy centers “with strict moral

or     religious    qualms       regarding        abortion       and    birth-control,”

premised on its assumption that only those centers would never

provide or refer for abortion or birth control.                               See O’Brien,

768 F. Supp. 2d at 815.             But see Madsen v. Women’s Health Ctr.,

Inc., 512 U.S. 753, 762-63 (1994) (explaining, in declining to

apply strict scrutiny to “an injunction that restricts only the

speech    of    antiabortion       protestors,”         that     “the     fact    that     the

injunction covered people with a particular viewpoint does not

itself render the injunction content or viewpoint based”).

                                             52
       The district court failed to view the legislative record in

the    light    most    favorable        to    the    City,       and   thus    to     credit

evidence for summary judgment purposes that the Ordinance was

enacted to counteract deceptive advertising and promote public

health.     Moreover, the court ignored the possibility that there

may    be   limited-service         pregnancy        centers       with   no    “moral    or

religious qualms regarding abortion and birth-control,” and who

refrain     from    providing       or    referring         for    abortion      or    birth

control for other reasons.

       Finally, applying strict scrutiny, the district court erred

by    determining      that   the     Ordinance        is    not    narrowly      tailored

because “a less restrictive alternative would serve the [City’s]

purpose.”       See United States v. Playboy Entm’t Grp., Inc., 529

U.S. 803, 813 (2000).          Even if strict scrutiny proves to be the

applicable standard, the City must be accorded the opportunity

to    develop    evidence     relevant         to    the    compelling      governmental

interest    and    narrow     tailoring        issues,       including,        inter    alia,

evidence       substantiating       the       efficacy       of     the    Ordinance      in

promoting      public   health,      as       well   as     evidence      disproving      the

effectiveness of purported less restrictive alternatives to the

Ordinance’s disclaimer.          See id. at 816 (“When 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.”).

                                              53
                                                   C.

       In   sum,          under     the    Federal      Rules   of   Civil       Procedure        and

controlling 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 district court to

have awaited discovery and heeded the summary judgment standard.

Meanwhile,        the        court        could    have    averted     any       constitutional

injuries         that       the     Ordinance        may     inflict       by       preliminarily

enjoining its enforcement.                        See Fed. R. Civ. P. 65; see also,

e.g., Newsom ex rel. Newsom v. Albemarle Cnty. Sch. Bd., 354

F.3d   249,       261        (4th    Cir.     2003)       (concluding      that       Newsom       was

entitled     to        a    preliminary        injunction       on   his     First      Amendment

overbreadth claim, while cautioning that “our holding, like any

ruling      on        a     preliminary       injunction,        does       not      preclude        a

different        resolution           of     Newsom’s       claims     on       a    more        fully

developed record”).

       The district court in Centro Tepeyac v. Montgomery County,

another     Maryland             pregnancy        center-compelled         disclosure            case,

proceeded in just that measured fashion.                             See 779 F. Supp. 2d

456 (D. Md. 2011).                  Mindful that the record was undeveloped and

the County therefore unprepared to show otherwise, the court

accepted         at        the    preliminary        injunction      stage          that     strict

scrutiny applied to the challenged disclosure requirement.                                        See

id.    at   462-68.               Importantly,          however,     the        court      did     not

                                                   54
foreclose      the       possibility       that    evidence        adduced        in     future

discovery proceedings might render lesser scrutiny appropriate,

e.g.,   if     the       County’s      Resolution         were     shown     to        regulate

commercial speech.              See id. at 463.           Employing strict scrutiny

to   resolve       the     motion      before     it,     the     court    preliminarily

enjoined one portion of the Resolution’s disclosure requirement

(that “the Montgomery County Health Officer encourages women who

are or may be pregnant to consult with a licensed health care

provider”), but not the other (that “the Center does not have a

licensed medical professional on staff”).                          See id. at 469-72.

In doing so, the court credited the County’s asserted compelling

interest in preserving public health, and deemed “the record

. . . at least colorable at this stage to suggest that the [non-

enjoined     portion       of    the     disclosure       requirement]       is        narrowly

tailored to meet the interest.”                   Id. at 471.        The court further

concluded that the County was unlikely to prove narrow tailoring

of   the     enjoined        portion       of     the      disclosure        requirement,

articulating       particular       concern       that    it     constituted       “unneeded

speech,”     and     also       noting    several        possible    less     restrictive

alternatives.        Id. at 468-69 & n.9, 471.

     Today, alongside this opinion, we issue a separate opinion

in which we affirm the Centro Tepeyac preliminary injunction

decision, concluding that “the district court acted well within

its discretion” and “commend[ing] the court for its careful and

                                             55
restrained analysis.”             See Centro Tepeyac v. Montgomery Cnty.,

No. 11-1314(L), slip op. at 3, 18 (4th Cir. July __, 2013) (en

banc).   Our good dissenting colleagues overplay Centro Tepeyac,

repeatedly    invoking       it     as    the    ultimate     word   on    the     First

Amendment    issues     presented         herein.      See,     e.g.,     post   at    81

(Niemeyer, J., dissenting) (characterizing our remand of this

case for discovery on the commercial speech issue as “curious”

in view of our affirmance of “the district court’s conclusion in

Centro   Tepeyac      that      a    similar     Montgomery      County,     Maryland

provision compelled noncommercial speech”); id. at 98 (asserting

that Centro Tepeyac “hold[s]” that the County is not entitled to

discovery    on   the    effectiveness          of   purported   less     restrictive

alternatives);     id.     at       101   (citing      Centro    Tepeyac     for      the

proposition that City of Baltimore Ordinance 09-252, “[o]n its

face, . . . is overbroad and unconstitutional”).                     The dissenters

thereby ignore crucial differences between that case and this

one — most significantly, that Centro Tepeyac involves a mere

preliminary injunction decision, rather than a final judgment

bestowing permanent injunctive relief on the basis of a summary

judgment award.

     As the Supreme Court has instructed, where a preliminary

injunction   is    under     an     interlocutory      examination,       determining

whether the district court abused its discretion “is the extent

of our appellate inquiry.”                See Doran v. Salem Inn, Inc., 422

                                           56
U.S. 922, 934 (1975), followed by Giovani Carandola, Ltd. v.

Bason, 303 F.3d 507, 521 (4th Cir. 2002) (“We make no prediction

as to the outcome at trial but simply hold, as the Supreme Court

did [in Doran], that ‘[i]n these circumstances, and in the light

of existing case law, we cannot conclude that the District Court

abused       its    discretion            by    granting     preliminary         injunctive

relief.’” (second alteration in original) (quoting Doran, 422

U.S. at 934)).         Faithful to the abuse-of-discretion standard, we

are obliged to affirm in Centro Tepeyac because the district

court “applied a correct preliminary injunction standard, made

no clearly erroneous findings of material fact, and demonstrated

a firm grasp of the legal principles pertinent to the underlying

dispute.”          See slip op. at 18.                 Neither the district court’s

Centro Tepeyac decision — nor ours in that case — settles the

constitutional questions posed; rather, both leave those issues

to    be    decided    on     a    more    fully       developed    record      in   properly

conducted proceedings.

       Consistently with Centro Tepeyac, we conclude herein that

the    district       court       erred    by    entering    a     permanent     injunction

without allowing discovery or adhering to the applicable summary

judgment      standard.            Despite      this    prudent,     restrained,      and   —

above all — evenhanded ruling, the dissenters accuse us of all

manner of improprieties.                  Most disappointingly, they depict us,

on    the    one    hand,     as    pro-choice         zealots     who   have    engaged    in

                                                57
“gratuitous shaping of the issues” and “become seduced by [our]

own elaboration of abortion policy.”                 Post at 81-82 (Niemeyer,

J., dissenting); see also post at 74 (Wilkinson, J., dissenting)

(“In strongly implying that the Ordinance will survive First

Amendment   scrutiny,      the   majority      has   established        a    principle

that will bite the very hands that feed it.                        For compelled

speech can serve a pro-life agenda for elected officials as well

as a pro-choice one.”).

      On the other hand, we are reproached for “an amorous affair

with litigation,” an “enchantment with extended procedures,” and

an “infatuation with discovery,” as well as for “opin[ing] on

various points of civil procedure” when we could be discussing

“the dangers of state-compelled speech.”                   Post at 62, 68, 71

(Wilkinson, J., dissenting).             The dissenters would wholly exempt

the   Center   from    fundamental        procedures      to    which       all     civil

litigants   are     both   subject       and   entitled.        And,    though        the

dissenters candidly acknowledge that “the district court engaged

hypothetically      from   time     to    time    in    discussion          about     the

potential relevance of facts,” they unhesitatingly endorse the

court’s summary judgment decision.               Post at 82 (Niemeyer, J.,

dissenting).        Indeed,   the    dissenters        freely   layer       their     own

supposition    on    the   district      court’s,      admitting       of    no     other

conclusion than that the Ordinance should be enjoined against

all Baltimore limited-service pregnancy centers for all time.

                                          58
       We, however, are not so dismissive of the Federal Rules of

Civil Procedure, which, as the Supreme Court has underscored,

“are    designed    to    further   the   due    process     of      law    that   the

Constitution guarantees.”           Nelson v. Adams USA, Inc., 529 U.S.

460, 465 (2000).         Esteem for our bedrock procedural rules should

be   expected,     rather   than    ridiculed.      And    it     is   particularly

appropriate here, where because of the ready availability of

preliminary      injunctive    relief,      there   simply      is     no   need   to

abridge the City’s due process rights in favor of the Center’s

free speech guarantee. 12


       12
       It bears noting that the dissenters find it necessary to
distort our decision in an effort to refute it.     For example,
they erroneously say that we “fail[] to recognize that the
challenge addressed by the district court was the plaintiffs’
facial challenge,” and that we “recharacterize[] the proceeding
as an as-applied challenge” just so we can “identify questions
of fact to support [our] remand.”     Post at 79 (Niemeyer, J.,
dissenting); see also post at 71-72 (Wilkinson, J., dissenting)
(asserting that, in “a tragedy for free expression,” we insist
the district court “undertook an as-applied analysis”).       In
reality, we amply discuss the facial/as-applied distinction,
ultimately concluding that “regardless of the type of analysis
utilized — facial or as-applied — the court abused its
discretion by failing to recognize and honor the City’s right to
discovery.” Supra Part II.A.2.

     The dissenters also incorrectly assert that we “fail[] to
recognize the scrutiny applicable to regulations that compel
speech,” going so far as to claim that we “do[] not even discuss
‘compelled speech.’”   Post at 78-79 (Niemeyer, J., dissenting)
(citing Turner Broad. Sys., 512 U.S. at 641-42). But see supra
Part II.B.1 (explaining that, “[w]hile the strict scrutiny
standard   generally  applies   to   content-based  regulations,
including compelled speech, less-demanding standards apply where
the speech at issue is commercial” (also citing Turner Broad.
(Continued)
                                       59
    Notwithstanding     the     dissenters’    unfair     and    overwrought

characterization, our ruling today is simply this:              the district

court   improperly    denied    the    City   essential    discovery    and

otherwise   flouted    the     Federal     Rules   of   Civil     Procedure.




Sys., 512 U.S. at 641-42)).    Even so, the dissenters concede
that the Ordinance regulates both commercial and noncommercial
speech, but surmise that enough noncommercial speech is
implicated to render the Ordinance facially unconstitutional.
See post at 92-93 (Niemeyer, J., dissenting) (contending that
any “commercial motive” of the plaintiff Center is irrelevant,
because the Ordinance “reaches beyond this one pregnancy center
and imposes the requirement of a disclaimer sign on every
speaker — commercial or not — who provides information ‘for a
fee or as a free service’”).    But see Stevens, 130 S. Ct. at
1587 (explaining that, to prove overbreadth, a plaintiff may
show that “a substantial number of [a statute’s] applications
are unconstitutional, judged in relation to the statute’s
plainly legitimate sweep” (internal quotation marks omitted));
Bolger,   463   U.S.  at   67  n.14   (declining  to   preclude
classification of speech as commercial in absence of speaker’s
economic motivation).

     Finally, we note that the dissenters also distort the
existing record, repeatedly asserting that “the City’s stated
interest   [is]   in   prohibiting  [limited-service]   pregnancy
centers, as a health concern, from misrepresenting information
about abortions.”    Post at 77 (Niemeyer, J., dissenting); see
also id. at 83, 93-94, 100, 101.        To be sure, the record
includes allegations that such centers provide misinformation
about abortion (e.g., that it causes breast cancer).     The City
has clearly and consistently articulated its position, however,
that the Ordinance is aimed at the pregnancy center practice of
employing   deceptive   advertising to   attract  women   seeking
abortion and comprehensive birth-control services, and then
using delay tactics to impede the women from accessing those
services.   The City has not asserted, as the dissenters claim,
that the Ordinance is intended “to remedy misrepresentations
being made by these pregnancy centers about abortion.” See id.
at 100.



                                      60
Consequently,       we    vacate      the    judgment     and     remand    for    further

proceedings.



                                             III.

      Nevertheless, we affirm the district court’s ruling that

St.   Brigid’s      and    the       Archbishop      lack      standing     to    be    co-

plaintiffs in this action with the Center.                        See O’Brien, 768 F.

Supp. 2d at 811-12.             We do so having carefully considered the

contentions made by St. Brigid’s and the Archbishop in their

cross-appeal, and having reviewed the dismissal of their claims

de novo.     See Benham v. City of Charlotte, N.C., 635 F.3d 129,

134 (4th Cir. 2011) (“The issue of standing to sue is a legal

question that we assess de novo.”).



                                             IV.

      Pursuant to the foregoing, we vacate the district court’s

judgment against the City and remand for such other and further

proceedings    as    may     be      appropriate.         We   affirm,     however,     the

court’s    dismissal       of     the       claims   of     St.    Brigid’s       and   the

Archbishop    for     lack      of    standing,      leaving      only     the    Center’s

claims for resolution on remand.

                                               No. 11-1111 VACATED AND REMANDED
                                                           No. 11-1185 AFFIRMED




                                              61
WILKINSON, Circuit Judge, dissenting:

      In   a   case    concerning     a     law     that    requires   private,

noncommercial      organizations     to     convey    a    government-authored

message, one would expect to find at least some acknowledgement

of the dangers of state-compelled speech.                  But one will search

the   majority’s      opinion   in   vain     for    any    such   recognition.

Instead, the majority opts to opine on various points of civil

procedure, apparently oblivious to the fact that litigation is

not an end in itself, but a means of vindicating the substantive

values underlying our legal order, among which I had hitherto

supposed were the freedoms of conscience and belief.

      Those freedoms are at the heart of this case, though one

would never know it from the majority’s opinion, which glosses

over the impact of the Baltimore Ordinance on the right of the

plaintiff Center not to be compelled by the state to express a

message at odds with its most intimate beliefs.                Today it is the

Center; tomorrow it is who knows what speaker and who can guess

what view.     Because the majority fails to respect the Center’s

right not to utter a state-sponsored message that offends its

core moral and religious principles, and because it launches a

litigious fusillade aimed at smothering the Center’s right to

simple silence, I respectfully dissent.




                                      62
                                                 I.

                                                 A.

      Given the dearth of discussion about the evils of compelled

speech in the majority opinion, it is worth pausing to consider

what is at stake when government forces private individuals or

organizations      to     speak    on       its       behalf.       We     now    take   it   for

granted that “[i]f there is any fixed star in our constitutional

constellation,       it    is     that      no     official,         high    or    petty,     can

prescribe    what        shall    be     orthodox           in    politics,       nationalism,

religion,    or    other     matters         of       opinion      or    force    citizens    to

confess by word or act their faith therein.”                               W. Va. State Bd.

of Educ. v. Barnette, 319 U.S. 624, 642 (1943).                                   Regrettably,

this constitutional star was not always so fixed.                                 In fact, the

Supreme    Court    had     earlier         upheld      a    law    that    required     school

children    to     participate         in    a     daily         flag-salute      ceremony     in

Minersville School District v. Gobitis, 310 U.S. 586 (1940).                                  In

his   opinion      for    the     Court       in       Gobitis,         Justice    Frankfurter

declared     the     flag-salute            ceremony         an     essential       means     of

fostering “[n]ational unity,” which, in turn, he regarded as

“the basis of national security.”                       Id. at 595.          When opponents

of    a   compelled       flag    salute          protested,            Justice    Frankfurter

retorted that forced salutes helped to inculcate “that unifying

sentiment without which there can ultimately be no liberties,

civil or religious.”            Id. at 597.

                                                 63
       In   confusing        mere    statism     with      patriotism,       Justice

Frankfurter also posited a cramped conception of the freedom of

speech.     Specifically, he denied that the right to speak entails

a right not to speak.          In a lone dissent, Frankfurter reaffirmed

this    view     even   as   the     Court    reversed    course     and    declared

compulsory flag-salute laws unconstitutional.                   So long as a law

“suppresses no belief nor curbs it,” he insisted -- so long as

it permits individuals to “believe what they please, avow their

belief and practice it,” leaving “[a]ll channels of affirmative

free expression . . . open” -- it does not violate the freedom

of speech guaranteed by the First Amendment.                   Barnette, 319 U.S.

at 664 (Frankfurter, J., dissenting).

       Justice    Frankfurter’s       opinions    in     the   flag-salute     cases

mark a singular blot on a long and storied career.                         He simply

failed to grasp a truth that had been “well known to the framers

of the Bill of Rights,” id. at 633 (majority opinion): that

“[t]he right to speak and the right to refrain from speaking are

complementary components of the broader concept of ‘individual

freedom of mind,’” Wooley v. Maynard, 430 U.S. 705, 714 (1977)

(quoting Barnette, 319 U.S. at 637).                    Because government can

infringe this freedom not only through naked censorship but by

compelling     individuals      to    utter    words    that   the   state    wishes

uttered, courts must scrutinize both kinds of regulation with



                                         64
the same skepticism.        No American is the mere mouthpiece of the

state.     That is the enduring lesson of the flag-salute cases.

                                         B.

     It is a lesson the majority has failed to learn.                        While it

perfunctorily     acknowledges         that    laws    compelling       speech      are

“generally”    subject     to   strict    scrutiny,      maj.    op.    at    41,    it

follows Justice Frankfurter in downplaying the impact of such

laws on the individuals who are compelled to speak.                           As the

majority      apparently        sees     it,     the      Ordinance          requires

organizations    like    the    Center    to    make    nothing   more       than    an

anodyne factual statement identifying the services they do not

provide, without having to condone those services.                     See maj. op.

at 51-52.

     But the majority utterly fails to appreciate the nature of

the Center’s beliefs.           The Center has “sincerely held” “moral,

ideological, political, and religious beliefs” that abortion and

at least some forms of birth control are profoundly wrong and

thus are not to be chosen.             Complaint ¶¶ 43, 40.         The Ordinance

requires the Center to state that it “does not provide or make

referral for abortion or birth-control services.”                   J.A. 26.        The

conflict     between     the     Center’s      beliefs     and    the        mandated

disclosure is thus plain: where the Center wishes to guide women

toward alternatives to abortion and birth control, the Ordinance



                                         65
requires it to indicate at the outset that those services are

readily available, just not at the Center itself.

       The flag-salute ceremony may not have compelled Jehovah’s

Witnesses to affirm the American flag as an idol or the United

States as a deity in so many words, but from their perspective,

that was the import of the ritual.                  The same is true here.

Although the Ordinance does not compel the Center to explicitly

countenance       abortion    and    birth   control,     it   does       compel     the

Center to present them as viable options -- which, of course, is

precisely    what    the     Center    denies   they    are.        Putting        aside

altogether the matter of abortion, about which people of good

will may and do differ, imagine any of us being told by the

state to renounce ourselves in such a basic way.

       Echoing    Justice     Frankfurter’s     rejoinder      to    the       Jehovah’s

Witnesses in the flag-salute cases, the City responds by noting

that pregnancy centers remain free to express their disapproval

of     abortion     and      birth    control     alongside         the        mandatory

disclaimer.       But the Supreme Court rightly found this response

unavailing in Barnette, and it is no more persuasive here.                           In

each case, the speaker is put in the position of having to

explain a statement made in its voice but not from its heart.

Only    because     the    Ordinance    compels     the    Center         to    mention

abortion and birth control in the first place must it start from



                                        66
a stance of opposing those options, rather than from one of

simply advocating alternatives like adoption and abstinence.

      Compelled speech can be all the more pernicious because of

its context.          So it is here.           Whether or not the Ordinance is

technically viewpoint-discriminatory, this much can be said: it

compels     groups      that      oppose      abortion     to    utter   a    government-

authored message without requiring any comparable disclosure --

or   indeed     any    disclosure        at   all   --    from    abortion     providers.

Seventy     years      after       the     flag-salute       cases,      it   should     be

axiomatic that the First Amendment prohibits the government from

dictating the terms of private expression, let alone in such a

one-sided manner.            Faced with the inadequacy of its reasons, the

majority responds with only noise, making believe it has somehow

been accused of various “improprieties,” maj. op. at 57, and

“zealous” pro-choice views, id., when the only issue in reality

is that the grand neutrality at the heart of the First Amendment

has been compromised.              Those who support most firmly a woman’s

right     to     reproductive            choice     should       find    it    the     most

disheartening that the court’s First Amendment jurisprudence is

trampling expressive privacy and marching backward through time.



                                              II.

      The      majority      would   have      us   believe      that    it   has    issued

nothing     more      than    a   cut-and-dried          procedural      ruling,     merely

                                               67
ordering “essential discovery” into a few key factual questions

in the case.        Maj. op. at 33.             Don’t be fooled.                The majority is

conducting an amorous affair with litigation that is anything

but benign.         For the infatuation here is indiscriminate.                                 The

majority neglects to pose the most relevant question: whether

its enchantment with extended procedures will serve to vindicate

the   assertion       of    a   constitutional            right      or    to    suffocate      it.

Perhaps      it    evades       this     question         because      the       answer    is    so

obvious.      By bringing the full brunt of the litigative process

to bear on the Center, the majority is imposing a high price on

the   Center       (and    by   extension       any       speaker)        for    attempting      to

vindicate its free-speech rights.

      Most        troubling,       the     majority            has   licensed         a   fishing

expedition into the Center’s motivations and operations on the

off   chance       that    it    might     turn      up    some      vaguely       “commercial”

activity.         The majority appears to recognize that the Center’s

speech    clearly      lies     far      from   “the       core      notion      of   commercial

speech,” since none of its advertisements propose a commercial

transaction.         Maj. op. at 43 (quoting Bolger v. Youngs Drug

Prods. Corp., 463 U.S. 60, 66 (1983)); see United States v.

United    Foods,      Inc.,      533     U.S.     405,         409   (2001)       (noting       that

commercial speech is “usually defined as speech that does no

more than propose a commercial transaction”).                              Nevertheless, the

majority     believes       that       “discovery         is    needed     to     substantiate,

                                                68
inter   alia,     whether     the   Center      possesses      economic   interests

apart from its ideological motivations.”                       Maj. op. at 45-46.

Not even the City had the temerity to second-guess the Center’s

motives    in    this     way.      And    yet,    the    majority     displays    no

compunction about doing so, subjecting the Center to intrusive

and     burdensome        discovery       based     on     a     few    far-fetched

hypotheticals regarding “the Center’s potential profit motives”

and its “operational intricacies.”              Maj. op. at 46 n.9.

      Ordering discovery on this tenuous a basis would entail

delays and costs even in the ordinary case.                     But the delays and

costs are especially onerous where, as here, the party that is

subjected to discovery has so plainly suffered a violation of

its constitutional rights.            By encouraging the City to pry into

every corner of the Center’s operations, the majority heavily

penalizes       this     organization     for     attempting      to   defend     its

constitutional rights, a penalty that will only dissuade future

victims of constitutional violations -- and especially those who

hold to the Center’s persuasion -- from bringing suit in the

first place.       Where discovery should be a means of vindicating

constitutional rights, the majority converts it into a process

that strangles them.

      The majority’s approach also excuses the City’s rush to

regulate the Center’s speech, rather than consider other ways of

achieving   the        purposes   underlying      the    Ordinance.       There   has

                                          69
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.     See Riley v. Nat’l Fed’n of the Blind of N.C., Inc.,

487 U.S. 781, 800 (1988) (noting “the First Amendment directive

that    government      not   dictate         the      content       of    speech        absent

compelling      necessity,        and       then,      only     by    means         precisely

tailored”).

       Thus, before enacting the Ordinance, the City should at

least    have        considered     less          restrictive        alternatives           and

indicated why those alternatives would be ineffective.                              And yet,

the    City   points     to   not       a   single      portion       of     the    239-page

legislative      history      submitted           as   part     of    this     litigation

indicating that it ever took these elementary steps.                                See J.A.

192-430.      What testimony was delivered and evidence presented

before the City Council appears to have focused on the City’s

interest in enacting the Ordinance rather than the question of

whether the Ordinance was a narrowly tailored means of serving

that    interest.        Especially         telling      is    the        absence    of     any

statement       of     legislative          findings          indicating           why     less

restrictive alternatives would come up short.                        This is not for a

lack of such alternatives.                  As the district court noted, many

suggest themselves.           See O’Brien v. Mayor & City Council of

                                             70
Balt., 768 F. Supp. 2d 804, 817 (D. Md. 2011).                     Posting warning

signs in its own voice outside the Center, undertaking a public

information      effort    of   its     own,     or    applying    the    anti-fraud

provisions in state law are all alternatives that the City now

seems eager to reject but nowhere indicates it ever considered

or tried.

       Without ever having contemplated these options, the City

now asserts that they will prove ineffective, and based on that

bald assertion, the majority unlocks the doors of discovery.

The lesson of the majority’s ruling for other legislative bodies

is    clear:    compel    speech   before      considering        less   restrictive

alternatives, and you will be granted discovery to prove why

those alternatives are ineffective after the fact.                       This upends

the    notion    that    compelled      speech    should     be    a   last   resort,

encouraging      legislatures      to    adopt    the    most     constitutionally

offensive option rather than the least.                      In this respect as

well, the majority renders litigation a threat to liberty rather

than its safeguard.

       The majority’s infatuation with discovery is compounded by

its   similarly    misguided       affection      for    as-applied      challenges.

Although the district court construed the Center’s claim as a

facial challenge, the majority insists it actually undertook an

as-applied      analysis.       See     maj.     op.    at   37-38.        But   this

conclusion, aside from being incorrect, is a tragedy for free

                                         71
expression.       For it means that, even if the Center ultimately

prevails    on    its    First    Amendment    claim,       other    centers    with

similar moral or religious beliefs will each have to bring their

own suits challenging the Ordinance as applied to them.                   This is

a war of attrition.          By requiring every pregnancy center to

bring its own as-applied challenge and to submit to separate

investigation,     the    majority     invites   piecemeal      litigation       that

will    dramatically      increase     the    costs     for    the    centers     of

vindicating their First Amendment rights.                    Free speech should

never be held hostage to this kind of duplicative and intrusive

litigation.

       The majority responds by doubling down on the virtues of

extended litigation.        It pens a final ode to discovery, maj. op.

at 59, again ignoring the question of when that discovery serves

a salutary purpose and when it simply chokes off constitutional

rights as it does here.            This is by no means to suggest that

affording   the    government      discovery     is   inappropriate      in    every

constitutional      case.        But   one   does     not    need    discovery    to

discover the obvious.            Here, the infringement of the Center’s

free-speech rights is patent and profound, and the alternatives

to a mandatory disclaimer are myriad.                   I recognize that the

Center’s views on the issues surrounding abortion rights are

controversial.      But the First Amendment is not needed to protect

speech that elicits broad popular approbation.                       “The test of

                                        72
[freedom’s] substance is the right to differ as to things that

touch the heart of the existing order.”              Barnette, 319 U.S. at

642.     If there was ever a case for entering judgment in order to

forestall government action that threatens to deter disfavored

speakers from defending their First Amendment rights, this case

is it.

       Indeed, the Supreme Court has only recently reiterated the

“basic     First   Amendment    principle     that     freedom       of   speech

prohibits    the   government   from    telling     people    what   they      must

say.”     Agency for Int’l Development v. Alliance for Open Society

Int’l, Inc., No. 12-10, slip op. at 6 (U.S. June 20, 2013)

(internal     quotation    marks     omitted).         Even      when     direct

appropriations are involved, the government may not control an

organization’s     core   message   outside    of    the     confines     of    the

program being funded.       See id. at 15 (holding that a government

requirement that “compels as a condition of federal funding the

affirmation of a belief that by its nature cannot be confined

within the scope of the Government program. . . . violates the

First Amendment”).        Here, of course, funding conditioned upon

speech is not at issue.         Compelled speech becomes all the more

invasive when it is simply commanded without any corresponding

benefit to the recipient.           The recipient of public funds at

least theoretically has some choice about whether to accept the

aid with its attendant conditions.            Id. at 7.        In the instant

                                       73
case, the Center gains no benefit and has no choice but to

speak, and the coercion is complete.



                                     III.

     To my good colleagues in the majority, all I can say is,

“Be careful what you wish for.”             In strongly implying that the

Ordinance will survive First Amendment scrutiny, the majority

has established a principle that will bite the very hands that

feed it.      For compelled speech can serve a pro-life agenda for

elected officials as well as a pro-choice one.                       Cf. Planned

Parenthood Minn., N.D., S.D. v. Rounds, 686 F.3d 889 (8th Cir.

2012)   (en   banc).     It    is   easy    to   imagine    legislatures        with

different ideological leanings from those of the Baltimore City

Council     enacting    measures     that    require       organizations        like

Planned Parenthood to post a statement in their waiting rooms

indicating what services they do not provide.                      Indeed, after

today’s decision, I would expect a flurry of such measures.

     When this court finally confronts a pro-life analogue of

the Baltimore Ordinance, it will face a dilemma.                   Either it will

uphold the measure, in which case it will simply confirm what

today’s decision suggests: that the government does have the

power     after   all   to    “prescribe    what    shall     be     orthodox    in

politics,     nationalism,    religion,     or   other     matters    of   opinion

[and to] force citizens to confess by word or act their faith

                                      74
therein.”      Barnette, 319 U.S. at 642.                         Or it will invalidate the

measure, in which case the First Amendment will have ceased to

function      as     a    neutral        arbiter        of     our       nation’s      ideological

disputes,      but       will    instead        have    become       a    tool    to    serve    the

policy predilections of the judges who happen to be applying it

in    any    given       case.         Either    way,        we    will    have     warped     First

Amendment doctrine beyond recognition, and we shall have but

ourselves to blame.



                                                 IV.

       Compelled         speech        can   get       tricky        quickly.          The     state

possesses a broad police power to regulate for the health and

safety of its citizens, which includes the authority to require

the disclosure of limited amounts of accurate information.                                      See,

e.g., Zauderer v. Office of Disciplinary Counsel of the Supreme

Court of Ohio, 471 U.S. 626, 650-53 (1985).                               Compelled speech is

thus    not    an     all-or-nothing            matter.            See     Centro      Tepeyac    v.

Montgomery         Cnty.,        No.     11-1314        (4th       Cir.     2013)      (en     banc)

(Wilkinson, J., concurring).                    But as the flag-salute cases teach

us,    the    state       generally       may     not    force       individuals         to    utter

statements      that       conflict       with     beliefs          so    profound      that    they

define who we are.               How to balance the state’s responsibility to

protect its citizens with the individual’s interest in staying



                                                 75
true   to   conscience   is   a   perennial   question   that    will    prove

vexing in many cases.

       This case, however, is not vexing.        The Baltimore Ordinance

demands that organizations like the Center affirm a proposition

they vehemently deny.         It is, moreover, a law in search of a

problem about which the City and majority speculate but cannot

identify.     The City made no attempt to try or even consider

alternative approaches that would have allowed it to achieve its

purposes without compelling the Center to say a word.              Wherever

the First Amendment might draw the line between state regulation

and    individual   conscience,     this   law   crosses   it.      To     the

infirmities of the law, the majority adds burdens beyond measure

on freedom of the mind.

       I respectfully dissent.




                                     76
NIEMEYER, Circuit Judge, dissenting:

     Baltimore         City   Ordinance   09-252       mandates   that     pregnancy

centers that do not offer abortions or refer for abortions must

post one or more signs in their waiting rooms, stating that they

“do[] not provide or make referral for abortion or birth-control

services.”        On    the   plaintiffs’      assertion       that   such   a   sign

requires them to speak contrary to their moral and religious

beliefs, the district court held, as a matter of law, (1) that

the ordinance, on its face, compels speech that is not content

neutral; (2) that such compelled speech is subject to strict

scrutiny; and (3) that the ordinance is not narrowly tailored to

serve the City’s stated interest in prohibiting such pregnancy

centers, as a health concern, from misrepresenting information

about abortions.         It thus found the ordinance unconstitutional.

     A ruling of this kind does not implicate a need to have

discovery    of     factual    circumstances,      as    the    majority     opinion

orders, because every point on which the district court’s ruling

depended was a question of law that construed the ordinance on

its face and assessed its scope against well-established First

Amendment principles.            In determining to vacate the district

court’s     order      and    remand   the     case,     the    majority     opinion

addresses a case not before us.                 The opinion fails in three

fundamental respects.



                                          77
       First,    it     fails       to    address       the         actual       holding    of      the

district court insofar as the district court applied established

legal    principles         to    conclude,       as      a    matter       of    law,     that     the

ordinance       was    unconstitutional.                      Rather,       it    dismisses         the

district court’s ruling as “laden with error,” pointing to a

raft    of   circumstantial             factual      questions,             irrelevant      to      the

necessary     legal        propositions,          and     concluding             that    the   legal

issues therefore cannot be resolved by summary judgment.

       Second and more fundamentally, it fails to recognize the

scrutiny      applicable           to     regulations           that        compel       speech     --

regulations that require a person to say that with which the

person would not otherwise say and might well disagree.                                           Such

regulations are among the most pernicious invasions of First

Amendment rights, and for that reason, they are subject to “the

most exacting scrutiny.”                 Turner Broadcasting Sys., Inc. v. FCC,

512 U.S. 622, 641-42 (1994).                    Although distinct from laws that

regulate     what     persons           have   chosen         to     say,    regulations          that

compel    people      to    speak        the   government’s            message       are    equally

invasive of our most basic freedom.                           Id.    “Mandating speech that

a   speaker      would      not        otherwise       make         necessarily         alters      the

content of the speech.”                 See Riley v. Nat’l Fed. of the Blind of

N.C.,    Inc.,    487       U.S.       781,    795     (1988).          And       because      it   is

“content-based,”           it     is    subject      to       strict     scrutiny.             Turner

Broadcasting,         512        U.S.     at    642.            Indeed,          “[c]ontent-based

                                                78
[speech] regulations are presumptively invalid.”                              R.A.V. v. City

of St. Paul, 505 U.S. 377, 382 (1992) (emphasis added).                                          The

majority opinion not only fails to recognize these principles,

it   does    not     even         discuss     “compelled          speech.”          Rather,       it

implies, by its silence on the subject, that compelled speech or

content-based        speech,         when     including          potentially         commercial

speech, is subject to a relaxed level of scrutiny, a position

never countenanced by the Supreme Court.

      And     third,        it     fails     to        recognize       that   the        challenge

addressed     by     the         district    court       was     the     plaintiffs’           facial

challenge.         In       an    effort     to    identify       questions         of    fact    to

support its remand, the opinion ignores the issue presented --

i.e.,      whether      a    facial        review        would     render     the        ordinance

unconstitutional -- and recharacterizes the proceeding as an as-

applied challenge.                With that erroneous maneuver, it concludes

that facts need to be developed to conduct such an as-applied

challenge.      Ante, at 38 (“But to properly employ an as-applied

analysis,     the       court       was     obliged       to     first    afford         the    City

discovery”).         To be sure, the complaint challenged the ordinance

both facially and as-applied, but the plaintiffs argued before

the district court that on Count I (violation of free speech),

the court could rule on the ordinance “as a facial matter.”                                      And

in its opinion, the district court accepted this, repeating that

in   the    plaintiffs’           claims     against       the     City,      the    plaintiffs

                                                  79
“contend[ed]        that      the    Ordinance          [was]    facially           invalid.”

O’Brien v. Mayor & City Council of Baltimore, 768 F. Supp. 2d

804, 808 (D. Md. 2011).              The court then proceeded to address the

case as a facial challenge, stating, “In the instant case, the

Court    must    examine      whether    the       Ordinance,         on    its     face,    is

subject to, and satisfies, the applicable level of scrutiny.”

Id. at 810 (emphasis added).

     Thus, to conclude that the district court’s holding was

“laden with error,” ante, at 10, the majority opinion itself is

error-laden, giving the governing core principles the back of

the hand and broadening, by recharacterization, the issues so as

to be able to conclude that the City should have been given the

opportunity to engage in discovery, even as to subjects that

would    be     irrelevant      or    unnecessary        to     the     legal       questions

decided by the district court.                It is apparent that the majority

opinion,      which      is    some     50     typewritten            pages,       roams     in

supposition      about      what     pregnancy      centers      that       do     not   offer

abortion have said to their clients; about whether their advice

could have been commercial in nature; and about the facts that

might    have    been      misrepresented,         as    identified         by     pro-choice

groups   in     their    stated      policy       positions.          For    example,       the

majority opinion quotes at length:                  (1) the Waxman report, which

suggests      the   pregnancy        centers       “often       mask       their     pro-life

mission” to mislead pregnant women; (2) the report of the NARAL

                                             80
Pro-Choice    Maryland            Fund    that    pregnancy      centers         give    “wildly

inaccurate    information”               about    abortion;         (3)    the     legislative

testimony of a woman who stated she had “felt tricked” by a

pregnancy    center          16    years     before;      and       (4)    the     legislative

testimony of a professor who stated that she was “distressed by

the existence of centers” that misrepresent their mission.                                     The

majority     sets       forth       no     similar       evidence         provided       by     the

plaintiffs, yet it relies on the City’s claimed need to respond

to the plaintiffs’ facts.

     In its gratuitous shaping of the issues, the majority also

devotes     pages       to    speculation             about    whether       the     ordinance

regulates commercial speech or noncommercial speech -- failing

to recognize that, on its face, the ordinance regulates both.

The majority’s position is curious in view of the fact that it

has today affirmed the district court’s conclusion in Centro

Tepeyac    that     a    similar         Montgomery      County,      Maryland       provision

compelled noncommercial speech and that any commercial speech

was intertwined with regulated noncommercial speech.                               See Centro

Tepeyac v. Montgomery Cnty., ___ F.3d ___, No. 11-1314(L), at

___ (4th Cir. June ___, 2013) (en banc) (observing that the

district     court       “demonstrated            a     firm    grasp       of     the        legal

principles”).           Here, in contrast, the majority concludes that

resolution of the question must be “fact-driven.”                                  It states,

“Without     all    the       pertinent          evidence      --    including          evidence

                                                 81
concerning the Center’s economic motivation (or lack thereof)

and the scope and content of its advertisements -- we cannot

properly analyze the speech regulated by the Ordinance.”                                Ante,

at 49.    But this speculation is irrelevant because Ordinance 09-

252   regulates     both     commercial          and    noncommercial       speech        and

addresses    all    persons     who    provide         pregnancy       services    without

providing abortions or referring for abortions.

      Were our court grappling with the abortion issue itself,

the   majority’s       fulsome        and     overstated        facts       might        mean

something.     But the case before us presents the much narrower

question about the scope of the ordinance on its face.                                     It

appears     that    the    majority     has       become     seduced       by     its     own

elaboration    of     abortion       policy       from    the     viewpoint       of     some

interested groups, thereby blinding it from the narrow legal

issue raised by the terms of the ordinance.

      The district court, on the other hand, correctly focused on

the relevant legal issue and, in a reasoned fashion, supported

its holding by analyzing the ordinance’s language.                          To be sure,

the district court engaged hypothetically from time to time in

discussion    about       the   potential         relevance       of    facts,     but     it

quickly left them, recognizing that the well-established First

Amendment     principles        on    which       it     relied        provided     for     a

resolution of the issue as a matter of law.                        As it stated, “In

the instant case, the Court must examine whether the Ordinance,

                                            82
on its face, is subject to, and satisfies, the applicable level

of scrutiny.”       O’Brien, 768 F. Supp. 2d at 810 (emphasis added).

And from the language of the ordinance, it concluded that the

strict-scrutiny standard applied and that the ordinance did not

meet that standard.             Nowhere did the district court consider or

decide an as-applied review.

       I respectfully submit that under the well-established First

Amendment    principles          relating    to     compelled      speech,    Baltimore

City    Ordinance       09-252    cannot,     on    its    face,    withstand      strict

scrutiny.    The ordinance is content-based, telling a person, not

otherwise regulated, what to say to a client, even though the

person may disagree with the speech and would not otherwise say

what is commanded.              The mandate is imposed on all pregnancy

centers not providing or referring for abortion, whether they

are commercial or noncommercial or whether they provide services

for free or for a fee.             Although the City may have a compelling

interest    in    prohibiting       the     misrepresentation         of    information

about abortion, as it claims, the ordinance on its face does not

prohibit     misrepresentation.                  Indeed,     it     mandates       speech

regardless of whether the pregnancy center misrepresents or not.

These    statutorily        based      observations         lead     to      the   legal

conclusion       that     the     ordinance        is   overbroad     and     therefore

unconstitutional.          To reach that conclusion does not require

discovery of the circumstantial facts about how the ordinance

                                            83
might apply in any given circumstance.                        I conclude that the

majority’s decision to remand for the development of irrelevant

facts is simply misguided.

     The district court’s decision should be affirmed.


                                           I

     By     way    of     background,      the      City     of    Baltimore     enacted

Ordinance    09-252       in    December   2009,        regulating      all    pregnancy

centers that provide pregnancy related services for free or for

a fee and that either do not provide abortions or refer for

abortions.        The ordinance requires each one of those centers to

post one or more signs in its waiting room stating that the

center “does not provide or make referral for abortion or birth-

control services.”

     The legislative record indicates that the President of the

Baltimore    City        Council   introduced        Bill     09–0406    (the     future

Ordinance    09–252)       after   meeting       with    abortion-rights        advocacy

groups.      Those groups 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


                                           84
“introduced because of the ‘importance of choice.’”                          And the

Baltimore City Health Department backed the Bill, based on the

“purpose      of     the   bill   to   require       limited-service        pregnancy

centers to provide accurate information about available services

to clients and potential clients.”                  (Emphasis added).       The Bill

was enacted in November and became law on December 4, 2009.

      In March 2010, before any enforcement of Ordinance 09–252,

the Archbishop of Baltimore, St. Brigid’s Roman Catholic Church,

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 ordinance and alleging that it violates the Free Speech

and   Free    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 Ann., Health–Gen. § 20–214(a).

      The     complaint     alleges    that        the   Pregnancy   Center       is   a

“limited-service pregnancy center,” as defined in Ordinance 09–

252, operating in Baltimore City from two locations.                       The Center

provides      free    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.

                                            85
It   also     provides      women      with      information       on     “abstinence        and

natural family planning, which are recognized forms of birth

control,” but does not provide referrals for abortions or other

methods      of    birth   control,         asserting      that    it     does    not   do    so

“[b]ased on moral and religious beliefs.”                          The Pregnancy Center

does not charge its clients for its services.

       The   complaint       alleges        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, religious, and political.”                            It also states

that   “[b]y       requiring       a   disclaimer         that    the   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 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.”

The plaintiffs seek a declaratory judgment that the ordinance is

unconstitutional on its face and/or as applied to them 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

                                                 86
summary      judgment    on    their   free     speech      and   equal     protection

claims.

      The     City   argued     that    the     plaintiffs’       summary      judgment

request was premature in that the City had not been afforded the

opportunity     to   conduct     discovery       or    to   fully    develop     expert

testimony on key factual issues.                  The City contended that it

needed “to conduct discovery concerning the advertising that the

Pregnancy     Center     and   other    limited-service           pregnancy    centers

employ . . . [to] demonstrate its deceptive character.”                             The

City also asked for discovery “to develop factual support for

[the City’s] argument that the services offered by [the Center]

are a form of commerce, and, therefore, the disclaimer required

by the Ordinance is commercial speech, subject only to rational

basis scrutiny -- not strict scrutiny.”                  Finally, the City asked

for   “the    opportunity      to    develop    expert      testimony     to    provide

factual support for the propositions that deceptive advertising

by limited-service pregnancy centers threatens public health in

a variety of ways.”

      Following a hearing on the motion for summary judgment, as

well as on other motions, the district court entered an order

dated January 28, 2011, denying the City’s request for further

discovery on the ground that it was not necessary to the issue

being     decided;      granting     the    Pregnancy       Center’s      motion    for

summary      judgment    on    its   free     speech    claim;      and   entering   a

                                           87
judgment permanently enjoining the enforcement of the ordinance.

In granting summary judgment to the Pregnancy Center, the court

held that Ordinance 09-252 was unconstitutional based on its

legal conclusions that the ordinance compelled speech; that it

was content-based and therefore subject to strict scrutiny; and

that   it     was        not    narrowly    tailored          to   fit   the     City’s    stated

interest in enacting the ordinance.                       O’Brien, 768 F. Supp. 2d at

812-14, 816-17.


                                               II

       This is not a hard case, and the First Amendment analysis

is straightforward.

       For     a     facial       challenge,     we      look       to    the    face     of   the

ordinance          and    are     “careful     not       to    go    beyond      [its]     facial

requirements and speculate about ‘hypothetical’ or ‘imaginary’

cases.”       Wash. State Grange v. Wash. State Republican Party, 552

U.S. 442, 449-50 (2008).                    But the assessment may consider the

application          of    the     regulation       to     others,        not    just     to   the

plaintiffs, to determine whether there are conceivable instances

of overbreadth.                See Bd. of Trustees of State Univ. of N.Y. v.

Fox,   492     U.S.        469,    483-84    (1989).           Thus,     when     conducting     a

facial       review       under     the     First    Amendment,           we    “construe      the

statute      and     determine       whether        ‘a    substantial           number    of   its

applications         are       unconstitutional,          judged     in    relation       to   the


                                               88
statute’s plainly legitimate sweep.’”                       Preston v. Leake, 660

F.3d 726, 739 (4th Cir. 2011) (quoting United States v. Stevens,

559 U.S. 460, 130 S. Ct. 1577, 1587 (2010)).

       Ordinance      09–252     targets             “limited-service             pregnancy

centers,” which are defined as “any person”

       (1) whose primary purpose                is    to   provide       pregnancy-
       related 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.

Baltimore City Health Code § 3–501 (emphasis added).                              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(a).


                                           89
     On its face, Ordinance 09-252 compels speech.                       A pregnancy

center that does not provide or refer for abortions must post

the sign containing the mandated language.                     A pregnancy center

is thus required to participate in the City’s effort to tell

pregnant   women    that    abortions       are    available         elsewhere    as   a

presumably acceptable alternative, regardless of the moral and

religious beliefs of the center.

     As    a   matter      of     logic    and     Supreme       Court     precedent,

“[m]andating    speech     that     a    speaker   would       not    otherwise   make

necessarily alters the content of the speech.”                       Riley, 487 U.S.

at 795.    Accordingly, compelled speech must be addressed as “a

content-based regulation of speech.”                   Id. (citing Miami Herald

Publ’g Co. v. Tornillo, 418 U.S. 241, 256 (1974)).                       Of course, a

content-based speech regulation is subject to the “most exacting

scrutiny,” the strict scrutiny standard.                   Turner Broadcasting,

512 U.S. at 642; Riley, 487 U.S. at 796; see also United States

v.   Playboy   Entm’t      Group,       Inc.,    529    U.S.    803,     813   (2000).

Indeed,    strict   scrutiny        applies       even    in    cases     where    the

compelled disclosure is limited to factually accurate or non-

ideological statements.           Riley, 487 U.S. at 797-98; Hurley v.

Irish-Am. Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557,

573 (1995) (“[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”).

                                          90
       In an effort to avoid strict scrutiny of Ordinance 09-252,

the City contends that the ordinance compels only commercial

speech and therefore is subject to a lower level of scrutiny.

Commercial speech is defined as “expression related solely to

the    economic         interests      of     the     speaker      and     its    audience.”

Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y.,

447 U.S. 557, 561 (1980).                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        citation      and     quotation       marks       omitted).           In    some

circumstances, speech may be classified as commercial even when

it “cannot be characterized merely as proposals to engage in

commercial transactions.”                Id.; see also id. at 67-68 (holding

that     advertisements              discussing        the      health          benefits       of

contraceptives were commercial speech); Wag More Dogs, LLC v.

Cozart,      680       F.3d    359,    370     (4th     Cir.       2012)    (holding          that

business’        outdoor      mural    was     commercial      speech       where      business

conceded that the mural was advertising, the mural included part

of    the    business’        logo,     and     the    business          “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.



                                               91
       Here, the enacted text forecloses the City’s argument that

the    ordinance         targets       only       commercial             speech      because       the

ordinance        imposes      a   disclosure           requirement         on       all    speakers,

regardless         of    economic      motivation.                 The     ordinance            applies

wholesale to any person who “for a fee or as a free service”

provides         information       about         pregnancy.              The    ordinance          thus

imposes its disclosure requirement wholly indifferent to whether

the    speaker      “propos[es]        a        commercial         transaction.”                Central

Hudson, 447 U.S. at 562; see also Centro Tepeyac v. Montgomery

Cnty, 779 F. Supp. 2d 456, 463-65 (D. Md. 2011) (noting that

similar provisions applying to persons who provide services for

free “cannot rely on commercial speech cases”), affirmed, Centro

Tepeyac, ___ F.3d at ___, No. 11-1314(L), at 11-12.

       In    a    similar     effort       to    avoid       the    application            of    strict

scrutiny,        the     majority     maintains          that       the    commercial           speech

inquiry is “fact-driven” and that therefore “discovery is needed

to    substantiate        .   .   .   whether          the   Center       possesses         economic

interests apart from its ideological motivations.”                                   Ante, at 45-

46.     But       this    approach         is    flawed.           The    Pregnancy         Center’s

motivation for its provision of free information is irrelevant

to the inquiry of whether the ordinance, on its face, compels

noncommercial speech.                 The ordinance reaches beyond this one

pregnancy center and imposes the requirement of a disclaimer

sign    on   every       speaker      --    commercial         or    not       --    who    provides

                                                  92
information         “for    a    fee     or       as    a    free      service.”         The    plain

language of the ordinance focuses not on the economic motive of

the person, but on the content of the person’s speech.                                          It is

therefore       untenable          for      the        majority         to   assert      that     the

commercial motive of this pregnancy center is a relevant fact

yet to be determined.

       Thus,     as    a    noncommercial,              content-based            regulation,      the

ordinance is subject to strict scrutiny, see Centro Tepeyac, 779

F.     Supp.    2d     at    468       (holding,            with       respect     to    a     similar

provision,       that       “strict      scrutiny           applies”),        affirmed,         Centro

Tepeyac, ___ F.3d at ___, No. 11-1314(L), at 12, and “[c]ontent-

based [speech] regulations are presumptively invalid,” R.A.V.,

505 U.S. at 382.                The City bears the burden of rebutting the

presumption of invalidity.                    See Playboy Entm’t Group, 529 U.S.

at 816-17.          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.”                          Id. at 813.          And to do this,

it   must      show     that     the     ordinance            is       the   least      restrictive

alternative to serve the government’s purpose.                                   Id.; Ashcroft v.

ACLU, 542 U.S. 656, 666 (2004).

       The     City    maintains         that      it       has    a    compelling       government

interest       in     assuring,        as     a    health          concern,       that       pregnancy

                                                   93
centers      do    not   misrepresent         information       about    abortion,       a

concern that it grounds in the Waxman Report and the report of

the NARAL Pro-Choice Maryland Fund.                   It also contends that the

ordinance narrowly addresses this concern by requiring pregnancy

centers to post the mandated sign in their waiting rooms.

        The district court accepted the City’s stated interest in

the ordinance as a compelling one and elected to assess the

question of whether the ordinance was narrowly tailored to serve

that    interest.        I    too    would    bypass     any     inquiry      about    the

sufficiency of the City’s stated government interest and address

the    question     of   whether      it   is      narrowly     tailored.        If    the

ordinance is not narrowly tailored to serve the City’s stated

interest, then it must be invalidated as unconstitutional.

       The   inquiry     into       whether       Ordinance    09-252    is    narrowly

tailored is a purely legal question:                     “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) (whether an ordinance is

overbroad is “a question of law that involved no dispute about

the characteristics of” the plaintiff).                       A statute is narrowly

tailored only “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

                                             94
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).

      A regulation is not narrowly tailored when, among other

things,     (1)     it   does   not   advance     the   purported   compelling

interest, e.g., Meyer v. Grant, 486 U.S. 414, 426 (1988); (2) it

is overinclusive, e.g., Simon & Schuster, Inc. v. Members of the

N.Y. State Crime Victims Bd., 502 U.S. 105, 121–23 (1991); or

(3)   the         government    has    other,      less    speech-restrictive

alternatives available, e.g., Playboy Entm’t Group, 529 U.S. at

816–17.     Ordinance 09–252 fails under all three tests.

      First, the ordinance does not target the stated government

interest of eliminating false advertising.                   It does not even

mention false advertising, and its substance does not address

it.

      Second, the ordinance is overinclusive because it applies

equally      to     pregnancy   centers     regardless     of   whether      they

advertise and, if they advertise, regardless of whether they

engage in false advertising.              See FEC 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



                                       95
“must avoid infringing on speech that does not pose the danger

that has prompted regulation”).

      Third,     several       alternatives    to   address       the   problems

purportedly targeted by the ordinance are available and would

impose 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 consultations with physicians for pregnant women.                    Cf.

44 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”).            This is the same alternative that the

district court found available in Centro Tepeyac, 779 F. Supp.

2d at 469 n.9, to support in part its finding that a similar

provision      was    likely    unconstitutional     and    that    this      court

affirmed in Centro Tepeyac, ___ F.3d at ___, No. 11-1314(L) at

13-14.

      As another alternative, the City could produce a document

or   website     listing   local    pregnancy     centers   and    noting     what

services are available at each.               See Riley, 487 U.S. at 800

                                       96
(“[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    as    yet    another     alternative,     the   City     could   always

pursue the option of prosecuting violations of its criminal and

civil laws that proscribe false or deceptive advertising.                         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 fortune-telling).

      That the City resorted to speech restrictions before trying

these or other less restrictive alternatives is more than enough

to   render    the   ordinance        unconstitutional.         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 additional discovery ordered by the majority would not

eliminate or even mitigate these narrow-tailoring problems.                       The

ordinance’s infirmity in this regard is apparent on its face.

Cf. Sable Commc’ns of Cal., Inc. v. FCC, 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

                                           97
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 on

appeal   from    the    denial      of      a    preliminary       injunction    because

“[t]he First Amendment questions . . . [were] purely legal” and

“only minimally intertwined with the facts”).

     Tellingly,        the    majority        does     not    dispute   the    fact    that

discovery would not be needed to determine whether the language

of the ordinance advances the stated government interest or is

overinclusive     --    two    of     the       three    ways    that   can    render    an

ordinance not narrowly tailored.                     But it nonetheless states that

the City “must be accorded the opportunity to develop evidence

disproving      the    effectiveness            of     purported    less      restrictive

alternatives to the Ordinance’s disclaimer.”                        Ante, at 53; cf.

Centro   Tepeyac,       ___    F.3d      at     ___,    No.     11-1314(L),     at    13-14

(holding to the contrary with respect to a similar provision).

It is remarkable that this is discovery that the City never

requested.

     Finally, the majority adds the careless declaration that:

     [T]he City must be accorded the opportunity to develop
     evidence relevant to the compelling governmental
     interest and narrow tailoring issues, including, inter
     alia, evidence substantiating the efficacy of the
     Ordinance in promoting public health.



                                                98
Ante, at 53.          This declaration of loosely mixed principles is,

as it stands, irrelevant to any issue, but it appears mostly to

collapse     two      burdens       that    the    government         has    under       strict

scrutiny.        First,       the    government      was      required       to    advance    a

compelling       governmental         interest      in    mandating         speech.        With

respect    to    that,       the    majority       fails      to   recognize        that    the

district    court       assumed      that    the    government        had    appropriately

claimed      a        compelling            interest          in      prohibiting           the

misrepresentation of information about abortion.                            Thus, there is

no issue of fact to resolve.                      Second, the government had the

burden to show that its regulation of speech -- i.e., mandating

the   posting      of    a    sign     with    specific        content       in     pregnancy

centers’ waiting rooms -- was narrowly tailored to serve the

compelling      governmental          interest.          As   to   this,     the     majority

fails to recognize that that issue was a question of law.                                   See

Village of Schaumburg, 444 U.S. at 634; Doe, 968 F.2d at 88.                                 To

resolve such a question of law, all that need be done is an

analysis of the statute’s language to determine if it “targets

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

seeks to remedy.”         Frisby, 487 U.S. at 485.

      In short, to respond to the self-evident proposition that

discovery    is    not       needed    in    resolving        questions       of    law,    the

majority     fabricates        fact     issues      where      none    exist       and     then

criticizes      the     dissenting         opinions,      stating,      “The       dissenters

                                              99
would wholly exempt the Center from fundamental procedures to

which all civil litigants are both subject and entitled.”                              Ante,

at 58.      Indeed, it inflates the postured balloon, suggesting

even a constitutional issue in denying discovery.                             See ante, at

59 (“We, however, are not so dismissive of the Federal Rules of

Civil Procedure, which, as the Supreme Court has underscored,

‘are   designed      to     further    the     due       process      of    law     that    the

Constitutional guarantees’”).                 The majority’s drama about its

role in protecting the Federal Rules of Civil Procedure and the

U.S. Constitution does not, however, advance its argument that

it   can   ignore    the     reality    that       the        district     court    ruled    on

questions    of     law,    questions        that        do    not   need    discovery      to

resolve.


                                             III

       At bottom, we have a City ordinance that targets, on its

face and by design, all pregnancy centers that do not provide

abortions or do not refer clients for abortions.                            Purportedly to

remedy misrepresentations being made by these pregnancy centers

about abortion, the ordinance requires each center to put a sign

in   its   waiting    room    announcing           to    clients     that    the    abortion

alternative    is    not     provided    at        the    center,     even    though       such

center     might     hold    the      view     that       abortion         should    not    be

considered as an alternative at all.                          Such an approach invades


                                             100
the   most     fundamental          freedom         of   speech,      mandating       that    the

pregnancy centers speak a message with which they profoundly

disagree.       Even though the City may have a compelling interest

in preventing misrepresentations about abortion, it is not free

to    impose      a       requirement         of    speech      on    those     who    do     not

misrepresent.             Ordinance 09-252 mandates the antidote on all

persons who refuse to provide or refer for abortion, regardless

of    whether     they       have    misrepresented            or     are    misrepresenting

abortion information.               On its face, the ordinance is overbroad

and unconstitutional.                See Centro Tepeyac, 779 F. Supp. 2d at

468-69 (holding similar provision likely not narrowly tailored),

affirmed, Centro Tepeyac, ___ F.3d at ___, No. 11-1314(L), at

13-14.

      The    majority,            however,         refuses     to     consider       the     legal

questions raised by the Pregnancy Center’s facial challenge and

reaches, in its far-ranging opinion, irrelevant and ideological

facts    about        a    case    not    presented       to     conclude      that        summary

judgment was inappropriate.                    I disagree and conclude that the

district     court        properly       recognized       the       issues    that    could    be

decided      as       a     matter       of        law   and        found    the      ordinance

unconstitutional.             That legal analysis is not a difficult one




                                                   101
and, I submit, readily leads to the district court’s conclusion.

Accordingly, I would affirm. ∗

     Judges Wilkinson, Shedd, and Agee have asked me to show

them as joining this opinion.




     ∗
       While I dissent from the court’s remand, I concur in its
judgment that the Archbishop and St. Brigid’s Catholic Church
lack standing to challenge the ordinance.



                                 102
