Earlier this month, the U.S. Court of Appeals for the Fourth Circuit granted a new hearing in Greater Pregnancy Concerns vs. City of Baltimore, the case in which a three-judge panel flouted common sense and the rules of civil procedure in its rush to rule in favor of the plaintiff Pregnancy Center on summary judgment and protect the Catholic Church’s right to lie and deceive women.
In Greater Pregnancy Concerns, the Fourth Circuit considered an ordinance which the City of Baltimore passed in order to protect women’s health and to prevent crisis pregnancy centers (CPCs) from misleading vulnerable women about the services they provide.
As I explained in my previous post about this case, many CPCs falsely advertise themselves as health clinics but are anything but. They are limited-service religious-based organizations that use lies and manipulation to guilt women into “Doing the Right Thing” according to their religious and gender ideology. Women who visit these clinics think they are going to a full-services health clinic; instead they get an earful of guilt and What Would Jesus Do. (The answer is always, “Keep the baby.”)
The City of Baltimore sought to protect women from being deceived by these CPCs through an ordinance requiring CPCs to post a sign stating that they do not offer abortion or birth control services and would not refer women to clinics that do. The City argued that the ordinance was a reasonable regulation of commercial speech, and that the ordinance served the state’s compelling interest in preventing women from being deceived by CPCs with ulterior religious motives. The Court disagreed. It found that the Pregnancy Center’s speech did not constitute commercial speech, and in doing so, completely ignored the City’s arguments to the contrary.
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Commercial speech is “expression related solely to the economic interests of the speaker and its audience.” The Court held that the Pregnancy Center’s speech involved provision of “free services,” and that there was no evidence that the Pregnancy Center is motivated by any economic interest.” This makes neither logical nor legal sense.
First, the Supreme Court has held that under some circumstances, speech can promote the speaker’s economic interest even though the speech is not a proposal to engage in a commercial transaction. As the City argued, CPCs may operate as nonprofits, but “they effectively engage in commerce by offering pregnancy testing, sonograms, and options counseling, all of which have commercial value, garnering payments and fees in the marketplace.”
And as the dissent noted, “We know that nonprofit entities with religious or political motives can engage in commerce… And although outwardly the Center appears to be driven by religious purposes only, certain operational intricacies may prove otherwise. For instance, as observed in a similar case, if the Center were “referring women to pro-life doctors in exchange for ‘charitable’ contributions, the analysis could change.'”
Second, as a matter of common sense, just because organizations operate as non-profit organizations does not necessarily mean that they are not motivated by economic interest. Non-profit organizations are economic actors, just as for-profit organizations are, as anyone who has been involved in fundraising for nonprofit organizations surely understands. For example, perhaps the Pregnancy Center’s funding was contingent upon it not engaging in any speech that might be viewed as sanctioning birth control or abortion services.
The Court pointed out that there was no evidence in the record of economic motive; but what it should have done is allowed the City an opportunity to present such evidence. In its haste to end the case via summary judgment, the Court improperly refused to allow the City an opportunity to present evidence that would have allowed the trial court to make a fair determination of that fact. The Court simply accepted the Pregnancy Center’s attorneys’ word, not based upon admissible evidence, that the Pregnancy Center’s sole motive was religious and not economic.
Ultimately, whether or not the Pregnancy Center was driven solely by religious purposes is less relevant than the fact that the Court did not provide an opportunity for the City to present evidence that the Pregnancy Center was not driven solely by religious motivation and was actually engaged in commerce. This is important: Under court rules regarding summary judgment, a party that requests additional time to conduct discovery (i.e., gather facts and admissible evidence) is almost always entitled to that time. A court may not grant summary judgment in favor of a party if the opposing party demonstrates that a factual dispute exists with respect to material facts.
The City argued that a factual dispute existed as to whether or not the Pregnancy Center was motivated by economic interest, and if given the opportunity, the City might have been able to gather evidence demonstrating that the Pregnancy Center was engaged in commerce, thereby rendering its speech commercial. The City also might have been able to gather evidence to counter the Pregnancy Center’s claim that the Pregnancy Center was driven solely by religious ideology. (Remember, under the rules regarding summary judgment, the court was required to grant the City such an opportunity, especially since the Pregnancy Center’s claim that it was motivated only by religious ideology was made through its attorneys, and not through any admissible evidence.) If successful, a lesser standard of review–a standard other than the difficult-to-overcome strict scrutiny standard–would have applied. This, of course, would have made far more difficult the Pregnancy Center’s efforts to strike down the ordinance as unconstitutional.
That the Court flatly refused the City’s request for discovery and granted summary judgment in favor of the Pregnancy Center is an egregious error, one which the Fourth Circuit will likely remedy upon rehearing the case. As the dissent notes, “summary judgment is never appropriate where, as here, there are genuine disputes of material fact.” The majority opinion is replete with references to the inadequate factual record presented by the City of Baltimore, and criticism directed at the City for not presenting evidence related to critical issues. But as the dissent points out, “criticizing the record as somehow lacking merely begs the real question underlying the errors of the district court: Why was the City denied a full and fair opportunity to conduct discovery and present a proper record?”
Why, indeed. Let’s hope the Fourth Circuit corrects its error.
[You can read my marked up copy of the Fourth Circuit decision here on Scribd.]