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O'Brien v. Baltimore (Opinion)

O'Brien v. Baltimore (Opinion)

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On January 28, a federal judge in Maryland handed down a ruling that neatly illustrates how far the U.S. Supreme Court’s precedent has drifted from the idea that political speech is at the core of what the First Amendment was intended to protect.

The case, O’Brien v. City of Baltimore, involved a challenge by a Catholic-based crisis-pregnancy center to a Baltimore ordinance that would have required them to put up a sign in their lobby stating that the center “does not provide or make referral for abortion or birth-control services.” Because the First Amendment protects not just the right to speak but also the right to choose what one will say, the center objected to the ordinance on the grounds that it unconstitutionally compelled them to speak.

The district court in O’Brien correctly concluded that the required disclaimer was compelled speech and that the ordinance must be subject to the highest level of judicial scrutiny, known as “strict scrutiny.” The court went on to hold that the law failed strict scrutiny because the government’s alleged interest in combating “deceptive advertising” by crisis-pregnancy centers could have been achieved by simply modifying the city’s existing anti-fraud statute, without compelling the centers to convey a message they would prefer not to convey.

So far so good—except for the fact that the Supreme Court has upheld disclaimers in the campaign finance context for ads that support or oppose candidates. The district court in O’Brien recognized this and was forced to explicitly distinguish disclaimers in the campaign context from those at issue in the case. Here’s what the court said:

"Strict scrutiny review is a standard traditionally used when examining regulations of fully protected speech rather than the ‘exacting scrutiny’ standard described in Citizens United v. Fed Election Comm’n.,__ U.S. __, 130 S. Ct. 876 (2010) (addressing a First Amendment Challenge to political campaign laws)."

In short, speech about a crisis-pregnancy center is “fully protected” under the First Amendment, but speech about candidates is not. The Framers gave us the First Amendment specifically to allow citizens to, among other things, talk about and criticize their government. Yet three decades of campaign finance decisions have forced a district court to have to say, in effect, “Unlike political speech, the speech at issue here is entitled to significant First Amendment protection.” Nonetheless, decisions like the one in O’Brien are important—by exposing the contradictions between our First Amendment rhetoric and our First Amendment as enforced by the courts, it lays bare how far we have drifted from first principles. And that is the first step to restoring those principles.
On January 28, a federal judge in Maryland handed down a ruling that neatly illustrates how far the U.S. Supreme Court’s precedent has drifted from the idea that political speech is at the core of what the First Amendment was intended to protect.

The case, O’Brien v. City of Baltimore, involved a challenge by a Catholic-based crisis-pregnancy center to a Baltimore ordinance that would have required them to put up a sign in their lobby stating that the center “does not provide or make referral for abortion or birth-control services.” Because the First Amendment protects not just the right to speak but also the right to choose what one will say, the center objected to the ordinance on the grounds that it unconstitutionally compelled them to speak.

The district court in O’Brien correctly concluded that the required disclaimer was compelled speech and that the ordinance must be subject to the highest level of judicial scrutiny, known as “strict scrutiny.” The court went on to hold that the law failed strict scrutiny because the government’s alleged interest in combating “deceptive advertising” by crisis-pregnancy centers could have been achieved by simply modifying the city’s existing anti-fraud statute, without compelling the centers to convey a message they would prefer not to convey.

So far so good—except for the fact that the Supreme Court has upheld disclaimers in the campaign finance context for ads that support or oppose candidates. The district court in O’Brien recognized this and was forced to explicitly distinguish disclaimers in the campaign context from those at issue in the case. Here’s what the court said:

"Strict scrutiny review is a standard traditionally used when examining regulations of fully protected speech rather than the ‘exacting scrutiny’ standard described in Citizens United v. Fed Election Comm’n.,__ U.S. __, 130 S. Ct. 876 (2010) (addressing a First Amendment Challenge to political campaign laws)."

In short, speech about a crisis-pregnancy center is “fully protected” under the First Amendment, but speech about candidates is not. The Framers gave us the First Amendment specifically to allow citizens to, among other things, talk about and criticize their government. Yet three decades of campaign finance decisions have forced a district court to have to say, in effect, “Unlike political speech, the speech at issue here is entitled to significant First Amendment protection.” Nonetheless, decisions like the one in O’Brien are important—by exposing the contradictions between our First Amendment rhetoric and our First Amendment as enforced by the courts, it lays bare how far we have drifted from first principles. And that is the first step to restoring those principles.

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Published by: Institute for Justice on Feb 02, 2011
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07/09/2011

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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MARYLANDARCHBISHOP EDWIN F. O’BRIEN, *ARCHBISHOP OF BALTIMORE ANDHIS SUCCESSORS IN OFFICE, A *CORPORATION SOLE, et al.*Plaintiffs*vs. CIVIL ACTION NO. MJG-10-760*MAYOR AND CITY COUNCIL OFBALTIMORE, et al. *
 
Defendants ** * * * * * * * *DECISION & ORDERThe Court has before it Plaintiffs’ Motion for PartialSummary Judgment [Document 9], Defendants’ Motion to Dismiss[Document 11], and the materials submitted relating thereto.The Court has held a hearing and had the benefit of thearguments of counsel.I. INTRODUCTIONThe Greater Baltimore Center for Pregnancy Concerns,Inc. (the “CENTER”) provides pregnancy-related counseling.The CENTER operates at locations within Baltimore City andis provided space, rent-free, by Archbishop Edwin F.O’Brien, Archbishop of Baltimore and His Successors inOffice, A Corporation Sole. (the “Archbishop”) and St.
Case 1:10-cv-00760-MJG Document 32 Filed 01/28/11 Page 1 of 29
 
2Brigid’s Roman Catholic Congregation, Inc. (“St.Brigid’s”). The CENTER will not, for religious reasons,provide or refer for abortions or specific methods ofbirth-control that are contrary to the views of theCatholic Church.
1
 On December 4, 2009, the City of Baltimore enactedOrdinance 09-252 (the “Ordinance”).
2
The Ordinance isdirected toward any organization
3
that provides informationabout pregnancy-related services but does not provide orrefer for abortions or certain types of birth-controlservices. Under the Ordinance, such an organization referred to as a “limited-service pregnancy center” - mustpost a conspicuous sign in its waiting room notifying itsclients that the center “does not provide or make referralfor abortion or birth-control services.”
4
 As discussed herein, the Court holds that the Ordinanceviolates the Freedom of Speech Clause of Article I of theConstitution of the United States and is unenforceable. Whether
1
Each employee of the CENTER must sign a statement affirminghis or her Christian faith and the belief that abortion isimmoral.
2
See B
ALT
.
 
C
ITY
H
EALTH
C
ODE
§§ 3-501 to 3-506 (2010).
3
Whose primary purpose is to provide pregnancy relatedservices.
4
Id. at § 3-502(A).
Case 1:10-cv-00760-MJG Document 32 Filed 01/28/11 Page 2 of 29
 
3a provider of pregnancy-related services is “pro-life” or “pro-choice,” it is for the provider – not the Government - to decidewhen and how to discuss abortion and birth-control methods. TheGovernment cannot, consistent with the First Amendment, requirea “pro-life” pregnancy-related service center to post a sign aswould be required by the Ordinance.II. PROCEDURAL SETTINGThe CENTER, the Archbishop, and St. Brigid’s(collectively “Plaintiffs”) have filed the instant lawsuit,seeking to enjoin enforcement of the Ordinance. Plaintiffs,contending that the Ordinance is facially invalid, assertclaims against the Mayor and City Council of Baltimore,Stephanie Rawlings-Blake, in her official capacity as Mayorof Baltimore, and Olivia Farrow Esq., in her officialcapacity as acting Baltimore City Health Commissioner(collectively “Defendants”).
5
Plaintiffs’ Complaint forDeclaratory and Injunctive Relief presents four Counts:Count I. First Amendment (Free Speech and Assembly)Count II. First Amendment (Free Exercise of Religion)
5
Plaintiffs also named the Baltimore City Health Departmentas a defendant but agree that claims against the Baltimore CityHealth Department be dismissed without prejudice (Pls.’ Opp’n in[Document 17] at 34).
Case 1:10-cv-00760-MJG Document 32 Filed 01/28/11 Page 3 of 29

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