Court Strikes Down Baltimore Ordinance Requiring Disclaimer for Pregnancy Counseling That Doesn’t Include Abortion or Birth Control Options

Baltimore Code § 3-501 to -503 — just enacted a year ago — provides that any organization that primarily provides pregnancy-related services but not abortion or certain kinds of birth control “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.” Friday, a district court held this to violate the First Amendment right to be free of compelled speech, see O’Brien v. Mayor & City Council of Baltimore (D. Md.).

The court concluded that the law does not regulate commercial speech (correct, I think, since it applies to organizations that provide free counseling as well as those that sell products or services), that it is not narrowly tailored to a compelling government interest in preventing fraud (also correct, I think, especially in light of cases such as Riley v. National Federation of the Blind), and that it was viewpoint-based (more doubtful, but the result might well be the same even if the requirement wasn’t characterized as being viewpoint-based). Thanks to Mike Chittenden for the pointer.

UPDATE: I neglected to mention the strongest argument against the decision — that the ordinance constitutes a regulation of professional-client speech, where some speech compulsion (as well as some speech restriction) is permitted; compare, for instance, Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) (plurality), which dismissed a First Amendment challenge to a disclosure requirement with just the following discussion: “All that is left of petitioners’ argument is an asserted First Amendment right of a physician not to provide information about the risks of abortion, and childbirth, in a manner mandated by the State. To be sure, the physician’s First Amendment rights not to speak are implicated, see Wooley v. Maynard [a leading compelled speech case], but only as part of the practice of medicine, subject to reasonable licensing and regulation by the State. We see no constitutional infirmity in the requirement thatthe physician provide the information mandated by the State here.”

Unfortunately, the Supreme Court has never provided any clear rule about when and how the government may regulate individualized advice, whether about medicine, psychiatric problems, law, accounting, finance, or what have you. So it’s not clear whether the sort of counseling at issue in this case — not the practice of medicine, though perhaps akin to some sorts of psychiatric and medicine counseling — would be subject to extra disclosure requirements, and just what disclosure requirements could be required.

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