Legal Commentary

Court Strikes Down Baltimore Ordinance Requiring Disclaimer for Pregnancy Counseling That Doesn?t Include Abortion or Birth Control Options

By Eugene Volokh

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 would be the same even if the requirement wasn?t characterized as being viewpoint-based). Thanks to Mike Chittenden for the pointer.

Full post as published by The Volokh Conspiracy on February 01, 2011 (boomark / email).