Centro Tepeyac: Pro-Lifers' First Amendment Martyr?

On February 2, 2010, the Montgomery County (Mo Co) Council in Maryland commanded Centro Tepeyac and other area pro-life centers to "post at least 1 sign in the Center indicating" the following:

  • The Center does not have a licensed medical professional on staff ["licensed pro"]
  • The [Mo Co] Health Officer encourages women who are or may be pregnant to consult with a licensed health care provider ["abortionist-referral"]
"Licensed health care providers" typically recommend abortion to women in "crisis pregnancies," and the regulation's goal is to obstruct pro-life centers' counseling of pregnant women.  The regulation states that signs must be in English and Spanish, "easily readable," and "conspicuously posted in the Center's waiting room[.]"  Centro Tepeyac and other centers face fines of $500 for the first violation and $750 for subsequent violations. 

Mo Co Council based the regulation on reports about pro-life centers' activities by the U.S. House of Representatives Committee on Government Reform (2006) and the National Abortion Rights Action League (NARAL) Pro-Choice Maryland Fund (2008).  These reports claimed that pro-life centers in Maryland and other states gave visitors false, misleading, and incomplete medical information, including that abortion can cause breast cancer1 and that during pregnancy a mother's womb contains an actual baby.  However, while Centro Tepeyac alone counsels about 2,000 pregnant women per year, no visitors to Centro Tepeyac or other pro-life centers in Mo Co complained to Mo Co Council about the centers' services.  Nevertheless, to regulate Mo Co's pro-life centers, Mo Co Council invoked its power to address "nuisance[s] or cause[s] of disease" in the county.

In May of 2010, Centro Tepeyac sued Mo Co for violating its First Amendment rights to freedom of speech and assembly2.  For instance, Centro Tepeyac's lawsuit argued that Mo Co's regulation forces Centro Tepeyac to use Mo Co's pro-abortion speech and to assemble with pregnant women only under Mo Co's pro-abortion sign.  In March of 2011, the U.S. District Court for the District of Maryland ruled that Mo Co could force Centro Tepeyac and other centers to post the "licensed pro" statement but not the "abortionist-referral" statement.  However, in June of 2012, the U.S. Court of Appeals for the Fourth Circuit ruled that both statement regulations violated Centro Tepeyac's freedom of speech.  If Mo Co appeals, the Supreme Court could decide the case. 

To strengthen Centro Tepeyac's already compelling First Amendment argument, especially if the Supreme Court reviews its case, Centro Tepeyac should argue that the Mo Co regulation's "post at least 1 sign" stipulation is a violation of "freedom of ... the press."  I argued in a previous article based on UCLA law professor Eugene Volokh's landmark research on press freedom that the Founders meant for the First Amendment's "the press" to be the printing press and any future communication technology.  Contrary to conventional wisdom, this conclusion means that the First Amendment's "the press" doesn't equal the mainstream media, bloggers, or even pamphleteers. 

As Volokh argued, Samuel Johnson's A Dictionary of the English Language (1755), the most widely used dictionary at the Constitution's ratification, gave no definition of "press" in terms of today's conventional understanding of "the press" as a collection of journalists, but it did define "press" as "[t]he instrument by which books are printed."  Also, as Volokh noted, writers whom the Founders often cited and who inspired the First Amendment connected press freedom with the rights of every "freeman," "citizen," or "individual" to "print," "write," or "publish" his or her thoughts.  Thus, the First Amendment's "the press" protects every individual's (or center's) right to "freedom in the use of the [printing] press."  Volokh demonstrated that throughout U.S. history, U.S. courts have consistently applied the First Amendment's press freedom to anyone who uses printing presses, such as newspaper advertisers, pamphleteers, and authors of letters to the editor.

Mo Co's regulation for Centro Tepeyac and other pro-life centers to "post at least 1 sign" forces pro-life centers to use printing presses to print pro-abortion signs.  Thus, Mo Co's regulation violates these pro-life centers' "freedom in the use of ... [printing] press[es]."  It's irrelevant whether Mo Co's pro-life centers print pro-abortion signs using their office printers or just order signs from The Sign Shop in Silver Spring, Maryland.  A printing press is a printing press; in fact, today's average office printers can print 1,800 pages per hour3 while Lord Stanhope's printing press, invented in 1800, could print just 250 sheets per hour4.

Even if Mo Co Council amended its regulation to force pro-life centers to post preprinted pro-abortion signs that Mo Co would supply, Mo Co would still violate the pro-life centers' press freedom.  For instance, these preprinted signs would violate pro-life centers' right to publish pro-life messages, a right the "freedom of ... the press" ensures.  According to Johnson's dictionary, "publish" had such definitions as "to di[s]cover to mankind; to make generally and openly known; to proclaim; to divulge."  So no Mo Co regulation could force Mo Co's pro-life centers to, through a preprinted sign, "make generally and openly known" or "proclaim" pro-abortion views to visitors.    

Is Centro Tepeyac a First Amendment martyr in the pro-life community?  Thanks to the U.S. Court of Appeals, not yet.  However, if Mo Co has its way, then yes.  If the Supreme Court reviews Centro Tepeyac's case, hopefully Chief Justice John Roberts, similar to his now-infamous approval of ObamaCare, won't rule that "Mo Co's sign regulation is a tax."  The Supreme Court should rule that Mo Co's entire regulation violates the First Amendment's freedoms of speech, assembly, and press.

Daniel Smyth blogs at LibertyBlog.org and danielsmyth.org.


1However, even months before Mo Co Council passed the regulation, high-profile studies in the United States, Turkey, and China showed a link between abortion and breast cancer. 

 

2The Fourteenth Amendment says, in part, "No State [and thus local government] shall abridge the privileges or immunities of citizens of the United States[.]"  Thus, Mo Co and other local governments cannot violate citizens' First Amendment rights or other constitutional rights.    

3To get this hourly rate, multiply the office printer's minute rate of 30 pages by 60. 

4Philip B. Meggs and Alston W. Purvis, Meggs' History of Graphic Design, 4th Ed. (Hoboken, NJ: John Wiley & Sons, Inc., 2006), p. 140.

On February 2, 2010, the Montgomery County (Mo Co) Council in Maryland commanded Centro Tepeyac and other area pro-life centers to "post at least 1 sign in the Center indicating" the following:

  • The Center does not have a licensed medical professional on staff ["licensed pro"]
  • The [Mo Co] Health Officer encourages women who are or may be pregnant to consult with a licensed health care provider ["abortionist-referral"]

"Licensed health care providers" typically recommend abortion to women in "crisis pregnancies," and the regulation's goal is to obstruct pro-life centers' counseling of pregnant women.  The regulation states that signs must be in English and Spanish, "easily readable," and "conspicuously posted in the Center's waiting room[.]"  Centro Tepeyac and other centers face fines of $500 for the first violation and $750 for subsequent violations. 

Mo Co Council based the regulation on reports about pro-life centers' activities by the U.S. House of Representatives Committee on Government Reform (2006) and the National Abortion Rights Action League (NARAL) Pro-Choice Maryland Fund (2008).  These reports claimed that pro-life centers in Maryland and other states gave visitors false, misleading, and incomplete medical information, including that abortion can cause breast cancer1 and that during pregnancy a mother's womb contains an actual baby.  However, while Centro Tepeyac alone counsels about 2,000 pregnant women per year, no visitors to Centro Tepeyac or other pro-life centers in Mo Co complained to Mo Co Council about the centers' services.  Nevertheless, to regulate Mo Co's pro-life centers, Mo Co Council invoked its power to address "nuisance[s] or cause[s] of disease" in the county.

In May of 2010, Centro Tepeyac sued Mo Co for violating its First Amendment rights to freedom of speech and assembly2.  For instance, Centro Tepeyac's lawsuit argued that Mo Co's regulation forces Centro Tepeyac to use Mo Co's pro-abortion speech and to assemble with pregnant women only under Mo Co's pro-abortion sign.  In March of 2011, the U.S. District Court for the District of Maryland ruled that Mo Co could force Centro Tepeyac and other centers to post the "licensed pro" statement but not the "abortionist-referral" statement.  However, in June of 2012, the U.S. Court of Appeals for the Fourth Circuit ruled that both statement regulations violated Centro Tepeyac's freedom of speech.  If Mo Co appeals, the Supreme Court could decide the case. 

To strengthen Centro Tepeyac's already compelling First Amendment argument, especially if the Supreme Court reviews its case, Centro Tepeyac should argue that the Mo Co regulation's "post at least 1 sign" stipulation is a violation of "freedom of ... the press."  I argued in a previous article based on UCLA law professor Eugene Volokh's landmark research on press freedom that the Founders meant for the First Amendment's "the press" to be the printing press and any future communication technology.  Contrary to conventional wisdom, this conclusion means that the First Amendment's "the press" doesn't equal the mainstream media, bloggers, or even pamphleteers. 

As Volokh argued, Samuel Johnson's A Dictionary of the English Language (1755), the most widely used dictionary at the Constitution's ratification, gave no definition of "press" in terms of today's conventional understanding of "the press" as a collection of journalists, but it did define "press" as "[t]he instrument by which books are printed."  Also, as Volokh noted, writers whom the Founders often cited and who inspired the First Amendment connected press freedom with the rights of every "freeman," "citizen," or "individual" to "print," "write," or "publish" his or her thoughts.  Thus, the First Amendment's "the press" protects every individual's (or center's) right to "freedom in the use of the [printing] press."  Volokh demonstrated that throughout U.S. history, U.S. courts have consistently applied the First Amendment's press freedom to anyone who uses printing presses, such as newspaper advertisers, pamphleteers, and authors of letters to the editor.

Mo Co's regulation for Centro Tepeyac and other pro-life centers to "post at least 1 sign" forces pro-life centers to use printing presses to print pro-abortion signs.  Thus, Mo Co's regulation violates these pro-life centers' "freedom in the use of ... [printing] press[es]."  It's irrelevant whether Mo Co's pro-life centers print pro-abortion signs using their office printers or just order signs from The Sign Shop in Silver Spring, Maryland.  A printing press is a printing press; in fact, today's average office printers can print 1,800 pages per hour3 while Lord Stanhope's printing press, invented in 1800, could print just 250 sheets per hour4.

Even if Mo Co Council amended its regulation to force pro-life centers to post preprinted pro-abortion signs that Mo Co would supply, Mo Co would still violate the pro-life centers' press freedom.  For instance, these preprinted signs would violate pro-life centers' right to publish pro-life messages, a right the "freedom of ... the press" ensures.  According to Johnson's dictionary, "publish" had such definitions as "to di[s]cover to mankind; to make generally and openly known; to proclaim; to divulge."  So no Mo Co regulation could force Mo Co's pro-life centers to, through a preprinted sign, "make generally and openly known" or "proclaim" pro-abortion views to visitors.    

Is Centro Tepeyac a First Amendment martyr in the pro-life community?  Thanks to the U.S. Court of Appeals, not yet.  However, if Mo Co has its way, then yes.  If the Supreme Court reviews Centro Tepeyac's case, hopefully Chief Justice John Roberts, similar to his now-infamous approval of ObamaCare, won't rule that "Mo Co's sign regulation is a tax."  The Supreme Court should rule that Mo Co's entire regulation violates the First Amendment's freedoms of speech, assembly, and press.

Daniel Smyth blogs at LibertyBlog.org and danielsmyth.org.


1However, even months before Mo Co Council passed the regulation, high-profile studies in the United States, Turkey, and China showed a link between abortion and breast cancer. 

 

2The Fourteenth Amendment says, in part, "No State [and thus local government] shall abridge the privileges or immunities of citizens of the United States[.]"  Thus, Mo Co and other local governments cannot violate citizens' First Amendment rights or other constitutional rights.    

3To get this hourly rate, multiply the office printer's minute rate of 30 pages by 60. 

4Philip B. Meggs and Alston W. Purvis, Meggs' History of Graphic Design, 4th Ed. (Hoboken, NJ: John Wiley & Sons, Inc., 2006), p. 140.