March v. Mills

United States Court of Appeals
For the First Circuit
No. 16-1771
ANDREW MARCH,
Plaintiff, Appellee,
v.
JANET T. MILLS, individually and in her official capacity as
Attorney General for the State of Maine,
Defendant, Appellant,
CITY OF PORTLAND, MAINE; WILLIAM PREIS, individually and in his
official capacity as a Police Lieutenant of the City of
Portland; JASON NADEAU, individually and in his official
capacity as a Police Officer of the City of Portland; GRAHAM
HULTS, individually and in his official capacity as a Police
Officer of the City of Portland; DONALD KRIER, individually and
in his official capacity as a Police Major of the City of
Portland,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Nancy Torresen, Chief U.S. District Judge]
Before
Lynch, Stahl, and Barron,
Circuit Judges.
Christopher C. Taub, Assistant Attorney General, with whom
Janet T. Mills, Attorney General, and Leanne Robbin, Assistant
Attorney General, were on brief, for appellant.
Kate Margaret-O'Reilly Oliveri, with whom Thomas More Law
Center, Stephen Whiting, and The Whiting Law Firm, P.A., were on
brief, for appellee.
August 8, 2017
BARRON, Circuit Judge. This appeal concerns a
constitutional challenge brought by a protester who opposes
abortion. He seeks to enjoin the enforcement of a provision of
the Maine Civil Rights Act ("MCRA"), Me. Rev. Stat. Ann. tit. 5,
§ 4684-B(2), that, he contends, facially violates the First
Amendment's guarantee of the freedom of speech.1 The challenged
provision bars a person from making noise that "can be heard within
a building" when such noise is made intentionally, following an
order from law enforcement to cease making it, and with the
additional "intent either: (1) [t]o jeopardize the health of
persons receiving health services within the building; or (2) [t]o
interfere with the safe and effective delivery of those services
within the building." Me. Rev. Stat. Ann. tit. 5, § 4684-B(2)(D).
The District Court ruled that the measure restricts
speech based on its content rather than on the time, place, or
manner of its expression. And, the District Court concluded that
the measure likely cannot survive the strict constitutional
scrutiny to which such content-based speech restrictions are
subject. Thus, the District Court concluded that the plaintiff
was likely to succeed on the merits of his contention that the
1The First Amendment applies to Maine by virtue of the Due
Process Clause of the Fourteenth Amendment. Schneider v. New
Jersey, 308 U.S. 147 (1939).
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measure is unconstitutional on its face and granted his request
for a preliminary injunction. We now reverse.
I.
We begin by providing some background regarding the MCRA
and the noise restriction that it sets forth. We also describe
the relevant procedural history.
A.
The Maine legislature enacted the MCRA in 1989. 1989
Me. Legis. Serv. 582. The MCRA creates a cause of action that the
Attorney General of Maine or any "aggrieved" person may bring
against any person who, "whether or not acting under color of law,
intentionally interferes or attempts to intentionally interfere"
with another person's rights secured by the United States or Maine
Constitutions or state or federal law. Me. Rev. Stat. Ann. tit.
5, §§ 4681, 4682.
In 1995, the Attorney General proposed a bill to amend
the MCRA. The proposed amendment sought to "add[] to the
protections already contained in the [MCRA] for persons seeking
services from reproductive health facilities and for persons
providing services at those facilities."
The Attorney General indicated at the time that the
impetus for the proposed amendment, which contained a number of
distinct provisions of which this lawsuit concerns only one, was
a concern that "the most extreme violence tends to occur in
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situations where less serious civil rights violations are
permitted to escalate," because "[w]hen the rhetoric of
intolerance and the disregard for civil rights do, in fact,
escalate, then some people at the fringes of society will take
that atmosphere as a license to commit unspeakable violence." The
amendment, as a whole, was thus intended to "represent[] a
commitment on the part of both sides of the abortion debate to
reduce tensions in order to lessen the chances of tragic violence."
In the course of the legislative process, the District
Court noted, the proposed amendment was expanded "to cover conduct
outside all buildings, rather than just reproductive health
facilities." March v. Mills, No. 2:15-CV-515-NT, 2016 WL 2993168,
at *2 (D. Me. May 23, 2016). The expansion sought to ensure that
the measure would cover, in addition to "reproductive health
facilities," "crisis pregnancy centers, pro-life groups'
headquarters and offices, etc." Id.
A broad range of interested parties, including both
proponents and opponents of abortion rights, supported the
amendment. Supporters included the Maine Pro-Choice Coalition
-- a coalition of twenty-five pro-choice organizations -- and the
Maine Life Coalition, which consisted of the Maine Right to Life
Committee, the Catholic Diocese of Portland, the Christian Civic
League, and Feminists for Life of Maine.
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A representative of Feminists for Life of Maine
testified to the Maine legislature in support of the proposed
amendment by stating that "it is the consensus of the Maine Life
Coalition . . . and the Attorney General's Office that this
legislation further secures protection for both pro-life and pro-
choice individuals." The representative specifically noted that,
"[f]or the first time in Maine and perhaps the nation, legislation
has been developed with pro-life and pro-choice activists
participating with the Attorney Generals' [sic] Office." In
addition, a representative of the American Civil Liberties Union
of Maine -- at that time known as the Maine Civil Liberties
Union -- testified in support of the bill by noting that "this Act
protects important constitutionally guaranteed rights, and does
not in any way run afoul of the free speech provisions of the Maine
and United States Constitutions."
Maine enacted the amendment in 1995. The amendment makes
it a violation of the MCRA, as the District Court usefully
summarized, "to interfere or attempt to interfere with a person's
civil rights by: (1) physically obstructing the entrance or exit
of a building; (2) making repeated telephone calls to disrupt
activities in a building; (3) setting off any device that releases
'noxious and offensive odors' within a building; or (4) making
noise" in a certain way and for certain reasons. March, 2016 WL
2993168 at *2 (quoting Me. Rev. Stat. Ann. tit. 5, § 4684-B(2)).
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This last part of the amendment, subsection (D) of
section 4684-B, is the only part of the MCRA that is at issue here.
We shall refer to that part, for ease of reference, as the Noise
Provision. The Noise Provision defines the "conduct," see Me.
Rev. Stat. Ann. tit. 5, § 4684-B(2), that may give rise to an
action under the MCRA as follows:
D. After having been ordered by a law enforcement
officer to cease such noise, intentionally making
noise that can be heard within a building and with
the further intent either:
(1) To jeopardize the health of persons receiving
health services within the building; or
(2) To interfere with the safe and effective
delivery of those services within the
building.
Id. § 4684-B(2)(D).2
2 The full text of the portion of the MCRA in which the Noise
Provision appears reads:
It is a violation of this section for any person, whether
or not acting under color of law, to intentionally
interfere or attempt to intentionally interfere with the
exercise or enjoyment by any other person of rights
secured by the United States Constitution or the laws of
the United States or of rights secured by the
Constitution of Maine or laws of the State by any of the
following conduct:
A. Engaging in the physical obstruction of a
building;
B. Making or causing repeated telephone calls to
a person or a building, whether or not
conversation ensues, with the intent to impede
access to a person's or building's telephone
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B.
The plaintiff in the case before us is Andrew March. He
is a "co-founder of a church in Lewiston, Maine called Cell 53."
March, 2016 WL 2993168 at *1. A part of the church's mission "is
to plead for the lives of the unborn at the doorsteps of abortion
facilities." Id. In keeping with that mission and with March's
personal belief that "abortion is the killing of unborn citizens"
and "harms women," March makes known his opposition to abortion
outside the Planned Parenthood Health Center on Congress Street in
Portland, Maine. Id.
March filed his suit pursuant to 42 U.S.C. § 1983 on
December 21, 2015, in the United States District Court for the
District of Maine. He named various defendants, including Maine's
lines or otherwise disrupt a person's or
building's activities;
C. Activating a device or exposing a substance
that releases noxious and offensive odors
within a building; or
D. After having been ordered by a law enforcement
officer to cease such noise, intentionally
making noise that can be heard within a
building and with the further intent either:
(1) To jeopardize the health of persons
receiving health services within the
building; or
(2) To interfere with the safe and effective
delivery of those services within the
building.
Me. Rev. Stat. Ann. tit. 5, § 4684-B(2).
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Attorney General. He alleges in his complaint that, among other
things, the Noise Provision violates the First Amendment's
guarantee of the freedom of speech both on its face and as applied
to him. He seeks both declaratory and injunctive relief.
More specifically, March alleges that, in November and
December 2015, law enforcement on three occasions told him,
pursuant to the Noise Provision, to lower the volume of his
activity outside the Planned Parenthood facility in Portland. He
alleges that he repeatedly "asked for a definitive volume level
that he could speak at," but did not receive a standard. Thus, he
claims, he can no longer "communicate audibly," due to fears that
his speech will subject him to an enforcement action.
On December 30, 2015, March filed a motion for a
preliminary injunction. In its opposition to that motion, Maine
articulated its interest in enacting the Noise Provision by
emphasizing that "[p]atients have the right to receive safe and
effective health care . . . without interference from Mr. March or
anyone else." Relying on affidavits from health professionals,
Maine noted specifically the "physiological effect on patients,
often causing additional stress and elevated blood pressure,
pulse, and respiratory rates" that noise can cause when made so
loud it can be heard inside a health facility, and the disruption
that results to the safe and effective treatment of those patients.
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Maine also challenged in its papers March's allegations
about how the measure restricts speech. In particular, Maine
contended that March has "yell[ed] so loudly that the patients
cannot escape his rants," but that, under the measure, he remains
free to express his views loudly enough to conduct conversations
and be heard within the immediate vicinity, and that he has in
fact done so.
The District Court heard oral argument on the motion on
April 4, 2016, and received supplemental briefing. On May 23,
2015, the District Court granted March's motion for a preliminary
injunction based solely on March's facial constitutional
challenge, thereby leaving his as-applied challenge unaddressed.3
In granting the requested relief on the facial challenge, the
District Court applied the standard we set forth in Arborjet, Inc.
v. Rainbow Treecare Scientific Advancements, Inc., 794 F.3d 168,
3 There is one other case of which we are aware that addresses
the Noise Provision's constitutionality. In that case, the
Attorney General, in bringing an action under the MCRA's Noise
Provision, alleged that the defendant "repeatedly stood on the
sidewalk" outside of the Planned Parenthood Health Center on
Congress Street in Portland, Maine and "loudly yelled directly at
patients inside of the facility," such that his conduct "interfered
with Planned Parenthood's ability to provide medical care." The
defendant in that case moved to dismiss the suit on the ground
that the Noise Provision is unconstitutional on its face, but the
Maine Superior Court held that the Noise Provision was a
permissible time, place, or manner restriction on speech. See
State v. Ingalls, No. CV-15-487, 2016 Me. Super. LEXIS 55, at *12,
*14 (Me. Super. Ct. Mar. 17, 2016) (order denying motion to
dismiss). No appeal was taken.
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171 (1st Cir. 2015), regarding what a plaintiff seeking a
preliminary injunction must demonstrate. Under that standard, a
plaintiff must show: "(1) a likelihood of success on the merits,
(2) a likelihood of irreparable harm absent interim relief, (3) a
balance of equities in the plaintiff’s favor, and (4) service of
the public interest." March, 2016 WL 2993168 at *6.
With respect to likelihood of success, the District
Court first concluded that the Noise Provision is a content-based
restriction on speech. The District Court explained that the Noise
Provision "targets a subset of loud noise -- noise made with the
intent to jeopardize or interfere [with the delivery of health
services] -- and treats it less favorably." Id. at *11. And the
District Court determined that the measure singled out that subset
of loud noise due to its content rather than in consequence of the
time, place, or manner of its expression. Id.
The District Court then ruled that, as a content-based
speech restriction, the measure could survive March's facial
constitutional challenge only by satisfying strict scrutiny. Id.
And, the District Court explained, under that standard, a speech
restriction must serve a compelling state interest through the
least restrictive means. Id.
The District Court determined that Maine had a
compelling interest in protecting the health and safety of its
citizens, protecting its citizens from unwelcome noise around
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medical facilities, and de-escalating potential violence that can
occur around facilities that perform abortions. Id. at *12. But,
the District Court ruled, "adequate content-neutral alternatives
could achieve the State's asserted interest." Id. at *13. In
particular, the District Court explained that Maine "could enact
a law prohibiting all loud, raucous, or unreasonably disturbing
noise outside of facilities providing medical
care[,] . . . prohibit all noise made within a certain proximity
to such facilities that has the effect of disrupting the safe and
effective delivery of health care[,] . . . [or] limit all noise
outside of buildings offering health services if the noise exceeds
a certain decibel level." Id. (citations omitted). The District
Court thus concluded that March was likely to succeed on the merits
of his claim because the Noise Provision did not serve a compelling
governmental interest by the least restrictive means. Id. at *14.
The District Court also concluded that the hardship to
the defendants resulting from the granting of the preliminary
injunction would be "minimal," whereas continued enforcement of
the Noise Provision would "result in irreparable harm to [March]."
Id. at *15. Finally, the District Court concluded that March "has
met his burden of showing that granting an injunction to prevent
continued enforcement of a content-based law would serve the public
interest." Id. Accordingly, the District Court granted March's
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motion for a preliminary injunction to enjoin the defendants from
enforcing the provision. Id.
Maine has now filed this timely appeal. See 28 U.S.C.
§ 1292(a). Our review of the District Court's grant of the
preliminary injunction on the ground that the Noise Provision is
unconstitutional on its face is for abuse of discretion. Corp.
Techs., Inc. v. Hartnett, 731 F.3d 6, 10 (1st Cir. 2013). We
assess the underlying conclusions of law de novo and the findings
of fact for clear error. Id.
II.
The threshold question we must decide in resolving this
facial constitutional challenge is whether the Noise
Provision -- which restricts noisemaking even in public parks,
plazas, sidewalks, or other traditional public fora, see Hague v.
Comm. for Indus. Org., 307 U.S. 496, 515-16 (1939) -- is a content-
based or a content-neutral speech restriction.4 The answer matters
to our analysis for the following reason.
4 We bypass Maine's contention that, in accord with the MCRA's
own characterization of the Noise Provision as one that targets
"conduct," Me. Rev. Stat. Ann. tit. 5, § 4684-B(2), the District
Court erred by not reviewing the measure under the more lenient
standard of review that applies to restrictions on conduct that
merely impose an incidental burden on speech. See United States
v. O'Brien, 391 U.S. 367, 377 (1968) (establishing that such a
restriction is permissible under the First Amendment if the
restriction "is within the constitutional power of the Government;
if it furthers an important or substantial governmental interest;
if the governmental interest is unrelated to the suppression of
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When a restriction on speech in a traditional public
forum targets the content of speech, that restriction raises the
special concern "that the government is using its power to tilt
public debate in a direction of its choosing." Cutting v. City of
Portland, 802 F.3d 79, 84 (1st Cir. 2015). Accordingly, such
content-based restrictions, to be upheld against a facial
challenge, must serve a compelling governmental interest by the
least restrictive means. McCullen v. Coakley, 134 S. Ct. 2518,
2530 (2014).
By contrast, restrictions on speech in traditional
public fora that target only the time, place, or manner of
expression "[have] the virtue of not singling out any idea or topic
for favored or un-favored treatment." Cutting, 802 F.3d at 84.
Thus, such content-neutral restrictions ordinarily need only to be
narrowly tailored to serve a significant governmental interest and
free expression; and if the incidental restriction on alleged First
Amendment freedoms is no greater than is essential to the
furtherance of that interest"). As we will explain, March fails
to show that the Noise Provision is facially unconstitutional even
if we analyze it as a restriction on speech rather than on conduct.
We thus treat the measure, as the District Court did, as one that
targets speech. See Madsen v. Women's Health Ctr., Inc., 512 U.S.
753, 772-73 (1994) (treating a noise restriction as a regulation
of speech, not conduct); Grayned v. City of Rockford, 408 U.S. 104
(1972) (same); Kovacs v. Cooper, 336 U.S. 77 (1949) (same). We do
not foreclose the conclusion that the statute regulates conduct
rather than speech. We simply see no need to address the issue in
light of our conclusion that the Noise Provision is constitutional
even if it restricts speech.
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to leave open ample alternative channels for communication of the
information in order to be upheld on their face. Id. (citing Ward
v. Rock Against Racism, 491 U.S. 781, 791 (1989)).
In general, a "[g]overnment regulation of speech" is
content based, rather than content neutral, if it "applies to
particular speech because of the topic discussed or the idea or
message expressed." Reed v. Town of Gilbert, 135 S. Ct. 2218,
2227 (2015). There are two distinct ways in which a regulation
may be deemed to be content based.
First, a regulation may be deemed content based because
the "regulation of speech 'on its face' draws distinctions based
on the message a speaker conveys." Id. (citation omitted).
Second, there is a "separate and additional category of laws that,
though facially content neutral, will be considered content-based
regulations of speech: laws that cannot be 'justified without
reference to the content of the regulated speech,' or that were
adopted by the government 'because of disagreement with the message
[the speech] conveys.'" Id. (alteration in original) (quoting
Ward, 491 U.S. at 791).
We start by considering whether the Noise Provision is
content based on its face. Because we conclude that it is not, we
then consider whether it is "justified without reference" to
content or was "adopted by the government 'because of disagreement
with the message [the speech] conveys.'" Id. (alteration in
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original) (quoting Ward, 491 U.S. at 791). In the end, we conclude
that the Noise Provision is, in light of its facial neutrality and
the content-neutral reasons for its enactment, properly treated as
a content-neutral time, place, or manner restriction.
A.
In considering whether the Noise Provision is content
based on its face, we must be mindful that the First Amendment
reflects our commitment to the protection of public discourse and
dissent, even where such speech inspires outrage or offense. For
that reason, restrictions on speech in public places are suspect
when they curb debate by restricting expression about certain
topics or by limiting the discussion of certain ideas.
Nevertheless, it is well established that, even in public places,
the government may enforce reasonable restrictions on the time,
place, or manner of speech in order to protect persons from unduly
burdensome noise. "If overamplified loudspeakers assault the
citizenry," after all, the "government may turn them down."
Grayned v. City of Rockford, 408 U.S. 104, 116 (1972). And that
is especially the case when loud noise would disrupt sensitive
functions in nearby buildings, such as schools or hospitals. See
Gregory v. City of Chicago, 394 U.S. 111, 118 (1969) (Black, J.,
concurring) ("[N]o mandate in our Constitution leaves
States . . . powerless to pass laws to protect the public from the
kind of boisterous and threatening conduct that disturbs the
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tranquility of . . . buildings that require peace and quiet to
carry out their functions, such as courts, libraries, schools, and
hospitals.").
Against this backdrop, March appears to accept that a
statute that restricts noise made outside a building that actually
"jeopardize[s] the health of persons receiving health services
within the building; or . . . interfere[s] with the safe and
effective delivery of those services within the building" would
be, on its face, content neutral. And, in light of the Supreme
Court's decision in Grayned, 408 U.S. 104, we do not see how he
could contend otherwise.
Grayned concerned a town ordinance that prohibited noise
made outside of schools that "disturbs or tends to disturb the
peace or good order" of the school. Id. at 107-08 (quoting
Rockford, Ill. Code of Ordinances, ch. 28, § 19.2(a)). The Court
concluded -- presumably because of the limitless range of sounds
that could be used to make noise that would disrupt teaching and
learning in a school -- that the ordinance was not targeting the
disruptive noisemaking "because of its message." Id. at 115.
Rather, the Court explained, the restriction -- in targeting noise
"which disrupts or is about to disrupt normal school activities,"
id. at 119 -- "gives no license to punish anyone because of what
he is saying," id. at 120 (emphasis added). On that basis, the
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Court treated the measure as a content-neutral time, place, or
manner restriction.5
Nonetheless, March contends that the Noise Provision is
different in an important respect from the measure considered in
Grayned. He points out that this measure, unlike the one
considered in Grayned, does not single out for restriction loud
(and thus disruptive) noise. Rather, the Noise Provision targets
only the subset of loud noise made with the intent to "jeopardize
the health of persons receiving health services within the
building; or . . . interfere with the safe and effective delivery
of those services within the building." Me. Rev. Stat. Ann. tit.
5, § 4684-B(2)(D).
In March's view, this disruptive-intent requirement, in
narrowing the measure's reach, makes the measure content based on
its face by necessarily regulating noisemaking based on the content
5We note that in Grayned the appellant also brought a
challenge to the ordinance on the ground that the phrase "tends to
disturb" was unconstitutionally vague. The Court rejected that
contention on the ground that, in light of state court precedent,
the phrase was fairly construed "to prohibit only actual or
imminent interference with the 'peace or good order' of the
school." Id. at 111-12. March makes no similar vagueness
challenge -- under either the First Amendment or any other
constitutional provision -- to the phrases "[t]o jeopardize the
health of persons receiving health services within the building"
and "[t]o interfere with the safe and effective delivery of those
services within the building," Me. Rev. Stat. Ann. tit. 5, § 4684-
B(2), or to any other aspect of the Noise Provision.
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of the message conveyed, rather than on the manner of its
expression. In particular, March contends that the disruptive-
intent requirement necessarily ensures that those who make noise
while protesting abortion rights will be treated less favorably
than other noisemakers because, unlike in the case of other
speakers, the content of their message necessarily will establish
their disruptive intent.6
We do not agree. On its face, the Noise Provision says
not a word about the relevance -- if any -- of the content of the
noise that a person makes to the determination of whether that
person has the requisite disruptive intent. And, given the
limitless array of noises that may be made in a disruptive manner,
there is no reason to conclude that disruptive intent is
necessarily a proxy for a certain category of content. One's
manner of making noise can itself be highly probative of one's
disruptive intent quite independent of what one actually says. In
consequence, the restriction, at least on its face, would appear
to apply, just like the ordinance in Grayned, to noise on any topic
or concerning any idea.
6
March makes no argument that the Noise Provision's
requirement that law enforcement authorities order the cessation
of noise in and of itself raises any constitutional concerns that
would require the measure's facial invalidation. Nor did the
District Court so hold. We thus focus, like March in his briefing
and the District Court in its ruling, on whether the measure is
facially invalid in light of its disruptive-intent requirement.
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For example, the measure, by its terms, restricts the
volume that hospital staff may use in calling for higher wages
during a labor strike outside a hospital (provided that the staff
make the noise in order to jeopardize the health of those receiving
health services inside or to interfere with the safe and effective
provision of health services to those inside) just as surely as
the measure regulates the volume of speech that opponents of
abortion rights may use in advocating for their views outside of
a Planned Parenthood facility (provided that they, too, seek to
jeopardize the health of those receiving health services inside or
to interfere with the safe and effective delivery of services to
them). Likewise, the measure, by its terms, may restrict the
volume that others may use in expressing opposition to or support
for a seemingly endless array of issues that relate to buildings
in which health services are provided, from protests favoring or
disfavoring vaccination to demonstrations concerning the effects
on the rental market of a given health facility's presence (again,
provided that such supporters or opponents are found to have had
the specified disruptive intent).
Moreover, the measure applies even to loud noise that,
in and of itself, conveys no message at all, as it applies to
wailing sirens, beating drums, and blaring horns -- provided that,
following a cessation order, they may be heard inside and are made
with the specified disruptive intent -- no less than to inspiring
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chants and political speeches. And, at least according to the
face of the measure, loud sounds made with the intent to
"jeopardize the health of persons receiving health services within
the building; or . . . interfere with the safe and effective
delivery of those services within the building," Me. Rev. Stat.
Ann. tit. 5, § 4684-B(2)(D), are restricted no less than loud
words.
Consistent with this content-neutral focus, the Noise
Provision on its face also permits loud noise -- no matter the
topic discussed or idea expressed -- if the noise is made without
the specified disruptive intent. In consequence, by its terms,
the Noise Provision permits loud messages to be communicated
concerning any topic or idea, including opposition to abortion, so
long as those messages are not made with the specified disruptive
intent.
Simply put, under the Noise Provision, all noisemakers
may be found to have the requisite intent or to lack it based on
what the evidence shows about whether they intend for their noise
to be disruptive. And, whether an individual has the requisite
intent to interfere with or jeopardize the delivery of healthcare
services is a fact-specific inquiry that may depend on a variety
of factors, including, crucially, whether the individual has
ignored an initial order "by a law enforcement officer to cease
such noise." Me. Rev. Stat. Ann. tit 5, § 4684-B(2)(D). Thus, at
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least on its face, the measure does not say anything that makes
the outcome of that evidentiary inquiry turn on the "communicative
content" of the noise. Reed, 135 S. Ct. at 2227.
For these reasons, the Noise Provision is no more content
based, as a facial matter, than is the restriction on disruptive
noise found to be content neutral in Grayned. This measure, like
that one, does not on its face purport to restrict noise "because
of its message." Grayned, 408 U.S. at 115. Rather, like that
ordinance, the Noise Provision -- in targeting a subset of loud
noise -- does not on its face give "license to punish anyone
because of what he is saying." Id. at 120 (emphasis added).7
7 Of course, the measure does appear to target noise only near
certain buildings -- namely those in which health services are
provided -- just as the ordinance in Grayned applied only to noise
made outside schools. And, those buildings -- like the schools in
Grayned -- may well attract certain kinds of speakers, including
ones who wish to advocate certain views, like March himself. But,
that fact does not make the measure facially content based. "[A]
facially neutral law does not become content based simply because
it may disproportionately affect speech on certain topics."
McCullen, 134 S. Ct. at 2531 (noting also that "[a] regulation
that serves purposes unrelated to the content of expression is
deemed neutral, even if it has an incidental effect on some
speakers or messages but not others" (alteration in original)
(quoting Ward, 491 U.S. at 791) (modification in original)); see
also Madsen, 512 U.S. at 763 (finding an injunction prohibiting
anti-abortion protestors from engaging in certain types of
disruptive activity was content neutral and noting that "the fact
that [a speech restriction] cover[s] people with a particular
viewpoint does not itself render the [restriction] content or
viewpoint based").
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In response, March presses a number of arguments as to
why the measure, due to its disruptive-intent requirement, is
content based on its face. But, we are not persuaded.
March first contends -- as the District Court
ruled -- that the measure is content based on its face because, in
targeting noise based on the noisemaker's purpose in making it,
the measure expressly and necessarily regulates speech based on
its "function or purpose." See March, 2016 WL 2993168 at *10
(citing Reed, 135 S. Ct. at 2227). Here, March, like the District
Court, relies on a single sentence in Reed, in which the Court
noted that while "[s]ome facial distinctions based on a message
are obvious, defining regulated speech by particular subject
matter, . . . others are more subtle, defining regulated speech by
its function or purpose." Reed, 135 S. Ct. at 2227 (emphasis
added).
Considered in context, however, this passage has little
bearing on our case. Reed concerned a town sign ordinance that
regulated the size and location of signs but exempted twenty-three
categories of signs from its reach, including three categories of
signs that were the focus of the Court's inquiry into whether the
ordinance was, on its face, content based. Id. The ordinance
defined those three categories -- "[i]deological," "[p]olitical,"
and "[d]irectional" signs -- in terms of the purpose of the message
- 23 -
that a sign conveyed.8 Id. Reed thus ruled that the town's sign
measure was content based on its face, because, as the Court put
it, the measure's restrictions that apply "to any given
sign . . . depend entirely on the communicative content of the
sign."9 Id. at 2227 (emphasis added).
At least on its face, however, the Noise Provision does
not "depend entirely" for its application on the "communicative
content" of noise. Id. To borrow the terms used by the ordinance
at issue in Reed, the Noise Provision's application does not depend
entirely (if, in any case, it depends at all) on whether a review
of the noise would reveal its communicative content to convey an
ideological ("Abortion is murder"), political ("Vote for the pro-
choice candidate"), directional ("Go to our rally down the
street"), or, for that matter, entirely unintelligible message.
8Specifically, the sign ordinance defined "[i]deological"
signs as signs "communicating a message or ideas for noncommercial
purposes"; "[p]olitical" signs as signs "designed to influence the
outcome of an election called by a public body"; and "[t]emporary
[d]irectional [s]igns" as signs "intended to direct pedestrians,
motorists, and other passersby to a 'qualifying event.'" Reed,
135 S. Ct. at 2224-25 (emphases added) (quoting Gilbert, Ariz.,
Land Development Code, ch. 1, § 4.402 (2005)).
9As the Court explained by way of example, "[i]f a sign
informs its reader of the time and place a book club will discuss
John Locke's Two Treatises of Government, that sign will be treated
differently from a sign expressing the view that one should vote
for one of Locke's followers in an upcoming election." Reed, 135
S. Ct. at 2227. And, indeed, "both signs will be treated
differently from a sign expressing an ideological view rooted in
Locke's theory of government." Id.
- 24 -
All of these messages are restricted if -- but only if -- they are
conveyed with the intent to disrupt health services being provided
in the building in which the noise can be heard, after the
noisemaker has "been ordered by a law enforcement officer to cease
such noise." Me. Rev. Stat. Ann. tit. 5, § 4684-B(2). Conversely,
none of these messages are restricted if they are not made with
that disruptive intent. And that is true of any other message
that one can conjure.
Thus, while the restriction is "entirely depend[ent]" on
the noisemaker's disruptive "purpose" in making noise, the
restriction is not entirely dependent -- as was the ordinance at
issue in Reed -- on the noise's "communicative content." Id. In
fact, it is not clear that the Noise Provision's application is,
in any case, dependent on the communicative content of the noise
at all. For, as we have explained, one can loudly communicate any
content -- on any topic or concerning any idea or message,
including even, as Maine recognizes, messages favoring abortion
rights -- or even generate noise that does not carry any message
whatsoever, with a disruptive intent. And, so long as one does
so, the Noise Provision, by its terms, regulates that noise.
Nor are we aware of authority to support the conclusion
below that a restriction on disruptive noise, like the one deemed
content neutral in Grayned, necessarily becomes content based if
it targets only those noisemakers who actually intend for their
- 25 -
noise to be disruptive. Indeed, we would be surprised to find
authority to that effect. It is hard to discern the First
Amendment interest furthered by a rule that would deem such an
otherwise content-neutral restriction to be especially
constitutionally suspect simply because it excuses those who
violate it only inadvertently.10
March also contends, as the District Court concluded,
that the Noise Provision is content based on its face for the
distinct reason that the Noise Provision "require[s] enforcement
authorities to examine the content of the message that is
10 In addition to Reed, March cites to two other cases to
support his contention that a speech restriction is content based
if it turns on the intent of the speaker. Neither case helps
March, however, as both involved provisions that, like the
provision in Reed, refer to the "purpose" of speech only as a means
of distinguishing among types of content that such speech
communicates. See Cahaly v. Larosa, 796 F.3d 399, 402, 405 (2015)
(holding that a statute prohibiting "robocalls that are for the
purpose of making an unsolicited consumer telephone call or are of
a political nature" was content based because it "applie[d] to
calls with a consumer or political message but [did] not reach
calls made for any other purpose" (quotation marks omitted)); Nat'l
Fed'n of Indep. Bus. v. Perez, Civil Action No. 5:16-cv-00066-C,
2016 WL 3766121, at *32 (N.D. Tex. June 27, 2016) (holding that a
Department of Labor rule was content based because it turned on
whether the speaker "undertakes activities with an object to
persuade employees" on issues concerning collective bargaining).
Nor are the panhandling cases that March cites to the contrary, as
they, too, turn on the content of the regulated speech. See
Homeless Helping Homeless, Inc. v. City of Tampa, No. 8:15-cv-
1219-T-23AAS2016, 2016 WL 4162882 (M.D. Fla. Aug. 5. 2016); Thayer
v. City of Worcester, 144 F. Supp. 3d 218 (D. Mass. 2015); Browne
v. City of Grand Junction, 136 F. Supp. 3d 1276 (D. Colo. 2015);
City of Lakewood v. Willis, 375 P.3d 1056 (Wash. 2016).
- 26 -
conveyed." March, 2016 WL 2993168 at *10 (emphasis added) (quoting
McCullen, 134 S. Ct. at 2531). McCullen did state that the
abortion clinic buffer-zone provision there at issue would have
been content based "if it required enforcement authorities to
examine the content of the message that is conveyed to determine
whether a violation has occurred." 134 S. Ct. at 2531 (citing
Fed. Trade Comm'n v. League of Women Voters of Cal., 468 U.S. 364,
383 (1984)). And, in the case on which McCullen relied for that
proposition, League of Women Voters, the Supreme Court did find
that a regulation that prohibited certain "noncommercial
educational broadcasting station[s]" from "engag[ing] in
editorializing," League of Women Voters, 468 U.S. at 366, except
on "controversial issues of public importance," id. at 381, was
content based on its face. The Court explained that the regulation
was facially content based because it defined prohibited speech
"solely on the basis of the content of the suppressed speech,"
such that "enforcement authorities must necessarily examine the
content of the message that is conveyed to determine whether the
views expressed concern 'controversial issues of public
importance.'" Id. at 383.
As we have explained, however, the Noise Provision
-- unlike the measure at issue in League of Women Voters -- is
not, on its face, dependent for its application on a determination
by enforcement authorities regarding the content of the noise made.
- 27 -
Rather, its application depends on whether the noisemaker intended
to be disruptive in making the noise, whatever its content. Thus,
nothing on the face of the Noise Provision indicates that
enforcement authorities must examine the content of the speaker's
communication in order to find a violation.
As Maine explains, "it is the continuation of [making
noise] after a warning notifying the person that he or she is
interfering with the safe and effective delivery of health care
that is most probative of [the requisite disruptive] intent,"
rather than the content of anything that a noisemaker may
communicate. And, reinforcing this conclusion, the Attorney
General represented at oral argument that the state interprets the
Noise Provision to apply to a speaker who intentionally makes noise
that can be heard inside a medical building with a reckless
disregard for the disruptive effect that such loud noise may have
on the provision or receipt of health services being offered inside
that building.11
11In taking account of the Attorney General's construction,
see Forsyth Cty., Ga. v. Nationalist Movement, 505 U.S. 123, 131
(1992) ("In evaluating respondent's facial challenge, we must
consider the county's authoritative constructions of the
ordinance, including its own implementation and interpretation of
it."); see also Ward, 491 U.S. at 795-96 (in considering a First
Amendment facial challenge, "[a]dministrative interpretation and
implementation of a regulation are, of course, highly relevant to
[the] analysis"), we are aware that March contends that the
Attorney General's construction "would conflate" the Noise
Provision's two separate intent requirements "into one -- merely
- 28 -
It is possible that, on the facts of a given case, the
communicative content of noise may supply helpful evidence (to one
side or the other) regarding the noisemaker's intent. But, that
fact does not show that the measure is content based on its face.
Cf. Hill v. Colorado, 530 U.S. 703, 721 (2000) (noting that "[i]t
is common in the law to examine the content of a communication to
determine the speaker's purpose" in finding a measure that
restricted the purposes for which persons could be approached near
medical facilities to be content neutral). In Grayned, for
example, the Court held that the disruptive noise restriction at
issue was content neutral, even though that measure targeted
noisemakers only if they acted "willfully" in making noise that is
"actually incompatible with normal school activity" where there is
"a demonstrated causality" between the noise made and the
disruption that occurs. 408 U.S. at 113. Thus, that measure,
like this one, appeared to contemplate that, in a given instance,
the message shouted -- for example, "Shut Down Schools Now!" as
opposed to "Keep Them Open!" -- might at least be probative, though
continuing to make noise after being warned by law enforcement[,]"
and, by doing so, would thereby "leave the second intent
requirement of intent to interfere with a medical procedure without
any operative effect." But, that is plainly wrong. The second
intent requirement, unlike the first, would, for example, protect
an unwitting speaker who, after having been ordered to stop making
noise loud enough to be heard in a nearby medical facility,
continues intentionally to make such noise but does so unaware
that medical services are being provided nearby at that time.
- 29 -
not necessarily determinative, of whether the intent standard had
been met. Yet, the Court did not find that measure to be content
based. And, as we have explained, Reed held that the sign
ordinance at issue in that case was content based only because the
ordinance's applicability "depend[ed] entirely on the
communicative content" of a given sign. 135 S. Ct. at 2227
(emphasis added). Thus, Reed does not suggest that a provision is
content based merely because the communicative content of noise
could conceivably be relevant in ascertaining the noisemaker's
disruptive intent.
Finally, March argues, citing R.A.V. v. City of St. Paul,
505 U.S. 377 (1992), that the Noise Provision is on its face an
"unconstitutional content based restriction because, in 'practical
operation,'" it targets "proponents of specific topics." Id. at
391-92 (emphasis added). R.A.V. did not, however, find a measure
to be content based on its face in consequence of its "practical
operation." Id. R.A.V. instead found only that a measure that
was facially content based was in "practical operation" viewpoint
based. Id.
Even assuming that such a practical inquiry can make a
facially content-neutral measure facially content based -- a
surprising proposition for which March cites no authority -- we do
not see how this is a case that would yield such an outcome. As
we have explained, an inquiry into whether a noisemaker has a
- 30 -
disruptive intent -- given the limitless means that one may use to
make noise in a disruptive manner -- is not inherently an inquiry
into what message a speaker is trying to convey. And, on its face,
it is the disruptive intent, and not the message, if any, conveyed
with that intent, that determines whether the Noise Provision
applies.
Nor is this conclusion undermined by March's vivid
hypothetical, in which he posits a person who stands in front of
an abortion clinic and shouts, "Honey, you forgot your lunch!"
directly inside the facility. March contends that such a speaker,
precisely because of his well-meaning message, obviously will not
be found to have the disruptive intent that the statute requires.
By contrast, March contends, the anti-abortion protester enjoys no
such protection, as the content of that protester's speech will
necessarily be found to evince the protester's disruptive intent.
But, while we agree that the provision would be subject
to a serious as-applied challenge if its disruptive-intent
requirement were enforced in an entirely content-dependent way,
the measure does not require, as a practical matter, such uneven,
content-based enforcement. As Maine points out, the most probative
evidence of disruptive intent is a person's decision to
intentionally keep making loud noise after having been warned of
its disruptive effect. March's seemingly thoughtful shouter is
thus not immune, even practically speaking, from the Noise
- 31 -
Provision's reach in consequence of the seemingly kind content of
his message -- any more than is any noisemaker in consequence of
theirs. And, by the same token, the anti-abortion protester is
not necessarily subject to the restriction because of the anti-
abortion message that he may espouse. The protester is, like the
helpful shouter, subject to the Noise Provision's restriction on
noisemaking only if he expresses that message in a certain
manner -- that is, with the specified disruptive intent and "after
having been ordered by a law enforcement officer to cease," Me.
Rev. Stat. Ann. tit. 5, § 4684-B(2) -- and not because of "what he
is saying," Grayned, 408 U.S. at 120.
B.
There remains the question whether the Noise Provision,
despite its facial neutrality, is "justified without reference to
content" or was instead adopted because of the state's disagreement
with the content of any message expressed. Ward, 491 U.S. at 791
(quoting Clark v. Cmty. for Creative Nonviolence, 468 U.S. 288,
293 (1984)). According to Maine, the Noise Provision is content
neutral in purpose, just as it is on its face, even accounting for
the disruptive-intent requirement, because it (1) aims to protect
patients from "[t]he type of noise most likely to cause harm" to
their "right to receive safe and effective medical care," and (2)
serves to identify the subset of noise that is "most likely" to
cause that harm on the basis of characteristics that are not
- 32 -
dependent on the content of any message that the restricted noise
may communicate.
To understand why we agree with Maine, it helps to review
the findings that the District Court made regarding the differing
deleterious effects of certain types of noise -- independent of
the communicative content of that noise -- on the provision and
receipt of health services. The District Court made these findings
in connection with evidence regarding noise heard within the
Planned Parenthood Health Center on Congress Street in Portland,
where March has been protesting.
Specifically, the District Court found, from the
evidence in the record, that "[l]oud and sustained yelling that is
audible within the Health Center interferes with the Health
Center's staff's ability to provide care to their patients."
March, 2016 WL 2993168 at *3. And, the District Court explained,
such noise is problematic because, as common sense would suggest,
"[t]o effectively deliver health services, staff need a calm and
quiet environment for their interactions with patients." Id. The
District Court further found, again based on evidence in the record
and in accordance with common sense, that, wholly apart from the
content of any message communicated by loud noise, "loud noise
distracts patients and renders them unable to concentrate on their
discussions with staff," which "in turn causes staff to spend more
- 33 -
time repeating instructions to patients, which causes additional
delays for the entire facility." Id.
As the District Court pointed out, "[l]oud noise from
outside the building has a physiological effect on patients,
causing additional stress and elevated blood pressure, pulse, and
respiratory rates." Id. at *4 (quotation omitted). As a result,
"such noise often causes patients to . . . move to other areas of
the Health Center where the noise is less audible," which causes
"patients [to be] separated from people who are there to support
them." Id.
But, and this is the crucial point, the District Court
also found, based on evidence in the record, that a certain type
of loud noise -- again, for reasons wholly independent of the
content of any message that such noise may convey -- is especially
likely to jeopardize patients' health or to interfere with the
delivery and receipt of health services. The District Court
explained that, while evidence in the record showed that
"[t]ransitory noise produced by parades, sirens, and car horns"
has "the potential to disrupt medical care," such loud sounds are
"normally brief in duration and any disruption dissipates
quickly." Id.
By contrast, according to the District Court, the record
showed that "[l]oud and sustained yelling that is audible within
the [facility] interferes with the . . . staff's ability to provide
- 34 -
care to their patients." Id. at *3. And, the District Court
further found, "[u]nabated constant noise that is specifically
directed at patients is uniquely disruptive to the . . . ability
to provide medical care." Id. at *4 (emphasis added).
These findings support Maine's contention that Maine is
regulating a type of loud noise that is likely to be uniquely
disruptive for reasons that have to do with the manner in which
the noise is made rather than with the content of any message that
such noise may convey. After all, given the requirement that the
prohibited noise must have been intentionally made after law
enforcement authorities order its cessation, the Noise Provision
does target only loud noise that is made in a "sustained" manner.
Id. at *3. And, given the requirement that the noise be made with
the specified disruptive intent, the Noise Provision regulates
such sustained loud noisemaking only when it is likely to be
"specifically directed" at the building in which health services
are provided. Id. at *4. We thus have no reason to doubt that
the Noise Provision proscribes a subset of speech that is likely
to constitute the kind of "[u]nabated constant noise that is
specifically directed at patients" that the record shows has a
"unique" capacity to be disruptive in consequence of the
- 35 -
manner -- rather than the content -- of the expression. See id.
(emphasis added).12
A simple example -- having nothing to do with the charged
context that this suit foregrounds -- helps to illustrate why we
conclude that, on this record, Maine's decision to target only
this subset of loud noise is justified "without reference to the
content" of the noise restricted or because of any disagreement
with any message that may be expressed. Reed, 135 S. Ct. at 2227.
As any parent knows, a child who makes loud noise in order to
12 This measure is thus unlike the one addressed in Boos v.
Barry, 485 U.S. 312 (1988). There, the Court considered a District
of Columbia regulation that prohibited "the display of any sign
within 500 feet of a foreign embassy if that sign tends to bring
that foreign government into 'public odium' or 'public
disrepute.'" Id. at 315. The Court explained that such a
regulation may be content neutral if justified by a "secondary
effect," such as "congestion," "visual clutter," "interference
with ingress or egress," or "the need to protect the security of
embassies." Id. at 321. The Court also concluded, however, that
such a regulation could not be content neutral if "justified only
on the content of speech and the direct impact that speech has on
listeners" -- that is, "[t]he emotive impact of speech on its
audience." Id. (emphasis in original). But, unlike in Boos, the
Noise Provision does not require a judgment as to whether noise
tends "to bring [the listener] into 'public odium' or 'public
disrepute.'" Id. It is enough under the Noise Provision that the
noise -- whatever its communicative content -- is made loud enough
for the listener to hear and with the intent to jeopardize the
health of people receiving health services or to interfere with
the medical service that patients have sought to obtain. Cf. Texas
v. Johnson, 491 U.S. 397, 407 n.4 (1989) (stating that regulations
justified by the desire merely "to prevent an audience from being
offended" may be distinguishable from those justified by the desire
"to prevent a violent audience reaction," even where that reaction
"would be the result of the message conveyed" by the regulated
speech).
- 36 -
disrupt her parent can do so as readily with endearing words as
annoying ones, or, for that matter, with "words" that are quite
impossible to discern. A parent thus might understandably seek to
shush that intentionally disruptive child even as the parent tunes
out the nearby sibling whose equally loud sounds are easier to
ignore precisely because they are, thankfully, not intended to
bother anyone at all. And, in quieting the one child and not the
other, the parent is not favoring or disfavoring any message. The
parent is merely acting on what we might describe as a perfectly
understandable content-neutral interest in putting an end to an
unwanted disruption that, because intended, may be especially hard
to put out of one's mind. See Consol. Edison Co. of N.Y. v. Pub.
Serv. Comm'n of N.Y., 447 U.S. 530, 546-47 (1980) (Stevens, J.,
concurring) (explaining that "a communication may be offensive in
two different ways," in that some speech, "even though elegantly
phrased in dulcet tones, [is] offensive simply because the listener
disagrees with the speaker's message," while other speech is
offensive "[i]ndependently of the message the speaker intends to
convey," due to "the form of [the] communication . . . perhaps
because it is too loud or too ugly in a particular setting").
The Supreme Court has deployed a similar logic in finding
speech restrictions not unlike Maine's to be content neutral. For
example, in finding content neutral the restriction on "knowingly
approaching" another person for certain purposes outside certain
- 37 -
medical facilities, the Court in Hill explained that "[i]t may not
be the content of the speech, as much as the deliberate 'verbal or
visual assault,' that justifies proscription." Hill, 530 U.S. at
716 (alteration in original) (emphasis added) (quoting Erzoznik v.
City of Jacksonville, 422 U.S. 205, 210-211, n.6 (1975)).
Similarly, in Frisby v. Schultz, 487 U.S. 474 (1988), the Court
concluded that the fact that an ordinance prohibiting picketing in
front of a single home -- conduct that obviously conveyed to the
homeowner that he was the object of the expression -- did not
render the ordinance content based. Id. at 488. The Court
emphasized that targeted picketing "inherently and offensively
intrudes on residential privacy," resulting in a "devastating
effect . . . on the quiet enjoyment of the home," regardless of
whether "such picketers have a broader communicative purpose,"
id., and that "the 'evil'" of the restricted speech was thus not
what was said but only "the medium of expression itself," id. at
486 (quoting Members of City Council of City of L.A. v. Taxpayers
for Vincent, 466 U.S. 789, 810 (1984)).
- 38 -
C.
For these reasons, we reject the contention that, on its face
or in its object, the Noise Provision is content based. Rather,
we conclude that, the measure is a content-neutral restriction on
the time, place, or manner of expression that, accordingly, need
be justified only under the standard of review to which such
content-neutral speech restrictions are subject in order to
survive this facial constitutional challenge.
III.
Because the District Court concluded that the Noise
Provision is content based, the District Court did not address
whether the measure survives the less-demanding standard of
scrutiny -- often referred to as intermediate (as opposed to
strict) scrutiny -- applicable to content-neutral restrictions.
Neither party, however, asks us to remand the case for the District
Court to apply that form of review in the first instance or to
undertake further factual development. Rather, both parties have
briefed the issue fully. We thus turn to the question whether the
Noise Provision can survive March's facial challenge under the
intermediate level of scrutiny that usually applies to content-
neutral speech restrictions. See Cutting, 802 F.3d at 86
(declining to remand for the District Court to apply intermediate
scrutiny in the first instance). That inquiry requires us to
determine if the restriction is narrowly tailored to serve a
- 39 -
significant governmental interest and leaves open ample
alternative channels for communication of the information. See
Ward, 491 U.S. at 791.
A.
We begin by considering the strength of the interest that
Maine seeks to advance through the Noise Provision. Maine asserts
a number of interests, including that the Noise Provision is
intended to ensure that "all of [Maine's] citizens are able to
receive safe and effective health care." And, as the District
Court recognized, that interest is quite clearly a significant
one. March, 2012 WL 2993168 at *12.13
For example, in finding that a restriction on noise
outside an abortion clinic served a significant governmental
interest, the Supreme Court in Madsen v. Women's Health Ctr., Inc.,
512 U.S. 753 (1994), explained that hospitals are places "where
human ailments are treated, where patients and relatives alike
often are under emotional strain and worry, where pleasing and
13
Maine emphasizes, in addition, that "patients arriving at
a facility for abortion services are already in a highly emotional
and anxious state," particularly if they have "recently
experienced emotional or physical trauma." Maine further
emphasizes that the difficulties communicating with such patients
are often exacerbated by such patients' relative lack of
sophistication "when it comes to obtaining health care," and by
language difficulties. From the record before us, those concerns
would appear to apply equally to patients seeking to receive other
types of health services in the state, and March does not contend
otherwise.
- 40 -
comforting patients are principal facets of the day's activity,
and where the patient and his family . . . need a restful,
uncluttered, relaxing, and helpful atmosphere." Id. at 772
(quoting NLRB v. Baptist Hosp., Inc., 442 U.S. 773, 783-84 n.1
(1979)). And, the Court added, "[t]he First Amendment does not
demand that patients in a medical facility undertake Herculean
efforts to escape the cacophony of political protests." Id. at
772-73. Moreover, as the Court has elsewhere explained, the
"privacy interest in avoiding unwanted communication" is strongest
when listeners are "powerless to avoid it" -- for example, because
they are being targeted "in the confines of [their] own home[s]"
or, as here, when they are "patients at a medical facility." Hill,
530 U.S. at 716 (citations omitted).
March contends that the Noise Provision "cannot be
regarded as protecting" a significant governmental interest
because "it leaves appreciable damage to [the] supposedly vital
interest unprohibited." 14 Reed, 135 S. Ct. at 2232 (citation
omitted). Specifically, March argues that the state's interest is
implicated equally by noise made loudly and in a sustained fashion
14March chiefly presses his underinclusiveness argument in
connection with his argument as to why the Noise Provision, if
content based, would fail strict scrutiny. March makes at most a
glancing argument as to why the Noise Provision, if found to be
content neutral, would fail intermediate scrutiny due to its
alleged underinclusiveness. We nonetheless reject the argument
even assuming it is preserved.
- 41 -
but without the disruptive intent specified in the Noise Provision.
March therefore contends that the measure is fatally
underinclusive. March notes in this regard that a restriction on
the decibel level or duration of noise, or perhaps both combined,
would better address the disruption Maine claims to be addressing.
And yet, March contends, Maine has opted for a less protective
restriction that -- through its disruptive-intent requirement --
invites an examination of the content of the message communicated
by the noise.
We agree with March that, if a speech restriction
tolerates too much of the very harm that the state claims it is
trying to address, there may be reason to doubt the seriousness of
that harm. See Reed, 135 S. Ct. at 2232. In addition, when a
restriction on speech is underinclusive, there may be reason to
doubt "whether the government is in fact pursuing the interest it
invokes, rather than disfavoring a particular speaker or
viewpoint." See Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656, 1668
(2015) (quoting Brown v. Entm't Merchants Ass'n, 564 U.S. 786, 802
(2011)); see also Matal v. Tam, 137 S. Ct. 1744, 1764 (2017)
(explaining that the very idea that the government "has an interest
in preventing speech expressing ideas that offend . . . strikes at
the heart of the First Amendment"); Snyder v. Phelps, 562 U.S.
443, 458 (2011) (explaining that speech may not be restricted
"simply because it is upsetting").
- 42 -
In this case, however, there is no underinclusivity
problem of the sort that March alleges. As we have explained,
March does not challenge the District Court's finding that
"[u]nabated constant noise that is specifically directed at
patients" is "uniquely disruptive." March, 2016 WL 2993168 at *4
(emphasis added). And, as we have also explained, noise that is
(1) intentionally made loud enough to be heard inside a building,
(2) in disregard of an earlier order by law enforcement to cease
making it, and (3) with an intent to jeopardize the health of those
receiving medical services in that building or to interfere with
the effective delivery in that building of those services, would
seem to be just that kind of noise. Thus, because Maine has
targeted a subset of loud noise that is likely to cause the
"unique" harm that Maine has a significant interest in singling
out, we cannot say that Maine has chosen to leave "appreciable
damage to [the] supposedly vital interest unprohibited." Reed,
135 S. Ct. at 2232 (citation omitted).
For this reason, this case is not like Cutting, 802 F.3d
79, on which March mistakenly relies. There, we held that, because
a city had identified only a small subset of expressive activity
that actually caused harm, the city's sweeping speech restriction
could not be justified. See id. at 89-90. Here, by contrast, the
Noise Provision targets the subset of noise that Maine has
identified as being especially problematic.
- 43 -
B.
March next contends that, even if the Noise Provision
does serve Maine's claimed interest in protecting the safe and
effective provision and receipt of health services, the Noise
Provision is facially unconstitutional because it is not narrowly
tailored to serve that interest. Here, too, we disagree.
The narrow tailoring requirement does not demand perfect
tailoring. The requirement is "satisfied as long as the particular
regulation promotes a substantial government interest that would
be achieved less effectively absent the regulation." Knights of
Columbus, Council No. 94 v. Town of Lexington, 272 F.3d 25, 33
(1st Cir. 2001) (quotation omitted). Nevertheless, the narrow
tailoring restriction does require "that a challenged speech
restriction not burden 'substantially' more speech than is
necessary to further the government's interest." Cutting, 802
F.3d at 86 (quoting McGuire v. Reilly, 260 F.3d 36, 48 (1st Cir.
2001)).
Maine, relying on Frisby's conclusion that the targeted
picketing ordinance there was narrowly tailored because it applied
only to speakers who intended to "intrude upon the targeted
resident . . . in an especially offensive way," 487 U.S. at 486,
contends that the Noise Provision "prohibits only the making of
noises that can be heard within a building and [are] made with the
intent to interfere with the safe and effective delivery of health
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services." As a result, Maine argues that the Noise Provision
does not restrict substantially more speech than necessary because
"[t]here is simply no way that the restriction could be more
narrowly tailored."
March argues in response that the Noise Provision is too
sweeping because it applies "24-hours a day, seven days a week
regardless of the actual hours that 'health services' are being
offered or the hours of the building's operation." (quoting Me.
Rev. Stat. Ann. tit. 5, § 4684-B(2)(D)). In fact, however, the
Attorney General has interpreted the Noise Provision not to apply
when a building providing health services is closed, or when there
are no patients inside, and we have no reason not to accept that
perfectly sensible representation about how the disruptive-intent
requirement operates. See Forsyth Cty., Ga. v. Nationalist
Movement, 505 U.S. 123, 131 (1992); Ward, 491 U.S. at 795-96; Nat'l
Org. for Marriage v. McKee, 649 F.3d 34, 66 (1st Cir. 2011).
March contends, next, that the Noise Provision is not
narrowly tailored because it applies to public fora including
streets and sidewalks. But, without more, this fact hardly shows
that this provision is not narrowly tailored. After all, we
evaluate whether this restriction is narrowly tailored in part
because it applies to speech in traditional public fora.
Finally, March posits that the statute is "extremely
broad in manner" because it "has no decibel level requirements or
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even shouting requirements, allowing enforcement
against . . . lone, unamplified voices." March suggests that by
requiring only that noise be loud enough to be heard within a
building, the Noise Provision "allows abortion providers to claim
violations where none exist."
To be subject to the Noise Provision, however, a "lone,
unamplified voice[]" must still be loud enough to be heard within
a building and must speak with the requisite disruptive intent.
Thus, the requirements laid out on the face of the Noise Provision
do not indicate that the measure would apply to speech expressed
at a normal, conversational tone -- or even at a louder
volume -- absent the speaker's intent to disrupt the provision or
receipt of medical services.
March appears to be contending in part that this
disruptive-intent requirement does not meaningfully narrow the
measure's scope in light of his apparent belief that the messages
he wishes to propound will necessarily establish the requisite
intent. But, for reasons we have explained, the face of the
measure provides no support for this understanding of its
application, and we need not consider "[p]articular hypothetical
applications of the [challenged] ordinance" which "may present
somewhat different questions" than the question whether the
ordinance is constitutional on its face. Frisby, 487 U.S. at 488.
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March does allege several examples where enforcement of
the Noise Provision seems to have been inconsistent with the face
of the provision, both in terms of uneven application to different
speakers and in terms of the permissible volume of regulated
speech. It is not entirely clear whether March means for these
points to constitute the basis for a facial challenge rather than
an as-applied one, and the record contains conflicting evidence.
But, in any event, we have no basis for concluding that
inconsistent enforcement of the type that March alleges has
occurred outside the Planned Parenthood Health Center in Portland
is mandated by the measure. Moreover, March's allegations about
how the measure may have been enforced in ways that the terms of
the measure do not require at a lone clinic in a single city do
not suffice to render the state statute too sweeping on its face.
See United States v. Stevens, 559 U.S. 460, 473 (2010) (noting
that courts will not find a speech restriction facially overbroad
under the First Amendment unless "a substantial number of its
applications are unconstitutional, judged in relation to the
statute's plainly legitimate sweep").15
15
In addressing whether the Noise Provision satisfies strict
scrutiny, March relies on R.A.V., 505 U.S. at 395, to contend that
the measure is not the least restrictive means necessary to achieve
the state's interest because the measure could have relied on a
"content neutral alternative" to the intent requirement, such as
limiting the volume or duration of noise, which he contends would
have had "the same beneficial effect." March does not raise a
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C.
We turn, then, to the final aspect of the inquiry:
whether the Noise Provision, at least on its face, "leave[s] open
ample alternative channels for communication." Ward, 491 U.S. at
791 (quoting Clark, 468 U.S. at 293). We conclude that it does.
The Supreme Court held that the disruptive noise
restriction in Grayned left open ample alternative channels of
communication because permitted means of expression, like
"picketing and handbilling[,] . . . can effectively publicize
grievances" to both those within a building and passersby. 408
U.S. at 119; see also Frisby, 487 U.S. at 484 (explaining that the
prohibition on targeted picketing "preserves ample alternative
channels of communication" because protesters may still "enter
similar argument with regard to whether the Noise Provision
satisfies intermediate scrutiny, which does not require that the
restriction be the least restrictive possible means to achieve the
state's interest. See Cutting, 802 F.3d at 86. Thus, it is not
clear that March means to make this argument in connection with
his contention that the measure fails even the less-demanding
scrutiny that applies to content-neutral measures. But, insofar
as this argument is properly before us, we note that, for the
reasons we have explained, the disruptive-intent requirement is
not content based. And thus this measure does not on its face
privilege a content-based means over a content-neutral one. Nor,
given the state's interest in reducing the unique harm caused by
noise that is targeted directly at patients, is Maine lacking a
content-neutral reason for concluding that a limit on decibel level
or duration would not serve its asserted interest just as well as
would this measure. Rather, such a decibel or durational limit
would, instead, restrict more speech than Maine claims to have any
comparable need to restrict. And Maine can hardly be faulted under
the First Amendment for regulating in such a tailored fashion.
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[residential] neighborhoods, alone or in groups, even marching[,]"
"go door-to-door to proselytize their views" or "distribute
literature," "distribute literature . . . through the mails," and
"contact residents by telephone"). Maine emphasizes that the Noise
Provision similarly permits speakers to "congregate in the
vicinity of clinics, hand out literature, display signs, attempt
to engage in conversation with persons entering or passing by the
clinic, and orally express their views loudly enough to be heard
in the immediate vicinity."
March responds that, in fact, the measure does not leave
open alternative channels of communication because it prohibits
him from "rais[ing] his voice to be heard even by those close to
him over the volume of the traffic," and thus "effectively
eliminates [his] ability to counsel . . . women on a public
sidewalk." But the face of the Noise Provision simply does not
show that it restricts speech in the manner that March contends.
And, as we have explained, March misapprehends the nature of a
facial challenge to the extent that his argument relies on
allegations about how the statute has been applied (or, perhaps,
how it has been misapplied) in certain specific instances. We
thus see no basis for accepting the only contention that he makes
for concluding that the measure does not permit ample alternative
channels of communication.
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March therefore has not shown that the measure, on its
face, fails this aspect of intermediate scrutiny. And, in light
of our conclusions regarding the preceding aspects of our analysis
under this form of review, the Noise Provision survives
intermediate scrutiny.
IV.
The Noise Provision was the product of a careful
legislative process. That process sought to forge a consensus
among many competing interests in order to address what all parties
to this dispute agree is a serious concern regarding the health
and safety of those seeking health services. The result is a
facially content-neutral measure that targets noise for reasons
that have nothing to do with the content of any topic discussed,
idea propounded, or message conveyed. Moreover, by its terms, the
measure serves that significant state interest without burdening
substantially more speech than necessary and while leaving open
ample alternative avenues for communication. Accordingly, March
has not shown that he has a likelihood of success on the merits of
his facial constitutional challenge to the Noise Provision. The
judgment of the District Court is therefore reversed.
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