Thursday, August 7, 2014
Eleventh Circuit: No Preliminary Injunction for Ordinance Aimed at Curbing Loud Sounds Outside Abortion Clinics
In its opinion in Pine v. City of West Palm Beach, a unanimous Eleventh Circuit panel affirmed the district judge's refusal to enjoin the enforcement of § 34-38 of the Code of the City of West Palm Beach which bans amplified sound within 100 feet of the property line of any health care facility.
The court held that the Sound Ordinance survived the First Amendment challenge as a valid time, place, or manner restriction on speech that is content-neutral, is narrowly tailored to advance the City’s substantial interest in protecting patients, and leaves open ample alternative avenues of communication, and further that it was not unconstitutional as applied to the abortion protesters.
The court relied upon Ward v. Rock Against Racism, which upheld a sound amplification regulation. It distinguished the Court's recent declaration of unconstitutionality of an abortion clinic buffer zone in McCullen v. Coakley:
This case raises issues sharply different from those addressed recently by the Supreme Court in McCullen. There, the Supreme Court struck down a Massachusetts law that prohibited activists from standing within thirty-five feet of the driveway or entrance of a reproductive health care facility. For a number of reasons, the Court held that the restriction was not narrowly tailored to the government’s interest in preventing obstructions and congestion outside of abortion clinics. The Court explained that the Massachusetts law “unnecessarily swe[pt] in innocent individuals and their speech” by “categorically exclud[ing] non-exempt individuals from the buffer zones.” Notably, Massachusetts had failed to pursue a variety of available, less-restrictive solutions for congestion problems. Finally, the law barred access to public sidewalks and ways, “areas historically open for speech and debate.” Massachusetts had taken “the extreme step of closing a substantial portion of a traditional public forum to all speakers.”
These considerations cut the other way in this case. Instead of casting a wide net that captures innocent speech, the Sound Ordinance targets only actions near health care facilities that produce types of noise that can endanger patients. In addition, here there are no less restrictive means: because the heart of the problem is loud, raucous, or disturbing noise, a restriction on that sound is narrowly tailored. Unlike in McCullen, the record here contains no evidence of feasible alternatives that protect patient health from such sound. Finally, the Sound Ordinance in no way prevents Petitioners from accessing public ways and sidewalks near the Center. They simply cannot create loud, raucous, or unreasonably disturbing noise while there.
[citations omitted]. The court had made clear that "the City’s noise control regulations indicate that the Sound Ordinance restriction on amplified sound applies only to 'loud and raucous noise, or any noise which unreasonably disturbs, injures, or endangers the comfort, repose, health, peace, or safety' of others within a health care facility quiet zone." The court stated it the Sound Ordinance was not intended to have the "absurd" result that would prohibit "any electronic equipment that uses or produces amplified sound, from paging systems to administrators’ telephones to patient monitoring devices."
Thus construed, the court found that the Ordinance was not being enforced based on viewpoint when it was not enforced against "drive-through loudspeakers within the quiet zone by quick-service restaurants Wendy’s and Pollo Tropical." Instead, the protestors use of bullhorns was directly within the "loud and raucous noise" prohibition.
The court ended by emphasizing that the opinion was limited to the "extraordinary" remedy of a preliminary injunction and they plaintiffs were free to pursue a permanent injunction. But given that the court found that the plaintiffs did not demonstrate they had a likelihood of success on the First Amendment merits, the prospects for prevailing on those same First Amendment arguments are slight.