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March v. Mills

United States Court of Appeals, First Circuit

August 8, 2017

ANDREW MARCH, Plaintiff, Appellee,
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.


          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.

          Before Lynch, Stahl, and Barron, Circuit Judges.

          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 measure is unconstitutional on its face and granted his request for a preliminary injunction. We now reverse.


         We begin by providing some background regarding the MCRA and the noise restriction that it sets forth. We also describe the relevant procedural history.


         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 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.

         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)).

         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]


         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 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.

         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, 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 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 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.


         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.

         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 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 ...

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