FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE [Hon. Nancy Torresen, Chief U.S. District Judge]
Christopher C. Taub, Assistant Attorney General, with whom
Janet T. Mills, Attorney General, and Leanne Robbin,
Assistant Attorney General, were on brief, for appellant.
Margaret-O'Reilly Oliveri, with whom Thomas More Law
Center, Stephen Whiting, and The Whiting Law Firm, P.A., were
on brief, for appellee.
Lynch, Stahl, and Barron, Circuit Judges.
BARRON, Circuit Judge.
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. 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, §
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
begin by providing some background regarding the MCRA and the
noise restriction that it sets forth. We also describe the
relevant procedural history.
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.
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."
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."
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.
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.
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
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, §
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
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).
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.
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.
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.
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.
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.
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.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.
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.
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.
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.
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.
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. The answer matters to our analysis for the
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).
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
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