Sound Ordinance Restricting Amplified Sound Near Health Care Facilities Upheld As Constitutional Government Regulation on Time, Place, or Manner of Speech

In Pine v. City of West Palm Beach, No. 13-15011 (11th Cir. Aug. 6, 2014), the Eleventh Circuit held that a sound ordinance banning the production of amplified sound within 100 feet of health care facilities is constitutional because it is content-neutral, narrowly tailored to a specific government interest, and does not restrict alternative channels for the appellants to communicate their information. Id. at *2. Appellants Mary Susan Pine and Marilyn Blackburn are anti-abortion activists who protested and provided information outside a health care facility that provided abortion services in West Palm Beach, Florida. Id. The appellants challenged a city sound ordinance passed in 2005 and subsequently amended in 2011 that bans amplified sound within 100 feet of health care facilities on grounds that it is unconstitutional on its face, void for vagueness, and was being discriminatorily enforced against them by the city government. The appellee city government argued that the ordinance was necessary to protect patients at health care facilities from the adverse health effects of excessive noise levels and that the language of the statute was narrow enough to limit that effect without affecting constitutional rights to free speech.

The bulk of the court’s evaluation centered on the constitutionality of the ordinance itself. The Eleventh Circuit applied the Supreme Court’s test from Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989), which allows a government to impose restrictions on the time, place or manner of protected speech as long as the restrictions are (1) neutral as to the content of speech, (2) narrowly tailored to a specific government interest, and (3) leave open alternate means of communication for the information and parties affected by the ordinance. Pine, No. 13-15011, at *11. Because the appellants and appellees conceded that the ordinance in question was content-neutral, the court focused its constitutionality analysis on (1) whether the statute was sufficiently tailored to the interest of protecting the health of patients at health care facilities and (2) whether other means of communicating their information remained available to those affected by the ordinance.

The most recent Supreme Court decision on the extent a statute must be narrowly tailored, McCullen v. Coakley, 134 S. Ct. 2518 (2014), informs the Eleventh Circuit’s analysis by establishing that the regulation must not substantially burden speech any more than necessary to protect the specific government interest addressed. The court held that other sound ordinances situated alongside the one in question indicate that the health care facility sound ordinance only targets “loud, raucous, or unreasonably disturbing noise” and has a focused purpose of protecting the health and safety of those within a health care facility. Pine, No. 13-15011, at *17-18. The court further held that the health care facility sound ordinance “leaves open robust alternative channels of communication” for those wishing to protest or convey information near health care facilities. Id. at *25. Relying on the facts and rule of law from the former Fifth Circuit’s opinion in Medlin v. Palmer, 874 F.2d 1085 (5th Cir. 1990), the Eleventh Circuit based its decision in Pine on the ability of the appellants to talk, hold signs, distribute literature, and even produce amplified sound outside the 100-foot quiet zone established by the statute as being significant methods of communication unaffected and unimpeded by the sound restriction. Id.

Finally, the court held that the sound ordinance was not void for vagueness nor was it being discriminatorily enforced against the appellants. In its void for vagueness analysis, the question of law centered on whether the statute “gives fair notice to those who may be affected,” which the court noted the sound ordinance does for the aforementioned reasons regarding the narrow tailoring of its language. Pine, No. 13-15011, at *27. While appellants argued that the city’s failure to enforce the ordinance against fast-food loudspeakers and the security system’s loudspeakers at the facility where the appellants protested is discriminatory, the court notes that the ordinance creates exceptions for security systems and does not cover restaurant intercoms. Id. at *28.

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