No Megaphones Outside Abortion Clinics? Sounds OK to 11th Cir.

By Mark Wilson, Esq. on August 13, 2014 | Last updated on March 21, 2019

An ordinance in West Palm Beach, Florida, prohibits using amplified sound within 100 feet of the property line of any health care facility. Sounds neutral, but the real purpose of the law is to prevent anti-abortion protesters from using megaphones outside of abortion clinics.

The appellants in this case, Mary Susan Pine and Marilyn Blackburn, are two such protesters. They sued the city for an injunction on First Amendment grounds. The U.S. District Court for the Southern District of Florida denied the injunction, and on August 6, the 11th Circuit affirmed.

The Ordinance

West Palm Beach enacted the ordinance after several incidents at the Presidential Women's Health Center, including a 2005 arson that destroyed part of the building. City leaders believed that prohibiting amplified sound -- i.e., megaphones -- from coming within 100 feet of abortion clinics would de-escalate some of the situations caused by megaphones, which included making patients anxious and uncomfortable.

Pine claimed that the ordinance was unconstitutional and void for vagueness.

A Valid Time, Place, and Manner Restriction

On appeal, the 11th Circuit applied the familiar test for time, place, and manner restrictions; namely, that they have to be unrelated to the content of the speech, narrowly tailored to serve a compelling interest, and leave open alternative channels of communication. The court found the interest in protecting patients in and around the clinics was compelling, especially given physicians' testimony that amplified sound can cause anxiety and high blood pressure, hindering patients' recovery.

The court found also that the ordinance was narrowly tailored. Though Pine argued that the ordinance barred all amplified speech -- including cell phone conversations or music on headphones -- the court declined to read a constitutional problem into the law or interpret it in a way that would result in an "odd outcome." Looking at the law as a whole, the court declared it was designed to target "only loud, raucous, or unreasonably disturbing noise," which is the cause of the harm the city worried about.

Finally, the court found that there were adequate alternatives available: The ordinance "does not prohibit unamplified speech. It does not prohibit the distribution of written material. It does not prohibit the display of signs and placards nor does it prohibit any symbolic speech."

Not Like McCullen

Of course, the court at some point had to address the Supreme Court's recent decision in McCullen v. Coakley, which struck a Massachusetts law establishing a 35-foot buffer zone around abortion clinics. The situation is different here, the Fifth Circuit said, because this law is narrowly tailored to achieve its ends, where the Massachusetts one was not.

There's no better way to reduce the harm caused to patients by loud noise than to force those noises to be farther away. Pine can be outside the abortion clinic, but "simply cannot create loud, raucous, or unreasonably disturbing noise while there."

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