Harmon v. City of Norman, Oklahoma ( 2023 )

Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS March 1, 2023
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
TOBY HARMON; SHANE DODSON;
TAMMI DODSON,
Plaintiffs - Appellants,
v. No. 22-6019
CITY OF NORMAN, OKLAHOMA;
JEFF ROBERTSON, in his individual
capacity acting as a police officer for
the City of Norman, Oklahoma; DOES
1-5,
Defendants - Appellees.
_________________________________
Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. 5:18-CV-00688-HE)
_________________________________
Submitted on the briefs * :
David J. Markese and Frederick H. Nelson of the American Liberties Institute,
Orlando, Florida, and Brently C. Olsson of the Cheek Law Firm, PLLC,
Oklahoma City, Oklahoma, for Plaintiffs – Appellants.
Kathryn Walker, City Attorney; Rickey J. Knighton II, Assistant City Attorney;
and Jeanne M. Snider, Assistant City Attorney, of Norman, Oklahoma, for
Defendants – Appellees.
*
After examining the briefs and appellate record, this panel has
determined unanimously to honor the parties’ request for a decision on the
briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G).
The case is therefore submitted without oral argument.
Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 2
_________________________________
Before BACHARACH, PHILLIPS, and MORITZ, Circuit Judges.
_________________________________
PHILLIPS, Circuit Judge.
_________________________________
In this appeal, we affirm the district court’s ruling upholding the
constitutionality of the disturbing-the-peace ordinance from Norman,
Oklahoma. Longtime demonstrators outside the Abortion Surgery Center in the
City of Norman, Appellants contend that the ordinance is unconstitutional both
facially and as applied to their demonstrations. But as the district court ruled,
Appellants failed to furnish evidence that the ordinance is content-based,
infected with religious animus, or enforced unconstitutionally. In fact, the
record reveals the opposite: Norman police officers enforced the ordinance only
when the demonstrators’ speech became so loud or unusual that it breached the
peace. We affirm the district court.
BACKGROUND
I. Factual Background
In the early 1970s, the City of Norman enacted a disturbing-the-peace
ordinance, § 15-503. The ordinance has five subsections, which have remained
intact over the years:
No person shall disturb the peace of another by:
(1) Violent, obstreperous, or improper conduct or carriage which in
its common acceptance is calculated, or where the natural
2
Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 3
consequence is to cause an assault, battery or other breach of the
peace;
(2) Unseemly, obscene, offensive, insulting or abusive language
which in its common acceptance is calculated, or where the natural
consequence is, to cause an assault, battery, or other breach of the
peace;
(3) Playing or creating loud or unusual sounds;
(4) Circulating literature which casts ridicule upon any deity or
religion, which in its common acceptance is calculated to cause an
assault, battery, or other breach of the peace;
(5) Displaying any sign, emblem, badge, flag or other device, which
in its common acceptance is calculated, or where the natural
consequence is, to cause an assault, battery, or other breach of the
peace.
App. vol. 1, at 178. The ordinance does not define the terms used in these
subsections, including what qualifies as “offensive” or as “loud or unusual
sound[].” Id.
Toby Harmon, Shane Dodson, and Tammi Dodson (the demonstrators)
are members of a sidewalk ministry. As part of that ministry, they “attempt[] to
share a message with signs, tracts and speaking to the general public.” Id. at 21.
In their words, they engage in unsolicited “preaching” to visitors at abortion
clinics by “talk[ing] with them about God’s love” and “persuading” them
against abortion. App. vol. 4, at 688. The demonstrators also display signs that
depict a “Bible verse” and others that depict “a baby inside a mother’s womb.”
Id. at 693. They distribute literature that includes “scripture from the Bible.”
Id.
3
Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 4
For years, the demonstrators have proselytized on a sidewalk about thirty
feet from the Abortion Surgery Center in Norman. The district court found that
Shane demonstrated outside the clinic more than 100 times, and Shane testified
that he preached “[o]n average, four times a month” from 2015 to 2019. Id. at
691. Tammi testified that the ministry has been preaching outside the clinic
since 2014 or 2015.
Videos exchanged between the parties in discovery reveal that Shane’s
preaching often invoked religious themes, including messages about Jesus’
teachings, biblical judgment, God’s blessings, and repentance. The videos also
reveal that Shane had amplified his preaching to visitors of the abortion clinic
with a blue plastic cone. In one video, a ministry demonstrator stated that the
visitors “can hear us” inside the clinic. In another, a ministry demonstrator
stated that an off-duty Norman police officer was inside the clinic. Later in that
same video, Shane began to preach, unabated, by shouting through his curled
hand.
Some clinic visitors responded to the ministry’s preaching with hand
gestures and foul language. In one video, a ministry demonstrator claimed that
a visitor gestured her hand in the shape of a gun toward him. Officer Jeff
Robertson also testified that “many patrons and staff members” of the clinic
“constantly complain[ed] about how offensive” and “obscene” the
demonstrators’ preaching was. App. vol. 2, at 231-32. But the record reveals no
4
Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 5
violent encounters between ministry demonstrators and the clinic’s visitors or
staff.
Still, Norman police officers were no strangers at the sidewalk ministry.
In materials submitted to the district court at summary judgment, the
demonstrators claimed that officers repeatedly threatened to cite them under the
ordinance. Their verified complaint alleges, for example, that “[f]or many
years” the ministry had “been ordered to stop expressing their message
pursuant to the Code’s regulations.” App. vol. 1, at 21. 1 Shane swore in
response to interrogatories that officers twice told him to stop using a plastic
cone to amplify his preaching into the clinic. Tammi also claimed in
interrogatory responses that Norman police officers enforced the ordinance
against her, but she could not recall specifics. But see App. vol. 3, at 553
(testifying that she did not “recall an instance where someone was told to stop
expressing their message”).
The record reveals that since 2014, Norman police officers have issued at
least three citations under the ordinance. Just one relates to the demonstrators’
preaching outside the clinic. On March 4, 2016, officers cited Harmon for
violating the ordinance, which (among other restrictions) prohibits creating
loud or unusual sounds that disturb the peace of another. The citation notes that
1
Appellant Toby Harmon verified the complaint.
5
Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 6
Harmon was using a “PA [public-address] system” to “disrupt[] the business.”
App. vol. 1, at 172. Ultimately, Norman prosecutors dismissed the citation.
Apart from that citation, officers have cited non-party Katherine
Robinson under the ordinance, for “screaming” and “yelling” outside the clinic.
Id. at 175. But Norman did not approve that citation for prosecution. And
officers have cited Harmon for violating the ordinance for an incident near a
dentist’s office and an ice-cream parlor on July 18, 2018. According to the
citation, Harmon pursued a woman to her car while “yell[ing] at her about an
abortion.” Id. at 176. 2
II. Procedural Background
The demonstrators filed a three-count complaint, seeking relief from the
City and Officer Jeff Robertson 3 under 42 U.S.C. § 1983. The complaint
asserted as-applied and facial challenges to the ordinance under the Free
Speech Clause, Free Exercise Clause, and the Due Process Clause of the U.S.
Constitution, and further alleged that Norman failed to train its police officers.
2
No citation specifies which subsection of the ordinance the
demonstrators were cited under. Harmon’s March 4, 2016 citation, for example,
notes that he violated “Section 15-503” and “10-307(3).” App. vol. 1, at 172.
Section 10-307 of the Norman Municipal Code (available online) prohibits
citizens from making certain noises, including operating a loudspeaker on
public sidewalks. The citation was later amended to drop the noise violation
under § 10-307. Because the citations all refer to the demonstrators’ loud
speech, we assume that officers issued these citations under § 15-503(3).
3
Except as noted, we will refer to Appellees as “the City.” We refer to
the City of Norman individually as Norman.
6
Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 7
The complaint also requested preliminary and permanent injunctions to stop the
City from enforcing the ordinance.
The district court denied the demonstrators’ request for a preliminary
injunction, and we affirmed. Harmon v. City of Norman, 981 F.3d 1141 (10th
Cir. 2020). We saw no substantial likelihood of success on the merits for their
as-applied First Amendment challenges. Id. at 1150. We reasoned that the
ordinance was content-neutral and was narrowly tailored to serve Norman’s
legitimate and substantial interest in “protecting its citizens from unwelcome
noise.” Id. at 1148-49. We also rejected the demonstrators’ request for a
preliminary injunction based on their facial challenges, concluding that the
district court did not abuse its discretion because the demonstrators were
unlikely to show that the ordinance was vague or overbroad. Id. at 1150-54.
With the preliminary-injunction issue resolved and after discovery,
Norman and Robertson separately moved for summary judgment. The district
court granted in part and denied in part. It began by noting that the “motions
leave much to be desired insofar as a properly supported summary judgment
motion is concerned.” App. vol. 3, at 590. It remarked that the motions’
“articulation of the pertinent material facts” was “extraordinarily spare.” Id. at
591. And it noted that the demonstrators’ opposition briefs wrongly “assum[ed]
that allegations in the complaint must be viewed as admissible proof, due to the
complaint being verified.” Id. (citing Lantec, Inc. v. Novell, Inc., 306 F.3d
1003, 1019 (10th Cir. 2002)).
7
Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 8
Despite the deficiencies in the briefing, the district court summed up the
first material factual dispute as “whether the defendants violated plaintiffs’
rights by applying the ‘loud noise’ portion of the ordinance, or threatening to
apply it, to conduct involving artificially amplified or focused speech or loud
yelling and screaming by plaintiffs.” Id. at 591-92. The district court answered
that the City had constitutionally applied the noise subsection, § 15-503(3), to
the demonstrators under either the Free Speech Clause or the Free Exercise
Clause.
As to the demonstrators’ Free Speech Clause claim, it concluded that
“[t]he undisputed evidence establishes that the City’s focus was the level of
noise—the loudness of plaintiffs’ comments—not the content.” Id. at 592-93.
And it concluded that the undisputed evidence showed that “plaintiffs were free
to continue their demonstrations and preaching outside so long as they did not
get so loud as to be audible inside the facility.” Id. at 593. Thus, the district
court dismissed the demonstrators’ Free Speech Clause claim. Id. at 594. As to
the demonstrators’ Free Exercise Clause claim, the district court similarly
reasoned that the undisputed evidence revealed that § 15-503(3) was both
neutral and generally applicable. Id. at 594-95. It therefore concluded that the
subsection survived rational-basis deference. Id. at 595. 4
4
In a footnote, the district court also dismissed the demonstrators’
failure-to-train claim, remarking that “the verified complaint does not appear to
8
Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 9
Turning next to the demonstrators’ facial challenges to each subsection
of the ordinance, the district court denied summary judgment. It noted that the
City’s and Robertson’s “motions make little effort to address the facial claims.”
Id. at 596. Even still, the district court commented that it had “considerable
doubt whether plaintiffs can establish facial invalidity of the ordinance given
the exacting standards which apply to such claims.” Id. But to be safe, the
district court allowed the demonstrators’ facial claims to proceed to a bench
trial. Id. at 596-97. 5
So the demonstrators went to trial solely on their facial challenges. At a
half-day bench trial, the demonstrators called Shane as their sole witness. Our
review of the trial transcript reveals that Shane largely reiterated his prior
deposition testimony and the prior sworn statements in the verified complaint.
But Shane also testified that Norman police officers had not threatened to cite
either him or his wife, aside from when the pair used the plastic cone to
amplify their voices.
The district court issued a ruling soon after the bench trial on the
demonstrators’ facial challenges. Harmon v. City of Norman, No. CIV-18-0688,
2022 WL 329235 (W.D. Okla. Jan. 7, 2022). For these, it distinguished between
even assert such a claim, at least as a separate or freestanding claim.” App. vol.
3, at 588 n.2.
5
The court ordered a bench trial because it dismissed “all claims which
might support a damages recovery,” leaving “only claims potentially
warranting declarative or injunctive relief.” App. vol. 3, at 597.
9
Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 10
the four subsections in § 15-503(1), (2), (4), and (5) and the noise subsection,
§ 15-503(3). Id. at *3. The district court ruled that the demonstrators lacked
Article III standing to bring facial claims under § 15-503(1), (2), (4), and (5).
Id. at *2. That was because the demonstrators
have never been cited for those subsections of the ordinance, have
expressed no desire to engage in conduct that would violate those
subsections, and have not presented evidence that they are being
prevented from engaging in such conduct due to the threat of
enforcement of those subsections of the ordinance.
Id.
Next, the district court rejected the remaining facial challenge to
§ 15-503(3). Relying on an Oklahoma case upholding a similarly worded Tulsa
ordinance, the district court concluded that “Norman’s ordinance is not
overbroad or vague, nor does it prevent plaintiffs from conducting their
sidewalk ministry.” Id. at *3 (citing Howard v. City of Tulsa, 712 P.2d 797(Okla. Crim. App. 1986)). The district court likened Norman’s ordinance to
Tulsa’s. Id. In Howard, an Oklahoma appellate court approved the Tulsa
ordinance because “sounds with volume sufficient to disturb the peace inside a
residence was ‘sufficiently a matter of common knowledge so that an average
citizen can determine with reasonable certainty what conduct is proscribed.’”
Id. (quoting 712 P.2d at 798).
The demonstrators timely appealed. 6
6
The City does not cross-appeal the district court’s denial of summary
judgment.
10
Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 11
JURISDICTION
We have jurisdiction to consider this appeal under 28 U.S.C. § 1291. See
Weise v. Casper, 593 F.3d 1163, 1165 (10th Cir. 2010).
STANDARD OF REVIEW
The demonstrators appeal the district court’s grant of summary judgment
and its rulings after the bench trial. “We review a grant of summary judgment
de novo, drawing all reasonable inferences and resolving all factual disputes in
favor of the non-moving party.” Birch v. Polaris Indus., Inc., 812 F.3d 1238,
1251 (10th Cir. 2015) (citation omitted). And “[i]n an appeal from a bench
trial, we review the district court’s factual findings for clear error and its legal
conclusions de novo.” Lippoldt v. Cole, 468 F.3d 1204, 1211 (10th Cir. 2006)
(citations omitted).
DISCUSSION
The demonstrators charge the district court with several errors. We
proceed as follows. We first consider the district court’s grant of summary
judgment for the City, respectively addressing the demonstrators’ as-applied
challenges to § 15-503(3) and the failure-to-train claim. We then consider the
district court’s bench-trial rulings on the demonstrators’ facial challenges to
each subsection of the ordinance.
11
Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 12
I. The district court did not err in granting summary judgment for the
City on the demonstrators’ as-applied challenges and failure-to-train
claim.
We begin our analysis by reviewing the district court’s grant of summary
judgment for the City. The demonstrators assert that the district court wrongly
granted summary judgment despite genuine issues of material fact.
Before turning to the merits of the demonstrators’ position, we note that
we share the district court’s misgivings about the deficiencies in the parties’
factual presentations below. That problem persists on appeal because,
“although our review is de novo, we conduct that review from the perspective
of the district court at the time it made its [summary-judgment] ruling,
ordinarily limiting our review to the materials adequately brought to the
attention of the district court by the parties.” Adler v. Wal-Mart Stores, Inc.,
144 F.3d 664, 671 (10th Cir. 1998).
To that end, to show a genuine issue of material fact, the demonstrators
must point us to admissible evidence enabling the court to rule in their favor on
at least one of their claims. See Fed. R. Civ. P. 56(c); Bacchus Indus., Inc. v.
Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991) (“The party opposing the
motion must present sufficient evidence in specific, factual form for a jury to
return a verdict in that party’s favor.” (citation omitted)). Providing proof of
genuine disputes is especially important on appeal because the demonstrators
must ultimately convince us that they have a viable § 1983 claim that the
district court prematurely dismissed. Matsushita Elec. Indus. Co. v. Zenith
12
Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 13
Radio Corp., 475 U.S. 574, 587 (1986) (“Where the record taken as a whole
could not lead a rational trier of fact to find for the [party claiming injury],
there is no genuine issue for trial.” (internal quotation marks and citation
omitted)).
In arguing that the district court disregarded genuine issues of material
fact, the demonstrators point to some of their complaint allegations as well as
the City’s supposed failure to support its merits defenses. Neither helps much
in defeating summary judgment on appeal. For one, complaint allegations—
even if verified 7—are often unadorned conclusions. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986) (noting that the nonmoving party “may not rest
upon the mere allegations or denials of his pleading[s]” to avoid summary
judgment). Indeed, we already considered those complaint allegations in ruling
that the demonstrators were unlikely to succeed on the merits of their as-
applied claims. Harmon, 981 F.3d at 1150. Nor do the demonstrators get far by
focusing on the quantum of the other side’s evidence—it is the demonstrators
who bear the ultimate burden of proof on their § 1983 claims.
7
The demonstrators urge that the verified complaint is admissible proof
based on their personal knowledge. But this sort of evidence is not worth much
in opposing summary judgment. See Adler, 144 F.3d at 671-72 (“The
conclusory allegations in Plaintiff’s complaint, although verified, are of as
little help in carrying her burden under Rule 56(e) as are the conclusory
arguments in her brief.” (citations omitted)).
13
Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 14
A. As applied, § 15-503(3) does not violate the First Amendment.
The demonstrators argue that § 15-503(3) is unconstitutional under the
Free Speech Clause and the Free Exercise Clause as applied to them.
Distinguishing between facial and as-applied challenges, we have noted that
“[a] facial challenge considers the restriction’s application to all conceivable
parties, while an as-applied challenge tests the application of that restriction to
the facts of a plaintiff’s concrete case.” iMatter Utah v. Njord, 774 F.3d 1258,
1264 (10th Cir. 2014) (citation omitted). Though the same substantive standard
applies to both facial and as-applied challenges, the latter demands “a
developed factual record and the application of a statute to a specific person.”
Richmond Med. Ctr. for Women v. Herring, 570 F.3d 165, 172 (4th Cir. 2009)
(en banc). To succeed on First Amendment as-applied challenges premised on
viewpoint discrimination, plaintiffs “must show that [they were] prevented
from speaking while someone espousing another viewpoint was permitted to do
so.” McCullen v. Coakley, 573 U.S. 464, 485 n.4 (2014).
1. As-Applied Free Speech Clause Claim
We begin with the demonstrators’ as-applied claim under the Free Speech
Clause of the First Amendment. Under the First Amendment, the government
may not “abridg[e] the freedom of speech.” U.S. Const. amend. I. The First
Amendment applies to the States through the Fourteenth Amendment’s Due
Process Clause. Taylor v. Roswell Indep. Sch. Dist., 713 F.3d 25, 35 (10th Cir.
2013) (citations omitted). That includes municipal legislative enactments like
14
Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 15
the ordinance here. Hawkins v. City & County of Denver, 170 F.3d 1281, 1286
(10th Cir. 1999).
The issue is whether the demonstrators have a First Amendment right to
preach loudly on a sidewalk outside an abortion clinic. We answer this question
by asking three of our own: Does the First Amendment protect the
demonstrators’ speech? If so, what is the nature of the forum where the speech
occurs? And, depending on the forum, what are the City’s justifications for
restricting the speech? See Summum v. City of Ogden, 297 F.3d 995, 1001-03
(10th Cir. 2002). The parties do not dispute that the demonstrators engaged in
protected speech or that the demonstrators’ sidewalk ministry operated in a
public forum. 8 We thus focus on whether the government was justified in
restricting the demonstrators’ loud speech under § 15-503(3).
In public fora, “the government may impose reasonable restrictions on
the time, place, or manner of protected speech.” Ward v. Rock Against Racism,
491 U.S. 781, 791 (1989). Those restrictions are reasonable if they (1) “are
justified without reference to the content of the regulated speech,” (2) “are
narrowly tailored to serve a significant governmental interest,” and (3) “leave
open ample alternative channels for communication of the information.” Id.8
Indeed, sidewalks are “‘public places’ historically associated with the
free exercise of expressive activities.” United States v. Grace, 461 U.S. 171,
177 (1983) (citing Perry Educ. Ass’n v. Perry Loc. Educator’s Ass’n, 460 U.S.
37, 45 (1983)).
15
Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 16
(quoting Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984)).
We consider each in turn.
a. Content Neutrality
We first assess whether the undisputed evidence shows that § 15-503(3)
is content-neutral. The subsection prohibits “loud or unusual sounds.” App. vol.
1, at 178. It is thus content-neutral on its face because it does not draw
distinctions based on the content of the speech. See Reed v. Town of Gilbert,
576 U.S. 155, 164-67 (2015) (concluding that a city ordinance that restricted
political signs was facially content-based). On its face, § 15-503(3) addresses
all loud or unusual speech, whatever the content. Harmon, 981 F.3d at 1148
(“Section 15-503(3)’s language is clearly content-neutral, prohibiting
disturbing another’s peace by making ‘loud or unusual sounds,’ without
reference to the content of the noise.” (citations omitted)).
But our inquiry continues even though an ordinance is facially content-
neutral. A facially content-neutral regulation is unconstitutional if “the
government has adopted a regulation of speech because of disagreement with
the message [the speech] conveys.” Ward, 491 U.S. at 791 (citing Clark, 468
U.S. at 295). “The government’s purpose is the controlling consideration.”
Evans v. Sandy City, 944 F.3d 847, 854 (10th Cir. 2019) (emphases omitted)
(quoting Ward, 491 U.S. at 791). In assessing that dispositive consideration, we
look to evidence in the record for an explanation of why the government
adopted the regulation. For instance, we’ve relied on statements by legislators
16
Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 17
and concerned citizens about the passage of the regulation. See id. at 854-55. If
that evidence bears out that the government’s purpose is “unrelated to the
content of the expression deemed neutral,” we conclude that the government’s
regulation is content-neutral “even if it has an incidental effect on some
speakers or messages but not others.” Id. (quoting Ward, 491 U.S. at 791).
Nothing in the record suggests that Norman passed § 15-503(3) to
regulate the content of the demonstrators’ message, much less any message. As
the district court concluded, “[t]he undisputed evidence establishes that the
City’s focus was the level of noise—the loudness of plaintiffs’ comments—not
the content.” App. vol. 3, at 592-93. Our own review of the record confirms the
district court’s finding. From the few deposition snippets that we have in the
appellate record (including from Norman’s lawyer), we deduce no improper
purpose. We acknowledge that the evidence establishing Norman’s proper
purpose is lacking. And we recognize that Norman may have passed
§ 15-503(3) due to expectations of encounters between rival groups with
strongly held views on abortion: the Supreme Court handed down Roe v. Wade,
410 U.S. 113 (1973), in January 1973, and Norman adopted its ordinance in its
1972–1973 legislative term. But we will not speculate about whether Norman
passed § 15-503(3) to regulate specific messages. We agree with the district
court that the demonstrators raised no genuine issue of material fact over
Norman’s content-neutral purpose. See Adler, 144 F.3d at 678 n.5 (“Genuine
17
Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 18
issues of material fact must be supported by more than a mere scintilla of
evidence.” (citations omitted)).
As evidence, the demonstrators point to the City’s enforcement record of
§ 15-503(3). That’s relevant, according to the demonstrators, because the
Supreme Court warned that a government regulation “would not be content
neutral if it were concerned with undesirable effects that arise from ‘the direct
impact of speech on its audience’ or ‘[l]isteners’ reactions to speech.’”
McCullen, 573 U.S. at 481 (alteration in original) (quoting Boos v. Barry, 485
U.S. 312, 321 (1988)). But as stated, the “controlling consideration” is
Norman’s legislative purpose for § 15-503(3), not the future enforcement of it.
Evans, 944 F.3d at 854-56 & n.3 (noting that the appellant pointed to “no
authority to support” the view that we should consider post-enactment
legislative comments). In other words, the demonstrators can’t rely on evidence
that Norman police officers may have enforced § 15-503(3) in a content-based
way. That’s simply proof of “incidental effect[s] on some speakers or
messages,” which effects we have stressed “do[] not make a regulation content-
based.” Evans, 944 F.3d at 855 (collecting cases). 9
9
The demonstrators also misread the significance of McCullen. It’s true
that a government regulation would be content-based if “it were concerned with
undesirable effects that arise from the direct impact of speech on its audience
or listeners’ reaction to speech.” McCullen, 573 U.S. at 481 (cleaned up). But
the point is that the demonstrators must show that the ordinance was concerned
with the speech, not just that some listeners were offended by the speech. In
other words, we would likely treat § 15-503(3) as content-based if Norman
18
Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 19
We also note that the enforcement record of § 15-503(3) doesn’t raise a
genuine issue of material fact. That’s because the undisputed evidence does not
show that Norman police officers enforced § 15-503(3) in a content-based
manner as applied to the demonstrators. Instead, the evidence shows that
Norman police officers cited the demonstrators based on the auditory volume of
the demonstrators’ speech, not their message. The first citation against Harmon
notes, for example, that he “was using a [public-address] system and disrupting
the business.” App. vol. 1, at 172. The next—occurring on private property
unrelated to the abortion clinic—recited that Harmon “continued yelling
things” and that he followed a woman to her car and “yell[ed].” Id. at 176. And
officers issued another citation against a non-party demonstrator for
“loud . . . screaming” and “yelling.” Id. at 175. Even more to the point, one of
the videos reveals that Shane preached as an off-duty police officer stood watch
at the clinic; Shane was not cited under § 15-503(3). Thus, the actual
enforcement record against the demonstrators does not create a genuine dispute
of material fact. The record does not support a finding that Norman police
officers enforced § 15-503(3) to regulate content.
b. Narrowly Tailored to Significant Government Interests
We next turn to the question of whether the undisputed evidence supports
the district court’s conclusion that § 15-503(3) is narrowly tailored to serve
desired to prevent its citizens from hearing pro- or anti-abortion views. But we
have no evidence in the record to support that finding.
19
Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 20
significant government interests. Norman has a significant government interest
in “protecting its citizens from unwelcome noise.” Harmon, 981 F.3d at 1149.
The Supreme Court tells us that “[n]oise control is particularly important
around hospitals and medical facilities during surgery and recovery periods.”
Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 772 (1994). And more
broadly, the Court has upheld a government interest in protecting citizens from
“excessive noise” in traditional public fora, such as sidewalks. Ward, 491 U.S.
at 796 (collecting cases).
We thus focus on § 15-503(3)’s fit. “To meet the requirement of narrow
tailoring, the government must demonstrate that alternative measures that
burden substantially less speech would fail to achieve the government’s
interests.” McCullen, 573 U.S. at 495. Put differently, the “[g]overnment may
not regulate expression in such a manner that a substantial portion of the
burden on speech does not serve to advance its goals.” Ward, 491 U.S. at 799.
Here, “[w]e look ‘to the amount of speech covered by the ordinance and
whether there is an appropriate balance between the affected speech and the
governmental interests that the ordinance purports to serve.’” Evans, 944 F.3d
at 856 (quoting Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Village of
Stratton, 536 U.S. 150, 165 (2002)).
We conclude that § 15-503(3) strikes the appropriate balance. The City
reports that it has a “legitimate and substantial interest in protecting its citizens
from unwelcome noise.” Resp. Br. 16. So, in this as-applied challenge, the
20
Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 21
demonstrators must show that § 15-503(3) has substantially chilled their
protected speech, however loud. Edwards v. District of Columbia, 755 F.3d
996, 1001 (D.C. Cir. 2014) (citing Members of City Council v. Taxpayers for
Vincent, 466 U.S. 789, 802-03 (1984)). The demonstrators cannot meet that
burden. The record does not reveal any heavy-handed enforcement of
§ 15-503(3) by Norman police officers as applied to the demonstrators. The
opposite is true: for years, the demonstrators were able to preach—even at
amplified volumes—undeterred by § 15-503(3). The videos in the record
confirm, for instance, that officers did not cite the demonstrators for preaching
outside the clinic when amplifying their voices through a plastic cone or their
rounded hands. Nor did anything stop the demonstrators from preaching at non-
amplified volumes. See Hill v. Colorado, 530 U.S. 703, 726 (2000) (“[W]hen a
content-neutral regulation does not entirely foreclose any means of
communication, it may satisfy the tailoring requirement even though it is not
the least restrictive or least intrusive means of serving the statutory goal.”).
The demonstrators try to raise a genuine dispute by arguing that
§ 15-503(3) is not narrowly tailored because it prohibits “any sound, no matter
how faint” and because it prohibits “sound heard by anyone inside, not just
patients.” Opening Br. 28-29. But the demonstrators confuse their as-applied
challenge for a facial one. In a facial challenge, we might consider hypothetical
applications of the statute. But see Wash. State Grange v. Wash. State Repub.
Party, 552 U.S. 442, 450 (2008) (noting that facial challenges are “disfavored”
21
Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 22
because they “often rest on speculation” and risk “premature interpretation of
statutes on the basis of factually barebones records” (citation omitted)). On this
record, however, the officers never cited the demonstrators for whispering into
an abortion clinic or murmuring their biblical views to non-patients. To the
contrary, officers cited Harmon for using a public-address system and yelling at
a woman sitting in her car. The demonstrators’ argument is simply conjecture
that we need not indulge in an as-applied challenge. See Ward, 491 U.S. at 800(concluding that the Fourth Circuit erred by “hypothesiz[ing]” regulatory
alternatives that “reflect nothing more than a disagreement with the city over
how much control of volume is appropriate or how that level of control is to be
achieved” (citation omitted)).
c. Alternative Channels for Communication
We also reject that the demonstrators have identified a genuine issue of
material fact by arguing that § 15-503(3) shuttered their sidewalk ministry.
“While the First Amendment does not guarantee the right to employ every
conceivable method of communication at all times and in all places, a
restriction on expressive activity may be invalid if the remaining modes of
communication are inadequate.” Taxpayers for Vincent, 466 U.S. at 812(citations omitted). To determine whether alternative channels are adequate, we
assess the speaker’s ability to reach his or her target audience. Ward, 491 U.S.
at 802.
22
Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 23
As mentioned, the undisputed evidence reveals that § 15-503(3) did not
deter the demonstrators’ speech and that it would not apply to their non-
amplified speech. The demonstrators dance around the record by contending
that they “would” violate the subsection “if anyone in any building could hear
the speech.” Opening Br. 33. But we don’t look to if something would happen
in an as-applied challenge. As we concluded before, “that the City’s
‘limitations on volume may reduce to some degree the potential audience for
[Plaintiffs’] speech is of no consequence, for there has been no showing that
the remaining avenues of communication are inadequate.’” Harmon, 981 F.3d
at 1149 (alteration in original) (quoting Ward, 491 U.S. at 802)). What has
happened already is that officers did not reflexively cite the demonstrators
whenever they spoke; officers cited them only when they spoke too loudly. The
demonstrators—one of whom preached outside the clinic more than 100
times—cannot now plausibly claim that the noise subsection left them with no
alternatives for communication.
* * *
The demonstrators lack evidence to show genuine disputes of material
fact to prevail on their Free Speech Clause claim. We hold that § 15-503(3) is
constitutional under the Free Speech Clause as applied to the demonstrators.
The demonstrators have not shown that the subsection was content-based,
insufficiently tailored, or fatal to their sidewalk ministry. We therefore affirm
23
Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 24
the district court’s dismissal of the demonstrators’ as-applied Free Speech
Clause claim.
2. As-Applied Free Exercise Clause Claim
The demonstrators next assert that the district court erred in granting
summary judgment on their Free Exercise Clause claim. The demonstrators
devote two paragraphs in total to this argument and cite no supporting law.
Those deficiencies alone are reason enough to affirm. Bronson v. Swensen, 500
F.3d 1099, 1104 (10th Cir. 2007) (“[W]e routinely have declined to consider
arguments that are not raised, or are inadequately presented, in an appellant’s
opening brief.” (citations omitted)).
In any event, we conclude that the district court correctly granted
summary judgment for the City on the demonstrators’ Free Exercise Clause
claim. “While the First Amendment provides absolute protection to religious
thoughts and beliefs, the free exercise clause does not prohibit Congress and
local governments from validly regulating religious conduct.” Grace United
Methodist Church v. City of Cheyenne, 451 F.3d 643, 649 (10th Cir. 2006)
(citing Reynolds v. United States, 98 U.S. 145, 164 (1878)). The inquiry turns
on which level of constitutional scrutiny applies to government regulations that
burden religious conduct. We apply rational-basis deference if a regulation is
both neutral and generally applicable, even if that regulation incidentally
burdens religious exercise. Id. (quoting Emp. Div. v. Smith, 494 U.S. 872, 879
24
Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 25
(1990)). Otherwise, we apply strict scrutiny. Corder v. Lewis Palmer Sch. Dist.
No. 38, 566 F.3d 1219, 1232-33 (10th Cir. 2009) (citation omitted).
The district court determined that rational-basis deference applied
because the demonstrators presented no evidence that § 15-503(3) was
religiously motivated. We agree. An ordinance is neutral “so long as its object
is something other than the infringement or restriction of religious practices.”
Id. (citation omitted). And an ordinance is generally applicable unless “it
prohibits religious conduct while permitting secular conduct that undermines
the government’s asserted interests in a similar way.” Fulton v. City of
Philadelphia, 141 S. Ct. 1868, 1877 (2021) (citation omitted). The
demonstrators identify nothing in the record showing that City council
members passed § 15-503(3) to infringe on religious views. See Church of the
Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534-40 (1993)
(concluding that a city ordinance was not neutral based on evidence that
Hialeah legislators passed the ordinance to target the Santería religion). Nor do
they identify evidence that Norman police officers allowed secular speakers to
scream their messages while citing the ministry demonstrators for that same
conduct.
So rational-basis deference applies. We assess whether § 15-503(3)
“rationally relate[s] to a legitimate government interest.” Ashaheed v.
Currington, 7 F.4th 1236, 1243 (10th Cir. 2021) (citation omitted). It does. As
mentioned, Norman has a legitimate interest in protecting its citizens from
25
Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 26
unwelcome noise. And § 15-503(3) rationally relates to that end because it
prohibits loud or unusual sounds that disturb the peace of another. See
Henderson v. McMurray, 987 F.3d 997, 1005-07 (11th Cir. 2021) (affirming a
district court’s dismissal of the plaintiffs’ Free Exercise Clause claim on
rational-basis deference because the plaintiffs “do not allege that the City has
barred them from proselytizing their belief in the sanctity of human life outside
of abortion facilities, only that their task is more difficult in the light of the
noise provision and the presence of abortion-rights advocates”). We affirm the
district court’s grant of summary judgment dismissing the demonstrators’ Free
Exercise Clause claim.
B. The demonstrators’ failure-to-train claim against Norman fails.
Our precedent disposes of the demonstrators’ failure-to-train claim. 10 “A
municipality may not be held liable where there was no underlying
constitutional violation by any of its officers.” Hinton v. City of Elwood, 997
F.2d 774, 782 (10th Cir. 1993). As Robertson committed no constitutional
violation, Norman cannot be liable for a purported failure to train.
10
The demonstrators’ complaint does not squarely allege a failure-to-
train claim. The demonstrators cite some complaint allegations (under the
header “General Allegations”) to support this claim. Those allegations assert
that Norman failed to implement policies to train its police officers on
complying with the First Amendment. We don’t rule today on the sufficiency of
these allegations and instead assume that the demonstrators’ complaint pleads a
failure-to-train claim against Norman.
26
Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 27
And even if the demonstrators could clear that hurdle, they’d
immediately run into another one: nothing in the record establishes that
Norman was deliberately indifferent. At best, the demonstrators point to
inadequate First Amendment training for Norman police officers. That is not
enough to show “a pattern of tortious conduct” or an “obvious potential for
constitutional violations.” Barney v. Pulsipher, 143 F.3d 1299, 1308 (10th Cir.
1998) (citations omitted). Indeed, as the Supreme Court has remarked,
[t]hat a particular officer may be unsatisfactorily trained will not
alone suffice to fasten liability on the city, for the officer’s
shortcomings may have resulted from factors other than a faulty
training program. It may be, for example, that an otherwise sound
program has occasionally been negligently administered. Neither
will it suffice to prove that an injury or accident could have been
avoided if an officer had had better or more training, sufficient to
equip him to avoid the particular injury-causing conduct.
City of Canton v. Harris, 489 U.S. 378, 390-91 (1989) (internal citations
omitted). Particularly on this enforcement record of § 15-503(3), we agree with
the district court that the demonstrators’ failure-to-train claim must fail.
II. The district court did not err in its post-trial judgment rejecting the
demonstrators’ facial claims.
The demonstrators next appeal the district court’s bench-trial rulings that
the ordinance is not facially vague or overbroad. A facial challenge requires
more proof than an as-applied challenge. That’s because “[f]acial challenges
seek to vindicate not only individual plaintiffs’ rights but also those of all
others who wish to engage in the speech being prohibited.” Faustin v. City &
County of Denver, 423 F.3d 1192, 1196 (10th Cir. 2005) (citation omitted).
27
Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 28
Indeed, it’s generally “harder to prevail on a facial challenge” because any
constitutional application of the statute proves its constitutionality. United
States v. Cox, 906 F.3d 1170, 1178 n.8 (10th Cir. 2018) (citation omitted). To
win in the First Amendment context, a plaintiff must “establish that no set of
circumstances exists under which [the ordinance] would be valid”; “that [the
ordinance] lacks any plainly legitimate sweep”; or that it is “overbroad”
because “a substantial number of its applications are unconstitutional, judged in
relation to [its] plainly legitimate sweep.” Missourians for Fiscal
Accountability v. Klahr, 892 F.3d 944, 948 (8th Cir. 2018) (citation omitted).
And because facial challenges “push the judiciary towards the edge of its
traditional purview and expertise,” we have warned they are “strong medicine.”
Ward v. Utah, 398 F.3d 1239, 1246-47 (10th Cir. 2005) (citing Broadrick v.
Oklahoma, 413 U.S. 601, 611-12 (1973)).
We thus proceed cautiously, mindful that facial challenges demand “a
most exacting analysis.” Id. at 1247. Like the district court, we first address
whether the demonstrators have Article III standing to assert facial claims
under § 15-503(1), (2), (4), and (5) of the ordinance. We wrap up with the
demonstrators’ facial challenge to § 15-503(3).
A. The demonstrators lack standing to facially challenge
§ 15-503(1), (2), (4), and (5).
The demonstrators contend that they have Article III standing to
challenge § 15-503(1), (2), (4), and (5). To recap those subsections:
28
Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 29
No person shall disturb the peace of another by:
(1) Violent, obstreperous, or improper conduct or carriage which in
its common acceptance is calculated, or where the natural
consequence is to cause an assault, battery or other breach of the
peace;
(2) Unseemly, obscene, offensive, insulting or abusive language
which in its common acceptance is calculated, or where the natural
consequence is, to cause an assault, battery, or other breach of the
peace;
...;
(4) Circulating literature which casts ridicule upon any deity or
religion, which in its common acceptance is calculated to cause an
assault, battery, or other breach of the peace;
(5) Displaying any sign, emblem, badge, flag or other device, which
in its common acceptance is calculated, or where the natural
consequence is, to cause an assault, battery, or other breach of the
peace.
App. vol. 1, at 178. The demonstrators acknowledge that these subsections
“have not yet been directly applied against them.” Opening Br. 40-41. But they
assert that they may facially challenge these subsections to avoid any chilling
of their preaching. The district court rejected this argument, reasoning that
“[the demonstrators] have never been cited for those subsections of the
ordinance, have expressed no desire to engage in conduct that would violate
those subsections, and have not presented evidence that they are being
prevented from engaging in such conduct due to the threat of enforcement of
those subsections.” Harmon, 2022 WL 329235, at *2.
We agree with the district court that the demonstrators lack standing to
facially challenge § 15-503(1), (2), (4), and (5). Start with the basics of
29
Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 30
standing for claims alleging facial invalidity based on chilled speech. The
demonstrators bear the burden for “[t]he constitutional requirements for
standing, [which are] (1) an injury in fact, (2) a causal connection between the
injury and the challenged act, and (3) a likelihood that the injury will be
redressed by a favorable decision.” Rio Grande Found. v. City of Santa Fe, 7
F.4th 956, 959 (10th Cir. 2021). Though standing is not an onerous burden for
plaintiffs, standing for chilled-speech claims is “particularly delicate” because
“the injury is inchoate.” Initiative & Referendum Inst. v. Walker, 450 F.3d
1082, 1088 (10th Cir. 2006) (en banc). We thus developed a test for plaintiffs
bringing chilled-speech claims:
[P]laintiffs in a suit for prospective relief based on a “chilling effect”
on speech can satisfy the requirement that their claim of injury be
“concrete and particularized” by (1) evidence that in the past they
have engaged in the type of speech affected by the challenged
government action; (2) affidavits or testimony stating a present
desire, though no specific plans, to engage in such speech; and (3) a
plausible claim that they presently have no intention to do so because
of a credible threat that the statute will be enforced.
Id. at 1089 (emphasis omitted). In conducting this assessment, we have stressed
that “evidence of past activities . . . lends concreteness and specificity to
plaintiffs’ claims, and avoids the danger that Article III requirements be
reduced to the formality of mouthing the right words.” Id.But we need not dwell on the specifics of this test, because the
undisputed evidence shows that the demonstrators’ speech was not chilled by
these four subsections. For one, the record does not bear out that Norman
30
Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 31
police officers ever threatened the demonstrators with citations under these
subsections. At her deposition, Tammi could not recall a single instance when
police officers told her to stop preaching under the four subsections:
Q: . . . Were [ministry demonstrators] told to stop expressing their
message, or were they told to reduce the volume, to turn the
volume down?
A: Volume. I believe it was more volume.
Q: Okay. Do you ever recall an instance where someone was told
to stop expressing their message?
A: When I was out there or at all?
Q: What you have personal knowledge of, something that you
witnessed.
A: No.
App. vol. 3, at 553. Likewise, Shane testified that he was never contacted by
law enforcement when preaching at the University of Oklahoma:
Q: When you’ve been street-preaching on Campus Corner, have
you been contacted by any law enforcement officers from the City?
A: No.
Id. at 562-63. The record also reveals that the demonstrators were not deterred
from preaching after filing their complaint. Here’s one example from Shane’s
deposition:
Q: . . . Since you filed the lawsuit on July 17th of 2018, have you
been back to the Abortion Surgery Center to preach, protest,
counsel?
A: Yes.
Q: Okay. How often?
31
Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 32
A: . . . It’s been less than I used to because of my work. Maybe
once every—on average, once every two weeks—two or
three weeks. That’s on average.
Id. at 562.
The demonstrators respond by pointing to Shane’s trial testimony that
“he has not preached regularly at the clinic since 2019 and has not preached
there at all since 2021” and that “he modified his preaching practice.” Opening
Br. 46. But we do not read the trial testimony as capaciously as the
demonstrators do. As stated, Shane’s deposition testimony shows that Shane
slowed his preaching outside the clinic because of his job, not any threat of
enforcement. And the trial testimony supports that Shane changed his preaching
practices when officers threatened to cite him for amplifying his voice with the
plastic cone—that is, for violating § 15-503(3), not the other four subsections.
No dispute exists that the demonstrators have standing to challenge
§ 15-503(3).
Further, Shane’s trial testimony buttresses our conclusion that no Norman
official threatened to cite the demonstrators under § 15-503(1), (2), (4), and
(5):
Q: . . . During any of those occasions, other than what we’ve
previously mentioned with regard to the plastic cone, has any
police officer ever accused you or threatened you with a
citation for violating any of the provisions in Section 15-503?
....
A: No.
32
Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 33
Q: . . . Do you know of any occasions when your wife has been
with you—has she been threatened with an alleged violation
of Section 15-503?
A: No.
App. vol. 4, at 713.
We thus agree with the district court and hold that the demonstrators lack
standing to bring facial-invalidity claims for § 15-503(1), (2), (4), and (5) of
the ordinance. To have standing, the demonstrators must show at a minimum
that the threat of enforcement of these subsections has plausibly deterred their
abortion-related speech. Because the record shows the opposite, the
demonstrators lack standing.
B. The demonstrators’ facial challenges to § 15-503(3) fail.
1. Vagueness
We have noted two instances when ordinances are unconstitutionally
vague. “First, if it fails to provide people of ordinary intelligence a reasonable
opportunity to understand what conduct it prohibits. Second, if it authorizes or
even encourages arbitrary and discriminatory enforcement.” Jordan v. Pugh,
425 F.3d 820, 824-25 (10th Cir. 2005) (quoting Hill, 530 U.S. at 732). In
analyzing an ordinance, we look to “the enactment’s purpose, the harm it
attempts to prevent, whether there is a scienter requirement, and the
interpretations of individuals charged with enforcement.” Id. at 825 (citing
Grayned v. City of Rockford, 408 U.S. 104, 110-14 (1972)). And in reviewing
an ordinance’s language, we must be cautious of the “limitations of the English
33
Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 34
language” and ensure that the ordinance is “set out in terms that the ordinary
person exercising ordinary common sense can sufficiently understand and
comply with, without sacrifice to the public interest.” Broadrick, 413 U.S. at
608 (quoting U.S. Civ. Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, 413
U.S. 548, 578-79 (1973)).
Under these principles, § 15-503(3) is not unconstitutionally vague.
Though the words “loud or unusual” are abstract, they have acquired sufficient
meaning to put citizens of ordinary intelligence on notice. See Kovacs v.
Cooper, 336 U.S. 77, 79 (1949) (concluding that a city ordinance that
prohibited “loud and raucous” noises was not impermissibly vague because,
“[w]hile these are abstract words, they have through daily use acquired a
content that conveys to any interested person a sufficiently accurate concept of
what is forbidden”). The Supreme Court has never required “perfect clarity and
precise guidance” for “regulations that restrict expressive activity.” Ward, 491
U.S. at 794. Nor does a regulation flunk the vagueness test simply by “the
possibility that it will sometimes be difficult to determine whether the
incriminating fact it establishes has been proved.” United States v. Williams,
553 U.S. 285, 306 (2008). Indeed, several courts have reasoned similarly when
34
Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 35
faced with void-for-vagueness challenges against disturbing-the-peace
enactments. 11
Nor does § 15-503(3) “encourage[] arbitrary and discriminatory
enforcement.” Jordan, 425 F.3d at 825. Here, we consider “the interpretations
the court below has given to analogous statutes, and, perhaps to some degree, to
the interpretation of the statute given by those charged with enforcing it.”
Grayned, 408 U.S. at 110. And we see that Oklahoma state courts have
concluded as we do in analyzing similar ordinances. For instance, in Howard,
an Oklahoma appellate court analyzed a Tulsa ordinance that prohibited
“disturb[ing] the public peace or quietude” by the “playing of any radio,
phonograph or any musical instrument in any manner or in such volume . . . so
as to annoy or disturb the quiet, comfort or repose of any person in any
dwelling.” 712 P.2d at 798. The court ruled that whether the volume was too
11
E.g., State v. Johnson, 542 P.2d 808, 810 (Ariz. 1975) (rejecting a
facial challenge to Arizona statute that criminalized “loud or unusual noise,”
noting that the statute required evidence of “whether the noise would disturb a
person of ordinary sensitivities”); State v. Fitzgerald, 573 P.2d 100, 103 (Colo.
1978) (rejecting vagueness challenge to Colorado criminal statute outlawing
“unreasonable noise” because “[t]he void for vagueness doctrine does not
require a statute to be so specific that it is under inclusive” (citation omitted));
State v. Poe, 88 P.3d 704, 722 (Idaho 2004) (rejecting vagueness challenge to
criminal statute that outlawed “loud or unusual noise” even though “it fail[ed]
to precisely quantify the level of such conduct necessary to disturb someone
else’s peace”; “[t]hat [level of conduct] will depend upon the circumstances”);
City of Seattle v. Eze, 759 P.2d 366, 369 (Wash. 1988) (ruling that Seattle
ordinance outlawing “loud or raucous behavior” was not “inherently vague”).
35
Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 36
loud was “sufficiently a matter of common knowledge so that an average
citizen can determine with reasonable certainty what conduct is proscribed.” Id.And, as mentioned, the City’s enforcement efforts have allowed the
demonstrators to preach unabated when they were not using amplifiers. The
videos show this. There, we see sidewalk ministers routinely yelling toward the
clinic—often through their hands and sometimes through a plastic cone—with
no police efforts to quell them. In fact, in one video, a police officer drives
away after learning that ministry members were amplifying their voices with a
plastic cone and not a “bullhorn.” The demonstrators’ sole citation at the clinic
stemmed from Harmon’s use of a public-address system. On these facts,
common sense dictates—and indeed, has dictated—what constitutes loud or
unusual sounds.
2. Overbreadth
Similarly, we reject the demonstrators’ overbreadth challenge. “Facial
overbreadth has not been invoked when a limiting construction has been or
could be placed on the challenged statute.” Broadrick, 413 U.S. at 613
(collecting cases); see also City of Houston v. Hill, 482 U.S. 451, 458 (1987)
(“Only a statute that is substantially overbroad may be invalidated on its
face.”). Thus, our first task is to assess “whether the enactment reaches a
substantial amount of constitutionally protected conduct.” Hoffman Ests. v.
Flipside, Hoffman Ests., Inc., 455 U.S. 489, 494 (1982). The demonstrators
have the “burden to show, ‘from the text of [the ordinance] and from actual
36
Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 37
fact,’ that substantial overbreadth exists.” United States v. Bruce, 767 F.3d
1009, 1020 (10th Cir. 2014) (quoting Virginia v. Hicks, 539 U.S. 113, 122
(2003)).
The demonstrators identify no constitutionally protected speech that a
restriction on loud or unusual sounds substantially destroys. That’s especially
so on the actual facts here when Norman police officers allowed the
demonstrators substantial leeway to express high-value abortion-related speech
outside the clinic. Again, only when the speech became disruptive and
amplified did officers intercede. The record thus does not convince us that the
City must swallow the strong medicine of facial invalidity.
CONCLUSION
The demonstrators fail to show that any error pervaded the proceedings
below. We thus affirm the district court’s grant of summary judgment on the
demonstrators’ as-applied claims and its bench-trial rulings on the facial
claims.
37