Mary Susan Pine v. City of West Palm Beach, FL , 762 F.3d 1262 ( 2014 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-15011
________________________
D.C. Docket No. 9:13-cv-80577-DMM
MARY SUSAN PINE,
MARILYN BLACKBURN,
Plaintiffs - Appellants,
versus
CITY OF WEST PALM BEACH, FL,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 6, 2014)
Before MARCUS and ANDERSON, Circuit Judges, and GOLDBERG, * Judge.
MARCUS, Circuit Judge:
*
Honorable Richard W. Goldberg, United States Court of International Trade Judge, sitting by
designation.
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Appellants Mary Susan Pine and Marilyn Blackburn advocate against
abortion. They challenge on First Amendment grounds § 34-38 of the Code of the
City of West Palm Beach (the “Sound Ordinance” or “Ordinance”), which bans
amplified sound within 100 feet of the property line of any health care facility.
The district court refused to preliminarily enjoin the City’s enforcement of the
Sound Ordinance, finding that the Appellants had not demonstrated a substantial
likelihood of success on the merits of their constitutional claim.
On the record presented to this Court, the district court did not abuse its
considerable discretion in refusing to issue a preliminary injunction when it found
that the Sound Ordinance is a valid time, place, or manner restriction on speech
that is content-neutral, is narrowly tailored to advance the City’s substantial
interest in protecting patients, and leaves open ample alternative avenues of
communication. Nor did the district court abuse its discretion in determining that
the Appellants failed to establish a substantial likelihood of success on their claims
that the Ordinance is void for vagueness and is being applied discriminatorily
against them. Accordingly, we affirm.
I.
For a number of years, Appellants and other advocates have participated in
protests and counseling on public streets and sidewalks surrounding the
Presidential Women’s Center, a health care facility in West Palm Beach, Florida,
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where doctors perform abortions. Pine and Blackburn verbally express their
opposition to abortion, attempt to communicate with patients about abortion
alternatives, and pray for the mothers and unborn children. In the past they have
used electronic devices that produce sound, including megaphones (hand-held
loudspeakers) and walkie-talkies (hand-held two-way radios). Appellants use the
megaphones to attract the attention of visitors to the Center. The walkie-talkies
facilitate prayer: the person praying speaks into one radio while others listen on
additional devices. Appellants argue that because the property is surrounded by a
wall and most visitors arrive by car they cannot communicate their message
without sound amplification.
This case is the latest in a string of legal skirmishes between pro-life
advocates and the City over ordinances restricting speech near the Center. In July
2005, an arson destroyed part of the Center. The City Commission held a meeting
to address the issue and to explore possible ordinances that “would protect the
safety of these patients that are going into this clinic.” Halfpap v. City of W. Palm
Beach, No. 05-80900-CIV, 2006 WL 5700261, at *4 (S.D. Fla. Apr. 12, 2006). At
a later public hearing, the Commission heard from the long-time director of the
Center, who described “[a]n escalation of an environment that becomes
increasingly more hostile, increasingly more dangerous with the stopping of traffic,
attempting to access the entrance to our facility. The tactics have been . . .
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magnified with having megaphones as well as the use of video cameras to
intimidate patients.” Id. at *6. Other witnesses testified that people outside the
clinic yelled and screamed and used megaphones to shout things that were audible
from inside the clinic. One former patient explained that the commotion she
experienced when she was being escorted into the building made her “[v]ery, very,
very anxious.”
In response, the City Commission passed two ordinances. The 2005 Buffer
Ordinance, which is not before us, created a twenty-foot “buffer zone” around
health facility driveways in which no one could protest, leaflet, or “engage in oral
advocacy.” 1 West Palm Beach, Fla., Code § 78-425(1) (2005). The 2005 Sound
Ordinance, which is before this Court in an amended form, prohibited “amplified
1
In its entirety, the 2005 Buffer Ordinance provided:
Sec. 78-425. Engaging in prohibited activities near health care facilities.
(1) No person shall engage in protesting, picketing, distributing leaflets or
handbills, attempting to impede access, or engage in oral advocacy, education or
counseling activities within a designated public safety buffer zone adjacent to a
health care facility.
(2) “Designated Public Safety Buffer Zone” shall mean an area 20 feet around a
health care facility’s driveways and entrances from public rights-of-way or other
public areas immediately adjacent to a health care facility.
(3) “Health Care Facility” means any facility that is licensed, certified, or
otherwise authorized or permitted by law to administer treatment in this state.
West Palm Beach, Fla., Code § 78-425 (2005).
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sound on any public street or sidewalk within 100 feet” of a health care facility. 2
Id. § 34-38.
Pro-life advocates sued, claiming the two ordinances infringed their First
Amendment rights. See Halfpap, 2006 WL 5700261. The district court granted a
preliminary injunction concerning the Buffer Ordinance, finding that it restricted
speech in a quintessentially public forum and was not a narrowly tailored response
to a significant state interest. Id. at *25. However, the district court refused to
enjoin enforcement of the 2005 Sound Ordinance. Though the court expressed
concern at the breadth of the ordinance’s language, which applied to “any
unnecessary noise” as well as “amplified sound,” it interpreted the ordinance to
avoid constitutional concerns by reading it to apply only to “amplified sound, i.e.,
2
The 2005 Sound Ordinance provided:
No person shall produce, cause to be produced, or allow to be produced, by any
means, any unnecessary noise or amplified sound, operate or play any radio,
phonograph, stereo set, tape or CD player, television, sound amplifier, or other
electronic audio device that produces or reproduces amplified sound on any
public street or sidewalk within 100 feet of any portion of a building housing a
health care facility or any other institution reserved for the sick or infirmed [sic],
provided that the public streets or sidewalks adjacent to such facilities shall be
clearly marked by conspicuous signs identifying those areas. “Health care
facility” as used in this subsection, includes, but is not limited to, hospitals,
physicians’ offices, walk-in medical centers, medical diagnostic centers, surgical
centers, and facilities which are licensed, certified or otherwise authorized to
perform medical procedures in this state and to provide health services. “Health
care facility” shall not include residential homes, convalescent homes or other
facilities that provide long term residency.
Id. § 34-38 (2005).
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megaphones or loudspeakers, devices that amplify the voice.” Id. at *26.3 In
2008, the City Commission passed an amendment that removed the restriction on
“any unnecessary noise” in order to make clear that the Sound Ordinance, § 34-38,
prohibited only “amplified sound.”4 In 2010, Appellant Pine was cited under the
Sound Ordinance for using a bullhorn within the quiet zone surrounding the Center
and was assessed a $250 fine.
In 2011, the West Palm Beach City Commission again took up the issue. As
other witnesses had in the past, a physician at a public hearing testified that
stressful noise increases blood pressure and heart rate, which can cause
complications and infections for patients undergoing medical procedures. Dr. Jay
Trabin explained that “the World Health Organization and a number of other
surgical institutions around the country and the world have recognized noise
pollution, as it’s termed, as a significant risk factor in patient care.” He explained
the scientific mechanism: “noise pollution, especially stressful noise pollution,
causes the adrenal glands and other organs in the body to produce substances
called catacholamines which, for all practical purposes, are things that increase
3
Appellant Pine also in the past challenged an earlier version of the Sound Ordinance that
prohibited amplified sound “at a level that is plainly audible at a distance of more than ten feet
from the sound source.” Code § 34-38 (1979). The district court found that the provision was
unconstitutional because it was not narrowly tailored. Pine v. Presidential Women’s Center, Inc.,
No. 04-80123-CIV-ZLOCH, slip op. at 30 (S.D. Fla. Nov. 1, 2007).
4
The 2008 amendment also extended the prohibition on amplified sound within 100 feet of a
health care facility to include sound produced on private property.
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blood flow and increase heart rate and blood pressure . . . .” Dr. Trabin brought the
Commission dozens of articles detailing medical studies that found “such stress
hormones decrease patient healing,” “increase patient healing time,” “and increase
the need for anesthesia and for sedation.” Together, he concluded, these factors
“lead to increased complication rates, possibly increased infection and an overall
less satisfactory experience.”
A City Commissioner stated, “[w]e are not infringing on a person’s right of
free speech. What we are doing is -- and we have substantial testimony in our
record that says that amplified noise and noise that impacts upon a person going
through any medical procedure can damage their health.” After the 2011 hearing,
the Commission amended § 34-38 to prohibit amplified sound produced within
100 feet of the property line of a health care facility, not the building itself. The
2011 amendment also banned shouting and specified that amplified sound included
loudspeakers and drums. “Amplified sound” is defined elsewhere in the Code as
“a sound augmented by any electronic or other means that increases the sound
level or volume.” Code § 34-34. “Shouting” is “[a]ny reasonably loud, boisterous
or raucous shouting in any residential area or within a quiet zone.” Id. § 34-
35(12). The 2011 version of the Sound Ordinance, which remains in force today
and is challenged by Appellants in this case, provides:
Sec. 34-38. -- Sound limitations for health care facilities.
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(a) Purpose. The purpose of these regulations is to create an area
surrounding health care facilities that is quiet and free from shouting
or other amplified sound.
(b) Limitations. No person shall shout or, cause to be produced, or
allow to be produced, by any means, any amplified sound, including a
loudspeaker, drum, radio, phonograph, stereo set, tape or CD player,
television, sound amplifier, or other electronic audio instrument or
device that produces or reproduces amplified sound on any public
street or sidewalk or from private property within 100 feet of the
property line of a property housing a health care facility or any other
institution reserved for the sick or infirmed, provided that the public
streets or sidewalks adjacent to such facilities shall be clearly marked
by conspicuous signs identifying those areas. “Health care facility” as
used in this subsection, includes, but is not limited to, hospitals,
physicians’ offices, walk-in medical centers, medical diagnostic
centers, surgical centers, and facilities which are licensed, certified or
otherwise authorized to perform medical procedures in this state and
to provide health services. “Health care facility” shall not include
residential homes, convalescent homes or other facilities that provide
long term residency. Any health care facility that identifies the
facility as being located in a quiet zone in accordance with subsection
(c) below shall be subject to the same limitations on amplified sound
described in this section within 100 feet of the property line of a
property housing such health care facility.
(c) Signage required. It shall be the duty of each health care facility
or owner of such establishment to erect and maintain lampposts or
signs in some conspicuous place on every street, avenue or alley in the
vicinity of every health care facility, public or private, indicating that
the same is a “Quiet Zone.” The signs which must meet and conform
to the city’s sign code shall be placed on such streets, avenues or
alleys upon which a health care facility is situated and shall read in a
manner similar to, but not restricted to, the following:
“Hospital -- Quiet Zone” or “Health Care Facility -- Quiet Zone.”
Id. § 34-38.
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On June 6, 2013, Appellants Pine and Blackburn filed a verified complaint
in the United States District Court for the Southern District of Florida challenging
the constitutionality of the Sound Ordinance both on its face and as applied to their
activities near the Center. They sought a declaratory judgment, preliminary and
permanent injunctive relief, and compensatory damages. On October 29, 2013, the
district court denied Appellants’ motion for a preliminary injunction, finding that
they had not shown a substantial likelihood of success on the merits because the
Sound Ordinance imposes a reasonable restriction on the time, place, or manner of
protected speech in a public forum. The court concluded that the Ordinance is
content-neutral, that it is narrowly tailored to the government’s substantial interest
in protecting patients from unwelcome noise, and that the Ordinance leaves open
other effective avenues of communication. In addition, the district court held that
the City is not discriminatorily enforcing the Ordinance by failing to cite fast-food
restaurants that use intercom systems within the 100-foot perimeter or by allowing
the Center to use its own speakers, which are part of a security system that falls
within an Ordinance exemption.5 Finally, the district court held that the Ordinance
is not void for vagueness because “[m]en of common intelligence would
understand the Ordinance’s meaning and would not differ as to its application.”
5
The City’s Code exempts a number of uses and activities from the Sound Ordinance, including:
cries for emergency assistance; sirens on emergency response vehicles; parades and events with
appropriate permits; authorized activities on school or municipal property; fire and burglar
alarms; trains, aircraft, cars, and boats; and noises resulting from emergency work. Code § 34-
40.
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Appellants filed a timely notice of appeal. We have jurisdiction to hear this
interlocutory appeal of the district court’s order denying injunctive relief under 28
U.S.C. § 1292(a)(1). Appellants moved this Court for an injunction pending their
appeal. We denied the motion.
II.
We review the district court’s decision to deny a preliminary injunction for
abuse of discretion. Forsyth Cnty. v. U.S. Army Corps of Eng’rs, 633 F.3d 1032,
1039 (11th Cir. 2011). We review the court’s findings of fact for clear error and its
legal conclusions de novo. Id. “This scope of review will lead to reversal only if
the district court applies an incorrect legal standard, or applies improper
procedures, or relies on clearly erroneous factfinding, or if it reaches a conclusion
that is clearly unreasonable or incorrect.” Schiavo ex rel. Schindler v. Schiavo,
403 F.3d 1223, 1226 (11th Cir. 2005) (per curiam).
A party that seeks a preliminary injunction must establish that “(1) it has a
substantial likelihood of success on the merits; (2) irreparable injury will be
suffered unless the injunction issues; (3) the threatened injury to the movant
outweighs whatever damage the proposed injunction may cause the opposing
party; and (4) if issued, the injunction would not be adverse to the public interest.”
Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc) (per curiam).
“[A] preliminary injunction is an extraordinary and drastic remedy not to be
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granted unless the movant clearly established the ‘burden of persuasion’ for each
prong of the analysis.” Am.’s Health Ins. Plans v. Hudgens, 742 F.3d 1319, 1329
(11th Cir. 2014) (quoting Siegel, 234 F.3d at 1176). In this case, we need go no
farther than the first prong of this analysis because Appellants cannot show a
substantial likelihood of success on the merits.
A.
Appellants first challenge the Sound Ordinance as unconstitutional on its
face. In a public forum -- such as the City streets and sidewalks involved in this
case -- the government may impose reasonable restrictions on the time, place, or
manner of protected speech, so long as the restrictions “[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.” Ward v. Rock Against Racism,
491 U.S. 781, 791 (1989) (quoting Clark v. Cmty. for Creative Non-Violence, 468
U.S. 288, 293 (1984)). Appellants need only establish a significant likelihood that
the Ordinance fails at one of these steps to demonstrate a substantial likelihood of
success on the merits. Because the parties do not dispute that the Sound Ordinance
is content neutral, we examine the second and third prongs.
1.
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In its Code, the City claims a “substantial interest in protecting its citizens
from unwelcome noise” and “in preserving quiet in areas surrounding health care
facilities.” Code § 34-32(c),(f). The district court found that the City indeed has
substantial interests in protecting citizens and the area surrounding health care
facilities from unwelcome noise. We agree that these interests are significant. The
government “ha[s] a substantial interest in protecting its citizens from unwelcome
noise.’” Ward, 491 U.S. at 796 (quoting City Council of L.A. v. Taxpayers for
Vincent, 466 U.S. 789, 806 (1984)). While this interest is at is greatest when it
concerns “‘the well-being, tranquility, and privacy of the home,’ . . . the
government may act to protect even such traditional public forums as city streets
and parks from excessive noise.” Id. (quoting Frisby v. Schultz, 487 U.S. 474, 484
(1988)).
The City’s interest in regulating sound near health care facilities and
institutions for the sick or infirmed is all-the-more important because it is
concerned with protecting patients who, according to medical testimony, could
suffer serious physical damage from excess noise. “Persons who are attempting to
enter health care facilities -- for any purpose -- are often in particularly vulnerable
physical and emotional conditions.” Hill v. Colorado, 530 U.S. 703, 729 (2000).
And “[n]oise control is particularly important around hospitals and medical
facilities during surgery and recovery periods.” Madsen v. Women’s Health Ctr.,
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Inc., 512 U.S. 753, 772 (1994); see NLRB v. Baptist Hosp., Inc., 442 U.S. 773,
783-784, n.12 (1979) (“Hospitals, after all, are not factories or mines or assembly
plants. They are hospitals, where human ailments are treated, where patients and
relatives alike often are under emotional strain and worry, where pleasing and
comforting patients are principal facets of the day’s activity, and where the patient
and his family . . . need a restful, uncluttered, relaxing, and helpful atmosphere
. . . .” (citation omitted)); Medlin v. Palmer, 874 F.2d 1085, 1090 (5th Cir. 1989)
(recognizing “a legitimate governmental interest in protecting patients of hospitals
and clinics from the unwarranted intrusion of amplified sound generated by ‘pro-
life’ activists”).
To be valid, a time, place, or manner restriction also must be narrowly
tailored to advance the government’s substantial interest. “For a content-neutral
time, place, or manner regulation to be narrowly tailored, it must not ‘burden
substantially more speech than is necessary to further the government’s legitimate
interests.’” McCullen v. Coakley, 134 S. Ct. 2518, 2535 (2014) (quoting Ward,
491 U.S. at 799). “Such a regulation, unlike a content-based restriction of speech,
‘need not be the least restrictive or least intrusive means of’ serving the
government’s interests.” Id. (quoting Ward, 491 U.S. at 798). “But the
government still ‘may not regulate expression in such a manner that a substantial
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portion of the burden on speech does not serve to advance its goals.’” Id. (quoting
Ward, 491 U.S. at 799).
Petititoners argue that we should apply the narrow tailoring formulation
described by Justice O’Connor in Frisby: “A statute is narrowly tailored if it targets
and eliminates no more than the exact source of the ‘evil’ it seeks to remedy.” 487
U.S. at 485. Since Ward, however, the Supreme Court has applied a less strenuous
test: “So long as the means chosen are not substantially broader than necessary to
achieve the government’s interest, . . . the regulation will not be invalid simply
because a court concludes that the government’s interest could be adequately
served by some less-speech-restrictive alternative.” 491 U.S. at 800. Indeed, in
its recent decision in McCullen, the Supreme Court applied the Ward standard by
asking whether a regulation was substantially more burdensome than necessary.
See McCullen, 134 S. Ct. at 2537 (“The buffer zones burden substantially more
speech than necessary to achieve the Commonwealth’s asserted interests.”).
To decide whether the Sound Ordinance is narrowly tailored, we are obliged
to identify what speech it restricts. The Sound Ordinance states that no person,
within 100 feet of a health care facility’s property line, “shall shout” or produce
“any amplified sound, including a loudspeaker, drum, radio, phonograph, stereo
set, tape or CD player, television, sound amplifier, or other electronic audio
instrument or device that produces or reproduces amplified sound.” Code § 34-
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38(b). From this language, Appellants argue that the Ordinance fails the narrow
tailoring test because it bans all amplified speech. We agree that grave
constitutional questions would arise were we to interpret the Sound Ordinance to
prohibit all devices that in any way electronically produce or increase the volume
of sound. Thus, for example, if a passerby carries on a subdued telephone
conversation, the sound from her cellphone has negligible or no effect on patient
health. For the same reason, a law that reaches a person listening to music through
headphones, or a nearby neighbor watching television at a normal level in his
home, stretches well beyond what is needed to safeguard the sick.
But we do not look to statutory terms in isolation; instead, we consult
context to determine meaning. See Abramski v. United States, 134 S. Ct. 2259,
2267 n.6 (2014) (“[A] court should not interpret each word in a statute with
blinders on, refusing to look at the word’s function within the broader statutory
context.”). After all, “[a] provision that may seem ambiguous in isolation is often
clarified by the remainder of the statutory scheme -- because the same terminology
is used elsewhere in a context that makes its meaning clear . . . .” United Sav.
Ass’n of Texas v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371
(1988).
In addition, when one interpretation of a law raises serious constitutional
problems, courts will construe the law to avoid those problems so long as the
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reading is not plainly contrary to legislative intent. Edward J. DeBartolo Corp. v.
Fla. Gulf Coast Bldg. & Const. Trades Council, 485 U.S. 568, 575 (1988); Hooper
v. California, 155 U.S. 648, 657 (1895) (“The elementary rule is that every
reasonable construction must be resorted to, in order to save a statute from
unconstitutionality.”). When faced with more than one plausible interpretation of a
law, then, we apply “the reasonable presumption that [the legislature] did not
intend the alternative which raises serious constitutional doubts.” Clark v.
Martinez, 543 U.S. 371, 381 (2005); accord Rust v. Sullivan, 500 U.S. 173, 190
(1991) (“[A]s between two possible interpretations of a statute, by one of which it
would be unconstitutional and by the other valid, our plain duty is to adopt that
which will save the Act.” (quoting Blodgett v. Holden, 275 U.S. 142, 148 (1927)
(opinion of Holmes, J.))). Florida courts also apply the canon of constitutional
avoidance when interpreting state and local laws. See Hershey v. City of
Clearwater, 834 F.2d 937, 940 n.5 (11th Cir. 1987) (“According to Florida (and
general) rules of statutory construction, ‘when reasonably possible, a statute should
be construed in such a manner as to avoid conflict with the Constitution.’” (quoting
Schultz v. State, 361 So. 2d 416, 418 (Fla. 1978))); State v. Mozo, 655 So. 2d
1115, 1117 (Fla. 1995) (“[W]e adhere to the settled principle of constitutional law
that courts should endeavor to implement the legislative intent of statutes and
avoid constitutional issues.”).
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To avoid serious constitutional concerns, and in the light of surrounding
sections of the City’s noise control regulations, we construe the Sound Ordinance
as targeting only loud, raucous, or unreasonably disturbing noise. At least three
other Code provisions support this reading. First, the stated purpose of the
regulations explains the need for limits on noise at elevated levels. Section 34-31
states that the rules were designed to “reduc[e], control, and prevent[] . . . loud and
raucous noise, or any noise which unreasonably disturbs, injures, or endangers the
comfort, repose, health, peace, or safety of the city’s inhabitants and visitors.”
Code § 34-31. In § 34-32, the City further found that (a) “[l]oud and raucous noise
degrades the environment of the city to a degree that . . . [b]oth causes and
aggravates health problems”; (b) “[b]oth the effective control and the elimination
of loud and raucous noise are essential to the health and welfare of the city’s
inhabitants and visitors”; (d) “sound amplification equipment creates loud and
raucous noise that may, in a particular manner and at a particular time and place,
substantially and unreasonably invade the privacy, peace, and freedom of
inhabitants of, and visitors to, the city”; and (f) “the city has a substantial interest
in preserving quiet in areas surrounding health care facilities.” Id. § 34-32
(emphases added). In other words, the City concluded that health problems are
linked to loud and raucous noise and that certain types of amplified sound are
unreasonably disturbing in certain settings. The City’s stated purpose strongly
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signals that the Sound Ordinance applies only to loud, raucous, or otherwise
unreasonably disturbing noise.
In addition, § 34-34 defines “[a]mplified sound” for purposes of the noise
control regulations as “a sound augmented by any electronic or other means that
increases the sound level or volume.” Id. § 34-34. The fact that the Sound
Ordinance targeted amplified sound at an augmented or increased noise level, and
did not refer to all electronically transmitted noise, strongly suggests that volume
was at the heart of the City’s concerns.
Finally, a parallel code restriction that also bans amplified sound and
shouting applies only to “unreasonably loud, excessive, unnecessary or unusual
noise.” Id. § 34-35. Section 34-35 enumerates a dozen non-exclusive examples of
offending noise, including the use of “any radio receiving set, television set,
musical instrument, phonograph, or other machine or device for the producing or
reproducing of sound in such manner as to disturb the peace, quiet and comfort of
the neighboring inhabitants.” Id. Section 34-35 also addresses loudspeakers,
proscribing vehicles with an attached “sound amplifier or radio or any other
instrument of any kind or character which emits therefrom loud and raucous
noises” in public or within a § 34-38 quiet zone. Id. Section 34-35 further bans
“[a]ny unreasonably loud, boisterous or raucous shouting in any residential area or
within a quiet zone established pursuant to section 34-38.” Id.
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Thus, § 34-35 explained that shouting and amplified sound were prohibited
insofar as they were unreasonably loud, raucous, or disturbing. In turn, the Sound
Ordinance, § 34-38, addressed the use of “shouting or other amplified sound” near
health care facilities. Id. § 34-38. Read in context, and through the prism of our
canon of constitutional avoidance, the City’s noise control regulations indicate that
the Sound Ordinance restriction on amplified sound applies only to “loud and
raucous noise, or any noise which unreasonably disturbs, injures, or endangers the
comfort, repose, health, peace, or safety” of others within a health care facility
quiet zone. Id. § 34-31.6
Interpreting the Sound Ordinance to limit only excessive amplified noise
also avoids an odd or absurd outcome. “Where the literal reading of a statutory
6
Reading the Sound Ordinance to extend only to loud, raucous, or otherwise unreasonably
disturbing noise does not make § 34-38 unnecessary or redundant in the light of the general § 34-
35 noise restrictions. Section 34-38 calls the attention of government officials and the
community to the City’s particular interest in regulating sound in quiet zones where patients may
be affected. Moreover, § 34-38 highlights the importance of context: noise that may be
innocuous in a busy commercial area might be unreasonably disturbing when produced near a
health care facility.
Moreover, Appellants’ invocation of the “specific governs the general” canon of
construction is misplaced. That interpretive tool is helpful when “a general permission or
prohibition is contradicted by a specific prohibition or permission.” RadLAX Gateway Hotel,
LLC v. Amalgamated Bank, 132 S. Ct. 2065, 2071 (2012). Here, the issue is not whether a
specific or a general rule applies; instead, the relevant question is the meaning of “amplified
sound” in § 34-38. As explained, we interpret the meaning of that term by looking to context
provided by the Code.
Appellants also argue that we cannot adopt a limited interpretation of the Sound
Ordinance because the City has been broadly interpreting it when putting it into practice. As we
have explained, however, the language and context of the City’s noise control regulations and the
principle of constitutional avoidance dictate our narrower reading.
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term would ‘compel an odd result,’ we must search for other evidence of
[legislative] intent to lend the term its proper scope.” Pub. Citizen v. U.S. Dep’t of
Justice, 491 U.S. 440, 454 (1989) (quoting Green v. Bock Laundry Machine Co.,
490 U.S. 504, 509 (1989)); see Church of the Holy Trinity v. United States, 143
U.S. 457, 459 (1892) (“[F]requently words of general meaning are used in a
statute, words broad enough to include an act in question, and yet a consideration
of the whole legislation, or of the circumstances surrounding its enactment, or of
the absurd results which follow from giving such broad meaning to the words,
makes it unreasonable to believe that the legislator intended to include the
particular act.”). If we interpret the Sound Ordinance to the broadest degree
allowed by the text, it would bar anyone within 100 feet of health facility property
from using any electronic audio instrument, whether with headphones or an
external speaker, regardless of the amount of sound produced or its potential effect
on others. This expansive ban apparently would prohibit health care facilities from
using any electronic equipment that uses or produces amplified sound, from paging
systems to administrators’ telephones to patient monitoring devices. Even an
ultrasound scan amplifies sound, as does a stethoscope. Confining the Sound
Ordinance to loud, raucous, or unreasonably disturbing noise -- terms used
specifically in the Code -- avoids a profoundly far-reaching restriction no legislator
could have intended.
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Read this way, we have little doubt that the Sound Ordinance is narrowly
tailored to advance the City’s interest in protecting patient health in areas near
health care facilities and institutions for the sick or infirmed. Because the
offending sound itself is the potential cause of harm, the Sound Ordinance is “not
substantially broader than necessary to achieve the government’s interest.” Ward,
491 U.S. at 800. Indeed, the Sound Ordinance closely resembles noise limits long
ago upheld by the Supreme Court:
City streets are recognized as a normal place for the exchange of ideas
by speech or paper. But this does not mean the freedom is beyond all
control. We think it is a permissible exercise of legislative discretion
to bar sound trucks with broadcasts of public interest, amplified to a
loud and raucous volume, from the public ways of municipalities. On
the business streets of cities . . . , such distractions would be
dangerous to traffic at all hours useful for the dissemination of
information, and in the residential thoroughfares the quiet and
tranquility so desirable for city dwellers would likewise be at the
mercy of advocates of particular religious, social or political
persuasions. We cannot believe that rights of free speech compel a
municipality to allow such mechanical voice amplification on any of
its streets.
Kovacs v. Cooper, 336 U.S. 77, 87 (1949). Moreover, not every instance of loud,
raucous, or unreasonably disturbing sound in a quiet zone must harm patient health
for the Ordinance to be narrowly tailored. Instead, the Sound Ordinance does not
burden substantially more speech than necessary because the prohibited types of
noise heighten the risk that patients will suffer deleterious health effects. Cf. Hill,
530 U.S. at 707-08 (upholding against a First Amendment challenge a Colorado
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statute that “forbids all unwelcome demonstrators to come closer than eight feet”
because, although it “will sometimes inhibit a demonstrator whose approach in fact
would have proved harmless,” the “bright-line prophylactic rule may be the best
way to provide protection, and, at the same time, by offering clear guidance and
avoiding subjectivity, to protect speech itself”).
This case raises issues sharply different from those addressed recently by the
Supreme Court in McCullen. There, the Supreme Court struck down a
Massachusetts law that prohibited activists from standing within thirty-five feet of
the driveway or entrance of a reproductive health care facility. McCullen, 132 S.
Ct. at 2525, 2541. For a number of reasons, the Court held that the restriction was
not narrowly tailored to the government’s interest in preventing obstructions and
congestion outside of abortion clinics. Id. at 2537-41. The Court explained that
the Massachusetts law “unnecessarily swe[pt] in innocent individuals and their
speech” by “categorically exclud[ing] non-exempt individuals from the buffer
zones.” Id. at 2538. Notably, Massachusetts had failed to pursue a variety of
available, less-restrictive solutions for congestion problems. Finally, the law
barred access to public sidewalks and ways, “areas historically open for speech and
debate.” Id. at 2539. Massachusetts had taken “the extreme step of closing a
substantial portion of a traditional public forum to all speakers.” Id. at 2541.
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These considerations cut the other way in this case. Instead of casting a
wide net that captures innocent speech, the Sound Ordinance targets only actions
near health care facilities that produce types of noise that can endanger patients.
In addition, here there are no less restrictive means: because the heart of the
problem is loud, raucous, or disturbing noise, a restriction on that sound is
narrowly tailored. Unlike in McCullen, the record here contains no evidence of
feasible alternatives that protect patient health from such sound. Finally, the
Sound Ordinance in no way prevents Petitioners from accessing public ways and
sidewalks near the Center. They simply cannot create loud, raucous, or
unreasonably disturbing noise while there.
Petitioners also argue that we are bound to enjoin the Sound Ordinance by
the former Fifth Circuit’s decision in Reeves v. McConn, 631 F.2d 377 (5th Cir.
1980). 7 We remain unpersuaded. Reeves invalidated as unconstitutionally
overbroad a Houston ordinance prohibiting all sound amplification within 100
yards of residences, schools, courthouses, hospitals, and churches. Id. at 388.
Reeves explained that “there can be no valid state interest in prohibiting all sound
amplification within 100 yards of schools, courthouses, and churches outside the
normal hours of use.” Id. at 385. Reeves further found “no valid state interest in
prohibiting amplified sound that does not actually cause, or imminently threaten to
7
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as
binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981.
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cause, material disruption at” a residence or hotel. Id. Notably, Reeves said
nothing about the state’s interest in restricting sound near hospitals. Ultimately,
then, Reeves does not control the outcome of this case because its overbreadth
analysis did not specifically address whether the restriction on amplified sound
near hospitals was problematic. Instead, Reeves made clear that a “city may
reasonably prohibit kinds or degrees of sound amplification that are clearly
incompatible with the normal activity of certain locations at certain times.” Id. at
388. The City of West Palm Beach has done just that.
2.
“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 (citation omitted). Here,
the district court found that the Sound Ordinance left open meaningful alternative
means of communication. The court followed the approach employed by the Fifth
Circuit in Medlin, in which a local ordinance targeted “the use of amplified sound
in close proximity to certain institutions such as hospitals.” 874 F.2d at 1090. The
Fifth Circuit held that the restriction left open sufficient alternative channels
because “[i]t does not prohibit unamplified speech. It does not prohibit the
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distribution of written material. It does not prohibit the display of signs and
placards nor does it prohibit any symbolic speech.” Id.
For many of the same reasons cited by the Fifth Circuit in Medlin, we
conclude that the Sound Ordinance leaves open robust alternative channels of
communication. As the district court found, Appellants “are still free to talk, sing,
hold up signs, and distribute literature to patients within the quiet zone.” They
“may still use amplified sound anywhere outside the quiet zone” because the
Sound Ordinance applies only to sound produced within a quiet zone, not noise
that can be heard there. Importantly, the ordinance in no way restricts the use or
display of signs or the distribution of literature, thereby providing reasonable
alternative modes of communication. See Hill, 530 U.S. at 726 (upholding a
restriction on approaching others near health facilities because “[t]he 8-foot
separation between the speaker and the audience should not have any adverse
impact on the readers’ ability to read signs displayed by demonstrators. . . .
Furthermore, the statute places no limitations on the number, size, text, or images
of the placards. And . . . the 8-foot zone does not affect demonstrators with signs
who remain in place”).
Appellants argue, nevertheless, that they must gain the attention of patients
to let them know literature and counseling is available. But they offer no
persuasive account of why signs, the distribution of literature, or other means -- not
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involving loud, raucous, or otherwise unreasonably disturbing noise -- cannot
accomplish that goal. As the district court observed, “[t]hat patients entering the
Clinic chose to ignore them does not mean that Plaintiffs’ right to communicate
effectively is infringed or that the instant Ordinance is unconstitutional.” The long
and the short of it is that Appellants retain substantial alternative avenues to
express their views.
Construed narrowly to avoid constitutional concerns, the Sound Ordinance
prohibition on loud, raucous, or other unreasonably disturbing amplified noise is a
valid time, place, or manner restriction because it is content neutral, is narrowly
tailored to advance a substantial government interest, and leaves open alternative
channels of communication. The district court did not abuse its discretion in
determining that Appellants have failed to establish a substantial likelihood of
success on the merits of their facial challenge.
III.
Appellants also argue that the Sound Ordinance is unconstitutionally vague.
“It is a basic principle of due process that an enactment is void for vagueness if its
prohibitions are not clearly defined.” Grayned v. City of Rockford, 408 U.S. 104,
108 (1972). The Supreme Court has identified three values driving the vagueness
doctrine. First, “[v]ague laws may trap the innocent by not providing fair
warning.” Id. Moreover, vague laws impermissibly delegate policy decisions to
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police, judges, and juries, which risks “arbitrary and discriminatory application.”
Id. at 109. Finally, vague prohibitions that implicate First Amendment freedoms
risk chilling more speech than necessary. Id. As a result, “we insist that laws give
the person of ordinary intelligence a reasonable opportunity to know what is
prohibited, so that he may act accordingly.” Id. at 108. Still, “we can never expect
mathematical certainty from our language.” Id. at 110.
The Sound Ordinance is not unconstitutionally vague because it squarely
gives fair notice to those who may be affected. As we’ve explained, its context
indicates that it prohibits only shouting and loud, raucous, or unreasonably
disturbing amplified noise near health care facilities or institutions for the sick. Cf.
id. at 112 (“Although the prohibited quantum of disturbance is not specified in the
ordinance, it is apparent from the statute’s announced purpose that the measure is
whether normal school activity has been or is about to be disrupted. We do not
have here a vague, general ‘breach of the peace’ ordinance, but a statute written
specifically for the school context, where the prohibited disturbances are easily
measured by their impact on the normal activities of the school.”).
Indeed, in 1949 the Supreme Court upheld a prohibition on “loud and
raucous” sound as sufficiently definite and clear. Kovacs, 336 U.S. at 79.
According to the Court, “[w]hile these are abstract words, they have through daily
use acquired a content that conveys to any interested person a sufficiently accurate
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concept of what is forbidden.” Id. Those words remain sufficiently clear sixty-
five years later. Read in a limited way to avoid constitutional concerns, the
Ordinance here, banning only amplified sound that is loud or raucous, or that
unreasonably disturbs, injures, or endangers the comfort, repose, health, peace, or
safety of others within a health care facility quiet zone, is not impermissibly vague.
See, e.g., Reeves, 631 F.2d at 386 (finding no vagueness problem with an
ordinance restricting amplified sound that is “unreasonably loud, raucous, jarring,
disturbing, or a nuisance to persons within the area of audibility”). Appellants also
argue that the statute is vague because property lines are invisible. But the
required health facility signs warn speakers about the existence of a quiet zone and
its rough boundaries. All told, the City’s noise control regulations give a person of
ordinary intelligence fair notice of what type of amplified sound is restricted.
IV.
Finally, Appellants argue that the City has applied the Sound Ordinance in a
discriminatory manner based on their viewpoint. Appellants complain that the
City has not applied the Sound Ordinance to limit the use of drive-through
loudspeakers within the quiet zone by quick-service restaurants Wendy’s and Pollo
Tropical. But these intercoms are not covered by the Ordinance so long as they do
not produce loud and raucous noise or unreasonably disturbing sound. Similarly,
the Center’s own security system, which includes loudspeakers that warn would-be
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trespassers, is expressly exempted from the Sound Ordinance as an alarm under
§ 34-40. The district court acted within its considerable discretion by concluding
that “[t]he City is not selectively enforcing the Ordinance against pro-life
advocates” when, to the City’s knowledge, “[n]o other individuals are using
bullhorns and other prohibit[ed] amplifiers in established quiet zones.” We
reiterate, however, that this matter is before the Court only on the question of the
“extraordinary and drastic remedy” of a preliminary injunction. Hudgens, 742
F.3d at 1329. On remand, Appellants remain free on a full record to pursue a
permanent injunction and other relief.
AFFIRMED.
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