This post was authored by Otten Johnson summer law clerk Alex Gano. Alex is a rising third-year law student at the University of Colorado Law School.
On May 23, a federal judge in Maine issued a preliminary injunction against enforcement of a portion of that State’s Civil Rights Act that prohibited “making noise” with the intention of either “jeopardize[ing] the health of persons receiving health services” or “interfer[ing] with the safe and effective delivery” of health services. The ruling in March v. Mills—together with another opinion issued by a federal appellate court in Pennsylvania nine days later—mark the latest chapter in a twenty-year jurisprudential saga on the constitutionality of speech restrictions around abortion clinics.
The court held the Noise Provision of Maine’s Civil Rights Act was unconstitutional because its intent element was content-based and therefore subject to strict judicial scrutiny, a stringent test that the Provision failed. On two occasions late last year, Portland police officers warned Pastor Andrew March that the volume of his sidewalk preaching was interfering with operations at Planned Parenthood’s Portland Health Center. The effects of the noise outside the Health Center were well-documented in the case, and affidavits indicated that the noise from protesters could be heard inside the facility. Even though March was warned but never cited, the pastor brought facial and as-applied challenges to the Noise Provision and filed a motion for preliminary injunction.
Judge Nancy Torresen’s Order only briefly notes the constitutional protection afforded to controversial “sidewalk counseling” tactics outside abortion clinics. The lion’s share of the Order analyzed Maine’s Noise Provision in light of the recent U.S. Supreme Court decision in Reed v. Town of Gilbert. Reed elaborated on the forty-year-old distinction in First Amendment jurisprudence between “content-based” speech restrictions, which are presumptively invalid, versus “content-neutral” time, place, and manner restrictions, which receive a more deferential standard of review. The 2015 opinion implored lower courts to take a close look for “more subtle” forms of content-based speech regulation. Judge Torresen held that Maine’s Noise Provision, which prohibits noise only when its maker intends to interfere with the delivery of health care service, mandated differential treatment “based on the message expressed.”
To underscore the content-based nature of the Provision, March pointed out that on one occasion last December, a climate change rally involving hundreds of shouting protestors marched down a thoroughfare in front of the Planned Parenthood facility without complaint. Later that same day, a Portland police officer warned March that his less noisy preaching at the same location was a problem because March intended to interfere with medical services.
In analyzing the Maine law under strict scrutiny analysis, Judge Torreson found that the Noise Provision, because it protects a “captive audience inside hospitals and medical facilities from unwelcome noise that threatens their health and well-being,” was supported by a compelling governmental interest. However, the Noise Provision failed narrow tailoring, since other content neutral alternatives were available to regulate noise outside of health clinics.
The Order left policy makers with some guidance on drafting constitutional, content-neutral noise ordinances. The State could enact a law prohibiting all nuisance-like noise outside of health care facilities, or a law prohibiting noise that exceeds an objective, pre-determined decibel level.
The decision in March adds some texture to the deep division in First Amendment theory. After Reed, some court watchers feared that the Court’s opinion in that case established too stringent a standard for the review of laws limiting public expression. To some extent, March confirms that forecast, but the Order also offers legislatures favoring abortion clinic buffer zones a clearer path to constitutionality.