Earlier this month, the court held that the City of Norman, Oklahoma may enforce a disturbing-the-peace ordinance against anti-abortion protesters while their litigation claiming it violates the First Amendment is pending.  The ordinance prohibits “disturb[ing] the peace of another . . . by [p]laying or creating loud or unusual sounds.”  City police had cited and threatened to cite the protesters for violation when their amplified speech on sidewalks outside an abortion clinic could be heard inside the clinic.  The protesters claimed that the ordinance violates their rights to free speech and free exercise of religion, facially and as applied, but the district court denied their request for a preliminary injunction.

The Tenth Circuit held that the denial below was not an abuse of discretion, as the protesters failed to establish a substantial likelihood that they would prevail on the merits of their challenges.  The court agreed with the district court’s determination that the ordinance is content neutral—it does not reference, is not justified by, and was not adopted in response to the content of the speech—and passes intermediate scrutiny, including in its application against the protesters.

Relying on the Supreme Court’s recognition of a City’s significant interest in “protecting its citizens from unwelcome noise,” particularly when “the noise is directed to or impacts a medical facility,” the court easily affirmed the lower court’s finding of a significant interest.  The court also found the regulation, as applied here, was sufficiently narrowly tailored.  Without it, the city would be less effective in protecting the clinic from unwanted noise, as evidence showed amplified sounds disrupted business.  Additionally, as the protesters here could still communicate their message at a lower volume, the court found the enforcement of the ordinance left open ample alternative channels for communication.  In fact, in years of speaking the same message in the same location, the protesters had only been cited when they used amplification.

Though more summarily, the court also addressed the protesters’ facial challenges to the ordinance as vague and overbroad.  In support of its denial of an injunction premised on this challenge, the court explained that it had previously upheld similar language, the protesters had failed to specify how the ordinance is overbroad, and issues with overbreadth and vagueness are rare.  Although the ruling in Harmon may not shed novel light on First Amendment challenges to disturbing-the-peace ordinances, it does reiterate the high benchmark for a successful suit.

Harmon v. City of Norman, 2020 WL 7123846 (10th Cir. Dec. 7 2020).