Pine v. City of W. Palm Beach

• Decision Date: 06 August 2014
• Docket Number: No. 13–15011.,13–15011.
• Parties: Mary Susan PINE, Marilyn Blackburn, Plaintiffs–Appellants, v. CITY OF WEST PALM BEACH, FL, Defendant–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

762 F.3d 1262

Mary Susan PINE, Marilyn Blackburn, Plaintiffs–Appellants,

v.CITY OF WEST PALM BEACH, FL, Defendant–Appellee.

No. 13–15011.

United States Court of Appeals,Eleventh Circuit.

Aug. 6, 2014.

Horatio G. Mihet, Anita Leigh Staver, Mathew Duane Staver, Liberty Counsel, Orlando, FL for Plaintiffs–Appellants.

Abigail K. Hemani, Goodwin Procter, LLP, Boston, MA, Kimberly L. Rothenburg, Christopher Van Hall, Office of the City Attorney, West Palm Beach, FL, for Defendant–Appellee.

Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 9:13–cv–80577–DMM.

Before MARCUS and ANDERSON, Circuit Judges, and GOLDBERG,^* Judge.

MARCUS, Circuit Judge:

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, 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 ... 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 sound on any public street or sidewalk within 100 feet” of a health care facility.²Id. § 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., 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 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.

(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...