981 F.3d 1141
10th Cir.2020Background
- Plaintiffs are three anti‑abortion protesters who regularly stood on public sidewalks/streets near a Norman, OK abortion clinic and used signs, tracts, and verbal persuasion; sometimes they used amplification or yelled such that sounds were heard inside the clinic.
- Norman’s disturbing‑the‑peace ordinance § 15‑503 prohibits (inter alia) "playing or creating loud or unusual sounds" that disturb another’s peace; Plaintiffs were cited or threatened with citation under § 15‑503(3) for amplified voice or loud yelling; citations were sometimes dismissed.
- Plaintiffs brought a 42 U.S.C. § 1983 suit alleging First Amendment (speech and free exercise) and Fourteenth Amendment vagueness/due process violations, and moved for a preliminary injunction enjoining enforcement of the ordinance against them during the litigation.
- The district court denied the preliminary injunction, finding Plaintiffs failed to show a substantial likelihood of success on the merits (addressing the as‑applied First Amendment claim to § 15‑503(3) first and also rejecting facial claims as insufficiently developed).
- On interlocutory appeal under 28 U.S.C. § 1292(a)(1), the Tenth Circuit affirmed, holding the district court did not abuse its discretion in denying an injunction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) As‑applied First Amendment challenge to § 15‑503(3) (prohibiting "loud or unusual sounds") | § 15‑503(3) impermissibly restricts Plaintiffs’ amplified and loud speech at the clinic | The ordinance is a content‑neutral time, place, and manner (TPM) restriction regulating volume/noise to protect peace and safety | Held: Plaintiffs unlikely to succeed; ordinance is a valid content‑neutral TPM as applied (no abuse of discretion denying injunction) |
| 2) Content‑based vs content‑neutral classification | Plaintiffs (invoking McCullen) argue listener‑impact based regulation can be content‑based | City points to neutral text and enforcement focused on volume, not message | Held: Ordinance is content‑neutral (language and enforcement target volume/noise, not message) |
| 3) Narrow tailoring and ample alternatives under Ward | Plaintiffs contend volume limits unduly reduce audience and burden speech | City asserts substantial interest in preventing unwelcome noise (esp. at medical facility), §15‑503(3) is narrowly tailored and leaves alternative channels (speak more quietly, relocate) | Held: Narrowly tailored to serve significant interest and leaves ample alternatives; Plaintiffs fail to show likelihood of success |
| 4) Facial vagueness and overbreadth of § 15‑503 | Plaintiffs argue undefined terms render whole ordinance vague/overbroad and chill speech | City notes limited enforcement history (only §15‑503(3) against Plaintiffs), possible narrowing constructions, and need for fuller record | Held: Plaintiffs did not meet burden to show substantial likelihood of facial invalidity; district court did not abuse discretion denying injunction on facial claims |
Key Cases Cited
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (establishes TPM test: content‑neutral, narrowly tailored, ample alternatives)
- Reed v. Town of Gilbert, 576 U.S. 155 (2015) (text/purpose used to determine content‑based regulation)
- McCullen v. Coakley, 573 U.S. 464 (2014) (listener‑impact concerns can implicate content‑based regulation)
- Grayned v. City of Rockford, 408 U.S. 104 (1972) (vagueness and overbreadth principles; consider narrowing constructions)
- Gooding v. Wilson, 405 U.S. 518 (1972) (narrowing violent/fighting‑words statutes to avoid vagueness)
- Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (fighting words doctrine)
- Winter v. Nat. Res. Def. Council, 555 U.S. 7 (2008) (preliminary injunction standards)
- Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006) (burdens at preliminary injunction track trial burdens)
- Mrs. Field’s Franchising, LLC v. MFGPC, 941 F.3d 1221 (10th Cir. 2019) (abuse‑of‑discretion review of preliminary injunction denials)
- Verlo v. Martinez, 820 F.3d 1113 (10th Cir. 2016) (likelihood of success often decisive in First Amendment preliminaries)
- Broadrick v. Oklahoma, 413 U.S. 601 (1973) (overbreadth must be substantial relative to legitimate sweep)
- Oney v. Oklahoma City, 120 F.2d 861 (10th Cir. 1941) (upholding a similarly worded disturbing‑the‑peace ordinance)
- Costello v. City of Burlington, 632 F.3d 41 (2d Cir. 2011) (upholding municipal noise prohibition under TPM)
- United States v. Sineneng‑Smith, 140 S. Ct. 1575 (2020) (caution that overbreadth invalidation is "strong medicine")