James Henderson v. Mark McMurray, 987 F.3d 997

Background:

James and Carol Henderson are pro-life sidewalk counselors who stand outside two Huntsville abortion clinics to speak, pray, and offer counsel; counter-protesters sometimes shout and ring cowbells.
Huntsville classifies their activity as a "minor event" but they obtain a special-event permit every six months because they sometimes use amplification; the city previously regulated noise by a 62-decibel standard.
In 2017 the Police Chief (McMurray) added a permit noise provision forbidding amplified sound that is "plainly audible" inside nearby buildings and defined "plainly audible" by reference to normal (unaided) hearing.
The Hendersons sued under 42 U.S.C. § 1983 alleging First Amendment (time, place, manner; viewpoint) and Free Exercise violations, and also claimed vagueness/overbreadth of the noise provision; they amended the complaint and named McMurray and the City.
The district court dismissed for failure to state a claim (upholding the permit as a content-neutral TPM restriction, rejecting viewpoint/discriminatory-enforcement allegations, finding the noise provision not unconstitutionally vague, and applying Smith to the Free Exercise claim); the Eleventh Circuit affirmed.

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
As-applied challenge to permit ordinance	Permit process lets counter-protesters reserve sidewalk space and exclude Hendersons, making speech impossible	Plaintiffs abandoned that as-applied claim on appeal; ordinance is a reasonable content-neutral TPM restriction	Abandoned on appeal; court declined to consider new arguments and affirmed dismissal
Noise provision as time, place, manner restriction	Provision prevents effective use of amplification and leaves no ample alternative channels; is pretext for viewpoint discrimination	Complaint lacks facts showing amplification ineffective under the provision or that the provision was motivated by viewpoint bias; provision facially content-neutral	Plaintiffs failed to plead lack of alternatives or viewpoint discrimination; court evaluated under Ward and dismissed
Vagueness of "plainly audible" standard	Phrase is subjective and places enforcement in hands of hostile clinic occupants, chilling speech	The provision gives fair notice: the audibility standard is determinate (normal hearing) and difficulty of measuring audibility does not render it vague	Not unconstitutionally vague; dismissal affirmed
Free Exercise / hybrid-rights doctrine	Their religiously motivated speech + Free Speech claims create a hybrid claim entitling them to strict scrutiny under Smith	Smith governs; the alleged facts do not present the kind of hybrid claim (e.g., proselytizing censored) that Smith recognized as excepted	Hybrid-rights doctrine inapplicable here; neutral, generally applicable law applies; Free Exercise claim fails

Key Cases Cited

Employment Div., Dep’t of Human Res. v. Smith, 494 U.S. 872 (1990) (general rule that neutral, generally applicable laws govern free exercise; discussion of hybrid-rights exception)
Ward v. Rock Against Racism, 491 U.S. 781 (1989) (time, place, manner test: content-neutral, narrowly tailored to significant interest, and ample alternatives)
Reed v. Town of Gilbert, 576 U.S. 155 (2015) (content- or viewpoint-based regulations require strict scrutiny)
Cantwell v. Connecticut, 310 U.S. 296 (1940) (example of speech–exercise hybrid involving proselytizing and licensing/censorship)
Murdock v. Pennsylvania, 319 U.S. 105 (1943) (similar hybrid example concerning solicitation licensing and religious exercise)
Follett v. Town of McCormick, 321 U.S. 573 (1944) (another solicitation/proselytizing hybrid precedent cited in Smith)
Pine v. City of West Palm Beach, 762 F.3d 1262 (11th Cir. 2014) (Eleventh Circuit application of Ward for public-forum speech restrictions)
Ashcroft v. Iqbal, 556 U.S. 662 (2009) (legal conclusions not accepted as true on a Rule 12(b)(6) motion)
Keeton v. Anderson-Wiley, 664 F.3d 865 (11th Cir. 2011) (discussed regarding application of Smith and hybrid claims)