March v. Mills
867 F.3d 46
| 1st Cir. | 2017Background
- Maine amended the Maine Civil Rights Act (MCRA) in 1995 to add protections around conduct near facilities that provide health services; subsection (D) (the "Noise Provision") prohibits intentionally making noise that "can be heard within a building" after a police order to stop, when done with intent to (1) jeopardize patients' health or (2) interfere with safe and effective delivery of health services.
- Andrew March, an anti-abortion protester who regularly demonstrated outside a Planned Parenthood clinic in Portland, sued under 42 U.S.C. § 1983 challenging the Noise Provision as facially (and as-applied) violative of the First Amendment; he sought a preliminary injunction.
- The District Court found the Noise Provision content-based, applied strict scrutiny, concluded the state had content-neutral alternatives, and granted a preliminary injunction enjoining enforcement.
- The First Circuit reversed, framing the threshold as whether the Noise Provision is content-based or content-neutral in traditional public fora, and analyzing both facial application and legislative purpose.
- The court held the Noise Provision is facially content-neutral: it regulates disruptive, sustained noisemaking (regardless of communicative content) made after a law-enforcement cessation order and done with disruptive intent, and targets manner of expression likely to uniquely interfere with medical care.
- Applying intermediate scrutiny (time, place, manner test), the court held the statute advances a significant state interest (protecting safe, effective delivery of health care), is narrowly tailored (targets a uniquely disruptive subset of noise), and leaves ample alternative channels for communication; therefore March was unlikely to succeed on his facial challenge.
Issues
| Issue | Plaintiff's Argument (March) | Defendant's Argument (Maine) | Held |
|---|---|---|---|
| Whether the Noise Provision is a content-based restriction on speech | The disruptive-intent element makes the law dependent on the message’s function/purpose; speakers with certain messages (e.g., anti-abortion) will inevitably be treated worse, so it is content-based | The provision is facially neutral: it targets manner/intent (sustained, intentionally disruptive noise after an order), not particular topics or viewpoints | Provision is content-neutral on its face; not dependent on communicative content |
| Whether the statute was adopted or is justified by reference to the content of speech | March argues practical operation and legislative context show it targets anti-abortion speech | Maine shows legislative purpose and record focus on manner/duration and unique harms to patients, not message suppression | Enactment was content-neutral in purpose; justified without reference to content |
| If content-neutral, whether the Noise Provision satisfies intermediate scrutiny (significant interest; narrow tailoring) | March argues underinclusive and overbroad: harms exist even without intent; no decibel thresholds; applies 24/7 and to public fora | Maine contends it targets a uniquely disruptive subset (sustained, directed noise after order) that would jeopardize care; AG construes it not to apply when facility closed | Provision serves a significant interest, is narrowly tailored to the uniquely disruptive subset, and is not fatally underinclusive |
| Whether provision leaves open ample alternative channels for communication | March contends enforcement chills ability to audibly counsel women and speak over traffic noise | Maine notes speakers may congregate, hand out literature, display signs, converse, and speak loudly in immediate vicinity; only targeted sustained disruptive noise after order is restricted | Provision leaves ample alternative channels; survives intermediate scrutiny |
Key Cases Cited
- Grayned v. City of Rockford, 408 U.S. 104 (1943) (upholding content-neutral regulation of disruptive noise near schools and treating such restrictions as time, place, or manner rules)
- Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) (content-based regulation defined as one that depends entirely on communicative content)
- McCullen v. Coakley, 134 S. Ct. 2518 (2014) (facially neutral statute can become content-based if enforcement requires examining communicative content)
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (intermediate scrutiny for content-neutral time, place, or manner restrictions: narrow tailoring and ample alternative channels)
- Madsen v. Women's Health Ctr., 512 U.S. 753 (1994) (upholding clinic buffer restrictions to protect access and patient privacy)
- Hill v. Colorado, 530 U.S. 703 (2000) (purpose-based restrictions near medical facilities can be content neutral where aimed at intrusive approaches)
- Frisby v. Schultz, 487 U.S. 474 (1988) (upholding restriction on targeted picketing at private homes as narrowly tailored to protect residential privacy)