U.S. Court of Appeals for the Eleventh Circuit
U.S. Court of Appeals for the Eleventh Circuit ()

The city of West Palm Beach defeated an attempt by pro-life advocates to nullify an ordinance restricting nuisance noise near health facilities.

In 2005, the city passed a “sound” ordinance in an attempt to de-escalate hostilities at the Presidential Women’s Center, a clinic that suffered an arson attack that same year. The ordinance was challenged in federal court when a pro-life advocate was fined for using a bullhorn.

On Wednesday, Circuit Judge Stanley Marcus of the U.S. Court of Appeals for the Eleventh Circuit upheld a federal district court ruling that found the motion for injunctive relief should not be granted because they were unlikely to prevail on the merits.

West Palm Beach city attorney Kimberly Rothenburg represented the city.

“The City of West Palm Beach is pleased with the well reasoned opinion rendered by the Eleventh Circuit. The opinion recognizes the City’s right to protect patient safety by regulating shouting and amplified sound within 100 feet of a health care facility,” Rothenburg said. “It will be a useful guide to other governmental agencies wishing to similarly regulate harmful noise.”

At the time the ordinance was under consideration, the Presidential Women’s Center was under constant siege from anti-abortion activists who yelled at passersby, and used megaphones and walkie-talkies.

After taking expert testimony and considering the adverse health effects to patients, the City Commission passed an ordinance that prohibited amplified sound on any public street or sidewalk within 100 feet of a health care facility.

In 2010, Mary Susan Pine, founder of Faith Action Counselor Education and Life, was cited under the ordinance for using a bullhorn within the quiet zone and assessed a $250 fine. In June 2013, Pine and a second anti-abortion activist filed a lawsuit in federal court seeking a declaratory judgment, injunctive relief and compensatory damages.

Four months later, the district court denied the motion.

On appeal, Marcus reviewed the ordinance’s history. He noted that in 2011, the ordinance was amended to more narrowly tailor it to comply with the constitutional elements necessary for restricting free speech in public spaces.

The primary public policy concern for which testimony was given in 2011 was the health of patients.

“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,’” Marcus recounted in the Wednesday opinion.

Stressful noise pollution causes organs in the body to produce substances that increase blood flow, increase heart rate and blood pressure, Trabin told the commission. This increases patient healing time and increases the need for anesthesia or sedation, he said.

A commissioner, not identified by Marcus, concluded, “We 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.”

The U.S. Supreme Court established in its 1989 decision Ward v. Rock Against Racism that a government body may restrict speech when the restriction is justified without reference to the content of the speech, is narrowly tailored to serve a significant governmental interest, and leaves open ample alternative channels for communication.

Marcus found the public health concern satisfied the first requirement and the ordinance’s targeting of loud, raucous noise met the “narrowly tailored” element. The third element was not challenged.

In June, the Supreme Court released McCullen v. Coakley, an opinion that overturned a Massachusetts law that made it a crime to stand on a public road or sidewalk within 35 feet of an abortion clinic. Marcus discussed McCullen and noted it addressed a sharply different issue.

The Massachusetts law unnecessarily swept in innocent individuals and their speech by categorically excluding non-exempt individuals from the buffer zones, he said.

“Notably, Massachusetts had failed to pursue a variety of available, less-restrictive solutions for congestion problems,” Marcus said.

“Instead of casting a wide net that captures innocent speech, the Sound Ordinance targets only actions near health care facilities that produce types of noise that can endanger patients,” he said.

Concurring with Marcus was Circuit Judge R. Lanier Anderson. Also concurring was Richard Goldberg, a u.S. Court of International Trade judge sitting by designation.

Liberty Counsel attorney Anita Staver of Maitland represented the plaintiffs. She did not respond for comment by deadline.