Rejecting arguments of anti-abortion activists, a federal appeals court Wednesday refused to block a West Palm Beach ordinance that bans amplified sound outside health-care facilities.
A three-judge panel of the 11th U.S. Circuit Court of Appeals turned down a request for a preliminary injunction against the ordinance, which bars amplified sound, such as from loudspeakers, within 100 feet of the property line of any health-care facility, including abortion clinics.
Mary Susan Pine and Marilyn Blackburn, who have taken part in abortion protests for years outside the Presidential Women's Center in West Palm Beach, challenged the constitutionality of the ban, arguing in part that it violated their First Amendment rights.
But the Atlanta-based appeals court, in a 29-page opinion, said the city has an interest in regulating sound near health-care facilities because loud noise could harm patients. It also said the ordinance targets "only loud, raucous or unreasonably disturbing noise."
"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,'' said the opinion, written by Judge Stanley Marcus and joined by judges R. Lanier Anderson and Richard Goldberg. "In addition, here there are no less restrictive means: Because the heart of the problem is loud, raucous, or disturbing noise, a restriction on that sound is narrowly tailored."
The opinion, which upheld a lower-court decision denying a preliminary injunction, came little more than a month after the U.S. Supreme Court struck down a Massachusetts law that barred protests within 35 feet of abortion clinics. But the three-judge panel Wednesday said the West Palm Beach case "raises issues sharply different" from the Massachusetts case.
West Palm Beach approved an earlier version of the sound ordinance in 2005, though the disputed version was adopted in 2011 after changes. The appeals-court opinion said the case is the "latest in a string of legal skirmishes between pro-life advocates and the city over ordinances restricting speech near the (Presidential Women's) center."
Pine and Blackburn filed a lawsuit in 2013 in federal court in South Florida challenging the sound ordinance.
The women's appeal of the lower-court ruling described Pine and Blackburn as "pro-life advocates who oppose abortion on the basis of their religious and moral beliefs that induced abortion is the destruction of innocent human life." It said they have used hand-held walkie-talkies and loudspeakers outside the clinic.
The appeal also described the ordinance as "breathtakingly broad."
"The city is using the ordinance to prohibit pro-life speakers from using any electronic device to communicate in the public forum, including electronic devices that create 'amplified sounds' that are indisputably not even heard inside the clinic,'' the appeal said. "The city has even ordered pro-life speakers to cease using small walkie-talkies that facilitate their sidewalk prayer gatherings amidst the ambient street noise."
But the appeals court, while emphasizing that Wednesday's opinion deals only with a preliminary-injunction request and does not prevent further legal action, did not agree that the ordinance was overly broad.
"Construed narrowly to avoid constitutional concerns, the sound ordinance prohibition on loud, raucous, or other unreasonably disturbing amplified noise is a valid time, place, or manner restriction because it is content neutral, is narrowly tailored to advance a substantial government interest, and leaves open alternative channels of communication,'' the opinion said.
