In the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United States

ANDREW MARCH,Petitioner,

v.

JANET T. MILLS, Individually and inHer Official Capacity as Attorney General of Maine, et al.,

Respondents.

On Petition for a Writ of Certiorari to theUnited States Court of Appeals for the First Circuit

Brief of Pacific Justice Institute, Life Legal DefenseFoundation, and the Thomas More Society

as Amici Curiae Supporting Petitioner

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

Deborah J. Dewart Counsel of Record620 E. Sabiston DriveSwansboro, NC 28584-9674(910) 326-4554debcpalaw@earthlink.net

NO. 17-689

Counsel for Amici Curiae

Catherine W. ShortLife Legal Defense FoundationP.O. Box 2105Napa, CA 94558(707) 224-6675LLDFOjai@cs.com

Thomas L. BrejchaThomas More Society19 S. LaSalle St., Suite 603Chicago, IL 60603(312) 782-1680tbrejcha@thomasmoresociety.org

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TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iii

INTEREST OF AMICI . . . . . . . . . . . . . . . . . . . . . . . 1

INTRODUCTION ANDSUMMARY OF THE ARGUMENT . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I. T H E T I M E - P L A C E - M A N N E RFRAMEWORK IS ABOUT WHEN, WHERE,AND HOW SPEECH OCCURS—NOT WHATIS SAID (CONTENT) OR WHY (INTENT). . 4

A. The Noise Provision punishes the speakerbased on the speaker’s motive (intent). . . 6

B. The Noise Provision punishes thespeaker based on the speaker’s message(content). . . . . . . . . . . . . . . . . . . . . . . . . . . 8

II. THE NOISE PROVISION—AS UPHELD BYTHE FIRST CIRCUIT—INJECTSSUBJECTIVITY AT EVERY CRITICALPOINT IN THE ANALYSIS. . . . . . . . . . . . . 11

A. The First Circuit erroneously relies on thesubjective intent of the legislators. . . . . 12

B. The Noise Provision lacks adequateobjective criteria. . . . . . . . . . . . . . . . . . . . 15

III. THE FIRST CIRCUIT RULINGFACILITATES A BREATHTAKINGEXPANSION OF PERMISSIBLE SPEECHRESTRICTIONS IN TRADITIONALPUBLIC FORA. . . . . . . . . . . . . . . . . . . . . . . 17

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A. The First Circuit ruling weakens FirstAmendment protection for speech onmatters of public concern. . . . . . . . . . . . . 17

B. The First Circuit ruling extends the“captive audience” doctrine too far andimpedes the speaker’s ability to reach hisintended audience. . . . . . . . . . . . . . . . . . 19

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

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TABLE OF AUTHORITIES

CASES

City of Cincinnati v. Discovery Network, 507 U.S. 410 (1993) . . . . . . . . . . . . . . . . . . . . . . 13

City of LaDue v. Gilleo, 512 U.S. 43 (1994) . . . . . . . . . . . . . . . . . . . . . . . 17

Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288 (1984) . . . . . . . . . . . . . . . . . . . . . . . 5

Clatterbuck v. City of Charlottesville, 708 F.3d 549 (4th Cir. 2013) . . . . . . . . . . . . . . . 14

Cons. Edison Co. v. Public Serv. Comm’n, 447 U.S. 530 (1980) . . . . . . . . . . . . . . . . . . . . . . . 5

Discovery Network. Solantic, LLC v. City of NeptuneBeach, 410 F.3d 1250 (11th Cir. 2005) . . . . . . . . . . . . . 13

Erznoznik v. Jacksonville, 422 U.S. 205 (1975) . . . . . . . . . . . . . . . . . . . . . . 18

Frisby v. Schultz, 487 U.S. 474 (1988) . . . . . . . . . . . . . . . . . . . . . . 19

Grayned v. City of Rockford, 408 U.S. 104 (1972) . . . . . . . . . . . . . . . . . 4, 15, 16

Hague v. CIO, 307 U.S. 496 (1939) . . . . . . . . . . . . . . . . . . . . . . 18

Hill v. Colorado, 530 U.S. 703 (2000) . . . . . . . . . . . . . . . . . 4, 10, 18

Hoye v. City of Oakland, 653 F.3d 835 (9th Cir. 2011) . . . . . . . . . . . . 10, 11

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March v. Mills, 2016 U.S. Dist. LEXIS 67087 (D. Me. 2016) . . . . . . . . . . . . . . . . . . . 8, 10, 11, 16

March v. Mills, 867 F.3d 46 (1st Cir. 2017) . . . . . . . . . . . . passim

McCullen v. Coakley, 708 F.3d 1 (1st Cir. 2013), rev’d, 134 S. Ct. 2518 (2014) . . . . . . . . . . . . . . . . . . . . 17

McCullen v. Coakley, 134 S. Ct. 2518 (2014) . . . . . . . . . . . . . 5, 9, 10, 19

Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981) . . . . . . . . . . . . . . . . . . . 11, 12

Minneapolis Star & Tribune Co. v. MinnesotaComm’r of Revenue, 460 U.S. 575 (1983) . . . . . . . . . . . . . . . . . . . . . . 13

NLRB v. Baptist Hospital, Inc., 442 U.S. 773 (1979) . . . . . . . . . . . . . . . . . . . . . . . 6

Pine v. City of W. Palm Beach, 762 F.3d 1262 (11th Cir. 2014) . . . . . . . . . . . 6, 16

Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972) . . . . . . . . . . . . . . . . . . . . . . . 18

R.A.V. v. City of St. Paul, Minnesota, 505 U.S. 377 (1992) . . . . . . . . . . . . . . . . . . . . 6, 11

Rankin v. McPherson, 483 U.S. 378 (1987) . . . . . . . . . . . . . . . . . . . . . . 18

Reed v. Town of Gilbert, 707 F.3d 1057 (9th Cir. 2013) . . . . . . 3, 12, 13, 14

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Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) . . . . . . . . . . . . . . . . passim

Rosenberger v. Rector of the Univ. of Va., 515 U.S. 819 (1995) . . . . . . . . . . . . . . . . . . . . . . 11

Simon & Schuster, Inc. v. Members of N. Y. StateCrime Victims Bd., 502 U.S. 105 (1991) . . . . . . . . . . . . . . . . . . . . . . 13

Snyder v. Phelps, 562 U.S. 443 (2011) . . . . . . . . . . . . . . . . . . passim

Thayer v. City of Worcester, 755 F.3d 60 (1st Cir. 2014) . . . . . . . . . . . . . . . . 14

Thayer v. City of Worcester, 135 S. Ct. 2887 (2015) . . . . . . . . . . . . . . . . . . . . 14

Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) . . . . . . . . . . . . . . . . . . . . . . 10

Ward v. Rock Against Racism, 491 U.S. 781 (1992) . . . . . . . . . . . . . . 3, 13, 14, 16

Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656 (2015) . . . . . . . . . . . . . . . . . . . . 16

Wisconsin v. Mitchell, 508 U.S. 476 (1993) . . . . . . . . . . . . . . . . . . . . . . . 4

STATUTES

5 M.R.S. § 4684-B(2) . . . . . . . . . . . . . . . . . . . . . . . 2, 5

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INTEREST OF AMICI1

Pacific Justice Institute, Life Legal DefenseFoundation, and the Thomas More Society, as amicicuriae, respectfully urge this Court to grant thePetition and reverse the First Circuit decision.

The Pacific Justice Institute (“PJI”) is a non-profitlegal organization established under Section 501(c)(3)of the Internal Revenue Code. Since its founding in1997, PJI has advised and represented in court andadministrative proceedings thousands of individuals,businesses, and religious institutions, particularly inthe realm of First Amendment rights. Such includesthose who, as a matter of conscience, hold viewsrelative to the sanctity of life and wish to express suchwith the same manner and force as others exercisingtheir rights to free speech. As such, PJI has a stronginterest in the development of the law in this area.

Life Legal Defense Foundation (“LLDF”) is a non-profit 501(c)(3) public interest legal and educationalorganization that works to assist and support thosewho advocate in defense of life, especially those whoseadvocacy takes the form of offering advice andassistance to women contemplating abortion, throughperson-to-person contact outside abortion facilities.

1 Counsel of record for all parties received notice at least 10 daysprior to the due date of amici curiae’s intention to file this brief.The parties have consented to the filing of this brief. Amici curiaecertify that no counsel for a party authored this brief in whole orin part and no person or entity, other than amici, their members,or their counsel, has made a monetary contribution to itspreparation or submission.

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The Thomas More Society (“TMS”) is a non-profitorganization devoted to the defense and advocacy ofFirst Amendment rights, including freedom of speechand religious freedom. Incorporated as a 501(c)(3) not-for-profit corporation in Illinois and based in Chicago,TMS accomplishes its organizational mission throughlitigation, education, and related activities.

INTRODUCTION AND SUMMARY OF THE ARGUMENT

Imagine three drummers standing outside PlannedParenthood, pounding away at an equal volume forequal amounts of time—and loud enough to disturb theservices inside the facility. One practices his skills toaudition for a band. Another shouts “keep abortionlegal!” at the top of his lungs. The third drummer,hoping to deter abortion-minded women, repeats“overturn Roe v. Wade!” in a normal conversationaltone without amplification. Only the third drummercould be cited for violating the noise provision in theMaine Civil Rights Act (5 M.R.S. § 4684-B(2)(D)) (the“Noise Provision”).2 Unlike most typical time-place-manner regulations, this provision does not operate inan even-handed manner regardless of content.

2 Subsection (D) defines the relevant violation as follows: “Afterhaving been ordered by a law enforcement officer to cease suchnoise, intentionally making noise that can be heard within abuilding and with the further intent either: (1) To jeopardize thehealth of persons receiving health services within the building; or(2) to interfere with the safe and effective delivery of those serviceswithin the building.”

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Pro-life and pro-choice advocates can agree thatlimiting noise and violence near medical facilities is anadmirable goal. Maine asserts it enacted the NoiseProvision for that purpose, and the First Circuitanalyzed it as a content-neutral time-place-mannerrestriction. This Court has upheld laws that limitvolume without respect to the message, e.g., Ward v.Rock Against Racism, 491 U.S. 781 (1992). But theNoise Provision punishes speakers based on twoelements that are foreign to the time-place-manneranalysis. Instead of concentrating on when, where, andhow, the statute also asks why the speaker is speaking.That inquiry inevitably turns on what is said—classiccontent discrimination. Instead of time-place-manner,Maine has manufactured a time-place-manner-message-motive inquiry that distorts the traditionalframework and jettisons the threshold contentneutrality requirement. This distortion empowers stateand local governments to subtly craft laws that favorcertain viewpoints and chill opposing speech, all basedon the speaker’s subjective intent. This in turn posesan unacceptable threat to speech in traditional publicfora on matters of public concern—core FirstAmendment speech. This case implicates thecontentious topic of abortion, and it is pro-lifeadvocates who are silenced.

The First Circuit also replicates the Ninth Circuit’serror in Reed v. Town of Gilbert, 707 F.3d 1057 (9thCir. 2013). In Reed, the Ninth Circuit found the town’ssign code was content neutral because it was viewpointneutral, collapsing two overlapping but independentconcepts. The Ninth Circuit’s error, like the FirstCircuit error in this case, arose from its reliance on thegovernment’s viewpoint neutral motives for the law.

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The absence of illicit legislative motives does notguarantee content neutrality. Subjectivity permeatesthe statute and the First Circuit’s analysis, whichhinges on the subjective intent of both the governmentand the speaker. The First Circuit ruling demandscorrection. Not only did it reach the wrong result—itupends both the traditional time-place-mannerframework and this Court’s decision in Reed v. Town ofGilbert, 135 S. Ct. 2218 (2015), creating confusion forother courts faced with similar speech restrictions.

ARGUMENT

I. T H E T I M E - P L A C E - M A N N E RFRAMEWORK IS ABOUT WHEN, WHERE,AND HOW SPEECH OCCURS—NOT WHATIS SAID (CONTENT) OR WHY (INTENT).

Incorrectly framing the Noise Provision as a time-place-manner restriction conceals its inherent bias.Under the First Circuit ruling, this familiar frameworkmorphs into a time-place-manner-message-motiveinquiry. The statute punishes speech based on thespeaker’s message and motive, chilling speech on oneside of the abortion debate. The statute’s intentrequirement is “a convenient yet obvious mask . . . forthe prohibition’s true effect.” Hill v. Colorado, 530 U.S.703, 767 (2000) (Kennedy, J., dissenting).

Petitioner engages in persuasion—not obstruction,harassment, raucous protest, or other conduct thatmight be rightly proscribed, such as an actualdisruption of health services. See, e.g., Wisconsin v.Mitchell, 508 U.S. 476 (1993) (law targeted overtcriminal conduct, not protected expression); Grayned v.City of Rockford, 408 U.S. 104, 119 (1972) (“Rockford

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punishes only conduct which disrupts or is about todisrupt normal school activities.”). Other sections of thestatute, not at issue here, prohibit disruptive conduct,including physical obstruction of a building, harassingphone calls, and other similar actions. See 5 M.R.S.§ 4684-B(2)(A), (B), and (C).

Regulations of time, place, and manner typicallyinvolve objective inquiries unrelated to what thespeaker is saying (content) or why (intent). “No matterwhat its message, a roving sound truck that blares at2 a.m. disturbs neighborhood tranquility.” Cons. EdisonCo. v. Public Serv. Comm’n, 447 U.S. 530, 536 (1980)(time). In McCullen, this Court concluded that“[w]hether Petitioners violate the Act depends not onwhat they say . . . but simply on where they say it.”McCullen v. Coakley, 134 S. Ct. 2518, 2531 (2014)(internal citations and quotation marks omitted)(emphasis added). In other cases, the manner ofcommunication may be limited without reference to thespeaker’s message or intent, e.g., Clark v. Cmty. forCreative Non-Violence, 468 U.S. 288, 294 (1984) (permitissued for symbolic tents to demonstrate the plight ofthe homeless, but sleeping in them overnight wasprohibited).

Here, the emphasis shifts from where, when, andhow to subjective inquiries about the speaker’s intent(why) and the message conveyed (what). The NoiseProvision punishes the speaker based on both what issaid (content) and why it is said (intent). Content andintent are inextricably intertwined—it is virtuallyimpossible to determine the speaker’s intent withoutexamining the content of the message. If speech isunrelated to or supportive of abortion, it is

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inconceivable that patients, personnel, or police would(or could) discern the prohibited intent “to interferewith the safe and effective delivery” of abortion servicesinside the building.

A. The Noise Provision punishes thespeaker based on the speaker’s motive(intent).

The government has a legitimate interest in notdisrupting patient care inside a medical facility. NLRBv. Baptist Hospital, Inc., 442 U.S. 773 (1979). TheEleventh Circuit upheld a city’s straightforward ban onamplified sound within 100 feet of the property line ofa health care facility. Pine v. City of W. Palm Beach,762 F.3d 1262, 1264 (11th Cir. 2014). The state maylimit the volume of speech or other sound aroundmedical facilities, “but not because of the ideas itexpresses.” R.A.V. v. City of St. Paul, Minnesota, 505U.S. 377, 385 (1992). Here, the Noise Provision permitsprecisely what R.A.V. prohibits, because it injects ahighly subjective “intent” element into cases involvinga volatile public matter. Moreover, the prohibitedintent falls solely on one side of the debate.

The First Amendment provides a broad umbrella ofprotection for free speech. It does not categoricallyexclude speakers who intend to offend or even to causeemotional distress. In Snyder, this Court affirmed thereversal of a multi-million dollar verdict for intentionalinfliction of emotional distress, in spite of a jury findingthat all elements of the tort were satisfied. The FirstCircuit ruling cannot be reconciled with Snyder:

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Speech is powerful. It can stir people to action,move them to tears of both joy and sorrow,and—as it did here—inflict great pain. On thefacts before us, we cannot react to that pain bypunishing the speaker. As a Nation we havechosen a different course—to protect evenhurtful speech on public issues to ensure that wedo not stifle public debate.

Snyder v. Phelps, 562 U.S. 443, 460-461 (2011). Mainehas impermissibly reacted “by punishing the speaker.”Petitioner’s case does not involve a tort or implicate thesevere emotional distress at issue in Snyder. But as inthat case, the Noise Provision punishes speakers whospeak in a traditional public forum on matters of publicconcern, based on an ill-defined intent to “interfere”with health services. If the First Amendment protectsa speaker who intentionally causes severe emotionaldistress, then it surely protects a speaker who intendsto persuade women against abortion but must speakloud enough to be heard over the noise on a busy citystreet. Pro-life advocates do not seek to jeopardize thehealth or safety of women or “interfere” with healthservices. Instead, their goal is to persuade women tovoluntarily make choices other than obtaining abortion“services”. Nevertheless, the Noise Provision wasinterpreted and applied against Petitioner. The statuteseems to equate verbal persuasion withinterference—this is puzzling at best and misleading atworst. At a minimum, the law vests ample discretion inlaw enforcement officials to apply it against speakerslike Petitioner.

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The Noise Provision regulates speech according toits “function or purpose” (Reed v. Town of Gilbert, 135S. Ct. 2218, 2227 (2015))—specifically, the speaker’spurpose. This produces starkly different results basedon content. As the District Court observed:

Outside a health care facility that performsabortions, a pro-life protester’s activity would betreated differently under the Noise Provisionthan a pro-choice protester’s activity.Conversely, outside a crisis pregnancycounseling center, a pro-choice protester’s noisewould be treated differently than a pro-lifeprotester’s noise. The difference in treatment isbased on the message expressed.

March v. Mills, 2016 U.S. Dist. LEXIS 67087, *32 (D.Me. 2016). The speaker’s purpose (intent)—to protestabortion or to support it—is inextricably intertwinedwith the message (content).

B. The Noise Provision punishes thespeaker based on the speaker’s message(content).

As Reed explained, a statute is content-based if itapplies because of “the message a speaker conveys.”Reed, 135 S. Ct. at 2227. Some distinctions are obviouswhile “others are more subtle, defining regulatedspeech by its function or purpose.” Id. There is amessage embedded in noise intended to disturbpatients or disrupt services in an abortion clinic—amessage about (indeed, against) abortion. It is preciselybecause of the content of that message that the FirstCircuit concluded the prohibited speech poses a“unique” potential to disturb patients. March v. Mills,

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867 F.3d 46, 62-63 (1st Cir. 2017). The causalconnection between the speech and distress to patientsis rooted in the message, as it was in Snyder:

The record confirms that any distress occasionedby [March’s preaching] turned on the contentand viewpoint of the message conveyed, ratherthan any interference with [the “health services”being performed]. A [speaker] standing at thevery spot where [March] stood, [shouting “keepabortion legal”], would not have been subjectedto liability. It was what [March] said thatexposed [him to liability under the NoiseProvision].

Snyder, 562 U.S. at 457. Here, similarly, “any distressoccasioned” by the speech necessarily turns on thecontent and viewpoint. If someone screamed “keepabortion legal!” it is doubtful that speaker would becited, as this statement does not logically imply theproscribed intent. Indeed, the police admitted the NoiseProvision allowed them to “restrict speech based on a‘combination’ of the volume and the content.” Pet. 4.And unlike Snyder, where damages were fully litigatedin a jury trial, the Noise Provision requires no evidenceof actual harm or “interference” with abortions beingperformed.

McCullen further supports the conclusion that thestatute is content-based:

[T]he Act would not be content neutral if it wereconcerned with undesirable effects that arisefrom the direct impact of speech on its audienceor listeners’ reactions to speech. If, for example,the speech outside Massachusetts abortion

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clinics caused offense or made listenersuncomfortable, such offense or discomfort wouldnot give the Commonwealth a content-neutraljustification to restrict the speech.

McCullen, 134 S. Ct. at 2531-32 (internal citations andquotation marks omitted) (emphasis added). The NoiseProvision is concerned with alleged “undesirableeffects” on abortion clinic patients—anxiety, increasedblood pressure, etc.—arising from “the direct impact ofspeech” and the “listeners’ reactions.”

In a narrow category of legal contexts, examinationof content is appropriate in order to apply a rule of lawto a course of conduct—for example, to determine“whether a particular statement constitutes a threat,blackmail, an agreement to fix prices, a copyrightviolation, a public offering of securities, or an offer tosell goods.” Hill v. Colorado, 530 U.S. at 721 (emphasisadded). Each italicized example involves a specific “ruleof law” where content is uniquely relevant to legalrights and/or liability. This cursory examination, “todetermine the broad category of speech at issue”(March v. Mills, 2016 U.S. Dist. LEXIS 67087, *36), isnot a free pass for content-based regulation. The NoiseProvision invites a more extensive examination intowhether the speaker outside an abortion clinic isspeaking for or against abortion. The statute “by [its]terms distinguish[es] favored speech from disfavoredspeech on the basis of the ideas or views expressed.”Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 643(1994). Similarly, the Ninth Circuit found an “epitomeof a content-based speech restriction” where the City ofOakland distinguished speech that facilitates access toclinics from speech that discourages it. Hoye v. City of

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Oakland, 653 F.3d 835, 851 (9th Cir. 2011). Oakland’srestriction, like the Noise Provision, hinged on thespeaker’s intent.

Finally, Maine confuses content neutrality andviewpoint neutrality. March v. Mills, 2016 U.S. Dist.LEXIS 67087, *32 n. 9 (“The State contends that theNoise Provision is content-neutral because it is notlimited to individuals expressing pro-life messages.”)But these categories are not identical. “Viewpointdiscrimination is . . . an egregious form of contentdiscrimination.” Rosenberger v. Rector of the Univ. ofVa., 515 U.S. 819, 828-829 (1995). Viewpointdiscrimination is “but a subset or particular instance ofthe more general phenomenon of contentdiscrimination.” Id. at 831; see also R.A.V., 505 U.S. at391. When the government targets particularviewpoints, its constitutional violation is even moreblatant than when it merely regulates content. Even ifthe Noise Provision’s application to both pro-choice andpro-life protesters renders it viewpoint neutral, thatdoes not settle content neutrality. “[A] speechregulation targeted at specific subject matter is contentbased even if it does not discriminate amongviewpoints within that subject matter.” Reed, 135 S. Ct.at 2230.

II. THE NOISE PROVISION—AS UPHELD BYTHE FIRST CIRCUIT—INJECTSSUBJECTIVITY AT EVERY CRITICALPOINT IN THE ANALYSIS.

The lenient time-place-manner standard is not “themost that the First Amendment requires of governmentlegislation which infringes on protected speech.”Metromedia, Inc. v. City of San Diego, 453 U.S. 490,

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518 n. 23 (1981). Content-based regulations are subjectto a higher standard even if they are viewpoint-neutral.It is the risk of viewpoint discrimination, not itspresence, that warrants heightened scrutiny. Here,there is a substantial risk that pro-life speech will bemuzzled but pro-choice speech will not.

The Noise Provision is infused with subjectivity inthe statute’s intent element and lack of objectivecriteria. The First Circuit’s reliance on legislativeintent in no way obviates the express subjectivity of theNoise Provision as written. It is insufficient for thestate to recite a seemingly content-neutral motive thatmasks inherent discrimination. Even if Maine did notact with animus or discriminatory intent, the NoiseProvision operates to suppress certain ideas.

A. The First Circuit erroneously relies onthe subjective intent of the legislators.

The First Circuit repackages the Ninth Circuit’serror in Reed, which erased the critical distinctionbetween content discrimination and viewpointdiscrimination:

In the end, we conclude that the Noise Provisionis, in light of its facial neutrality and thecontent-neutral reasons for its enactment,properly treated as a content-neutral time,place, or manner restriction.

March v. Mills, 867 F.3d at 55 (emphasis added). InReed, the Ninth Circuit concluded that Gilbert’s SignCode was viewpoint neutral and therefore contentneutral, collapsing two independent concepts andimproperly placing motive, rather than text, at theforefront of the analysis: “Because Gilbert’s Sign Code

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places no restrictions on the particular viewpoints . . .it is content-neutral as that term has been defined bythe Supreme Court.” Reed, 707 F.3d at 1072 (emphasisadded). But the statute itself—not merely theunderlying legislative purpose—must be contentneutral in order to qualify as a time-place-mannerrestriction.

Circuit courts have erroneously applied the“disagreement with the message” language in Ward,which “involved a facially content-neutral ban on theuse . . . of sound amplification systems not provided bythe city.” Reed, 135 S. Ct. at 2228, citing Ward, 491 U.S. at 787 and n. 2. In Discovery Network, this Courtclarified the content-based test for time-place-mannerrestrictions by considering the law’s actual operation,rather than a “tunnel vision” approach that short-circuits the analysis if the government can recite someoutwardly neutral rationale. See City of Cincinnati v.Discovery Network, 507 U.S. 410, 429 (1993) (content-based law is “subject to strict scrutiny regardless of thegovernment’s benign motive, content-neutraljustification, or lack of animus toward the ideas”). ThisCourt “return[ed] to its focus on the law’s own terms,rather than its justification,” in Discovery Network.Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250,1259 n. 8 (11th Cir. 2005). Moreover, even before Wardthis Court cautioned that “illicit legislative intent is notthe sine qua non of a violation of the FirstAmendment.” Minneapolis Star & Tribune Co. v.Minnesota Comm’r of Revenue, 460 U.S. 575, 592(1983); see also Simon & Schuster, Inc. v. Members ofN. Y. State Crime Victims Bd., 502 U.S. 105, 117 (1991)(rejecting argument that “discriminatory . . . treatment

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is suspect under the First Amendment only when thelegislature intends to suppress certain ideas”).

Some courts have continued to misinterpret Ward’s“disagreement with the message” language. See, e.g.,Clatterbuck v. City of Charlottesville, 708 F.3d 549, 556(4th Cir. 2013) (“a distinction is only content-based if itdistinguishes content with a censorial intent to valuesome forms of speech over others”). The First Circuitreplicated the error in a recent panhandling regulationcase, Thayer v. City of Worcester, 755 F.3d 60 (1st Cir.2014) (Souter, J.), reasoning that “a statute thatrestricts only some expressive messages and not othersmay be considered content-neutral when thedistinctions it draws are justified by a legitimate, non-censorial motive.” Id. at 68. Following Reed, this Courtvacated and remanded the case. Thayer v. City ofWorcester, 135 S. Ct. 2887 (2015).

The First Circuit bolsters its analysis of legislativemotive with the observation that pro-life and pro-choicegroups both supported the statute. Both groups agreethat reducing violence is a laudable goal, but theseshared motives, however noble, do not render thestatute content-neutral. Moreover, there are differencesextending beyond their respective positions onabortion. Pro-life pregnancy centers provide onlyminimal, non-surgical medical services, if any, so it isunlikely that a pro-choice advocate screaming outsidethe center would be cited for violating the NoiseProvision.

However innocent or even commendable thegovernment’s motives may be, the First Amendmentrequires that courts dig deeper and strictly scrutinizecontent-based laws. As this Court cautioned,

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“[i]nnocent motives do not eliminate the danger ofcensorship presented by a facially content-basedstatute, as future government officials may one daywield such statutes to suppress disfavored speech.”Reed, 135 S. Ct. at 2229. That is especially true wherea statute, like the Noise Provision, implicates acontentious issue like abortion and lacks adequateobjective criteria to guide either the speakers orenforcement officials.

B. The Noise Provision lacks adequateobjective criteria.

There is nothing necessarily unconstitutional aboutrestricting noise around health care facilities or otherplaces requiring quiet. See, e.g., Grayned, 408 U.S. at114 (building where classes were in session). ButMaine’s statute allows, without limitation, noise muchlouder than Petitioner’s lone unamplified voice,including, for example, the noise generated by climatechange protesters who were free to shout withoutrestriction on the volume. Pet. 4.

Petitioner speaks alone and without soundequipment. He is not part of a group that can magnifyits volume by speaking together. The Noise Provisionprovides no specific standards but merely requires awarning—a warning that will be issued, not on thebasis of the volume, but on a government official’sassessment of the noisemaker’s intent to disrupt. SeeMarch v. Mills, 867 F.3d at 57. Such warning isunlikely to occur without a complaint from PlannedParenthood personnel—obvious proponents of abortionwith an interest in stifling Petitioner’s speech based onits message and content. Disregarding the warning, inturn, is then a “crucial[]” factor is determining that the

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noisemaker in fact possesses the requisite intent todisrupt. Id. The Noise Provision contrasts with thevalid, content-neutral noise restrictions upheld in othercases:

The sound-amplification guideline . . . grants noauthority to forbid speech, but merely permitsthe city to regulate volume to the extentnecessary to avoid excessive noise.

Ward, 491 U.S. at 795 n. 5. By failing to provideexplicit standards, Maine effectively empowersPlanned Parenthood employees to regulate speech onthe public street outside their facility based on itscontent and message.

As the District Court observed, the state hasalternate means to accomplish its goals. These includeprohibiting all loud, raucous noise (see Pine v. City ofW. Palm Beach, 762 F.3d at 1273), limiting noisewithin a specific distance of medical facilities, orrequiring evidence of actual disruption. March v. Mills,2016 U.S. Dist. LEXIS 67087, *42. In Grayned, thestatute required “demonstrated interference” andpunished only “conduct which disrupts or is about todisrupt normal school activities.” Grayned, 408 U.S. at114, 119. While it may seem “counterintuitive to arguethat a law violates the First Amendment by abridgingtoo little speech” (Williams-Yulee v. Fla. Bar, 135 S. Ct.1656, 1668 (2015)), these alternatives utilize objectivecriteria and do not necessitate an excursion into thespeaker’s mind and motives.

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III. THE FIRST CIRCUIT RULINGFACILITATES A BREATHTAKINGEXPANSION OF PERMISSIBLE SPEECHRESTRICTIONS IN TRADITIONALPUBLIC FORA.

This is not the first time the First Circuit hassuggested that abortion-related speech is subject to adifferent standard under the First Amendment:

It would make no sense to wrest Gilleo3 from itscontextual moorings and use it as a wedge tosubvert the Court’s later decisions addressed tothe much different problem of how the FirstAmendment operates when the special concernsof public-sidewalk protests around abortionclinics are at stake.

McCullen v. Coakley, 708 F.3d 1, 14 (1st Cir. 2013),rev’d, 134 S. Ct. 2518 (2014) (emphasis added). Thiscomment is deeply disturbing. Even though this Courtinvalidated the statute at issue in McCullen, Maine hasagain enacted, and the First Circuit has again upheld,a statutory provision that favors pro-abortion speechand chills pro-life advocacy. Such discrimination isanathema to the First Amendment.

A. The First Circuit ruling weakens FirstAmendment protection for speech onmatters of public concern.

This case features content at the core of the FirstAmendment—speech about a matter of public concern.The heated debate over abortion has raged for over four

3 City of LaDue v. Gilleo, 512 U.S. 43 (1994).

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decades. As a nation, we protect “even hurtful speechon public issues to ensure that we do not stifle publicdebate.” Snyder, 562 U.S. at 461. The “inappropriate orcontroversial character of a statement is irrelevant tothe question whether it deals with a matter of publicconcern.”Id. at 444, quoting Rankin v. McPherson, 483U.S. 378, 387 (1987). In spite of Maine’s attempt tocamouflage its law as a “content-neutral” time-place-manner restriction, Petitioner is silenced because of hismessage—content entitled to the very highest level ofFirst Amendment protection because it touches amatter of public concern.

Moreover, Petitioner speaks on a public street, atraditional public forum “immemorially . . . held intrust for the use of the public.” Hague v. CIO, 307 U.S.496, 515 (1939). In that context especially, the“government has no power to restrict expressionbecause of its message, its ideas, its subject matter, orits content.” Police Dept. of Chicago v. Mosley, 408 U.S.92, 95 (1972); see also Erznoznik v. Jacksonville, 422U.S. 205, 209 (1975) (government may not “selectively. . . shield the public from some kinds of speech on theground that they are more offensive than others”).Even more specifically, the public space around healthcare facilities has become “a forum of last resort forthose who oppose abortion . . . the most effective place,if not the only place” where pro-life advocates canengage in persuasion. Hill v. Colorado, 530 U.S. at 763(Scalia, J., dissenting). By upholding the restrictions onspeech imposed by the Noise Provision, the FirstCircuit has ratified Maine’s attempt to render the taskof persuasion an impossible one.

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B. The First Circuit ruling extends the“captive audience” doctrine too far andimpedes the speaker’s ability to reachhis intended audience.

In McCullen, this Court suggested that audience“captivity” in a traditional public forum “is a virtue, nota vice.” McCullen, 134 S. Ct. at 2529. Public streets andsidewalks are “one of the few places where a speakercan be confident that he is not simply preaching to thechoir.” Id. This Court has applied the “captiveaudience” doctrine “only sparingly” (Snyder, 562 U.S.at 459), e.g., where residential privacy is at stake.“Although in many locations, we expect individualssimply to avoid speech they do not want to hear . . . thehome is different.” Frisby v. Schultz, 487 U.S. 474, 484(1988). The home is a sanctuary where privacy isparamount. In Frisby, targeted picketing in front of aresidence seriously compromised that privacy. Frisbyis a prime example of a time-place-manner restriction.Although noise may need to be minimized near medicalfacilities, statutes can be crafted in a content-neutralmanner that limits the volume of all noise rather thanprohibiting a specific type of message while allowingother messages a free pass.

The danger of the captive audience doctrine is itspotential to cut off access to a speaker’s intendedaudience. Petitioner intends to reach women on a busystreet approaching the facility to receive anabortion—not the women who are already inside.Officials were unable to provide him with an objectivestandard so he could adjust his volume on the busythoroughfare around the clinic. Pet. 3. Without such astandard, Petitioner must lower his voice to ensure

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compliance with the Noise Provision. The statuteseriously infringes Petitioner’s free speech rights byrendering it virtually impossible for him tocommunicate his message to his target audience. Whilethere may be other ways for Petitioner to protestabortion in general, the Noise Provision impedes hisability to reach abortion-minded women at the mostcritical time.

CONCLUSION

This Court should grant the Petition and reversethe decision of the First Circuit.

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Respectfully submitted,

Deborah J. Dewart Counsel of Record620 E. Sabiston DriveSwansboro, NC 28584-9674(910) 326-4554debcpalaw@earthlink.net

Catherine W. Short Life Legal Defense Foundation P.O. Box 2105Napa, CA 94558(707) 224-6675LLDFOjai@cs.com

Thomas L. BrejchaThomas More Society19 S. LaSalle St., Suite 603Chicago, IL 60603(312) 782-1680tbrejcha@thomasmoresociety.org

Counsel for Amici Curiae