March v. Mills

United States Court of Appeals
For the First Circuit

No. 16-1771

ANDREW MARCH,

Plaintiff, Appellee,

v.

JANET T. MILLS, individually and in her official capacity as
Attorney General for the State of Maine,

Defendant, Appellant,

CITY OF PORTLAND, MAINE; WILLIAM PREIS, individually and in his
official capacity as a Police Lieutenant of the City of
Portland; JASON NADEAU, individually and in his official
capacity as a Police Officer of the City of Portland; GRAHAM
HULTS, individually and in his official capacity as a Police
Officer of the City of Portland; DONALD KRIER, individually and
in his official capacity as a Police Major of the City of
Portland,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. Nancy Torresen, Chief U.S. District Judge]

Before

Lynch, Stahl, and Barron,
Circuit Judges.

Christopher C. Taub, Assistant Attorney General, with whom
Janet T. Mills, Attorney General, and Leanne Robbin, Assistant
Attorney General, were on brief, for appellant.
 Kate Margaret-O'Reilly Oliveri, with whom Thomas More Law
Center, Stephen Whiting, and The Whiting Law Firm, P.A., were on
brief, for appellee.

August 8, 2017
 BARRON, Circuit Judge. This appeal concerns a

constitutional challenge brought by a protester who opposes

abortion. He seeks to enjoin the enforcement of a provision of

the Maine Civil Rights Act ("MCRA"), Me. Rev. Stat. Ann. tit. 5,

§ 4684-B(2), that, he contends, facially violates the First

Amendment's guarantee of the freedom of speech.1 The challenged

provision bars a person from making noise that "can be heard within

a building" when such noise is made intentionally, following an

order from law enforcement to cease making it, and with the

additional "intent either: (1) [t]o jeopardize the health of

persons receiving health services within the building; or (2) [t]o

interfere with the safe and effective delivery of those services

within the building." Me. Rev. Stat. Ann. tit. 5, § 4684-B(2)(D).

The District Court ruled that the measure restricts

speech based on its content rather than on the time, place, or

manner of its expression. And, the District Court concluded that

the measure likely cannot survive the strict constitutional

scrutiny to which such content-based speech restrictions are

subject. Thus, the District Court concluded that the plaintiff

was likely to succeed on the merits of his contention that the

1The First Amendment applies to Maine by virtue of the Due
Process Clause of the Fourteenth Amendment. Schneider v. New
Jersey, 308 U.S. 147 (1939).
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measure is unconstitutional on its face and granted his request

for a preliminary injunction. We now reverse.

I.

We begin by providing some background regarding the MCRA

and the noise restriction that it sets forth. We also describe

the relevant procedural history.

A.

The Maine legislature enacted the MCRA in 1989. 1989

Me. Legis. Serv. 582. The MCRA creates a cause of action that the

Attorney General of Maine or any "aggrieved" person may bring

against any person who, "whether or not acting under color of law,

intentionally interferes or attempts to intentionally interfere"

with another person's rights secured by the United States or Maine

Constitutions or state or federal law. Me. Rev. Stat. Ann. tit.

5, §§ 4681, 4682.

In 1995, the Attorney General proposed a bill to amend

the MCRA. The proposed amendment sought to "add[] to the

protections already contained in the [MCRA] for persons seeking

services from reproductive health facilities and for persons

providing services at those facilities."

The Attorney General indicated at the time that the

impetus for the proposed amendment, which contained a number of

distinct provisions of which this lawsuit concerns only one, was

a concern that "the most extreme violence tends to occur in
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situations where less serious civil rights violations are

permitted to escalate," because "[w]hen the rhetoric of

intolerance and the disregard for civil rights do, in fact,

escalate, then some people at the fringes of society will take

that atmosphere as a license to commit unspeakable violence." The

amendment, as a whole, was thus intended to "represent[] a

commitment on the part of both sides of the abortion debate to

reduce tensions in order to lessen the chances of tragic violence."

In the course of the legislative process, the District

Court noted, the proposed amendment was expanded "to cover conduct

outside all buildings, rather than just reproductive health

facilities." March v. Mills, No. 2:15-CV-515-NT, 2016 WL 2993168,

at *2 (D. Me. May 23, 2016). The expansion sought to ensure that

the measure would cover, in addition to "reproductive health

facilities," "crisis pregnancy centers, pro-life groups'

headquarters and offices, etc." Id.

A broad range of interested parties, including both

proponents and opponents of abortion rights, supported the

amendment. Supporters included the Maine Pro-Choice Coalition

-- a coalition of twenty-five pro-choice organizations -- and the

Maine Life Coalition, which consisted of the Maine Right to Life

Committee, the Catholic Diocese of Portland, the Christian Civic

League, and Feminists for Life of Maine.

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 A representative of Feminists for Life of Maine

testified to the Maine legislature in support of the proposed

amendment by stating that "it is the consensus of the Maine Life

Coalition . . . and the Attorney General's Office that this

legislation further secures protection for both pro-life and pro-

choice individuals." The representative specifically noted that,

"[f]or the first time in Maine and perhaps the nation, legislation

has been developed with pro-life and pro-choice activists

participating with the Attorney Generals' [sic] Office." In

addition, a representative of the American Civil Liberties Union

of Maine -- at that time known as the Maine Civil Liberties

Union -- testified in support of the bill by noting that "this Act

protects important constitutionally guaranteed rights, and does

not in any way run afoul of the free speech provisions of the Maine

and United States Constitutions."

Maine enacted the amendment in 1995. The amendment makes

it a violation of the MCRA, as the District Court usefully

summarized, "to interfere or attempt to interfere with a person's

civil rights by: (1) physically obstructing the entrance or exit

of a building; (2) making repeated telephone calls to disrupt

activities in a building; (3) setting off any device that releases

'noxious and offensive odors' within a building; or (4) making

noise" in a certain way and for certain reasons. March, 2016 WL

2993168 at *2 (quoting Me. Rev. Stat. Ann. tit. 5, § 4684-B(2)).
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 This last part of the amendment, subsection (D) of

section 4684-B, is the only part of the MCRA that is at issue here.

We shall refer to that part, for ease of reference, as the Noise

Provision. The Noise Provision defines the "conduct," see Me.

Rev. Stat. Ann. tit. 5, § 4684-B(2), that may give rise to an

action under the MCRA as follows:

D. After having been ordered by a law enforcement
officer to cease such noise, intentionally making
noise that can be heard within a building and with
the further intent either:
(1) To jeopardize the health of persons receiving
health services within the building; or
(2) To interfere with the safe and effective
delivery of those services within the
building.

Id. § 4684-B(2)(D).2

2 The full text of the portion of the MCRA in which the Noise
Provision appears reads:
It is a violation of this section for any person, whether
or not acting under color of law, to intentionally
interfere or attempt to intentionally interfere with the
exercise or enjoyment by any other person of rights
secured by the United States Constitution or the laws of
the United States or of rights secured by the
Constitution of Maine or laws of the State by any of the
following conduct:

A. Engaging in the physical obstruction of a
building;
B. Making or causing repeated telephone calls to
a person or a building, whether or not
conversation ensues, with the intent to impede
access to a person's or building's telephone

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 B.

The plaintiff in the case before us is Andrew March. He

is a "co-founder of a church in Lewiston, Maine called Cell 53."

March, 2016 WL 2993168 at *1. A part of the church's mission "is

to plead for the lives of the unborn at the doorsteps of abortion

facilities." Id. In keeping with that mission and with March's

personal belief that "abortion is the killing of unborn citizens"

and "harms women," March makes known his opposition to abortion

outside the Planned Parenthood Health Center on Congress Street in

Portland, Maine. Id.

March filed his suit pursuant to 42 U.S.C. § 1983 on

December 21, 2015, in the United States District Court for the

District of Maine. He named various defendants, including Maine's

lines or otherwise disrupt a person's or
building's activities;
C. Activating a device or exposing a substance
that releases noxious and offensive odors
within a building; or
D. After having been ordered by a law enforcement
officer to cease such noise, intentionally
making noise that can be heard within a
building and with the further intent either:
(1) To jeopardize the health of persons
receiving health services within the
building; or
(2) To interfere with the safe and effective
delivery of those services within the
building.
Me. Rev. Stat. Ann. tit. 5, § 4684-B(2).
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Attorney General. He alleges in his complaint that, among other

things, the Noise Provision violates the First Amendment's

guarantee of the freedom of speech both on its face and as applied

to him. He seeks both declaratory and injunctive relief.

More specifically, March alleges that, in November and

December 2015, law enforcement on three occasions told him,

pursuant to the Noise Provision, to lower the volume of his

activity outside the Planned Parenthood facility in Portland. He

alleges that he repeatedly "asked for a definitive volume level

that he could speak at," but did not receive a standard. Thus, he

claims, he can no longer "communicate audibly," due to fears that

his speech will subject him to an enforcement action.

On December 30, 2015, March filed a motion for a

preliminary injunction. In its opposition to that motion, Maine

articulated its interest in enacting the Noise Provision by

emphasizing that "[p]atients have the right to receive safe and

effective health care . . . without interference from Mr. March or

anyone else." Relying on affidavits from health professionals,

Maine noted specifically the "physiological effect on patients,

often causing additional stress and elevated blood pressure,

pulse, and respiratory rates" that noise can cause when made so

loud it can be heard inside a health facility, and the disruption

that results to the safe and effective treatment of those patients.

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 Maine also challenged in its papers March's allegations

about how the measure restricts speech. In particular, Maine

contended that March has "yell[ed] so loudly that the patients

cannot escape his rants," but that, under the measure, he remains

free to express his views loudly enough to conduct conversations

and be heard within the immediate vicinity, and that he has in

fact done so.

The District Court heard oral argument on the motion on

April 4, 2016, and received supplemental briefing. On May 23,

2015, the District Court granted March's motion for a preliminary

injunction based solely on March's facial constitutional

challenge, thereby leaving his as-applied challenge unaddressed.3

In granting the requested relief on the facial challenge, the

District Court applied the standard we set forth in Arborjet, Inc.

v. Rainbow Treecare Scientific Advancements, Inc., 794 F.3d 168,

3 There is one other case of which we are aware that addresses
the Noise Provision's constitutionality. In that case, the
Attorney General, in bringing an action under the MCRA's Noise
Provision, alleged that the defendant "repeatedly stood on the
sidewalk" outside of the Planned Parenthood Health Center on
Congress Street in Portland, Maine and "loudly yelled directly at
patients inside of the facility," such that his conduct "interfered
with Planned Parenthood's ability to provide medical care." The
defendant in that case moved to dismiss the suit on the ground
that the Noise Provision is unconstitutional on its face, but the
Maine Superior Court held that the Noise Provision was a
permissible time, place, or manner restriction on speech. See
State v. Ingalls, No. CV-15-487, 2016 Me. Super. LEXIS 55, at *12,
*14 (Me. Super. Ct. Mar. 17, 2016) (order denying motion to
dismiss). No appeal was taken.
- 10 -
171 (1st Cir. 2015), regarding what a plaintiff seeking a

preliminary injunction must demonstrate. Under that standard, a

plaintiff must show: "(1) a likelihood of success on the merits,

(2) a likelihood of irreparable harm absent interim relief, (3) a

balance of equities in the plaintiff’s favor, and (4) service of

the public interest." March, 2016 WL 2993168 at *6.

With respect to likelihood of success, the District

Court first concluded that the Noise Provision is a content-based

restriction on speech. The District Court explained that the Noise

Provision "targets a subset of loud noise -- noise made with the

intent to jeopardize or interfere [with the delivery of health

services] -- and treats it less favorably." Id. at *11. And the

District Court determined that the measure singled out that subset

of loud noise due to its content rather than in consequence of the

time, place, or manner of its expression. Id.

The District Court then ruled that, as a content-based

speech restriction, the measure could survive March's facial

constitutional challenge only by satisfying strict scrutiny. Id.

And, the District Court explained, under that standard, a speech

restriction must serve a compelling state interest through the

least restrictive means. Id.

The District Court determined that Maine had a

compelling interest in protecting the health and safety of its

citizens, protecting its citizens from unwelcome noise around
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medical facilities, and de-escalating potential violence that can

occur around facilities that perform abortions. Id. at *12. But,

the District Court ruled, "adequate content-neutral alternatives

could achieve the State's asserted interest." Id. at *13. In

particular, the District Court explained that Maine "could enact

a law prohibiting all loud, raucous, or unreasonably disturbing

noise outside of facilities providing medical

care[,] . . . prohibit all noise made within a certain proximity

to such facilities that has the effect of disrupting the safe and

effective delivery of health care[,] . . . [or] limit all noise

outside of buildings offering health services if the noise exceeds

a certain decibel level." Id. (citations omitted). The District

Court thus concluded that March was likely to succeed on the merits

of his claim because the Noise Provision did not serve a compelling

governmental interest by the least restrictive means. Id. at *14.

The District Court also concluded that the hardship to

the defendants resulting from the granting of the preliminary

injunction would be "minimal," whereas continued enforcement of

the Noise Provision would "result in irreparable harm to [March]."

Id. at *15. Finally, the District Court concluded that March "has

met his burden of showing that granting an injunction to prevent

continued enforcement of a content-based law would serve the public

interest." Id. Accordingly, the District Court granted March's

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motion for a preliminary injunction to enjoin the defendants from

enforcing the provision. Id.

Maine has now filed this timely appeal. See 28 U.S.C.

§ 1292(a). Our review of the District Court's grant of the

preliminary injunction on the ground that the Noise Provision is

unconstitutional on its face is for abuse of discretion. Corp.

Techs., Inc. v. Hartnett, 731 F.3d 6, 10 (1st Cir. 2013). We

assess the underlying conclusions of law de novo and the findings

of fact for clear error. Id.

II.

The threshold question we must decide in resolving this

facial constitutional challenge is whether the Noise

Provision -- which restricts noisemaking even in public parks,

plazas, sidewalks, or other traditional public fora, see Hague v.

Comm. for Indus. Org., 307 U.S. 496, 515-16 (1939) -- is a content-

based or a content-neutral speech restriction.4 The answer matters

to our analysis for the following reason.

4 We bypass Maine's contention that, in accord with the MCRA's
own characterization of the Noise Provision as one that targets
"conduct," Me. Rev. Stat. Ann. tit. 5, § 4684-B(2), the District
Court erred by not reviewing the measure under the more lenient
standard of review that applies to restrictions on conduct that
merely impose an incidental burden on speech. See United States
v. O'Brien, 391 U.S. 367, 377 (1968) (establishing that such a
restriction is permissible under the First Amendment if the
restriction "is within the constitutional power of the Government;
if it furthers an important or substantial governmental interest;
if the governmental interest is unrelated to the suppression of

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 When a restriction on speech in a traditional public

forum targets the content of speech, that restriction raises the

special concern "that the government is using its power to tilt

public debate in a direction of its choosing." Cutting v. City of

Portland, 802 F.3d 79, 84 (1st Cir. 2015). Accordingly, such

content-based restrictions, to be upheld against a facial

challenge, must serve a compelling governmental interest by the

least restrictive means. McCullen v. Coakley, 134 S. Ct. 2518,

2530 (2014).

By contrast, restrictions on speech in traditional

public fora that target only the time, place, or manner of

expression "[have] the virtue of not singling out any idea or topic

for favored or un-favored treatment." Cutting, 802 F.3d at 84.

Thus, such content-neutral restrictions ordinarily need only to be

narrowly tailored to serve a significant governmental interest and

free expression; and if the incidental restriction on alleged First
Amendment freedoms is no greater than is essential to the
furtherance of that interest"). As we will explain, March fails
to show that the Noise Provision is facially unconstitutional even
if we analyze it as a restriction on speech rather than on conduct.
We thus treat the measure, as the District Court did, as one that
targets speech. See Madsen v. Women's Health Ctr., Inc., 512 U.S.
753, 772-73 (1994) (treating a noise restriction as a regulation
of speech, not conduct); Grayned v. City of Rockford, 408 U.S. 104
(1972) (same); Kovacs v. Cooper, 336 U.S. 77 (1949) (same). We do
not foreclose the conclusion that the statute regulates conduct
rather than speech. We simply see no need to address the issue in
light of our conclusion that the Noise Provision is constitutional
even if it restricts speech.
- 14 -
to leave open ample alternative channels for communication of the

information in order to be upheld on their face. Id. (citing Ward

v. Rock Against Racism, 491 U.S. 781, 791 (1989)).

In general, a "[g]overnment regulation of speech" is

content based, rather than content neutral, if it "applies to

particular speech because of the topic discussed or the idea or

message expressed." Reed v. Town of Gilbert, 135 S. Ct. 2218,

2227 (2015). There are two distinct ways in which a regulation

may be deemed to be content based.

First, a regulation may be deemed content based because

the "regulation of speech 'on its face' draws distinctions based

on the message a speaker conveys." Id. (citation omitted).

Second, there is a "separate and additional category of laws that,

though facially content neutral, will be considered content-based

regulations of speech: laws that cannot be 'justified without

reference to the content of the regulated speech,' or that were

adopted by the government 'because of disagreement with the message

[the speech] conveys.'" Id. (alteration in original) (quoting

Ward, 491 U.S. at 791).

We start by considering whether the Noise Provision is

content based on its face. Because we conclude that it is not, we

then consider whether it is "justified without reference" to

content or was "adopted by the government 'because of disagreement

with the message [the speech] conveys.'" Id. (alteration in
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original) (quoting Ward, 491 U.S. at 791). In the end, we conclude

that the Noise Provision is, in light of its facial neutrality and

the content-neutral reasons for its enactment, properly treated as

a content-neutral time, place, or manner restriction.

A.

In considering whether the Noise Provision is content

based on its face, we must be mindful that the First Amendment

reflects our commitment to the protection of public discourse and

dissent, even where such speech inspires outrage or offense. For

that reason, restrictions on speech in public places are suspect

when they curb debate by restricting expression about certain

topics or by limiting the discussion of certain ideas.

Nevertheless, it is well established that, even in public places,

the government may enforce reasonable restrictions on the time,

place, or manner of speech in order to protect persons from unduly

burdensome noise. "If overamplified loudspeakers assault the

citizenry," after all, the "government may turn them down."

Grayned v. City of Rockford, 408 U.S. 104, 116 (1972). And that

is especially the case when loud noise would disrupt sensitive

functions in nearby buildings, such as schools or hospitals. See

Gregory v. City of Chicago, 394 U.S. 111, 118 (1969) (Black, J.,

concurring) ("[N]o mandate in our Constitution leaves

States . . . powerless to pass laws to protect the public from the

kind of boisterous and threatening conduct that disturbs the
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tranquility of . . . buildings that require peace and quiet to

carry out their functions, such as courts, libraries, schools, and

hospitals.").

Against this backdrop, March appears to accept that a

statute that restricts noise made outside a building that actually

"jeopardize[s] the health of persons receiving health services

within the building; or . . . interfere[s] with the safe and

effective delivery of those services within the building" would

be, on its face, content neutral. And, in light of the Supreme

Court's decision in Grayned, 408 U.S. 104, we do not see how he

could contend otherwise.

Grayned concerned a town ordinance that prohibited noise

made outside of schools that "disturbs or tends to disturb the

peace or good order" of the school. Id. at 107-08 (quoting

Rockford, Ill. Code of Ordinances, ch. 28, § 19.2(a)). The Court

concluded -- presumably because of the limitless range of sounds

that could be used to make noise that would disrupt teaching and

learning in a school -- that the ordinance was not targeting the

disruptive noisemaking "because of its message." Id. at 115.

Rather, the Court explained, the restriction -- in targeting noise

"which disrupts or is about to disrupt normal school activities,"

id. at 119 -- "gives no license to punish anyone because of what

he is saying," id. at 120 (emphasis added). On that basis, the

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Court treated the measure as a content-neutral time, place, or

manner restriction.5

Nonetheless, March contends that the Noise Provision is

different in an important respect from the measure considered in

Grayned. He points out that this measure, unlike the one

considered in Grayned, does not single out for restriction loud

(and thus disruptive) noise. Rather, the Noise Provision targets

only the subset of loud noise made with the intent to "jeopardize

the health of persons receiving health services within the

building; or . . . interfere with the safe and effective delivery

of those services within the building." Me. Rev. Stat. Ann. tit.

5, § 4684-B(2)(D).

In March's view, this disruptive-intent requirement, in

narrowing the measure's reach, makes the measure content based on

its face by necessarily regulating noisemaking based on the content

5We note that in Grayned the appellant also brought a
challenge to the ordinance on the ground that the phrase "tends to
disturb" was unconstitutionally vague. The Court rejected that
contention on the ground that, in light of state court precedent,
the phrase was fairly construed "to prohibit only actual or
imminent interference with the 'peace or good order' of the
school." Id. at 111-12. March makes no similar vagueness
challenge -- under either the First Amendment or any other
constitutional provision -- to the phrases "[t]o jeopardize the
health of persons receiving health services within the building"
and "[t]o interfere with the safe and effective delivery of those
services within the building," Me. Rev. Stat. Ann. tit. 5, § 4684-
B(2), or to any other aspect of the Noise Provision.

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of the message conveyed, rather than on the manner of its

expression. In particular, March contends that the disruptive-

intent requirement necessarily ensures that those who make noise

while protesting abortion rights will be treated less favorably

than other noisemakers because, unlike in the case of other

speakers, the content of their message necessarily will establish

their disruptive intent.6

We do not agree. On its face, the Noise Provision says

not a word about the relevance -- if any -- of the content of the

noise that a person makes to the determination of whether that

person has the requisite disruptive intent. And, given the

limitless array of noises that may be made in a disruptive manner,

there is no reason to conclude that disruptive intent is

necessarily a proxy for a certain category of content. One's

manner of making noise can itself be highly probative of one's

disruptive intent quite independent of what one actually says. In

consequence, the restriction, at least on its face, would appear

to apply, just like the ordinance in Grayned, to noise on any topic

or concerning any idea.

6
March makes no argument that the Noise Provision's
requirement that law enforcement authorities order the cessation
of noise in and of itself raises any constitutional concerns that
would require the measure's facial invalidation. Nor did the
District Court so hold. We thus focus, like March in his briefing
and the District Court in its ruling, on whether the measure is
facially invalid in light of its disruptive-intent requirement.
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 For example, the measure, by its terms, restricts the

volume that hospital staff may use in calling for higher wages

during a labor strike outside a hospital (provided that the staff

make the noise in order to jeopardize the health of those receiving

health services inside or to interfere with the safe and effective

provision of health services to those inside) just as surely as

the measure regulates the volume of speech that opponents of

abortion rights may use in advocating for their views outside of

a Planned Parenthood facility (provided that they, too, seek to

jeopardize the health of those receiving health services inside or

to interfere with the safe and effective delivery of services to

them). Likewise, the measure, by its terms, may restrict the

volume that others may use in expressing opposition to or support

for a seemingly endless array of issues that relate to buildings

in which health services are provided, from protests favoring or

disfavoring vaccination to demonstrations concerning the effects

on the rental market of a given health facility's presence (again,

provided that such supporters or opponents are found to have had

the specified disruptive intent).

Moreover, the measure applies even to loud noise that,

in and of itself, conveys no message at all, as it applies to

wailing sirens, beating drums, and blaring horns -- provided that,

following a cessation order, they may be heard inside and are made

with the specified disruptive intent -- no less than to inspiring
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chants and political speeches. And, at least according to the

face of the measure, loud sounds made with the intent to

"jeopardize the health of persons receiving health services within

the building; or . . . interfere with the safe and effective

delivery of those services within the building," Me. Rev. Stat.

Ann. tit. 5, § 4684-B(2)(D), are restricted no less than loud

words.

Consistent with this content-neutral focus, the Noise

Provision on its face also permits loud noise -- no matter the

topic discussed or idea expressed -- if the noise is made without

the specified disruptive intent. In consequence, by its terms,

the Noise Provision permits loud messages to be communicated

concerning any topic or idea, including opposition to abortion, so

long as those messages are not made with the specified disruptive

intent.

Simply put, under the Noise Provision, all noisemakers

may be found to have the requisite intent or to lack it based on

what the evidence shows about whether they intend for their noise

to be disruptive. And, whether an individual has the requisite

intent to interfere with or jeopardize the delivery of healthcare

services is a fact-specific inquiry that may depend on a variety

of factors, including, crucially, whether the individual has

ignored an initial order "by a law enforcement officer to cease

such noise." Me. Rev. Stat. Ann. tit 5, § 4684-B(2)(D). Thus, at
- 21 -
least on its face, the measure does not say anything that makes

the outcome of that evidentiary inquiry turn on the "communicative

content" of the noise. Reed, 135 S. Ct. at 2227.

For these reasons, the Noise Provision is no more content

based, as a facial matter, than is the restriction on disruptive

noise found to be content neutral in Grayned. This measure, like

that one, does not on its face purport to restrict noise "because

of its message." Grayned, 408 U.S. at 115. Rather, like that

ordinance, the Noise Provision -- in targeting a subset of loud

noise -- does not on its face give "license to punish anyone

because of what he is saying." Id. at 120 (emphasis added).7

7 Of course, the measure does appear to target noise only near
certain buildings -- namely those in which health services are
provided -- just as the ordinance in Grayned applied only to noise
made outside schools. And, those buildings -- like the schools in
Grayned -- may well attract certain kinds of speakers, including
ones who wish to advocate certain views, like March himself. But,
that fact does not make the measure facially content based. "[A]
facially neutral law does not become content based simply because
it may disproportionately affect speech on certain topics."
McCullen, 134 S. Ct. at 2531 (noting also that "[a] regulation
that serves purposes unrelated to the content of expression is
deemed neutral, even if it has an incidental effect on some
speakers or messages but not others" (alteration in original)
(quoting Ward, 491 U.S. at 791) (modification in original)); see
also Madsen, 512 U.S. at 763 (finding an injunction prohibiting
anti-abortion protestors from engaging in certain types of
disruptive activity was content neutral and noting that "the fact
that [a speech restriction] cover[s] people with a particular
viewpoint does not itself render the [restriction] content or
viewpoint based").
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 In response, March presses a number of arguments as to

why the measure, due to its disruptive-intent requirement, is

content based on its face. But, we are not persuaded.

March first contends -- as the District Court

ruled -- that the measure is content based on its face because, in

targeting noise based on the noisemaker's purpose in making it,

the measure expressly and necessarily regulates speech based on

its "function or purpose." See March, 2016 WL 2993168 at *10

(citing Reed, 135 S. Ct. at 2227). Here, March, like the District

Court, relies on a single sentence in Reed, in which the Court

noted that while "[s]ome facial distinctions based on a message

are obvious, defining regulated speech by particular subject

matter, . . . others are more subtle, defining regulated speech by

its function or purpose." Reed, 135 S. Ct. at 2227 (emphasis

added).

Considered in context, however, this passage has little

bearing on our case. Reed concerned a town sign ordinance that

regulated the size and location of signs but exempted twenty-three

categories of signs from its reach, including three categories of

signs that were the focus of the Court's inquiry into whether the

ordinance was, on its face, content based. Id. The ordinance

defined those three categories -- "[i]deological," "[p]olitical,"

and "[d]irectional" signs -- in terms of the purpose of the message

- 23 -
that a sign conveyed.8 Id. Reed thus ruled that the town's sign

measure was content based on its face, because, as the Court put

it, the measure's restrictions that apply "to any given

sign . . . depend entirely on the communicative content of the

sign."9 Id. at 2227 (emphasis added).

At least on its face, however, the Noise Provision does

not "depend entirely" for its application on the "communicative

content" of noise. Id. To borrow the terms used by the ordinance

at issue in Reed, the Noise Provision's application does not depend

entirely (if, in any case, it depends at all) on whether a review

of the noise would reveal its communicative content to convey an

ideological ("Abortion is murder"), political ("Vote for the pro-

choice candidate"), directional ("Go to our rally down the

street"), or, for that matter, entirely unintelligible message.

8Specifically, the sign ordinance defined "[i]deological"
signs as signs "communicating a message or ideas for noncommercial
purposes"; "[p]olitical" signs as signs "designed to influence the
outcome of an election called by a public body"; and "[t]emporary
[d]irectional [s]igns" as signs "intended to direct pedestrians,
motorists, and other passersby to a 'qualifying event.'" Reed,
135 S. Ct. at 2224-25 (emphases added) (quoting Gilbert, Ariz.,
Land Development Code, ch. 1, § 4.402 (2005)).
9As the Court explained by way of example, "[i]f a sign
informs its reader of the time and place a book club will discuss
John Locke's Two Treatises of Government, that sign will be treated
differently from a sign expressing the view that one should vote
for one of Locke's followers in an upcoming election." Reed, 135
S. Ct. at 2227. And, indeed, "both signs will be treated
differently from a sign expressing an ideological view rooted in
Locke's theory of government." Id.
- 24 -
All of these messages are restricted if -- but only if -- they are

conveyed with the intent to disrupt health services being provided

in the building in which the noise can be heard, after the

noisemaker has "been ordered by a law enforcement officer to cease

such noise." Me. Rev. Stat. Ann. tit. 5, § 4684-B(2). Conversely,

none of these messages are restricted if they are not made with

that disruptive intent. And that is true of any other message

that one can conjure.

Thus, while the restriction is "entirely depend[ent]" on

the noisemaker's disruptive "purpose" in making noise, the

restriction is not entirely dependent -- as was the ordinance at

issue in Reed -- on the noise's "communicative content." Id. In

fact, it is not clear that the Noise Provision's application is,

in any case, dependent on the communicative content of the noise

at all. For, as we have explained, one can loudly communicate any

content -- on any topic or concerning any idea or message,

including even, as Maine recognizes, messages favoring abortion

rights -- or even generate noise that does not carry any message

whatsoever, with a disruptive intent. And, so long as one does

so, the Noise Provision, by its terms, regulates that noise.

Nor are we aware of authority to support the conclusion

below that a restriction on disruptive noise, like the one deemed

content neutral in Grayned, necessarily becomes content based if

it targets only those noisemakers who actually intend for their
- 25 -
noise to be disruptive. Indeed, we would be surprised to find

authority to that effect. It is hard to discern the First

Amendment interest furthered by a rule that would deem such an

otherwise content-neutral restriction to be especially

constitutionally suspect simply because it excuses those who

violate it only inadvertently.10

March also contends, as the District Court concluded,

that the Noise Provision is content based on its face for the

distinct reason that the Noise Provision "require[s] enforcement

authorities to examine the content of the message that is

10 In addition to Reed, March cites to two other cases to
support his contention that a speech restriction is content based
if it turns on the intent of the speaker. Neither case helps
March, however, as both involved provisions that, like the
provision in Reed, refer to the "purpose" of speech only as a means
of distinguishing among types of content that such speech
communicates. See Cahaly v. Larosa, 796 F.3d 399, 402, 405 (2015)
(holding that a statute prohibiting "robocalls that are for the
purpose of making an unsolicited consumer telephone call or are of
a political nature" was content based because it "applie[d] to
calls with a consumer or political message but [did] not reach
calls made for any other purpose" (quotation marks omitted)); Nat'l
Fed'n of Indep. Bus. v. Perez, Civil Action No. 5:16-cv-00066-C,
2016 WL 3766121, at *32 (N.D. Tex. June 27, 2016) (holding that a
Department of Labor rule was content based because it turned on
whether the speaker "undertakes activities with an object to
persuade employees" on issues concerning collective bargaining).
Nor are the panhandling cases that March cites to the contrary, as
they, too, turn on the content of the regulated speech. See
Homeless Helping Homeless, Inc. v. City of Tampa, No. 8:15-cv-
1219-T-23AAS2016, 2016 WL 4162882 (M.D. Fla. Aug. 5. 2016); Thayer
v. City of Worcester, 144 F. Supp. 3d 218 (D. Mass. 2015); Browne
v. City of Grand Junction, 136 F. Supp. 3d 1276 (D. Colo. 2015);
City of Lakewood v. Willis, 375 P.3d 1056 (Wash. 2016).
- 26 -
conveyed." March, 2016 WL 2993168 at *10 (emphasis added) (quoting

McCullen, 134 S. Ct. at 2531). McCullen did state that the

abortion clinic buffer-zone provision there at issue would have

been content based "if it required enforcement authorities to

examine the content of the message that is conveyed to determine

whether a violation has occurred." 134 S. Ct. at 2531 (citing

Fed. Trade Comm'n v. League of Women Voters of Cal., 468 U.S. 364,

383 (1984)). And, in the case on which McCullen relied for that

proposition, League of Women Voters, the Supreme Court did find

that a regulation that prohibited certain "noncommercial

educational broadcasting station[s]" from "engag[ing] in

editorializing," League of Women Voters, 468 U.S. at 366, except

on "controversial issues of public importance," id. at 381, was

content based on its face. The Court explained that the regulation

was facially content based because it defined prohibited speech

"solely on the basis of the content of the suppressed speech,"

such that "enforcement authorities must necessarily examine the

content of the message that is conveyed to determine whether the

views expressed concern 'controversial issues of public

importance.'" Id. at 383.

As we have explained, however, the Noise Provision

-- unlike the measure at issue in League of Women Voters -- is

not, on its face, dependent for its application on a determination

by enforcement authorities regarding the content of the noise made.
- 27 -
Rather, its application depends on whether the noisemaker intended

to be disruptive in making the noise, whatever its content. Thus,

nothing on the face of the Noise Provision indicates that

enforcement authorities must examine the content of the speaker's

communication in order to find a violation.

As Maine explains, "it is the continuation of [making

noise] after a warning notifying the person that he or she is

interfering with the safe and effective delivery of health care

that is most probative of [the requisite disruptive] intent,"

rather than the content of anything that a noisemaker may

communicate. And, reinforcing this conclusion, the Attorney

General represented at oral argument that the state interprets the

Noise Provision to apply to a speaker who intentionally makes noise

that can be heard inside a medical building with a reckless

disregard for the disruptive effect that such loud noise may have

on the provision or receipt of health services being offered inside

that building.11

11In taking account of the Attorney General's construction,
see Forsyth Cty., Ga. v. Nationalist Movement, 505 U.S. 123, 131
(1992) ("In evaluating respondent's facial challenge, we must
consider the county's authoritative constructions of the
ordinance, including its own implementation and interpretation of
it."); see also Ward, 491 U.S. at 795-96 (in considering a First
Amendment facial challenge, "[a]dministrative interpretation and
implementation of a regulation are, of course, highly relevant to
[the] analysis"), we are aware that March contends that the
Attorney General's construction "would conflate" the Noise
Provision's two separate intent requirements "into one -- merely

- 28 -
 It is possible that, on the facts of a given case, the

communicative content of noise may supply helpful evidence (to one

side or the other) regarding the noisemaker's intent. But, that

fact does not show that the measure is content based on its face.

Cf. Hill v. Colorado, 530 U.S. 703, 721 (2000) (noting that "[i]t

is common in the law to examine the content of a communication to

determine the speaker's purpose" in finding a measure that

restricted the purposes for which persons could be approached near

medical facilities to be content neutral). In Grayned, for

example, the Court held that the disruptive noise restriction at

issue was content neutral, even though that measure targeted

noisemakers only if they acted "willfully" in making noise that is

"actually incompatible with normal school activity" where there is

"a demonstrated causality" between the noise made and the

disruption that occurs. 408 U.S. at 113. Thus, that measure,

like this one, appeared to contemplate that, in a given instance,

the message shouted -- for example, "Shut Down Schools Now!" as

opposed to "Keep Them Open!" -- might at least be probative, though

continuing to make noise after being warned by law enforcement[,]"
and, by doing so, would thereby "leave the second intent
requirement of intent to interfere with a medical procedure without
any operative effect." But, that is plainly wrong. The second
intent requirement, unlike the first, would, for example, protect
an unwitting speaker who, after having been ordered to stop making
noise loud enough to be heard in a nearby medical facility,
continues intentionally to make such noise but does so unaware
that medical services are being provided nearby at that time.
- 29 -
not necessarily determinative, of whether the intent standard had

been met. Yet, the Court did not find that measure to be content

based. And, as we have explained, Reed held that the sign

ordinance at issue in that case was content based only because the

ordinance's applicability "depend[ed] entirely on the

communicative content" of a given sign. 135 S. Ct. at 2227

(emphasis added). Thus, Reed does not suggest that a provision is

content based merely because the communicative content of noise

could conceivably be relevant in ascertaining the noisemaker's

disruptive intent.

Finally, March argues, citing R.A.V. v. City of St. Paul,

505 U.S. 377 (1992), that the Noise Provision is on its face an

"unconstitutional content based restriction because, in 'practical

operation,'" it targets "proponents of specific topics." Id. at

391-92 (emphasis added). R.A.V. did not, however, find a measure

to be content based on its face in consequence of its "practical

operation." Id. R.A.V. instead found only that a measure that

was facially content based was in "practical operation" viewpoint

based. Id.

Even assuming that such a practical inquiry can make a

facially content-neutral measure facially content based -- a

surprising proposition for which March cites no authority -- we do

not see how this is a case that would yield such an outcome. As

we have explained, an inquiry into whether a noisemaker has a
- 30 -
disruptive intent -- given the limitless means that one may use to

make noise in a disruptive manner -- is not inherently an inquiry

into what message a speaker is trying to convey. And, on its face,

it is the disruptive intent, and not the message, if any, conveyed

with that intent, that determines whether the Noise Provision

applies.

Nor is this conclusion undermined by March's vivid

hypothetical, in which he posits a person who stands in front of

an abortion clinic and shouts, "Honey, you forgot your lunch!"

directly inside the facility. March contends that such a speaker,

precisely because of his well-meaning message, obviously will not

be found to have the disruptive intent that the statute requires.

By contrast, March contends, the anti-abortion protester enjoys no

such protection, as the content of that protester's speech will

necessarily be found to evince the protester's disruptive intent.

But, while we agree that the provision would be subject

to a serious as-applied challenge if its disruptive-intent

requirement were enforced in an entirely content-dependent way,

the measure does not require, as a practical matter, such uneven,

content-based enforcement. As Maine points out, the most probative

evidence of disruptive intent is a person's decision to

intentionally keep making loud noise after having been warned of

its disruptive effect. March's seemingly thoughtful shouter is

thus not immune, even practically speaking, from the Noise
- 31 -
Provision's reach in consequence of the seemingly kind content of

his message -- any more than is any noisemaker in consequence of

theirs. And, by the same token, the anti-abortion protester is

not necessarily subject to the restriction because of the anti-

abortion message that he may espouse. The protester is, like the

helpful shouter, subject to the Noise Provision's restriction on

noisemaking only if he expresses that message in a certain

manner -- that is, with the specified disruptive intent and "after

having been ordered by a law enforcement officer to cease," Me.

Rev. Stat. Ann. tit. 5, § 4684-B(2) -- and not because of "what he

is saying," Grayned, 408 U.S. at 120.

B.

There remains the question whether the Noise Provision,

despite its facial neutrality, is "justified without reference to

content" or was instead adopted because of the state's disagreement

with the content of any message expressed. Ward, 491 U.S. at 791

(quoting Clark v. Cmty. for Creative Nonviolence, 468 U.S. 288,

293 (1984)). According to Maine, the Noise Provision is content

neutral in purpose, just as it is on its face, even accounting for

the disruptive-intent requirement, because it (1) aims to protect

patients from "[t]he type of noise most likely to cause harm" to

their "right to receive safe and effective medical care," and (2)

serves to identify the subset of noise that is "most likely" to

cause that harm on the basis of characteristics that are not
- 32 -
dependent on the content of any message that the restricted noise

may communicate.

To understand why we agree with Maine, it helps to review

the findings that the District Court made regarding the differing

deleterious effects of certain types of noise -- independent of

the communicative content of that noise -- on the provision and

receipt of health services. The District Court made these findings

in connection with evidence regarding noise heard within the

Planned Parenthood Health Center on Congress Street in Portland,

where March has been protesting.

Specifically, the District Court found, from the

evidence in the record, that "[l]oud and sustained yelling that is

audible within the Health Center interferes with the Health

Center's staff's ability to provide care to their patients."

March, 2016 WL 2993168 at *3. And, the District Court explained,

such noise is problematic because, as common sense would suggest,

"[t]o effectively deliver health services, staff need a calm and

quiet environment for their interactions with patients." Id. The

District Court further found, again based on evidence in the record

and in accordance with common sense, that, wholly apart from the

content of any message communicated by loud noise, "loud noise

distracts patients and renders them unable to concentrate on their

discussions with staff," which "in turn causes staff to spend more

- 33 -
time repeating instructions to patients, which causes additional

delays for the entire facility." Id.

As the District Court pointed out, "[l]oud noise from

outside the building has a physiological effect on patients,

causing additional stress and elevated blood pressure, pulse, and

respiratory rates." Id. at *4 (quotation omitted). As a result,

"such noise often causes patients to . . . move to other areas of

the Health Center where the noise is less audible," which causes

"patients [to be] separated from people who are there to support

them." Id.

But, and this is the crucial point, the District Court

also found, based on evidence in the record, that a certain type

of loud noise -- again, for reasons wholly independent of the

content of any message that such noise may convey -- is especially

likely to jeopardize patients' health or to interfere with the

delivery and receipt of health services. The District Court

explained that, while evidence in the record showed that

"[t]ransitory noise produced by parades, sirens, and car horns"

has "the potential to disrupt medical care," such loud sounds are

"normally brief in duration and any disruption dissipates

quickly." Id.

By contrast, according to the District Court, the record

showed that "[l]oud and sustained yelling that is audible within

the [facility] interferes with the . . . staff's ability to provide
- 34 -
care to their patients." Id. at *3. And, the District Court

further found, "[u]nabated constant noise that is specifically

directed at patients is uniquely disruptive to the . . . ability

to provide medical care." Id. at *4 (emphasis added).

These findings support Maine's contention that Maine is

regulating a type of loud noise that is likely to be uniquely

disruptive for reasons that have to do with the manner in which

the noise is made rather than with the content of any message that

such noise may convey. After all, given the requirement that the

prohibited noise must have been intentionally made after law

enforcement authorities order its cessation, the Noise Provision

does target only loud noise that is made in a "sustained" manner.

Id. at *3. And, given the requirement that the noise be made with

the specified disruptive intent, the Noise Provision regulates

such sustained loud noisemaking only when it is likely to be

"specifically directed" at the building in which health services

are provided. Id. at *4. We thus have no reason to doubt that

the Noise Provision proscribes a subset of speech that is likely

to constitute the kind of "[u]nabated constant noise that is

specifically directed at patients" that the record shows has a

"unique" capacity to be disruptive in consequence of the

- 35 -
manner -- rather than the content -- of the expression. See id.

(emphasis added).12

A simple example -- having nothing to do with the charged

context that this suit foregrounds -- helps to illustrate why we

conclude that, on this record, Maine's decision to target only

this subset of loud noise is justified "without reference to the

content" of the noise restricted or because of any disagreement

with any message that may be expressed. Reed, 135 S. Ct. at 2227.

As any parent knows, a child who makes loud noise in order to

12 This measure is thus unlike the one addressed in Boos v.
Barry, 485 U.S. 312 (1988). There, the Court considered a District
of Columbia regulation that prohibited "the display of any sign
within 500 feet of a foreign embassy if that sign tends to bring
that foreign government into 'public odium' or 'public
disrepute.'" Id. at 315. The Court explained that such a
regulation may be content neutral if justified by a "secondary
effect," such as "congestion," "visual clutter," "interference
with ingress or egress," or "the need to protect the security of
embassies." Id. at 321. The Court also concluded, however, that
such a regulation could not be content neutral if "justified only
on the content of speech and the direct impact that speech has on
listeners" -- that is, "[t]he emotive impact of speech on its
audience." Id. (emphasis in original). But, unlike in Boos, the
Noise Provision does not require a judgment as to whether noise
tends "to bring [the listener] into 'public odium' or 'public
disrepute.'" Id. It is enough under the Noise Provision that the
noise -- whatever its communicative content -- is made loud enough
for the listener to hear and with the intent to jeopardize the
health of people receiving health services or to interfere with
the medical service that patients have sought to obtain. Cf. Texas
v. Johnson, 491 U.S. 397, 407 n.4 (1989) (stating that regulations
justified by the desire merely "to prevent an audience from being
offended" may be distinguishable from those justified by the desire
"to prevent a violent audience reaction," even where that reaction
"would be the result of the message conveyed" by the regulated
speech).
- 36 -
disrupt her parent can do so as readily with endearing words as

annoying ones, or, for that matter, with "words" that are quite

impossible to discern. A parent thus might understandably seek to

shush that intentionally disruptive child even as the parent tunes

out the nearby sibling whose equally loud sounds are easier to

ignore precisely because they are, thankfully, not intended to

bother anyone at all. And, in quieting the one child and not the

other, the parent is not favoring or disfavoring any message. The

parent is merely acting on what we might describe as a perfectly

understandable content-neutral interest in putting an end to an

unwanted disruption that, because intended, may be especially hard

to put out of one's mind. See Consol. Edison Co. of N.Y. v. Pub.

Serv. Comm'n of N.Y., 447 U.S. 530, 546-47 (1980) (Stevens, J.,

concurring) (explaining that "a communication may be offensive in

two different ways," in that some speech, "even though elegantly

phrased in dulcet tones, [is] offensive simply because the listener

disagrees with the speaker's message," while other speech is

offensive "[i]ndependently of the message the speaker intends to

convey," due to "the form of [the] communication . . . perhaps

because it is too loud or too ugly in a particular setting").

The Supreme Court has deployed a similar logic in finding

speech restrictions not unlike Maine's to be content neutral. For

example, in finding content neutral the restriction on "knowingly

approaching" another person for certain purposes outside certain
- 37 -
medical facilities, the Court in Hill explained that "[i]t may not

be the content of the speech, as much as the deliberate 'verbal or

visual assault,' that justifies proscription." Hill, 530 U.S. at

716 (alteration in original) (emphasis added) (quoting Erzoznik v.

City of Jacksonville, 422 U.S. 205, 210-211, n.6 (1975)).

Similarly, in Frisby v. Schultz, 487 U.S. 474 (1988), the Court

concluded that the fact that an ordinance prohibiting picketing in

front of a single home -- conduct that obviously conveyed to the

homeowner that he was the object of the expression -- did not

render the ordinance content based. Id. at 488. The Court

emphasized that targeted picketing "inherently and offensively

intrudes on residential privacy," resulting in a "devastating

effect . . . on the quiet enjoyment of the home," regardless of

whether "such picketers have a broader communicative purpose,"

id., and that "the 'evil'" of the restricted speech was thus not

what was said but only "the medium of expression itself," id. at

486 (quoting Members of City Council of City of L.A. v. Taxpayers

for Vincent, 466 U.S. 789, 810 (1984)).

- 38 -
 C.

For these reasons, we reject the contention that, on its face

or in its object, the Noise Provision is content based. Rather,

we conclude that, the measure is a content-neutral restriction on

the time, place, or manner of expression that, accordingly, need

be justified only under the standard of review to which such

content-neutral speech restrictions are subject in order to

survive this facial constitutional challenge.

III.

Because the District Court concluded that the Noise

Provision is content based, the District Court did not address

whether the measure survives the less-demanding standard of

scrutiny -- often referred to as intermediate (as opposed to

strict) scrutiny -- applicable to content-neutral restrictions.

Neither party, however, asks us to remand the case for the District

Court to apply that form of review in the first instance or to

undertake further factual development. Rather, both parties have

briefed the issue fully. We thus turn to the question whether the

Noise Provision can survive March's facial challenge under the

intermediate level of scrutiny that usually applies to content-

neutral speech restrictions. See Cutting, 802 F.3d at 86

(declining to remand for the District Court to apply intermediate

scrutiny in the first instance). That inquiry requires us to

determine if the restriction is narrowly tailored to serve a
- 39 -
significant governmental interest and leaves open ample

alternative channels for communication of the information. See

Ward, 491 U.S. at 791.

A.

We begin by considering the strength of the interest that

Maine seeks to advance through the Noise Provision. Maine asserts

a number of interests, including that the Noise Provision is

intended to ensure that "all of [Maine's] citizens are able to

receive safe and effective health care." And, as the District

Court recognized, that interest is quite clearly a significant

one. March, 2012 WL 2993168 at *12.13

For example, in finding that a restriction on noise

outside an abortion clinic served a significant governmental

interest, the Supreme Court in Madsen v. Women's Health Ctr., Inc.,

512 U.S. 753 (1994), explained that hospitals are places "where

human ailments are treated, where patients and relatives alike

often are under emotional strain and worry, where pleasing and

13
Maine emphasizes, in addition, that "patients arriving at
a facility for abortion services are already in a highly emotional
and anxious state," particularly if they have "recently
experienced emotional or physical trauma." Maine further
emphasizes that the difficulties communicating with such patients
are often exacerbated by such patients' relative lack of
sophistication "when it comes to obtaining health care," and by
language difficulties. From the record before us, those concerns
would appear to apply equally to patients seeking to receive other
types of health services in the state, and March does not contend
otherwise.
- 40 -
comforting patients are principal facets of the day's activity,

and where the patient and his family . . . need a restful,

uncluttered, relaxing, and helpful atmosphere." Id. at 772

(quoting NLRB v. Baptist Hosp., Inc., 442 U.S. 773, 783-84 n.1

(1979)). And, the Court added, "[t]he First Amendment does not

demand that patients in a medical facility undertake Herculean

efforts to escape the cacophony of political protests." Id. at

772-73. Moreover, as the Court has elsewhere explained, the

"privacy interest in avoiding unwanted communication" is strongest

when listeners are "powerless to avoid it" -- for example, because

they are being targeted "in the confines of [their] own home[s]"

or, as here, when they are "patients at a medical facility." Hill,

530 U.S. at 716 (citations omitted).

March contends that the Noise Provision "cannot be

regarded as protecting" a significant governmental interest

because "it leaves appreciable damage to [the] supposedly vital

interest unprohibited." 14 Reed, 135 S. Ct. at 2232 (citation

omitted). Specifically, March argues that the state's interest is

implicated equally by noise made loudly and in a sustained fashion

14March chiefly presses his underinclusiveness argument in
connection with his argument as to why the Noise Provision, if
content based, would fail strict scrutiny. March makes at most a
glancing argument as to why the Noise Provision, if found to be
content neutral, would fail intermediate scrutiny due to its
alleged underinclusiveness. We nonetheless reject the argument
even assuming it is preserved.
- 41 -
but without the disruptive intent specified in the Noise Provision.

March therefore contends that the measure is fatally

underinclusive. March notes in this regard that a restriction on

the decibel level or duration of noise, or perhaps both combined,

would better address the disruption Maine claims to be addressing.

And yet, March contends, Maine has opted for a less protective

restriction that -- through its disruptive-intent requirement --

invites an examination of the content of the message communicated

by the noise.

We agree with March that, if a speech restriction

tolerates too much of the very harm that the state claims it is

trying to address, there may be reason to doubt the seriousness of

that harm. See Reed, 135 S. Ct. at 2232. In addition, when a

restriction on speech is underinclusive, there may be reason to

doubt "whether the government is in fact pursuing the interest it

invokes, rather than disfavoring a particular speaker or

viewpoint." See Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656, 1668

(2015) (quoting Brown v. Entm't Merchants Ass'n, 564 U.S. 786, 802

(2011)); see also Matal v. Tam, 137 S. Ct. 1744, 1764 (2017)

(explaining that the very idea that the government "has an interest

in preventing speech expressing ideas that offend . . . strikes at

the heart of the First Amendment"); Snyder v. Phelps, 562 U.S.

443, 458 (2011) (explaining that speech may not be restricted

"simply because it is upsetting").
- 42 -
 In this case, however, there is no underinclusivity

problem of the sort that March alleges. As we have explained,

March does not challenge the District Court's finding that

"[u]nabated constant noise that is specifically directed at

patients" is "uniquely disruptive." March, 2016 WL 2993168 at *4

(emphasis added). And, as we have also explained, noise that is

(1) intentionally made loud enough to be heard inside a building,

(2) in disregard of an earlier order by law enforcement to cease

making it, and (3) with an intent to jeopardize the health of those

receiving medical services in that building or to interfere with

the effective delivery in that building of those services, would

seem to be just that kind of noise. Thus, because Maine has

targeted a subset of loud noise that is likely to cause the

"unique" harm that Maine has a significant interest in singling

out, we cannot say that Maine has chosen to leave "appreciable

damage to [the] supposedly vital interest unprohibited." Reed,

135 S. Ct. at 2232 (citation omitted).

For this reason, this case is not like Cutting, 802 F.3d

79, on which March mistakenly relies. There, we held that, because

a city had identified only a small subset of expressive activity

that actually caused harm, the city's sweeping speech restriction

could not be justified. See id. at 89-90. Here, by contrast, the

Noise Provision targets the subset of noise that Maine has

identified as being especially problematic.
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 B.

March next contends that, even if the Noise Provision

does serve Maine's claimed interest in protecting the safe and

effective provision and receipt of health services, the Noise

Provision is facially unconstitutional because it is not narrowly

tailored to serve that interest. Here, too, we disagree.

The narrow tailoring requirement does not demand perfect

tailoring. The requirement is "satisfied as long as the particular

regulation promotes a substantial government interest that would

be achieved less effectively absent the regulation." Knights of

Columbus, Council No. 94 v. Town of Lexington, 272 F.3d 25, 33

(1st Cir. 2001) (quotation omitted). Nevertheless, the narrow

tailoring restriction does require "that a challenged speech

restriction not burden 'substantially' more speech than is

necessary to further the government's interest." Cutting, 802

F.3d at 86 (quoting McGuire v. Reilly, 260 F.3d 36, 48 (1st Cir.

2001)).

Maine, relying on Frisby's conclusion that the targeted

picketing ordinance there was narrowly tailored because it applied

only to speakers who intended to "intrude upon the targeted

resident . . . in an especially offensive way," 487 U.S. at 486,

contends that the Noise Provision "prohibits only the making of

noises that can be heard within a building and [are] made with the

intent to interfere with the safe and effective delivery of health
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services." As a result, Maine argues that the Noise Provision

does not restrict substantially more speech than necessary because

"[t]here is simply no way that the restriction could be more

narrowly tailored."

March argues in response that the Noise Provision is too

sweeping because it applies "24-hours a day, seven days a week

regardless of the actual hours that 'health services' are being

offered or the hours of the building's operation." (quoting Me.

Rev. Stat. Ann. tit. 5, § 4684-B(2)(D)). In fact, however, the

Attorney General has interpreted the Noise Provision not to apply

when a building providing health services is closed, or when there

are no patients inside, and we have no reason not to accept that

perfectly sensible representation about how the disruptive-intent

requirement operates. See Forsyth Cty., Ga. v. Nationalist

Movement, 505 U.S. 123, 131 (1992); Ward, 491 U.S. at 795-96; Nat'l

Org. for Marriage v. McKee, 649 F.3d 34, 66 (1st Cir. 2011).

March contends, next, that the Noise Provision is not

narrowly tailored because it applies to public fora including

streets and sidewalks. But, without more, this fact hardly shows

that this provision is not narrowly tailored. After all, we

evaluate whether this restriction is narrowly tailored in part

because it applies to speech in traditional public fora.

Finally, March posits that the statute is "extremely

broad in manner" because it "has no decibel level requirements or
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even shouting requirements, allowing enforcement

against . . . lone, unamplified voices." March suggests that by

requiring only that noise be loud enough to be heard within a

building, the Noise Provision "allows abortion providers to claim

violations where none exist."

To be subject to the Noise Provision, however, a "lone,

unamplified voice[]" must still be loud enough to be heard within

a building and must speak with the requisite disruptive intent.

Thus, the requirements laid out on the face of the Noise Provision

do not indicate that the measure would apply to speech expressed

at a normal, conversational tone -- or even at a louder

volume -- absent the speaker's intent to disrupt the provision or

receipt of medical services.

March appears to be contending in part that this

disruptive-intent requirement does not meaningfully narrow the

measure's scope in light of his apparent belief that the messages

he wishes to propound will necessarily establish the requisite

intent. But, for reasons we have explained, the face of the

measure provides no support for this understanding of its

application, and we need not consider "[p]articular hypothetical

applications of the [challenged] ordinance" which "may present

somewhat different questions" than the question whether the

ordinance is constitutional on its face. Frisby, 487 U.S. at 488.

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 March does allege several examples where enforcement of

the Noise Provision seems to have been inconsistent with the face

of the provision, both in terms of uneven application to different

speakers and in terms of the permissible volume of regulated

speech. It is not entirely clear whether March means for these

points to constitute the basis for a facial challenge rather than

an as-applied one, and the record contains conflicting evidence.

But, in any event, we have no basis for concluding that

inconsistent enforcement of the type that March alleges has

occurred outside the Planned Parenthood Health Center in Portland

is mandated by the measure. Moreover, March's allegations about

how the measure may have been enforced in ways that the terms of

the measure do not require at a lone clinic in a single city do

not suffice to render the state statute too sweeping on its face.

See United States v. Stevens, 559 U.S. 460, 473 (2010) (noting

that courts will not find a speech restriction facially overbroad

under the First Amendment unless "a substantial number of its

applications are unconstitutional, judged in relation to the

statute's plainly legitimate sweep").15

15
In addressing whether the Noise Provision satisfies strict
scrutiny, March relies on R.A.V., 505 U.S. at 395, to contend that
the measure is not the least restrictive means necessary to achieve
the state's interest because the measure could have relied on a
"content neutral alternative" to the intent requirement, such as
limiting the volume or duration of noise, which he contends would
have had "the same beneficial effect." March does not raise a

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 C.

We turn, then, to the final aspect of the inquiry:

whether the Noise Provision, at least on its face, "leave[s] open

ample alternative channels for communication." Ward, 491 U.S. at

791 (quoting Clark, 468 U.S. at 293). We conclude that it does.

The Supreme Court held that the disruptive noise

restriction in Grayned left open ample alternative channels of

communication because permitted means of expression, like

"picketing and handbilling[,] . . . can effectively publicize

grievances" to both those within a building and passersby. 408

U.S. at 119; see also Frisby, 487 U.S. at 484 (explaining that the

prohibition on targeted picketing "preserves ample alternative

channels of communication" because protesters may still "enter

similar argument with regard to whether the Noise Provision
satisfies intermediate scrutiny, which does not require that the
restriction be the least restrictive possible means to achieve the
state's interest. See Cutting, 802 F.3d at 86. Thus, it is not
clear that March means to make this argument in connection with
his contention that the measure fails even the less-demanding
scrutiny that applies to content-neutral measures. But, insofar
as this argument is properly before us, we note that, for the
reasons we have explained, the disruptive-intent requirement is
not content based. And thus this measure does not on its face
privilege a content-based means over a content-neutral one. Nor,
given the state's interest in reducing the unique harm caused by
noise that is targeted directly at patients, is Maine lacking a
content-neutral reason for concluding that a limit on decibel level
or duration would not serve its asserted interest just as well as
would this measure. Rather, such a decibel or durational limit
would, instead, restrict more speech than Maine claims to have any
comparable need to restrict. And Maine can hardly be faulted under
the First Amendment for regulating in such a tailored fashion.
- 48 -
[residential] neighborhoods, alone or in groups, even marching[,]"

"go door-to-door to proselytize their views" or "distribute

literature," "distribute literature . . . through the mails," and

"contact residents by telephone"). Maine emphasizes that the Noise

Provision similarly permits speakers to "congregate in the

vicinity of clinics, hand out literature, display signs, attempt

to engage in conversation with persons entering or passing by the

clinic, and orally express their views loudly enough to be heard

in the immediate vicinity."

March responds that, in fact, the measure does not leave

open alternative channels of communication because it prohibits

him from "rais[ing] his voice to be heard even by those close to

him over the volume of the traffic," and thus "effectively

eliminates [his] ability to counsel . . . women on a public

sidewalk." But the face of the Noise Provision simply does not

show that it restricts speech in the manner that March contends.

And, as we have explained, March misapprehends the nature of a

facial challenge to the extent that his argument relies on

allegations about how the statute has been applied (or, perhaps,

how it has been misapplied) in certain specific instances. We

thus see no basis for accepting the only contention that he makes

for concluding that the measure does not permit ample alternative

channels of communication.

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 March therefore has not shown that the measure, on its

face, fails this aspect of intermediate scrutiny. And, in light

of our conclusions regarding the preceding aspects of our analysis

under this form of review, the Noise Provision survives

intermediate scrutiny.

IV.

The Noise Provision was the product of a careful

legislative process. That process sought to forge a consensus

among many competing interests in order to address what all parties

to this dispute agree is a serious concern regarding the health

and safety of those seeking health services. The result is a

facially content-neutral measure that targets noise for reasons

that have nothing to do with the content of any topic discussed,

idea propounded, or message conveyed. Moreover, by its terms, the

measure serves that significant state interest without burdening

substantially more speech than necessary and while leaving open

ample alternative avenues for communication. Accordingly, March

has not shown that he has a likelihood of success on the merits of

his facial constitutional challenge to the Noise Provision. The

judgment of the District Court is therefore reversed.

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