Harmon v. City of Norman, Oklahoma

FILED
United States Court of Appeals
Tenth Circuit

PUBLISH December 7, 2020

Christopher M. Wolpert
UNITED STATES COURT OF APPEALS Clerk of Court
FOR THE TENTH CIRCUIT
_________________________________

TOBY HARMON; SHANE DODSON;
TAMMI DODSON,

Plaintiffs - Appellants,

v. No. 18-6187

CITY OF NORMAN, OKLAHOMA; JEFF
ROBERTSON, in his individual capacity
acting as a police officer for the City of
Norman, Oklahoma; DOES 1-5,

Defendants - Appellees.
_________________________________

Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. 5:18-CV-00688-HE)
_________________________________

David Markese, Chuluota, Florida (Frederick H. Nelson, American Liberties Institute,
Orlando, Florida, on the brief), for Plaintiffs – Appellants.

Rickey J. Knighton II (Kristina L. Bell, with him on the brief), Assistant City Attorneys,
Norman, Oklahoma, for Defendants – Appellees.
_________________________________

Before LUCERO, EBEL, and HARTZ, Circuit Judges.
_________________________________

EBEL, Circuit Judge.
_________________________________
 In this 42 U.S.C. § 1983 action, Plaintiffs—three individuals who protest

against abortion—challenge Norman, Oklahoma’s disturbing-the-peace ordinance, on

its face and as the City has applied it to them. The specific issue presented in this

interlocutory appeal is whether the district court abused its discretion in refusing to

enjoin the City from enforcing the ordinance against Plaintiffs during this litigation.

Having jurisdiction under 28 U.S.C. § 1292(a)(1), we conclude that the district court

did not abuse its discretion in denying Plaintiffs’ request for a preliminary injunction

because they failed to show that they are substantially likely to succeed on the merits

of their claims. We, therefore, AFFIRM.

I. BACKGROUND1

The City’s disturbing-the-peace ordinance, § 15-503, provides:

No person shall disturb the peace of another by:

(1) Violent, obstreperous, or improper conduct or carriage
which in its common acceptance is calculated, or where the
natural consequence is to cause an assault, battery or other
breach of the peace;

(2) Unseemly, obscene, offensive, insulting or abusive
language which in its common acceptance is calculated, or
where the natural consequence is, to cause an assault, battery,
or other breach of the peace;

(3) Playing or creating loud or unusual sounds;

1
The evidence before the district court when it ruled on Plaintiffs’ motion for a
preliminary injunction included the factual allegations in Plaintiffs’ verified
complaint, three municipal citations the City issued Plaintiff Toby Harmon and one
issued to another person, Harmon’s Facebook message to an assistant city attorney,
and several videos of Plaintiffs’ protests.
2
 (4) Circulating literature which casts ridicule upon any deity or
religion, which in its common acceptance is calculated to cause
an assault, battery, or other breach of the peace;

(5) Displaying any sign, emblem, badge, flag or other device,
which in its common acceptance is calculated, or where the
natural consequence is, to cause an assault, battery, or other
breach of the peace.

(Aplt. App. 81.)

“The plaintiffs are individuals who, on religious and other grounds, are

opposed to abortion.” (Id. 103.) “For many years, Plaintiffs and their associates

have attempted to share [their] message with signs, tracts and speaking to the general

public in the Public Spaces of the City.” (Id. 12 ¶ 49.) This includes “protest[ing]

outside a Norman facility where a doctor performs abortions.” (Id. 104.) During

these protests, “Plaintiffs have occupied positions on public streets or sidewalks a

relatively short distance (what appears to be 20-25 yards) from the entrances to the

facility. From those vantage points, they verbally engage with persons entering the

clinic, trying to persuade them to reject abortions.” (Id.)

“Norman [police] officers have cited plaintiffs, or threatened to cite plaintiffs,

for violation of the [City’s disturbing-the-peace] ordinance when their protests were

conveyed by loud speaker or other means of amplification which made their shouted

comments audible inside the clinic.” (Id.) The citation a Norman police officer

issued Harmon in March 2016, for example, charged that Harmon was “using a PA

system and disrupting the business.” (Id. 83.) The City eventually dismissed that

citation “in the interest of justice.” (Id. 85.) In October 2016, Defendant Robertson,

3
a Norman police officer, threatened to cite Harmon if he used a “plastic hand-held

cone” outside the clinic to amplify his voice. (Id. 13 ¶ 61.)

There is also evidence that the City has cited people for disturbing the peace

under this ordinance based on loud yelling or screaming. For instance, in 2017,

officers cited an individual (Katherine Robinson) who was outside the clinic for

disturbing the peace when her screaming and yelling was heard inside the clinic. The

City did not prosecute this citation, either. “There is also evidence that, on one

occasion, officers cited plaintiff Harmon for violation of the ordinance based on him

yelling at a person leaving the clinic and following them onto adjacent property.”

(Id. 104.)

Plaintiffs plan to continue their protests, but fear that, in doing so, they will be

cited or arrested, and fined under the ordinance for disturbing the peace. Plaintiffs,

therefore, initiated this litigation under 42 U.S.C. § 1983 against the City and one of

its police officers, Jeff Robertson, as well as other unidentified John Doe officers,

alleging Norman’s disturbing-the-peace ordinance, on its face and as applied to

Plaintiffs, violates their First Amendment rights to free speech and free exercise of

religion, as well as their Fourteenth Amendment right to due process. As relief,

Plaintiffs seek declaratory and injunctive relief, and damages.

Soon after filing this lawsuit, Plaintiffs moved for a preliminary injunction,

asking the district court to enjoin the City from enforcing its disturbing-the-peace

ordinance against them during the course of this litigation. After conducting a

hearing, the district court denied that request, ruling Plaintiffs had failed to establish

4
a substantial likelihood that they would prevail on the merits of their claims.

Plaintiffs challenge that decision in this interlocutory appeal. See 28 U.S.C.

§ 1292(a)(1) (giving courts of appeal jurisdiction over interlocutory appeals from

district court orders denying an injunction).

II. STANDARD OF REVIEW

We review the district court’s decision to deny Plaintiffs a preliminary

injunction for an abuse of discretion. See Mrs. Field’s Franchising, LLC v. MFGPC,

941 F.3d 1221, 1232 (10th Cir. 2019).

“A district court’s decision crosses the abuse-of-discretion line if it rests on
an erroneous legal conclusion or lacks a rational basis in the record. As we
review a district court’s decision to grant or deny a preliminary injunction,
we thus examine the court’s factual findings for clear error and its legal
conclusions de novo.”

Id. at 1232–33 (quoting Free the Nipple-Fort Collins v. City of Fort Collins, 916 F.3d

792, 796-97 (10th Cir. 2019)).

A preliminary injunction is “an extraordinary remedy never awarded as of

right,” Benisek v. Lamone, 138 S. Ct. 1942, 1943 (2018) (quoting Winter v. Nat. Res.

Def. Council, Inc., 555 U.S. 7, 24 (2008)); it is “the exception rather than the rule,”

United States ex rel. Citizen Band Potawatomi Indian Tribe v. Enter. Mgmt.

Consultants, Inc., 883 F.2d 886, 888 (10th Cir. 1989). In order to obtain a

preliminary injunction, Plaintiffs must show that (1) they are substantially likely to

succeed on the merits of their claims, (2) they will suffer irreparable harm if the

injunction is denied, (3) their threatened injury without the injunction outweighs any

5
harm to the party opposing the injunction, and (4) the injunction, if issued, is not

adverse to the public interest. See Mrs. Fields Franchising, 941 F.3d at 1232.

Addressing only the first requirement, the district court denied Plaintiffs a

preliminary injunction, concluding they had not established a substantial likelihood

that they will prevail on the merits of their claims. See generally Verlo v. Martinez,

820 F.3d 1113, 1126 (10th Cir. 2016) (noting that, “[i]n the First Amendment context,

‘the likelihood of success on the merits will often be the determinative factor’ because of

the seminal importance of the interests at stake” (quoting Hobby Lobby Stores, Inc. v.

Sebelius, 723 F.3d 1114, 1145 (10th Cir. 2013) (en banc), aff’d, 573 U.S. 682 (2014))).

This is the issue we consider on appeal. In order to show a substantial likelihood of

success on the merits, Plaintiffs had “to make a prima facie case showing a reasonable

probability that [they] will ultimately be entitled to the relief sought.” Automated Mktg.

Sys., Inc. v. Martin, 467 F.2d 1181, 1183 (10th Cir. 1972).

III. DISCUSSION

A. Plaintiffs’ as-applied First Amendment claim

Plaintiffs’ primary claim is that Defendants violated the First Amendment by

applying § 15-503(3)—prohibiting “disturb[ing] the peace of another by . . . [p]laying

or creating loud or unusual sounds”—to them.2 In considering Plaintiffs’ motion for a

preliminary injunction, the district court reasonably addressed this as-applied claim

2
Plaintiffs assert Defendants violated Plaintiffs’ rights to both free speech and free
exercise of religion, but they do not make separate arguments in support of those
asserted First Amendment violations. We, therefore, address them together as well.
6
first. See Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 484-85 (1989)

(indicating it is usually better to address an as-applied challenge before a facial

overbreadth argument).

1. Parties’ burdens in response to Plaintiffs’ motion for a preliminary
injunction

As an initial matter, we address the parties’ burdens pertaining to this

as-applied First Amendment challenge to a time, place and manner restriction. While

it is Plaintiffs’ burden, as the movants, to make a showing sufficient to justify a

preliminary injunction, “the burdens at the preliminary injunction stage track the

burdens at trial.” Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546

U.S. 418, 429 (2006) (citing Ashcroft v. Am. Civ. Liberties Union, 542 U.S. 656,

665-66 (2004)). Here, then, Plaintiffs had the initial burden of showing that the First

Amendment applies to their conduct. See Clark v. Cmty. for Creative Non-Violence,

468 U.S. 288, 294 n.5 (1984); see also Rodney A. Smolla, 1 Smolla & Nimmer on

Free Speech § 8:49 (updated Oct. 2020). The City concedes that it does.

The burden then shifted to the City, as the proponent of the challenged

regulation, to establish the validity of applying § 15-503(3) to Plaintiffs. See

Gonzales, 546 U.S. at 429-30 (discussing Ashcroft, 542 U.S. at 665-66); see also

Evans v. Sandy City, 944 F.3d 847, 851-52, 854, 856 (10th Cir. 2019) (stating City

had burden to justify content-neutral time, place and manner restriction), cert. denied,

2020 WL 5882223 (U.S. Oct. 5, 2020); iMatter Utah v. Njord, 774 F.3d 1258, 1263

(10th Cir. 2014) (same, addressing as-applied challenge); 1 Smolla & Nimmer on

7
Free Speech § 8:49. Thus, in the context of a motion for a preliminary injunction,

when, in response to that motion, the proponent of a challenged ordinance fails to

make a sufficient showing that its regulation is constitutional, the movants will have

shown a substantial likelihood that they will prevail on the merits of their claim

challenging the validity of that regulation. See Pac. Frontier v. Pleasant Grove City,

414 F.3d 1221, 1231 (10th Cir. 2005).

2. The City has sufficiently shown that its application of § 15-503(3) to
Plaintiffs did not violate the First Amendment

The district court began its analysis of the likelihood that Plaintiffs will prevail on

their as-applied challenge to § 15-503(3) by acknowledging the City’s concessions both

that Plaintiffs’ activities at issue here are protected by the First Amendment and that

the public roadway and sidewalk in front of the clinic where Plaintiffs protested are

traditional public forums. See Minn. Voters All. v. Mansky, 138 S. Ct. 1876, 1885

(2018) (recognizing “parks, streets, sidewalks, and the like” are traditional public

forums). “[E]ven in a public forum,” however,

the government may impose reasonable restrictions on the time, place, or
manner of protected speech, provided the restrictions “are justified without
reference to the content of the regulated speech, that they are narrowly
tailored to serve a significant governmental interest, and that they leave open
ample alternative channels for communication of the information.”

Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark, 468 U.S. at 293).

a. Section 15-503(3) is content-neutral

Applying Ward, the district court accurately deemed § 15-503(3) to be

content-neutral. Whether a legislative enactment is content-neutral or instead

8
content-based turns on “the government’s purpose.” Ward, 491 U.S. at 791. “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.” Id.

Section 15-503(3)’s language is clearly content-neutral, prohibiting disturbing

another’s peace by making “loud or unusual sounds,” without reference to the content

of the noise. See Reed v. Town of Gilbert, 576 U.S. 155, 163-64 (2015) (looking to

language of challenged code provision to determine whether it was content neutral);

see also McCullen v. Coakley, 573 U.S. 464, 479 (2014) (noting statute at issue in that

case “does not draw content-based distinctions on its face”).

A neutrally written ordinance like § 15-503 might still be deemed

content-based if the City cannot justify it without referencing the content of the

speech involved, or if the City adopted the challenged ordinance because the City

disagreed with a message being conveyed. See Reed, 576 U.S. at 164 (citing Ward,

491 U.S. at 791). But there is no suggestion either is the case here. As the district

court noted, “there is nothing in the parties’ . . . submissions which suggests the City

is enforcing the ordinance against plaintiffs based on their particular religious or

other beliefs.” (Aplt. App. 106.)

The Supreme Court has indicated that a legislative enactment also “would not

be content neutral if it were concerned with undesirable effects that arise from ‘the direct

impact of speech on its audience’ or ‘[l]isteners’ reactions to speech.’” McCullen, 573

U.S. at 481 (quoting Boos v. Barry, 485 U.S. 312, 321 (1988)). For the first time on

9
appeal, Plaintiffs rely on McCullen to contend that § 15-503(3) is not content-neutral

because it addresses loud sounds that disturb the peace of another. Although we need

not consider this new argument, see Coal. of Concerned Citizens To Make Art Smart

v. Fed. Transit Admin., 843 F.3d 886, 903-04 (10th Cir. 2016), it does not, in any

event, further Plaintiffs’ request for an injunction. The language of § 15-503(3)

addresses the impact Plaintiffs’ protests have on listeners because of the volume of

the speech, not its content. To the contrary, although Plaintiffs assert that they have

protested at the abortion clinic for years, City officials have applied, or threatened to

apply, § 15-503(3) to Plaintiffs’ protests only when those protests involved

amplification of their voices or loud yelling and screaming.

b. The City has shown § 15-503(3) is narrowly tailored to serve a
significant government interest, leaving open ample alternative
channels of communication

Section 15-503(3), then, is a content-neutral time, place, and manner

regulation that will be valid under the First Amendment if it is “narrowly tailored to

serve a significant governmental interest, and . . . leave[s] open ample alternative

channels for communication of the information” at issue. Ward, 491 U.S. at 791 (quoting

Clark, 468 U.S. at 293). The Supreme Court has recognized that the City’s interest

here—“protecting its citizens from unwelcome noise”—is a legitimate and

“substantial interest.” Id. at 796 (quoting Members of City Council of City of L.A. v

Taxpayers for Vincent, 466 U.S. 789, 806 (1984)). While “[t]his interest is perhaps at

its greatest when government seeks to protect ‘the well-being, tranquility, and privacy of

the home,’ . . . the government may act to protect even such traditional public forums as

10
city streets and parks from excessive noise.” Id. (quoting Frisby v. Schultz, 487 U.S.

474, 484 (1988)). “If overamplified loudspeakers assault the citizenry, government may

turn them down.” Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 773 (1994)

(quoting Grayned v. City of Rockford, 408 U.S. 104, 116 (1972)). The district court

further noted that the City’s “interest is particularly significant where the noise is directed

to or impacts a medical facility.” (Aplt. App. 107.)

The district court went on to determine, accurately, that the City has narrowly

tailored § 15-503(3) to serve the City’s interest in protecting its citizens from

unwelcome noise. The narrow-tailoring requirement is met here, under intermediate

scrutiny, “so long as the . . . regulation promotes a substantial government interest that

would be achieved less effectively absent the regulation.” Ward, 491 U.S. at 799

(quoting United States v. Albertini, 472 U.S. 675, 689 (1985)). That is the case here.

The City would be less effective in protecting its citizens from unwanted noise without

§ 15-503(3)’s prohibition against “loud and unusual sounds” that “disturb the peace of

another.” See Costello v. City of Burlington, 632 F.3d 41, 44-46 (2d Cir. 2011)

(holding municipal code provision prohibiting “loud or unreasonable” noise, defined in

part as noise that “disturbs . . . the peace . . . of another,” was narrowly tailored to serve

the city’s “substantial interest in protecting its citizens from unwelcome noise,” quoting

Ward, 491 U.S. at 796).

Finally, § 15-503(3) leaves open ample alternative channels for Plaintiffs to

communicate their message. Plaintiffs can continue to express their beliefs and still

comply with § 15-503(3), so long as they reduce the volume by which they express

11
those views. See Ward, 491 U.S. at 802; see also Costello, 632 F.3d at 46-47 (2d

Cir.). The fact that the City’s “limitations on volume may reduce to some degree the

potential audience for [Plaintiffs’] speech is of no consequence, for there has been no

showing that the remaining avenues of communication are inadequate.” Ward, 491 U.S.

at 802.

Because the City has shown that § 15-503(3), as the City applied it to Plaintiffs, is

a reasonable time, place, and manner restriction on protected speech, the district court did

not abuse its discretion in determining that Plaintiffs failed to establish a substantial

likelihood that they will prevail on the merits of their as-applied First Amendment

challenge to § 15-503(3). Plaintiffs’ arguments on appeal challenging the district

court’s analysis are unavailing. Most of those arguments derive from Plaintiffs’

unpersuasive attempt to describe the City’s asserted interest to be only that of

keeping people inside the abortion clinic from hearing any audible sound whatsoever.

This contention is based in part of Plaintiffs’ incorrect assertion that there is no

evidence that anyone inside the abortion clinic ever heard Harmon’s amplified

protests. But there is such evidence. The citation the City issued Harmon in March

2016 charged that his use of a “PA system . . . disrupt[ed] the [clinic’s] business.”

(Aplt. App. 83.) Further, Harmon himself indicated in a message to an assistant city

attorney that people informed Harmon that they had heard his amplified voice inside the

clinic. In addition, in August 2017, the City cited Katherine Robinson when people

inside the clinic heard her yelling and screaming outside the building.

12
 Nor is there any suggestion on the limited record before the district court that

the noise complaints from those inside the clinic were because of the content of

Plaintiffs’ message instead of the volume of those protests. Plaintiffs asserted that

they have protested outside the clinic for many years and yet the City has cited

Harmon only once under § 15-503(3), when he was amplifying his protests, and

threatened to cite him on one other occasion when he intended to amplify his voice.

We conclude, then, that the district court did not abuse its discretion in

refusing to enjoin preliminarily the City’s application of § 15-503(3) against

Plaintiffs because they failed to establish a substantial likelihood that they would

prevail on the merits of their as-applied challenge to that section of the ordinance.

B. Plaintiffs’ facial challenges

Although Plaintiffs’ as-applied challenge to the application of § 15-503(3) to

their protests was their primary claim, the district court also denied Plaintiffs a

preliminary injunction based on their facial challenges to § 15-503 as a whole. Those

facial challenges were wide-ranging, conclusory, and unfocused. In light of that, and

because “when considering a facial challenge it is necessary to proceed with caution and

restraint,” Erznoznik v. City of Jacksonville, 422 U.S. 205, 216 (1975), the district court

did not abuse its discretion in denying a preliminary injunction on Plaintiffs’ facial

challenges because the merits of those claims were not yet adequately teed up for the

court’s resolution. The district court specifically ruled:

On the present record, the court . . . concludes that plaintiffs’ facial
challenge to the ordinance does not warrant enjoining its enforcement.
Plaintiffs identified several potentially vague or overbroad phrases in the

13
 ordinance but, based on the evidence and limited briefing offered to date,
the court cannot conclude that the ordinance will necessarily lead to
arbitrary enforcement or would prohibit a substantial amount of protected
speech. Various issues, including how pertinent language may have been
construed or narrowed under Oklahoma law, must be addressed before a
determination of facial unconstitutionality is warranted. Without such
information, it is premature to conclude that the ordinance is overbroad or
vague, given Tenth Circuit precedent, albeit somewhat dated, upholding
similar ordinances. See Oney v. Okla. City, 120 F.2d 861, 865 (10th Cir.
1941). The questions of overbreadth and vagueness remains for
resolution, but injunctive relief on those grounds is not warranted now.

(Aplt. App. 108.) The district court’s ruling was not an abuse its discretion.

As an initial matter, although Plaintiffs can challenge the ordinance on its face,

their request for a preliminary injunction enjoining the City from enforcing the

ordinance against Plaintiffs on this basis is weakened by the fact that, on the existing

record, the City has not applied, or threatened to apply, any provision of the

ordinance except § 15-503(3) to Plaintiffs. Because “[t]he primary function of a

preliminary injunction is to preserve the status quo pending a final determination of the

rights of the parties,” Resolution Tr. Corp. v. Cruce, 972 F.2d 1195, 1198 (10th Cir.

1992) (internal quotation marks omitted), Plaintiffs have not shown a need preliminarily

to enjoin the City from enforcing the rest of § 15-503’s provisions against Plaintiffs.

Even so, the district court considered whether Plaintiffs’ facial challenges to

the entire ordinance supported a preliminary injunction. The court did not abuse its

discretion in determining that Plaintiffs had failed to establish a substantial likelihood

they would prevail on the merits of their facial challenges to the ordinance as a

14
whole. Plaintiffs’ primary facial arguments before the district court were that

§ 15-503 was impermissibly vague and overbroad.3

1. Vagueness

Plaintiffs contend that § 15-503 on its face is unconstitutionally vague,

challenging undefined terms included in each of the ordinance’s five provisions.

It is a basic principle of due process that an enactment is void for vagueness
if its prohibitions are not clearly defined. Vague laws offend several
important values. First, because we assume that man is free to steer between
lawful and unlawful conduct, we insist that laws give the person of ordinary
intelligence a reasonable opportunity to know what is prohibited, so that he
may act accordingly. Vague laws may trap the innocent by not providing fair
warning. Second, if arbitrary and discriminatory enforcement is to be
prevented, laws must provide explicit standards for those who apply them. A
vague law impermissibly delegates basic policy matters to policemen,
judges, and juries for resolution on an ad hoc and subjective basis, with the
attendant dangers of arbitrary and discriminatory application. Third, but
related, where a vague statute “abut(s) upon sensitive areas of basic First
Amendment freedoms,” it “operates to inhibit the exercise of (those)
freedoms.” Uncertain meanings inevitably lead citizens to “steer far wider of
the unlawful zone . . . than if the boundaries of the forbidden areas were
clearly marked.”

3
Plaintiffs also may have asserted in the district court a third theory of facial
invalidity, that § 15-503, on its face and as a whole, is an unconstitutional time, place
and manner restriction that violates the First Amendment. They seem to make that
argument more clearly on appeal. Because Plaintiffs, if they did assert this theory in
the district court, did so in a jumbled manner, interspersing it throughout their
arguments addressing their other facial and as-applied theories, the district court did
not abuse its discretion in denying a preliminary injunction on that additional theory
of § 15-503’s facial invalidity. Relatedly, Plaintiffs argue on appeal that the district
court failed to address their facial Fourteenth Amendment due process arguments.
But in the section of their complaint addressing their Fourteenth Amendment claims,
Plaintiffs only asserted very generally that § 15-503 is impermissibly vague and
overbroad, thus infringing Plaintiffs’ First Amendment rights. The district court
adequately considered those Fourteenth/First Amendment claims.

15
Grayned, 408 U.S. at 108–09 (footnotes, internal quotation mark omitted) (quoting

Cramp v. Bd. of Pub. Instruction, 368 U.S. 278, 287 (1961), and Baggett v. Bullitt, 377

U.S. 360, 372 (1964)). Contrary to Plaintiffs’ assertion, it is their burden to establish that

the ordinance is unconstitutionally vague. See, e.g., Roy v. City of Monroe, 950 F.3d

245, 251-52 (5th Cir. 2020); Indep. Inst. v. Buescher, No. 10-cv-00609-PAB-MEH, 2010

WL 3239230, at *9 (D. Colo. Aug. 13, 2010) (unreported); cf. Dias v. City & Cty. of

Denver, 567 F.3d 1169, 1180 (10th Cir. 2009) (stating that a plaintiff seeking

pre-enforcement review of a regulation’s vagueness has the burden of proof in a

Fourteenth Amendment challenge for vagueness).

In considering whether an ordinance is vague, a court of course starts with the

ordinance’s language. See Grayned, 408 U.S. at 110. But a court must also consider

any narrowing construction courts have given the challenged regulation, as well as

“the interpretations the court below has given to analogous statutes, and, perhaps to some

degree, to the interpretation of the statute given by those charged with enforcing it.” Id.

(footnote omitted). Most relevant to the disturbing-the-peace ordinance at issue here,

the Supreme Court has recognized that if courts narrowly construe similarly worded

regulations to limit their application to unprotected speech, such as “fighting

words”—words “which by their very utterance inflict injury or tend to incite an

immediate breach of the peace,” Chaplinsky v. New Hampshire, 315 U.S. 568, 572

(1942)—those statutes will avoid constitutional vagueness problems. See Gooding v.

Wilson, 405 U.S. 518, 523-28 (1972); see also Plummer v. City of Columbus, 414

U.S. 2, 2-3 (1973) (per curiam). In addition, consideration may be given to

16
interpretation or application of the statute in question by those charged with

enforcing it. See Grayned, 408 U.S. at 110. This is why the district court, in a proper

exercise of its discretion, was reticent preliminarily to enjoin the enforcement of

other parts of § 15-503 for which there was no evidence nor any allegation of any

previous enforcement or threatened enforcement against these Plaintiffs and when the

parties had not addressed any possible narrowing construction given to the

ordinance’s language. In fact, there is no allegation or evidence in this record of the

enforcement or threatened enforcement of these other sections of § 15-503 against

anyone attempting to exercise their First Amendment rights. See generally

Erznoznik, 422 U.S. at 216 (noting that, “when considering a facial challenge it is

necessary to proceed with caution and restraint, as invalidation may result in unnecessary

interference with a state regulatory program. In accommodating these competing

interests the Court has held that a state statute should not be deemed facially invalid

unless it is not readily subject to a narrowing construction by the state courts . . . and its

deterrent effect on legitimate expression is both real and substantial”).

Furthermore, as the district court noted, the Tenth Circuit has previously

upheld a somewhat similarly drafted ordinance in Oney. See 120 F.2d at 862 n.5,

865. The Oklahoma City ordinance at issue in Oney is not a perfect match to

Norman’s § 15-503. Nor did the district court here rule that Oney was dispositive of

Plaintiffs’ facial challenge to § 15-503’s language as unconstitutionally vague. But

the district court did not abuse its discretion in ruling only that this Court’s decision

17
in Oney further diminished the likelihood that Plaintiffs’ facial challenges to

§ 15-503 would succeed.

2. Overbreadth

Plaintiffs also contend that § 15-503 on its face is overbroad.

A clear and precise enactment may nevertheless be “overbroad” if in its reach
it prohibits constitutionally protected conduct. . . . Because overbroad laws,
like vague ones, deter privileged activity, [the Supreme Court’s] cases firmly
establish appellant’s standing to raise an overbreadth challenge. The crucial
question, then, is whether the ordinance sweeps within its prohibitions what
may not be punished under the First and Fourteenth Amendments.

Grayned, 408 U.S. at 114–15 (footnotes omitted); see also Fox, 492 U.S. at 484 (stating

that the overbreadth doctrine “enable[s] persons who are themselves unharmed by the

defect in a statute nevertheless ‘to challenge that statute on the ground that it may

conceivably be applied unconstitutionally to others, in other situations not before the

Court’” (quoting Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973))).

However, where, as here, the challenged ordinance addresses “conduct and not

merely speech,” “the overbreadth of a statute must not only be real, but substantial as

well, judged in relation to the statute’s plainly legitimate sweep.” Broadrick, 413 U.S. at

615; see also 1 Smolla & Nimmer on Freedom of Speech, § 6:5. Establishing substantial

overbreadth, then, “requires a comparison between the legitimate and illegitimate

applications of the law.” 1 Smolla & Nimmer on Freedom of Speech, § 6:6. To succeed

on their overbreadth challenge “[i]t is [Plaintiffs’] burden to show, ‘from the text of [the

[ordinance] and from actual fact,’ that substantial overbreadth exists.” United States v.

18
Brune, 767 F.3d 1009, 1020 (10th Cir. 2014) (quoting Virginia v. Hicks, 539 U.S. 113,

122 (2003) (internal quotation marks omitted)).

Plaintiffs have not met their burden; they did not specifically address, in any

substance, how the ordinance is overbroad. Nor did they attempt to compare, in fact,

§ 15-503’s permissible and impermissible applications. For these reasons, the district

court did not abuse its discretion in denying Plaintiffs a preliminary injunction, because

they failed to establish a substantial likelihood that they would prevail on the merits of

their facial overbreadth claim.

Moreover, like vagueness, a statute’s overbreadth can be cured by giving the

statutory language a limiting construction or it can be cured when “statutes regulating

conduct in the shadow of the First Amendment . . . do[] so in a neutral, noncensorial

manner.” Broadrick, 413 U.S. at 614; see also 1 Smolla & Nimmer on Freedom of

Speech, § 6:8. Again, the district court did not abuse its discretion in declining to enjoin

the City’s enforcement of § 15-503 against Plaintiffs until the parties addressed how

courts have construed § 15-503 or how the City has enforced it. The district court’s

decision wisely heeded the Supreme Court’s longstanding admonition “that

invalidation for [First Amendment] overbreadth is ‘strong medicine’ that is not to be

‘casually employed.’” United States v. Sineneng-Smith, 140 S. Ct. 1575, 1581 (2020)

(internal quotation marks omitted) (quoting United States v. Williams, 553 U.S. 285, 293

(2008)); see also Broadrick, 413 U.S. at 613 (noting that, because overbreadth is “strong

medicine” “[i]t has been employed by the Court sparingly and only as a last resort”).

This caution is particularly applicable in the context of a preliminary injunction. The

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district court, therefore, did not abuse its discretion when it ruled that “Plaintiffs

identified several potentially vague or overbroad phrases in the ordinance but, based

on the evidence and limited briefing offered to date, the court cannot conclude that

the ordinance will necessarily lead to arbitrary enforcement or would prohibit a

substantial amount of protected speech.” (Aplt. App. 108.)

IV. CONCLUSION

The district court did not abuse its discretion when it declined preliminarily to

enjoin the City’s enforcement of that ordinance preliminarily against Plaintiffs during

this litigation. We AFFIRM.

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