Summary
The Tenth Circuit upheld a Norman, Oklahoma disturbing-the-peace ordinance prohibiting "loud or unusual sounds" against facial and as-applied First Amendment challenges by anti-abortion sidewalk demonstrators. The court held the noise subsection was content-neutral, narrowly tailored to serve the significant government interest in noise control, and not unconstitutionally vague or overbroad, and that the demonstrators lacked standing to challenge other subsections of the ordinance. The court also rejected the demonstrators' free exercise claim (finding the ordinance neutral and generally applicable) and their failure-to-train claim (finding no underlying constitutional violation).
Topics
Practice areas
Questions Presented
- Whether the district court erred in granting summary judgment on the as-applied Free Speech Clause claim?
- Whether the district court erred in granting summary judgment on the as-applied Free Exercise Clause claim?
- Whether the district court erred in granting summary judgment on the failure-to-train claim?
- Whether the district court erred in holding that the demonstrators lack standing to facially challenge subsections (1), (2), (4), and (5) of the ordinance?
- Whether the district court erred in rejecting the facial vagueness and overbreadth challenges to subsection (3) of the ordinance?
Holdings
- Section 15-503(3) is constitutional as applied to the demonstrators under the Free Speech Clause because it is content-neutral, narrowly tailored to serve significant government interests, and leaves open ample alternative channels for communication.
- The Free Exercise Clause claim fails because the ordinance is neutral and generally applicable, and survives rational-basis review.
- The failure-to-train claim fails because there was no underlying constitutional violation by any officer, and the demonstrators failed to show deliberate indifference.
- The demonstrators lack standing to facially challenge subsections (1), (2), (4), and (5) because they have not shown a credible threat of enforcement of those subsections.
- Section 15-503(3) is not unconstitutionally vague or overbroad.
Key quotations
“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.” (at 16)
“To succeed on First Amendment as-applied challenges premised on viewpoint discrimination, plaintiffs 'must show that [they were] prevented from speaking while someone espousing another viewpoint was permitted to do so.'” (at 14)
“We hold that § 15-503(3) is constitutional under the Free Speech Clause as applied to the demonstrators.” (at 23)
“Though the words 'loud or unusual' are abstract, they have acquired sufficient meaning to put citizens of ordinary intelligence on notice.” (at 33)
Factual background
The demonstrators are members of a sidewalk ministry who have proselytized on a sidewalk about thirty feet from the Abortion Surgery Center in Norman, Oklahoma for years. They engage in unsolicited preaching, display signs with Bible verses and images of a baby in the womb, and distribute literature. They often amplify their voices using a plastic cone or their hands. Norman police officers have issued at least three citations under the disturbing-the-peace ordinance, § 15-503, one of which was to Harmon for using a public-address system. The demonstrators claim the ordinance is unconstitutional both facially and as applied.
Procedural history
The demonstrators filed a three-count complaint under 42 U.S.C. § 1983, asserting as-applied and facial challenges to Norman's disturbing-the-peace ordinance under the Free Speech Clause, Free Exercise Clause, and Due Process Clause, and a failure-to-train claim. The district court denied a preliminary injunction, which was affirmed on appeal. After discovery, the district court granted summary judgment for the City on the as-applied challenges and failure-to-train claim, and after a bench trial, rejected the facial challenges. The demonstrators appealed.