In the Supreme Court of the United States

NO. 17-689 In the Supreme Court of the United States ANDREW MARCH, v. Petitioner, JANET T. MILLS, Individually and in Her Official Capacity as Attorney General of Maine, et al., Respondents. On Petition for a Writ of Certiorari to the United States Court of Appeals for the First Circuit Brief of Pacific Justice Institute, Life Legal Defense Foundation, and the Thomas More Society as Amici Curiae Supporting Petitioner Catherine W. Short Life Legal Defense Foundation P.O. Box 2105 Napa, CA 94558 (707) 224-6675 LLDFOjai@cs.com Deborah J. Dewart Counsel of Record 620 E. Sabiston Drive Swansboro, NC 28584-9674 (910) 326-4554 debcpalaw@earthlink.net Thomas L. Brejcha Thomas More Society 19 S. LaSalle St., Suite 603 Chicago, IL 60603 (312) 782-1680 tbrejcha@thomasmoresociety.org Counsel for Amici Curiae Becker Gallagher Cincinnati, OH Washington, D.C. 800.890.5001

i TABLE OF CONTENTS TABLE OF AUTHORITIES... INTEREST OF AMICI... 1 INTRODUCTION AND SUMMARY OF THE ARGUMENT... 2 ARGUMENT... 4 I. THE TIME-PLACE-MANNER FRAMEWORK IS ABOUT WHEN, WHERE, AND HOW SPEECH OCCURS NOT WHAT IS SAID (CONTENT) OR WHY (INTENT).. 4 II. A. The Noise Provision punishes the speaker based on the speaker s motive (intent)... 6 B. The Noise Provision punishes the speaker based on the speaker s message (content).... 8 THE NOISE PROVISION AS UPHELD BY THE FIRST CIRCUIT INJECTS SUBJECTIVITY AT EVERY CRITICAL POINT IN THE ANALYSIS.... 11 A. The First Circuit erroneously relies on the subjective intent of the legislators.... 12 B. The Noise Provision lacks adequate objective criteria... 15 III. THE FIRST CIRCUIT RULING FACILITATES A BREATHTAKING EXPANSION OF PERMISSIBLE SPEECH RESTRICTIONS IN TRADITIONAL PUBLIC FORA.... 17 iii

ii A. The First Circuit ruling weakens First Amendment protection for speech on matters of public concern... 17 B. The First Circuit ruling extends the captive audience doctrine too far and impedes the speaker s ability to reach his intended audience.... 19 CONCLUSION... 20

iii TABLE OF AUTHORITIES CASES City of Cincinnati v. Discovery Network, 507 U.S. 410 (1993)... 13 City of LaDue v. Gilleo, 512 U.S. 43 (1994)... 17 Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288 (1984)... 5 Clatterbuck v. City of Charlottesville, 708 F.3d 549 (4th Cir. 2013)... 14 Cons. Edison Co. v. Public Serv. Comm n, 447 U.S. 530 (1980)... 5 Discovery Network. Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250 (11th Cir. 2005)... 13 Erznoznik v. Jacksonville, 422 U.S. 205 (1975)... 18 Frisby v. Schultz, 487 U.S. 474 (1988)... 19 Grayned v. City of Rockford, 408 U.S. 104 (1972)... 4, 15, 16 Hague v. CIO, 307 U.S. 496 (1939)... 18 Hill v. Colorado, 530 U.S. 703 (2000)... 4, 10, 18 Hoye v. City of Oakland, 653 F.3d 835 (9th Cir. 2011)... 10, 11

iv March v. Mills, 2016 U.S. Dist. LEXIS 67087 (D. Me. 2016)... 8, 10, 11, 16 March v. Mills, 867 F.3d 46 (1st Cir. 2017)... passim McCullen v. Coakley, 708 F.3d 1 (1st Cir. 2013), rev d, 134 S. Ct. 2518 (2014)... 17 McCullen v. Coakley, 134 S. Ct. 2518 (2014)... 5, 9, 10, 19 Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981)... 11, 12 Minneapolis Star & Tribune Co. v. Minnesota Comm r of Revenue, 460 U.S. 575 (1983)... 13 NLRB v. Baptist Hospital, Inc., 442 U.S. 773 (1979)... 6 Pine v. City of W. Palm Beach, 762 F.3d 1262 (11th Cir. 2014)... 6, 16 Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972)... 18 R.A.V. v. City of St. Paul, Minnesota, 505 U.S. 377 (1992)... 6, 11 Rankin v. McPherson, 483 U.S. 378 (1987)... 18 Reed v. Town of Gilbert, 707 F.3d 1057 (9th Cir. 2013)... 3, 12, 13, 14

v Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015)... passim Rosenberger v. Rector of the Univ. of Va., 515 U.S. 819 (1995)... 11 Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U.S. 105 (1991)... 13 Snyder v. Phelps, 562 U.S. 443 (2011)... passim Thayer v. City of Worcester, 755 F.3d 60 (1st Cir. 2014)... 14 Thayer v. City of Worcester, 135 S. Ct. 2887 (2015)... 14 Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994)... 10 Ward v. Rock Against Racism, 491 U.S. 781 (1992)... 3, 13, 14, 16 Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656 (2015)... 16 Wisconsin v. Mitchell, 508 U.S. 476 (1993)... 4 STATUTES 5 M.R.S. 4684-B(2)... 2, 5

1 INTEREST OF AMICI 1 Pacific Justice Institute, Life Legal Defense Foundation, and the Thomas More Society, as amici curiae, respectfully urge this Court to grant the Petition and reverse the First Circuit decision. The Pacific Justice Institute ( PJI ) is a non-profit legal organization established under Section 501(c)(3) of the Internal Revenue Code. Since its founding in 1997, PJI has advised and represented in court and administrative proceedings thousands of individuals, businesses, and religious institutions, particularly in the realm of First Amendment rights. Such includes those who, as a matter of conscience, hold views relative to the sanctity of life and wish to express such with the same manner and force as others exercising their rights to free speech. As such, PJI has a strong interest in the development of the law in this area. Life Legal Defense Foundation ( LLDF ) is a nonprofit 501(c)(3) public interest legal and educational organization that works to assist and support those who advocate in defense of life, especially those whose advocacy takes the form of offering advice and assistance to women contemplating abortion, through person-to-person contact outside abortion facilities. 1 Counsel of record for all parties received notice at least 10 days prior to the due date of amici curiae s intention to file this brief. The parties have consented to the filing of this brief. Amici curiae certify that no counsel for a party authored this brief in whole or in part and no person or entity, other than amici, their members, or their counsel, has made a monetary contribution to its preparation or submission.

2 The Thomas More Society ( TMS ) is a non-profit organization devoted to the defense and advocacy of First Amendment rights, including freedom of speech and religious freedom. Incorporated as a 501(c)(3) notfor-profit corporation in Illinois and based in Chicago, TMS accomplishes its organizational mission through litigation, education, and related activities. INTRODUCTION AND SUMMARY OF THE ARGUMENT Imagine three drummers standing outside Planned Parenthood, pounding away at an equal volume for equal amounts of time and loud enough to disturb the services inside the facility. One practices his skills to audition for a band. Another shouts keep abortion legal! at the top of his lungs. The third drummer, hoping to deter abortion-minded women, repeats overturn Roe v. Wade! in a normal conversational tone without amplification. Only the third drummer could be cited for violating the noise provision in the Maine Civil Rights Act (5 M.R.S. 4684-B(2)(D)) (the Noise Provision ). 2 Unlike most typical time-placemanner regulations, this provision does not operate in an even-handed manner regardless of content. 2 Subsection (D) defines the relevant violation as follows: 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.

3 Pro-life and pro-choice advocates can agree that limiting noise and violence near medical facilities is an admirable goal. Maine asserts it enacted the Noise Provision for that purpose, and the First Circuit analyzed it as a content-neutral time-place-manner restriction. This Court has upheld laws that limit volume without respect to the message, e.g., Ward v. Rock Against Racism, 491 U.S. 781 (1992). But the Noise Provision punishes speakers based on two elements that are foreign to the time-place-manner analysis. Instead of concentrating on when, where, and how, the statute also asks why the speaker is speaking. That inquiry inevitably turns on what is said classic content discrimination. Instead of time-place-manner, Maine has manufactured a time-place-mannermessage-motive inquiry that distorts the traditional framework and jettisons the threshold content neutrality requirement. This distortion empowers state and local governments to subtly craft laws that favor certain viewpoints and chill opposing speech, all based on the speaker s subjective intent. This in turn poses an unacceptable threat to speech in traditional public fora on matters of public concern core First Amendment speech. This case implicates the contentious topic of abortion, and it is pro-life advocates who are silenced. The First Circuit also replicates the Ninth Circuit s error in Reed v. Town of Gilbert, 707 F.3d 1057 (9th Cir. 2013). In Reed, the Ninth Circuit found the town s sign code was content neutral because it was viewpoint neutral, collapsing two overlapping but independent concepts. The Ninth Circuit s error, like the First Circuit error in this case, arose from its reliance on the government s viewpoint neutral motives for the law.

4 The absence of illicit legislative motives does not guarantee content neutrality. Subjectivity permeates the statute and the First Circuit s analysis, which hinges on the subjective intent of both the government and the speaker. The First Circuit ruling demands correction. Not only did it reach the wrong result it upends both the traditional time-place-manner framework and this Court s decision in Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015), creating confusion for other courts faced with similar speech restrictions. ARGUMENT I. THE TIME-PLACE-MANNER FRAMEWORK IS ABOUT WHEN, WHERE, AND HOW SPEECH OCCURS NOT WHAT IS SAID (CONTENT) OR WHY (INTENT). Incorrectly framing the Noise Provision as a timeplace-manner restriction conceals its inherent bias. Under the First Circuit ruling, this familiar framework morphs into a time-place-manner-message-motive inquiry. The statute punishes speech based on the speaker s message and motive, chilling speech on one side of the abortion debate. The statute s intent requirement is a convenient yet obvious mask... for the prohibition s true effect. Hill v. Colorado, 530 U.S. 703, 767 (2000) (Kennedy, J., dissenting). Petitioner engages in persuasion not obstruction, harassment, raucous protest, or other conduct that might be rightly proscribed, such as an actual disruption of health services. See, e.g., Wisconsin v. Mitchell, 508 U.S. 476 (1993) (law targeted overt criminal conduct, not protected expression); Grayned v. City of Rockford, 408 U.S. 104, 119 (1972) ( Rockford

5 punishes only conduct which disrupts or is about to disrupt normal school activities. ). Other sections of the statute, not at issue here, prohibit disruptive conduct, including physical obstruction of a building, harassing phone calls, and other similar actions. See 5 M.R.S. 4684-B(2)(A), (B), and (C). Regulations of time, place, and manner typically involve objective inquiries unrelated to what the speaker is saying (content) or why (intent). No matter what its message, a roving sound truck that blares at 2 a.m. disturbs neighborhood tranquility. Cons. Edison Co. v. Public Serv. Comm n, 447 U.S. 530, 536 (1980) (time). In McCullen, this Court concluded that [w]hether Petitioners violate the Act depends not on what they say... but simply on where they say it. McCullen v. Coakley, 134 S. Ct. 2518, 2531 (2014) (internal citations and quotation marks omitted) (emphasis added). In other cases, the manner of communication may be limited without reference to the speaker s message or intent, e.g., Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 294 (1984) (permit issued for symbolic tents to demonstrate the plight of the homeless, but sleeping in them overnight was prohibited). Here, the emphasis shifts from where, when, and how to subjective inquiries about the speaker s intent (why) and the message conveyed (what). The Noise Provision punishes the speaker based on both what is said (content) and why it is said (intent). Content and intent are inextricably intertwined it is virtually impossible to determine the speaker s intent without examining the content of the message. If speech is unrelated to or supportive of abortion, it is

6 inconceivable that patients, personnel, or police would (or could) discern the prohibited intent to interfere with the safe and effective delivery of abortion services inside the building. A. The Noise Provision punishes the speaker based on the speaker s motive (intent). The government has a legitimate interest in not disrupting patient care inside a medical facility. NLRB v. Baptist Hospital, Inc., 442 U.S. 773 (1979). The Eleventh Circuit upheld a city s straightforward ban on amplified sound within 100 feet of the property line of a health care facility. Pine v. City of W. Palm Beach, 762 F.3d 1262, 1264 (11th Cir. 2014). The state may limit the volume of speech or other sound around medical facilities, but not because of the ideas it expresses. R.A.V. v. City of St. Paul, Minnesota, 505 U.S. 377, 385 (1992). Here, the Noise Provision permits precisely what R.A.V. prohibits, because it injects a highly subjective intent element into cases involving a volatile public matter. Moreover, the prohibited intent falls solely on one side of the debate. The First Amendment provides a broad umbrella of protection for free speech. It does not categorically exclude speakers who intend to offend or even to cause emotional distress. In Snyder, this Court affirmed the reversal of a multi-million dollar verdict for intentional infliction of emotional distress, in spite of a jury finding that all elements of the tort were satisfied. The First Circuit ruling cannot be reconciled with Snyder:

7 Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and as it did here inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course to protect even hurtful speech on public issues to ensure that we do not stifle public debate. Snyder v. Phelps, 562 U.S. 443, 460-461 (2011). Maine has impermissibly reacted by punishing the speaker. Petitioner s case does not involve a tort or implicate the severe emotional distress at issue in Snyder. But as in that case, the Noise Provision punishes speakers who speak in a traditional public forum on matters of public concern, based on an ill-defined intent to interfere with health services. If the First Amendment protects a speaker who intentionally causes severe emotional distress, then it surely protects a speaker who intends to persuade women against abortion but must speak loud enough to be heard over the noise on a busy city street. Pro-life advocates do not seek to jeopardize the health or safety of women or interfere with health services. Instead, their goal is to persuade women to voluntarily make choices other than obtaining abortion services. Nevertheless, the Noise Provision was interpreted and applied against Petitioner. The statute seems to equate verbal persuasion with interference this is puzzling at best and misleading at worst. At a minimum, the law vests ample discretion in law enforcement officials to apply it against speakers like Petitioner.

8 The Noise Provision regulates speech according to its function or purpose (Reed v. Town of Gilbert, 135 S. Ct. 2218, 2227 (2015)) specifically, the speaker s purpose. This produces starkly different results based on content. As the District Court observed: Outside a health care facility that performs abortions, a pro-life protester s activity would be treated differently under the Noise Provision than a pro-choice protester s activity. Conversely, outside a crisis pregnancy counseling center, a pro-choice protester s noise would be treated differently than a pro-life protester s noise. The difference in treatment is based on the message expressed. March v. Mills, 2016 U.S. Dist. LEXIS 67087, *32 (D. Me. 2016). The speaker s purpose (intent) to protest abortion or to support it is inextricably intertwined with the message (content). B. The Noise Provision punishes the speaker based on the speaker s message (content). As Reed explained, a statute is content-based if it applies because of the message a speaker conveys. Reed, 135 S. Ct. at 2227. Some distinctions are obvious while others are more subtle, defining regulated speech by its function or purpose. Id. There is a message embedded in noise intended to disturb patients or disrupt services in an abortion clinic a message about (indeed, against) abortion. It is precisely because of the content of that message that the First Circuit concluded the prohibited speech poses a unique potential to disturb patients. March v. Mills,

9 867 F.3d 46, 62-63 (1st Cir. 2017). The causal connection between the speech and distress to patients is rooted in the message, as it was in Snyder: The record confirms that any distress occasioned by [March s preaching] turned on the content and viewpoint of the message conveyed, rather than any interference with [the health services being performed]. A [speaker] standing at the very spot where [March] stood, [shouting keep abortion legal ], would not have been subjected to liability. It was what [March] said that exposed [him to liability under the Noise Provision]. Snyder, 562 U.S. at 457. Here, similarly, any distress occasioned by the speech necessarily turns on the content and viewpoint. If someone screamed keep abortion legal! it is doubtful that speaker would be cited, as this statement does not logically imply the proscribed intent. Indeed, the police admitted the Noise Provision allowed them to restrict speech based on a combination of the volume and the content. Pet. 4. And unlike Snyder, where damages were fully litigated in a jury trial, the Noise Provision requires no evidence of actual harm or interference with abortions being performed. McCullen further supports the conclusion that the statute is content-based: [T]he Act would not be content neutral if it were concerned with undesirable effects that arise from the direct impact of speech on its audience or listeners reactions to speech. If, for example, the speech outside Massachusetts abortion

10 clinics caused offense or made listeners uncomfortable, such offense or discomfort would not give the Commonwealth a content-neutral justification to restrict the speech. McCullen, 134 S. Ct. at 2531-32 (internal citations and quotation marks omitted) (emphasis added). The Noise Provision is concerned with alleged undesirable effects on abortion clinic patients anxiety, increased blood pressure, etc. arising from the direct impact of speech and the listeners reactions. In a narrow category of legal contexts, examination of content is appropriate in order to apply a rule of law to a course of conduct for example, to determine whether a particular statement constitutes a threat, blackmail, an agreement to fix prices, a copyright violation, a public offering of securities, or an offer to sell goods. Hill v. Colorado, 530 U.S. at 721 (emphasis added). Each italicized example involves a specific rule of law where content is uniquely relevant to legal rights and/or liability. This cursory examination, to determine the broad category of speech at issue (March v. Mills, 2016 U.S. Dist. LEXIS 67087, *36), is not a free pass for content-based regulation. The Noise Provision invites a more extensive examination into whether the speaker outside an abortion clinic is speaking for or against abortion. The statute by [its] terms distinguish[es] favored speech from disfavored speech on the basis of the ideas or views expressed. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 643 (1994). Similarly, the Ninth Circuit found an epitome of a content-based speech restriction where the City of Oakland distinguished speech that facilitates access to clinics from speech that discourages it. Hoye v. City of

11 Oakland, 653 F.3d 835, 851 (9th Cir. 2011). Oakland s restriction, like the Noise Provision, hinged on the speaker s intent. Finally, Maine confuses content neutrality and viewpoint neutrality. March v. Mills, 2016 U.S. Dist. LEXIS 67087, *32 n. 9 ( The State contends that the Noise Provision is content-neutral because it is not limited to individuals expressing pro-life messages. ) But these categories are not identical. Viewpoint discrimination is... an egregious form of content discrimination. Rosenberger v. Rector of the Univ. of Va., 515 U.S. 819, 828-829 (1995). Viewpoint discrimination is but a subset or particular instance of the more general phenomenon of content discrimination. Id. at 831; see also R.A.V., 505 U.S. at 391. When the government targets particular viewpoints, its constitutional violation is even more blatant than when it merely regulates content. Even if the Noise Provision s application to both pro-choice and pro-life protesters renders it viewpoint neutral, that does not settle content neutrality. [A] speech regulation targeted at specific subject matter is content based even if it does not discriminate among viewpoints within that subject matter. Reed, 135 S. Ct. at 2230. II. THE NOISE PROVISION AS UPHELD BY THE FIRST CIRCUIT INJECTS SUBJECTIVITY AT EVERY CRITICAL POINT IN THE ANALYSIS. The lenient time-place-manner standard is not the most that the First Amendment requires of government legislation which infringes on protected speech. Metromedia, Inc. v. City of San Diego, 453 U.S. 490,

12 518 n. 23 (1981). Content-based regulations are subject to a higher standard even if they are viewpoint-neutral. It is the risk of viewpoint discrimination, not its presence, that warrants heightened scrutiny. Here, there is a substantial risk that pro-life speech will be muzzled but pro-choice speech will not. The Noise Provision is infused with subjectivity in the statute s intent element and lack of objective criteria. The First Circuit s reliance on legislative intent in no way obviates the express subjectivity of the Noise Provision as written. It is insufficient for the state to recite a seemingly content-neutral motive that masks inherent discrimination. Even if Maine did not act with animus or discriminatory intent, the Noise Provision operates to suppress certain ideas. A. The First Circuit erroneously relies on the subjective intent of the legislators. The First Circuit repackages the Ninth Circuit s error in Reed, which erased the critical distinction between content discrimination and viewpoint discrimination: 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. March v. Mills, 867 F.3d at 55 (emphasis added). In Reed, the Ninth Circuit concluded that Gilbert s Sign Code was viewpoint neutral and therefore content neutral, collapsing two independent concepts and improperly placing motive, rather than text, at the forefront of the analysis: Because Gilbert s Sign Code

13 places no restrictions on the particular viewpoints... it is content-neutral as that term has been defined by the Supreme Court. Reed, 707 F.3d at 1072 (emphasis added). But the statute itself not merely the underlying legislative purpose must be content neutral in order to qualify as a time-place-manner restriction. Circuit courts have erroneously applied the disagreement with the message language in Ward, which involved a facially content-neutral ban on the use... of sound amplification systems not provided by the city. Reed, 135 S. Ct. at 2228, citing Ward, 491 U. S. at 787 and n. 2. In Discovery Network, this Court clarified the content-based test for time-place-manner restrictions by considering the law s actual operation, rather than a tunnel vision approach that shortcircuits the analysis if the government can recite some outwardly neutral rationale. See City of Cincinnati v. Discovery Network, 507 U.S. 410, 429 (1993) (contentbased law is subject to strict scrutiny regardless of the government s benign motive, content-neutral justification, or lack of animus toward the ideas ). This Court return[ed] to its focus on the law s own terms, rather than its justification, in Discovery Network. Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250, 1259 n. 8 (11th Cir. 2005). Moreover, even before Ward this Court cautioned that illicit legislative intent is not the sine qua non of a violation of the First Amendment. Minneapolis Star & Tribune Co. v. Minnesota Comm r of Revenue, 460 U.S. 575, 592 (1983); see also Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U.S. 105, 117 (1991) (rejecting argument that discriminatory... treatment

14 is suspect under the First Amendment only when the legislature intends to suppress certain ideas ). Some courts have continued to misinterpret Ward s disagreement with the message language. See, e.g., Clatterbuck v. City of Charlottesville, 708 F.3d 549, 556 (4th Cir. 2013) ( a distinction is only content-based if it distinguishes content with a censorial intent to value some forms of speech over others ). The First Circuit replicated the error in a recent panhandling regulation case, Thayer v. City of Worcester, 755 F.3d 60 (1st Cir. 2014) (Souter, J.), reasoning that a statute that restricts only some expressive messages and not others may be considered content-neutral when the distinctions it draws are justified by a legitimate, noncensorial motive. Id. at 68. Following Reed, this Court vacated and remanded the case. Thayer v. City of Worcester, 135 S. Ct. 2887 (2015). The First Circuit bolsters its analysis of legislative motive with the observation that pro-life and pro-choice groups both supported the statute. Both groups agree that reducing violence is a laudable goal, but these shared motives, however noble, do not render the statute content-neutral. Moreover, there are differences extending beyond their respective positions on abortion. Pro-life pregnancy centers provide only minimal, non-surgical medical services, if any, so it is unlikely that a pro-choice advocate screaming outside the center would be cited for violating the Noise Provision. However innocent or even commendable the government s motives may be, the First Amendment requires that courts dig deeper and strictly scrutinize content-based laws. As this Court cautioned,

15 [i]nnocent motives do not eliminate the danger of censorship presented by a facially content-based statute, as future government officials may one day wield such statutes to suppress disfavored speech. Reed, 135 S. Ct. at 2229. That is especially true where a statute, like the Noise Provision, implicates a contentious issue like abortion and lacks adequate objective criteria to guide either the speakers or enforcement officials. B. The Noise Provision lacks adequate objective criteria. There is nothing necessarily unconstitutional about restricting noise around health care facilities or other places requiring quiet. See, e.g., Grayned, 408 U.S. at 114 (building where classes were in session). But Maine s statute allows, without limitation, noise much louder than Petitioner s lone unamplified voice, including, for example, the noise generated by climate change protesters who were free to shout without restriction on the volume. Pet. 4. Petitioner speaks alone and without sound equipment. He is not part of a group that can magnify its volume by speaking together. The Noise Provision provides no specific standards but merely requires a warning a warning that will be issued, not on the basis of the volume, but on a government official s assessment of the noisemaker s intent to disrupt. See March v. Mills, 867 F.3d at 57. Such warning is unlikely to occur without a complaint from Planned Parenthood personnel obvious proponents of abortion with an interest in stifling Petitioner s speech based on its message and content. Disregarding the warning, in turn, is then a crucial[] factor is determining that the

16 noisemaker in fact possesses the requisite intent to disrupt. Id. The Noise Provision contrasts with the valid, content-neutral noise restrictions upheld in other cases: The sound-amplification guideline... grants no authority to forbid speech, but merely permits the city to regulate volume to the extent necessary to avoid excessive noise. Ward, 491 U.S. at 795 n. 5. By failing to provide explicit standards, Maine effectively empowers Planned Parenthood employees to regulate speech on the public street outside their facility based on its content and message. As the District Court observed, the state has alternate means to accomplish its goals. These include prohibiting all loud, raucous noise (see Pine v. City of W. Palm Beach, 762 F.3d at 1273), limiting noise within a specific distance of medical facilities, or requiring evidence of actual disruption. March v. Mills, 2016 U.S. Dist. LEXIS 67087, *42. In Grayned, the statute required demonstrated interference and punished only conduct which disrupts or is about to disrupt normal school activities. Grayned, 408 U.S. at 114, 119. While it may seem counterintuitive to argue that a law violates the First Amendment by abridging too little speech (Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656, 1668 (2015)), these alternatives utilize objective criteria and do not necessitate an excursion into the speaker s mind and motives.

17 III. THE FIRST CIRCUIT RULING FACILITATES A BREATHTAKING EXPANSION OF PERMISSIBLE SPEECH RESTRICTIONS IN TRADITIONAL PUBLIC FORA. This is not the first time the First Circuit has suggested that abortion-related speech is subject to a different standard under the First Amendment: It would make no sense to wrest Gilleo 3 from its contextual moorings and use it as a wedge to subvert the Court s later decisions addressed to the much different problem of how the First Amendment operates when the special concerns of public-sidewalk protests around abortion clinics are at stake. McCullen v. Coakley, 708 F.3d 1, 14 (1st Cir. 2013), rev d, 134 S. Ct. 2518 (2014) (emphasis added). This comment is deeply disturbing. Even though this Court invalidated the statute at issue in McCullen, Maine has again enacted, and the First Circuit has again upheld, a statutory provision that favors pro-abortion speech and chills pro-life advocacy. Such discrimination is anathema to the First Amendment. A. The First Circuit ruling weakens First Amendment protection for speech on matters of public concern. This case features content at the core of the First Amendment speech about a matter of public concern. The heated debate over abortion has raged for over four 3 City of LaDue v. Gilleo, 512 U.S. 43 (1994).

18 decades. As a nation, we protect even hurtful speech on public issues to ensure that we do not stifle public debate. Snyder, 562 U.S. at 461. The inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern. Id. at 444, quoting Rankin v. McPherson, 483 U.S. 378, 387 (1987). In spite of Maine s attempt to camouflage its law as a content-neutral time-placemanner restriction, Petitioner is silenced because of his message content entitled to the very highest level of First Amendment protection because it touches a matter of public concern. Moreover, Petitioner speaks on a public street, a traditional public forum immemorially... held in trust for the use of the public. Hague v. CIO, 307 U.S. 496, 515 (1939). In that context especially, the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95 (1972); see also Erznoznik v. Jacksonville, 422 U.S. 205, 209 (1975) (government may not selectively... shield the public from some kinds of speech on the ground that they are more offensive than others ). Even more specifically, the public space around health care facilities has become a forum of last resort for those who oppose abortion... the most effective place, if not the only place where pro-life advocates can engage in persuasion. Hill v. Colorado, 530 U.S. at 763 (Scalia, J., dissenting). By upholding the restrictions on speech imposed by the Noise Provision, the First Circuit has ratified Maine s attempt to render the task of persuasion an impossible one.

19 B. The First Circuit ruling extends the captive audience doctrine too far and impedes the speaker s ability to reach his intended audience. In McCullen, this Court suggested that audience captivity in a traditional public forum is a virtue, not a vice. McCullen, 134 S. Ct. at 2529. Public streets and sidewalks are one of the few places where a speaker can be confident that he is not simply preaching to the choir. Id. This Court has applied the captive audience doctrine only sparingly (Snyder, 562 U.S. at 459), e.g., where residential privacy is at stake. Although in many locations, we expect individuals simply to avoid speech they do not want to hear... the home is different. Frisby v. Schultz, 487 U.S. 474, 484 (1988). The home is a sanctuary where privacy is paramount. In Frisby, targeted picketing in front of a residence seriously compromised that privacy. Frisby is a prime example of a time-place-manner restriction. Although noise may need to be minimized near medical facilities, statutes can be crafted in a content-neutral manner that limits the volume of all noise rather than prohibiting a specific type of message while allowing other messages a free pass. The danger of the captive audience doctrine is its potential to cut off access to a speaker s intended audience. Petitioner intends to reach women on a busy street approaching the facility to receive an abortion not the women who are already inside. Officials were unable to provide him with an objective standard so he could adjust his volume on the busy thoroughfare around the clinic. Pet. 3. Without such a standard, Petitioner must lower his voice to ensure

20 compliance with the Noise Provision. The statute seriously infringes Petitioner s free speech rights by rendering it virtually impossible for him to communicate his message to his target audience. While there may be other ways for Petitioner to protest abortion in general, the Noise Provision impedes his ability to reach abortion-minded women at the most critical time. CONCLUSION This Court should grant the Petition and reverse the decision of the First Circuit.

21 Respectfully submitted, Deborah J. Dewart Counsel of Record 620 E. Sabiston Drive Swansboro, NC 28584-9674 (910) 326-4554 debcpalaw@earthlink.net Catherine W. Short Life Legal Defense Foundation P.O. Box 2105 Napa, CA 94558 (707) 224-6675 LLDFOjai@cs.com Thomas L. Brejcha Thomas More Society 19 S. LaSalle St., Suite 603 Chicago, IL 60603 (312) 782-1680 tbrejcha@thomasmoresociety.org Counsel for Amici Curiae