Appeals Court rules for Asheville in abortion clinic noise dispute

A split federal Appeals Court panel has reversed a lower court ruling involving Asheville city government’s noise limits near a Planned Parenthood site. The 2-1 decision Wednesday favors the city over an abortion critic who won at the trial court.

“The City of Asheville appeals from the district court’s orders enjoining enforcement of a municipal ordinance that prohibits the use of amplified sound within 150 feet of a medical clinic during its operating hours,” Judge James Wynn wrote for the court’s majority. “The district court initially found that the ordinance likely infringed upon the rights of Plaintiff Zachary Hebb under the First and Fourteenth Amendments, and temporarily enjoined its enforcement.”

“Notwithstanding Asheville’s subsequent amendment to the ordinance, the court declined to dismiss the action and ultimately granted Hebb’s motion for summary judgment, entering a permanent injunction and awarding nominal damages on his due process claim,” Wynn added.

Hebb challenged the noise restrictions as violating his First Amendment free-speech rights and his 14th Amendment right to due process.

He started protesting on public sidewalks outside Planned Parenthood’s Asheville Health Clinic in 2019. In 2021, an Asheville official cited Hebb twice for violating the city’s noise ordinance.

Three days after the second citation, Asheville adopted a new noise ordinance banning “amplified sound within 150 feet of the property line of a public school where classes or other educational activities are occurring, or a medical clinic that is open or otherwise caring for patients.” A later ordinance revision defined “amplified sound.”

“Hebb contends that, in practice, Section 10-85(2)’s amplification ban and Section 10-83(c)’s decibel limits combine to prevent him from communicating his messages to patients entering the Health Center without yelling, which would ‘undercut[] his message and purpose,’” Wynn wrote.

The legal action started with Hebb’s federal lawsuit in October 2022. In February 2023,  US Chief District Judge Martin Reidinger granted Hebb a preliminary injunction. Reidinger also rejected Asheville’s motions to dismiss the suit. In March 2024, the judge granted Hebb’s motion for summary judgment and issued a permanent injunction blocking Asheville from enforcing the ordinance.

Wynn and Judge Robert Bruce King, both appointed by Democratic presidents, reversed Reidinger’s decision on the due process claim and the decision to grant Hebb summary judgment. “[T]he entry of summary judgment in Hebb’s favor was premature in light of disputed factual and legal questions that warrant further consideration,” Wynn wrote.

“Regarding Hebb’s motion for summary judgment on his First Amendment claim, we disagree with the district court’s conclusion that, upon viewing the facts in the light most favorable to Asheville, as a matter of law, Section 10-85(2) is not narrowly tailored to a significant government interest,” the majority opinion explained. “Instead, … we hold that, when viewed in the light most favorable to Asheville, the record suggests that Asheville’s ordinance is content-neutral; that the ordinance is narrowly tailored to a significant government interest; and that it leaves Hebb with ample alternative channels of communication.”

Judge Marvin Quattlebaum, appointed by President Donald Trump, dissented from much of the decision.

“If the First Amendment’s right to free speech protects anything, it protects speech in the public square about controversial political and social issues like abortion,” Quattlebaum wrote. “That, of course, doesn’t stop a municipality from adopting content-neutral regulations that are narrowly tailored to a significant state interest, even if it has an incidental effect on protected speech.”

“Asheville says that is what’s going on here,” Quattlebaum continued. “It claims that neither of its revisions to the noise ordinance targeted Hebb at all. Instead, it insists both were designed to protect patients at medical facilities from noise that impairs their treatment and recovery and students from noise that disrupts their learning.”

“But the ordinance Asheville ultimately adopted wasn’t narrowly tailored — it banned lots of noise that did not interfere with medical facilities or schools, and it permitted noise coming from inside clinics and schools that it banned if it were coming from outside those places,” the dissent explained. “On top of that, Asheville offered no evidence it considered any less-restrictive limitations than the 150-foot amplified sound ban. So, I would affirm the district court’s holding that the ordinance violated Hebb’s First Amendment rights.”

“As to his Fourteenth Amendment due process claim, I agree with the district court that the phrase ‘amplified sound,’ before the city defined it in the most recent version of the ordinance, was unconstitutionally vague,” Quattlebaum wrote. “The ordinary meaning of amplify and amplification supports the district court’s decision. So do the varying ways Asheville addressed the meaning of amplified sound in its noise ordinance through the years. As a result, I would affirm that part of the district court’s order as well.”

“Appeals Court rules for Asheville in abortion clinic noise dispute” was originally published on www.carolinajournal.com.