Constitutional – First Amendment – Municipal Ordinance

The City of Asheville’s ordinance is content-neutral and is narrowly tailored to a significant government interest, leaving Plaintiff with ample alternative channels of communication.

We affirmed the district court’s denial of Asheville’s motions to dismiss Plaintiff’s First Amendment claim but concluded that the entry of summary judgment in Plaintiff’s favor was premature in light of disputed factual and legal questions that warrant further consideration. As to Plaintiff’s due process claim, we held that it failed as a matter of law and remanded with instructions to dismiss that claim.

Plaintiff asserted a constitutional right to direct his expressive views at individuals entering medical facilities. His targets are primarily women who seek medical care at the Planned Parenthood’s Asheville Health Center, an outpatient women’s health clinic. According to Plaintiff, the Health Center is the only provider of abortion services in western North Carolina.

The City of Asheville appealed 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. The district court initially found the ordinance likely infringed upon the rights of Plaintiff 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 Plaintiff’s motion for summary judgment, entering a permanent injunction and awarding nominal damages on his due process claim.

The complaint alleged Plaintiff would speak through an amplifier in a public forum—conduct plainly within the scope of the Free Speech Clause—but for Section 10-85(2)’s prohibition. We agreed with the district court that Asheville failed to show the ordinance withstands intermediate scrutiny. As part of the narrow-tailoring prong of that analysis, Asheville had to show its ordinance did not burden substantially more speech than necessary and that it tried to address the problem through less speech-restrictive means. These showings required “actual evidence”; “argument unsupported by the evidence” is not enough. Asheville did not carry that burden on the pleadings. Accordingly, we affirmed denial of Asheville’s first motion to dismiss as to Plaintiff’s First Amendment claim.

We agreed that Asheville’s minor changes to its noise ordinances “do not address the essence of [Plaintiff’s] free speech claim because the [revised ban] still prohibits the use of amplified sound within 150 feet of open medical clinics, just as the [original ban] did.” Accordingly, we affirmed the district court’s denial of Asheville’s second motion to dismiss as to Plaintiff’s First Amendment claim. Regarding Plaintiff’s motion for summary judgment on his First Amendment claim, we disagreed with the district court’s conclusion that Section 10-85(2) is not narrowly tailored to a significant government interest. Instead, 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 Plaintiff with ample alternative channels of communication. Accordingly, we reversed the grant of summary judgment to Plaintiff on his First Amendment claim.

Affirmed in part, reversed in part, and remanded.

Hebb v. City of Asheville (Lawyers’ Weekly No. 001-138-25, 57 pp.) (James A. Wynn Jr., J.) Appealed from the U.S. District Court for the Western District of North Carolina, at Asheville (Martin K. Reidinger, J.) ARGUED: Eric Patrick Edgerton, CITY OF ASHEVILLE CITY ATTORNEY’S OFFICE, Asheville, North Carolina, for Appellants. Nathan W. Kellum, FIRST LIBERTY INSTITUTE, Memphis, Tennessee, for Appellee. ON BRIEF: Brennan Tyler Brooks, THOMAS MORE SOCIETY, Chicago, Illinois; Jeffrey C. Mateer, FIRST LIBERTY INSTITUTE, Plano, Texas, for Appellee. U.S. Court of Appeals for the Fourth Circuit