Hebb v. City of Asheville, North Carolina

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

CIVIL CASE NO. 1:22-cv-00222-MR-WCM

ZACHARY HEBB, )

)

Plaintiff, )

) MEMORANDUM OF

vs. ) DECISION AND ORDER

)

CITY OF ASHEVILLE, NORTH )

CAROLINA, and BEN WOODY, )

individually and in his official )

capacity, )

)

Defendants. )

)

THIS MATTER is before this Court on Defendants’ Motion to Dismiss

as Moot and Motion to Dissolve Injunction [Doc. 21] and Plaintiff’s Motion for

Summary Judgment [Doc. 25].

I. PROCEDURAL BACKGROUND

Zachary Hebb (“Plaintiff”) commenced this action pursuant to 42

U.S.C. § 1983 by filing his Verified Complaint against the City of Asheville

(“Asheville” or the “City”) and Ben Woody (“Woody”) (collectively

“Defendants”), on October 20, 2022.1 [Doc. 1]. Plaintiff alleged in his

Complaint that the version of Asheville Ordinance § 10-85(2) (the “First

Amplification Ban” or the “First Ban”) that was then in existence violated his

free speech and due process rights under the United States Constitution.

[Id. at 31]. On October 24, 2022, Plaintiff moved for entry of a preliminary

injunction and on November 15, 2022, Defendants filed a motion to dismiss.

[Docs. 3; 9]. After these motions were briefed, this Court entered an Order

on February 8, 2023, enjoining Defendants from enforcing the First

Amplification Ban and denying their motion to dismiss. [Doc. 14].

Defendants filed their Answer on February 22, 2023. [Doc. 15].

On August 22, 2023, the City amended the First Amplification Ban and

other portions of its noise ordinance. [See Doc. 21 at 2 ¶ 4]. This Court will

refer to the amended ban as either the “Second Amplification Ban” or the

“Second Ban.” Defendants then filed another motion to dismiss on October

13, 2023, arguing that the amendments to the noise ordinance had cured

any constitutional deficiencies and thereby had mooted this matter. [Id. at

1 Woody was initially sued individually and in his official capacity as Asheville’s Director

of Development Services. [See Doc. 1]. However, on November 17, 2022, Plaintiff filed

a stipulation pursuant to Rule 41 of the Federal Rules of Civil Procedure seeking to

dismiss his individual capacity claims against Woody. [See Doc. 11]. Those claims were

dismissed without prejudice on February 8, 2023. [See Doc. 14].

2

3]. Plaintiff responded on October 27, 2023, arguing that the Second

Amplification Ban is still unconstitutional, and Defendants replied on

November 3, 2023. [Docs. 22; 23]. While this motion was pending, on

November 15, 2023, Plaintiff filed a motion for summary judgment seeking

to permanently enjoin Defendants from enforcing the Second Amplification

Ban, as well as nominal damages. [Doc. 25]. More specifically, Plaintiff

contends that Defendants should be permanently enjoined from enforcing

the Second Ban because it violates his free speech rights under the

Constitution. [See Doc. 25-1 at 15]. He also argues that he is entitled to

nominal damages because the First Amplification Ban was unconstitutionally

vague and thereby violated his rights protected by the Fourteenth

Amendment’s Due Process Clause. [See id. at 24]. Defendants responded

on November 29, 2023, and Plaintiff replied on December 6, 2023. [Docs.

26; 27]. As these motions have been fully briefed, they are ripe for

disposition.

II. STANDARD OF REVIEW

A. Motion to Dismiss for Mootness

Defendants’ motion to dismiss this case as moot is properly considered

pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, as they

contend that this Court no longer has subject matter jurisdiction over this

3

dispute. See Stone v. Trump, 400 F. Supp. 3d 317, 333-34 (citing CGM,

LLC v. BellSouth Telecomm’s, Inc., 664 F.3d 46, 52 (4th Cir. 2011)). “To

qualify as a case fit for federal-court adjudication, an actual controversy must

be extant at all stages of review, not merely at the time the complaint is filed.”

Arizonans for Off. English v. Arizona, 520 U.S. 43, 67 (1997) (internal

quotation marks omitted). If at any point during the litigation “an intervening

circumstance deprives the plaintiff of a personal stake in the outcome of the

lawsuit,” Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 72 (2013), or if

“the issues presented are no longer ‘live[,]’” the court is deprived of

jurisdiction and the action must be dismissed as moot. See Holloway v. City

of Virginia Beach, 42 F.4th 266, 273 (4th Cir. 2022).

B. Summary Judgment

Summary judgment is appropriate if the pleadings, depositions,

answers, admissions, stipulations, affidavits, and other materials on the

record show “that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a)&(c).

“[T]his standard provides that the mere existence of some alleged factual

dispute between the parties will not defeat an otherwise properly supported

motion for summary judgment; the requirement is that there be no genuine

issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-

4

48 (1986); Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514,

519 (4th Cir. 2003).

“Facts are material when they might affect the outcome of the case,

and a genuine issue exists when the evidence would allow a reasonable jury

to return a verdict for the nonmoving party.” Ballengee v. CBS Broad., Inc.,

968 F.3d 344, 349 (4th Cir. 2020) (quoting News & Observer Publ’g Co. v.

Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010)). This Court

does not make credibility determinations or weigh the evidence when ruling

on a motion for summary judgment. Guessous v. Fairview Prop. Invs., LLC,

828 F.3d 208, 216 (4th Cir. 2016). “Regardless of whether he may ultimately

be responsible for proof and persuasion, the party seeking summary

judgment bears an initial burden of demonstrating the absence of a genuine

issue of material fact.” Bouchat, 346 F.3d at 522. If this showing is made,

the burden shifts to the nonmoving party to demonstrate that a triable issue

exists. Id. When considering a motion for summary judgment, the pleadings

and materials presented must be viewed in the light most favorable to the

non-movant, and all reasonable inferences must be drawn in the non-

movant’s favor. Adams v. UNC Wilmington, 640 F.3d 550, 556 (4th Cir.

2011).

5

III. FACTUAL BACKGROUND

The relevant facts here are not in dispute. Plaintiff is a resident of

Penrose, North Carolina, and Asheville is a municipal corporation. [Docs. 1:

Verified Complaint at ¶ 11; 14: Order at 7 n.2; 15: Answer at ¶¶ 11-12].

Woody is the former Director of Asheville’s Development Services

Department (“DSD”). [Docs. 1 at ¶ 13; 7-1: First Woody Aff. at ¶ 2; 15 at ¶

13]. As such, he was responsible for drafting, presenting, and enforcing

Asheville’s noise ordinance. [Id.].

Plaintiff is a Christian who believes that abortion “is an affront to God.”

[Doc. 1 at ¶¶ 14-16]. In 2019, he began sharing his views regarding abortion

on public ways near the Asheville Health Center (“AHC”), a Planned

Parenthood facility that provides abortions. [Id. at ¶¶ 17, 19]. The AHC is

located at 68 McDowell Street in Asheville, an area zoned for various medical

facilities, and is open Tuesday through Saturday. [Id. at ¶ 18; Docs. 15 at ¶

18; 25-3: Hebb Aff. at ¶ 101]. Plaintiff frequently visits the AHC, trying “to

convince pregnant women . . . not to go through with the abortion

procedure[.]” [Doc. 1 at ¶¶ 21, 26]. He uses an amplifier to speak with

individuals entering the AHC from the nearby public ways. [Id. at ¶ 29]. Staff

and escorts working at the AHC frequently play music and other noise with

6

Bluetooth speakers and cell phones to drown out the sounds of protests

outside the clinic. [Id. at ¶¶ 168-70; see also Docs. 25-12; 25-28].

In January of 2019, Asheville began the process of updating its noise

ordinance, hoping to “shift toward more objective standards” that are “easier

to enforce[.]” [Docs. 1 at ¶ 31; 7-1: First Woody Aff. at ¶¶ 3-4; 15 at ¶ 31].

As part of this process, the City reviewed over eight years of noise complaint

data. [Doc. 7-1 at ¶ 5]. The City “observed that an abnormally high number

of noise complaints were being received in the vicinity of medical care

providers located to the south of downtown Asheville” and found that it had

“received 62 complaints in this geographic location, many pertaining to the

use of amplified sound in the immediate vicinity of open and operating

medical facilities.” [Id. at ¶¶ 5-6]. During the amendment process, DSD

employees sought feedback from members of the public. [Docs. 1 at ¶¶ 36,

41; 7-1 at ¶¶ 16-17; 15 at ¶ 36].

On September 23, 2019, the City held a noise ordinance update

meeting with stakeholders believed to have an interest in the amendment

process. [Docs. 1 at ¶ 42; 15 at ¶ 42]. At this meeting, the City identified

“nuisance dog barking,” “construction,” “industrial/institutional facilities &

equipment,” “music over-amplification: venues, buskers, outdoor events,”

“fireworks,” and “early morning trash pick-up” as areas of concern. [See Doc.

7

25-5 at 18]. On December 17, 2019, the City held a second update meeting,

at which it added “lawnmowers/leaf blowers” as an area of concern. [See

Doc. 25-6 at 18].

The City posted a proposed updated noise ordinance for public

comment between November 18, 2020 and December 11, 2020. [Docs. 1

at ¶ 50; 15 at ¶ 50]. The proposed ordinance would update the then-existing

noise ordinance to: clarify daytime and nighttime restrictions; establish

objective decibel levels in central business, commercial, and industrial

districts; establish prohibitions on jake braking and pointing speakers at

residential units; establish permit requirements for music venues, outdoor

events, and fireworks; alter permit requirements for construction noise;

create landlord accountability for tenant noise; increase civil penalties for

noise violations; and create a noise control position. [Docs. 1 at ¶ 52; 15 at

¶ 52]. On January 26, 2021, Woody and other City staff members provided

the Public Safety Committee with an update regarding community feedback

on the proposed ordinance. [Docs. 1 at ¶ 54; 15 at ¶ 54].

On February 2, 2021, Gwen Wisler (“Wisler”), a member of Asheville’s

City Council, met with AHC staff members Kathrin Lewis and McCoy

Faulkner, as well as Nikki Harris (“Harris”), Planned Parenthood South

Atlantic’s Director of Philanthropy for Western North Carolina. [See Doc. 25-

8

8]. After this meeting, Harris sent Wisler an email containing links to videos

taken of protestors outside the AHC on the previous Saturday; a document

outlining Planned Parenthood’s “legal questions about

noise/picketing/parking”; an account from a volunteer claiming that she had

been assaulted by a protestor at the clinic the previous Saturday; a list of

“CONCERNS FROM THIS PAST WEEKEND,” which included “Zach on the

ladder on very high volume”; and thanking her for her support of Planned

Parenthood. [Id.]. Wisler forwarded this email to Asheville’s City Manager,

asking “how we can be responsive . . . [.]” [Id.].

In April of 2021, Plaintiff exchanged emails with Woody regarding a

citation he previously received for using amplification on a public way outside

the AHC. [Docs. 1 at ¶¶ 56-57; 15 at ¶¶ 56-57; see also Doc. 3-6: Email

Exchange]. As it then existed, the City’s noise ordinance only prohibited

amplification used for commercial purposes, so the citation was dismissed.

[Id.]. On May 25, 2021, Woody emailed Plaintiff decibel readings the City

had taken outside the AHC. [Docs. 1 at ¶ 63; 15 at ¶ 63; see also Doc. 3-7:

Email Exchange]. In a subsequent telephone conversation, Woody told

Plaintiff that the City was amending its noise ordinance to incorporate decibel

level requirements and that it had received complaints about noise outside

the AHC. [Docs. 1 at ¶¶ 66-68; 15 at ¶¶ 66-68].

9

During the week prior to May 27, 2021, Wisler sent Harris a proposed

addendum to Asheville’s noise ordinance, which would ban the use of

amplified sound around medical clinics. [See Doc. 25-1 at 5; 25-9: Email

Exchange at 5]. On May 27, Harris emailed Woody, “pass[ing] along”

Wisler’s proposed ban, and asking whether there was “anything Planned

Parenthood c[ould] do to facilitate the addendum to the noise ordinance . . .

[.]” [Doc. 25-9 at 4-5]. On May 28, Woody responded, stating, “I would very

much like to include the language you passed along – I think it makes

enforcement in these areas much easier for city staff, and provides much

needed sound relief to certain land uses.” [Id. at 4]. He continued, “I

previously checked in with our Legal department and they are supportive of

the concept, with some minor wording changes. . . . [M]y recommendation

is to add this type of language to the final draft ordinance.” [Id.].

Also on May 28, 2021, Woody called Plaintiff and “informed [him] of

the volume of complaints the City was receiving regarding the use of

amplified sound near medical facilities . . . .” [Docs. 1 at ¶ 68; 15 at ¶ 68].

Woody also discussed the “noise ordinance amendment process” with

Plaintiff during this call. [Docs. 1 at ¶ 67; 15 at ¶ 67]. However, Woody did

not mention that the City was considering adopting an amplification ban or

that he had decided to recommend it do so. [Doc. 25-3: Hebb Aff. at ¶ 40].

10

On June 1, 2021, Woody presented another updated version of the

proposed noise ordinance to the Public Safety Committee for feedback.

[Docs. 1 at ¶ 70; 15 at ¶ 70]. This version did not contain an amplification

ban, nor did Woody’s presentation specifically address concerns regarding

amplified sound around medical clinics. [Docs. 1 at ¶¶ 72-80; 15 at ¶¶ 72-

80]. However, prior to the meeting, the Public Safety Committee received

several comments from individuals expressing concerns about the protests

outside the AHC. [Docs. 1 at ¶ 79; 15 at ¶ 79; see also Docs. 3-9: Public

Comments; 25-12: Public Comments]. Some commenters limited their

complaints to the noise volume of the protests outside the AHC, but others

complained about the protestors’ message. [See Docs. 3-9; 25-12]. None

of the comments in the record regarding amplified noise specifically mention

any medical facility other than the AHC. [See id.].

After this meeting, on June 2, 2021, Harris emailed Woody, asking him

to “confirm that the additional language was added” to the ordinance that

was approved by the Public Safety Committee. [Doc. 25-9: Email Exchange

at 3]. Woody responded the same day, stating that “[t]he Public Safety

Committee recommended moving the ordinance forward to the full council[,]”

that he “intend[ed] to add the . . . language to the forthcoming draft

ordinance[,]” and that he would be sure to let Harris know “if any flags c[a]me

11

up[.]” [Id.]. Harris emailed Woody again on June 9, 2021, checking to see if

the draft ordinance language had been updated and asking when it would be

considered by the City Council. [Id. at 2]. Woody responded the same day,

stating that “[t]he draft ordinance is not ready yet, but Legal is working on the

language we previously discussed[,]” and informing Harris that the City

Council had scheduled a hearing on the ordinance for June 22, 2021. [Id.].

On June 21, Harris emailed Woody again, stating that she “wanted to check

on the status of the proposed noise ordinance[,]” and asking if the hearing

was still scheduled for June 22. [Id. at 1]. Woody responded the same day,

stating, “no hearing tomorrow, just a presentation. That said, I am including

a slide that recommends the non-amplification limitation we discussed.” [Id.].

On June 22, 2021, Woody presented yet another updated version of

the noise ordinance to the City Council. [Docs. 1 at ¶¶ 81-82; 15 at ¶¶ 81-

82]. This proposal included, for the first time, the language of the First

Amplification Ban, which when enacted, would prohibit the use of amplified

sound within 150 feet of the property lines of open medical clinics and

schools. [Id.; see also Doc. 3-10 at 17]. “DSD staff worked with the City of

Asheville City Attorney’s Office in order to tailor a provision similar to that

from Charlotte’s ordinance regarding amplified sound in sensitive areas” and

the City reviewed “dozens of exemplar noise ordinances from across the

12

state and region” before finalizing its proposal regarding the First

Amplification Ban. [Doc. 7-1: First Woody Aff. at ¶¶ 9-10, 15]. However, in

presenting the First Ban to the City Council, Woody stated only that “we [a]re

proposing to prohibit amplified sound within 150 feet of a public school or a

health care facility. Those are places where services are happening and

quiet is important for those services.” [Docs. 1 at ¶ 86; 15 at ¶ 86]. No

member of the Council mentioned the proposed First Ban during the

meeting. [Docs. 1 at ¶ 88; 15 at ¶ 88].

On June 25, 2021, Woody emailed Plaintiff stating that the City

continued receiving complaints about noise outside the AHC and asking

Plaintiff to lower his volume or to stop using amplification. [Docs. 1 at ¶ 90;

15 at ¶ 90; see also Doc. 3-11 at 1]. Woody did not mention that the City

was considering adopting the First Amplification Ban. [Docs. 1 at ¶ 91; 15 at

91]. Plaintiff continued using amplification, and on June 26, 2021, and July

24, 2021, Woody issued him citations for creating noise disturbances under

the noise disturbance standard that was then in existence. [Docs. 1 at ¶¶

93-113; 15 at ¶¶ 96, 98-108, 110-13; see also Docs. 3-12: June 26 Citation;

3-13: July 24 Citation]. Woody did not mention that the City was considering

adopting the First Ban during either interaction. [Docs. 1 at ¶¶ 108, 113; 15

at ¶¶ 108, 113].

13

On July 27, 2021, the Asheville City Council amended the City’s noise

ordinance and enacted the First Amplification Ban. [Docs. 1 at ¶ 121; 15 at

¶ 121]. The First Ban took effect on September 15, 2021, and read as

follows:

Unless otherwise allowed by this chapter, no person

shall engage in any of the following enumerated

activities:

…

(2) Producing, or causing to be produced 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.

[Doc. 3-15 at 4].

Another provision of the amended ordinance imposed a general

daytime sound level limitation of 65 decibels in the City’s commercial district,

including in the area where medical clinics and other medical facilities are

located. [Id. at 3]. Under this limitation, amplified sound emanating from

within the AHC’s property lines may not exceed 65 decibels, but amplification

from within the property was not otherwise limited by the First Ban. [See

Doc. 25-28]. The amended noise ordinance also maintained the provisions

prohibiting “noise disturbance[s] originating from a right-of-way, street or

other public space.” [Doc. 3-15 at 3]. A “noise disturbance” is defined as

14

“any sound or vibration which: (1) [m]ay disturb or annoy reasonable persons

of normal sensitivities; or (2) [c]auses, or tends to cause, an adverse effect

on the public health or welfare; or (3) [e]ndangers or injures people; or (4)

[e]ndangers or injures personal or real property.” [Id. at 2]. Some factors

that may be used in considering whether an individual has created a noise

disturbance include the volume of the noise, the frequency of the noise, and

whether the noise is amplified. [Id.].

On September 18, 2021, a DSD official went to the AHC to enforce the

First Amplification Ban. [Docs. 1 at ¶ 127; 15 at ¶ 127; 25-3: Hebb Aff. at ¶

71]. The official informed Allura Lightfoot, Plaintiff’s friend, that the City

considers the AHC to be a “medical clinic” and that it also considers plastic

cones to be prohibited amplifiers. [Docs. 1 at ¶¶ 128-31; 15 at ¶¶ 128-31;

25-3 at ¶¶ 73-75]. Lightfoot relayed this to Plaintiff. [Docs. 1 at ¶ 132; 25-3

at ¶ 76]. There is no indication in the record that Plaintiff ever used a plastic

cone to speak outside the AHC. However, he asserts that his speech was

chilled when Lightfoot informed him of the City’s enforcement efforts and

about their interpretation of the First Ban. [Doc. 25-3 at ¶¶ 73-77]. He further

asserts that he would have used a cone outside of the AHC, “numerous

times[,]” but for fearing that he would be cited or arrested if he violated the

First Ban. [Id. at ¶ 141].

15

Plaintiff filed this suit against the City on October 20, 2022, and he

moved for entry of a preliminary injunction enjoining the City from enforcing

the First Amplification Ban on October 24, 2022. [Docs. 1, 3]. After this

Court granted Plaintiff preliminary injunctive relief on February 8, 2023, as

discussed above, on August 22, 2023, the City again amended its noise

ordinance. [Doc. 21-1: Second Woody Aff. at ¶¶ 4-9]. Specifically, the City

adopted three “non-substantive” “clarifying amendments” to the ordinance,

[id.], including adopting the following definitions for the terms “medical clinic”

and “amplified sound”:

Medical Clinic means any location where one or

more “health care providers,” as that term is defined

in N.C. Gen. Stat. § 90-21.11, provide their services,

without regard to whether such services are provided

on an inpatient or outpatient basis.

Amplified Sound means a sound augmented by any

electronic or other means that increases the sound

level or volume.

[Doc. 25-29]. The amplification ban was also amended, and the Second

Amplification Ban, which the City now seeks to enforce, reads as follows:

Unless otherwise allowed by this chapter, no person

shall engage in any of the following enumerated

activities:

…

16

(2) Producing, or causing to be produced 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. For purposes of clarity,

it is expressly noted that this prohibition does not

apply to sounds originating from public schools or

medical clinics themselves, as such sounds are

already subjected to decibel limitations under section

10-83 of the City Code.

[Id.].

IV. DISCUSSION

A. Defendants’ Motion to Dismiss for Mootness

“[O]rdinarily, ‘statutory changes that discontinue a challenged practice’

are enough to render a case moot . . . .” Holloway, 42 F.4th at 273 (quoting

Valero Terrestrial Corp. v. Paige, 211 F.3d 112, 116 (4th Cir. 2000)).

However, a defendant cannot “moot a case by repealing the challenged

statute and replacing it with one that differs only in some insignificant

respect.” Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of

Jacksonville, 508 U.S. 656, 662 (1993); Holloway, 42 F.4th at 273 (quoting

Esposito v. S.C. Coastal Council, 939 F.2d 165, 171 (4th Cir. 1991)) (“not

every tweak to a challenged statute will [moot a case]; ‘minor and

insignificant’ changes that do not address the essence of a plaintiff’s claims

will not forestall legal challenges to the . . . statute.”).

17

After the preliminary injunction was entered, the City adopted three

“non-substantive, clarifying” amendments to its noise ordinance. [See Doc.

21-1: Second Woody Aff. at ¶¶ 4-6]. As noted above, these amendments

defined the terms “amplified sound” and “medical clinic,” and noted “[f]or

purposes of clarity” that the ban “does not apply to sounds originating from .

. . medical clinics.” [See Doc. 25-9]. These changes are “minor and

insignificant,” and do not address the essence of Plaintiff’s free speech claim

because the Second Amplification Ban still prohibits the use of amplified

sound within 150 feet of open medical clinics, just as the First Ban did.

[Compare Docs. 3-15; 25-29]. Accordingly, Plaintiff may proceed with his

free speech challenge to the Second Amplification Ban. Therefore,

Defendants’ motion to dismiss for mootness is denied.2

2 Additionally, although Plaintiff concedes that the Second Amplification Ban is no longer

unconstitutionally vague, as a result of the City defining the term “amplified sound,” [see

Doc. 25-1 at 24], he may nevertheless be entitled to damages if he proves that the First

Amplification Ban was unconstitutionally vague and that it chilled his speech. See

McClean v. City of Alexandria, 106 F. Supp. 3d 736, 738 (E.D. Va. 2015) (“[R]epealing

the Ordinance does not moot McClean’s as-applied challenge to the Ordinance for which

he seeks nominal damages. . . . The justiciable issue that remains is whether

impermissible chilling of McClean’s First Amendment rights did in fact occur, and whether

McClean is entitled to nominal damages as a result.”) (citing Rock for Life-UMBC v.

Hrabowski, 411 F. App’x 541, 550 (4th Cir. 2010)).

18

B. Plaintiff’s Motion for Summary Judgment

1. Free Speech Claim

The Free Speech Clause states that the government “shall make no

law . . . abridging the freedom of speech . . . .” U.S. Const. Amend. I.

However, “[i]t is a fundamental principle, long established, that the freedom

of speech . . . does not confer an absolute right to speak . . . .” Gitlow v. New

York, 268 U.S. 652, 666 (1925). The First Amendment “protects speech

along a spectrum,” meaning that speech “receive[s] different levels of judicial

scrutiny depending on the type of regulation and the justifications and

purposes underlying it.” Fusaro v. Cogan, 930 F.3d 241, 248 (4th Cir. 2019);

Stuart v. Camnitz, 774 F.3d 238, 244 (4th Cir. 2014).

Sidewalks and public ways “occupy a ‘special position in terms of First

Amendment protection’ because of their historic role as sites for discussion

and debate.” McCullen v. Coakley, 573 U.S. 464, 476 (2014) (quoting United

States v. Grace, 461 U.S. 171, 180 (1983)). These locations are “traditional

public fora” that “have immemorially been held in trust for the use of the

public and, time out of mind, have been used for purposes of assembly,

communicating thoughts between citizens, and discussing public questions.”

Id. (quoting Pleasant Grove City v. Summum, 555 U.S. 460, 469 (2009)).

19

“[T]he government’s ability to restrict speech in such locations is ‘very

limited.’” Id. at 477 (quoting Grace, 461 U.S. at 177).

Content-based regulations in these locations are “presumptively

unconstitutional and may be justified only if the government proves that they

are narrowly tailored to serve compelling state interests.” Reed v. Town of

Gilbert, 576 U.S. 155, 163 (2015). However, the government enjoys

“somewhat wider leeway to regulate features of speech unrelated to its

content.” McCullen, 573 U.S. at 477. Specifically, content-neutral time,

place, and manner laws will be upheld if they are narrowly tailored to serve

a significant government interest and leave open ample alternative channels

of communication. See id.; see also Ward v. Rock Against Racism, 491 U.S.

781, 791 (1989). Speech regulations are “content based if [they apply] to

particular speech because of the topic discussed or the idea or message

expressed. This commonsense meaning of the phrase ‘content based’

requires a court to consider whether a regulation of speech ‘on its face’ draws

distinctions based on the message a speaker conveys.” Reed, 576 U.S. at

163.

Here, both the First and Second Amplification Bans would prohibit the

use of amplification within 150 feet of the property line of an open medical

clinic without reference to the content of the speech being amplified. [See

20

Docs. 3-15 at 4; 25-29]. Thus, both versions of the ban are facially content

neutral.

However, “[t]he Supreme Court has rejected any ‘formalistic approach

to evaluating content neutrality that looks only to the terms of a regulation[.]’”

Cent. Radio Co. Inc. v. City of Norfolk, 776 F.3d 229, 235 (4th Cir. 2015)

(quoting Hill v. Colorado, 530 U.S. 703, 719-20 (2000)). Indeed, regulations

that are facially content neutral “will be considered content-based” where

they “were adopted . . . because of disagreement with the message [the

speech conveys].” Reed, 576 U.S. at 164 (quoting Ward, 491 U.S. at 791)

(internal quotation marks omitted). “The government’s purpose is the

controlling consideration.” Ward, 491 U.S. at 791; Hill, 530 U.S. at 719.

The Court concluded at the preliminary injunction stage that Plaintiff

presented evidence suggesting that Defendants enacted the First

Amplification Ban because they were concerned about amplified pro-life

speech outside the AHC specifically, rather than amplified speech outside of

medical clinics generally. [See Doc. 14 at 18]. However, because Plaintiff

is now moving for summary judgment, the evidence must be viewed in the

light most favorable to Defendants as the non-moving parties, see Adams,

640 F.3d at 556, and the question is whether the forecast of evidence

presented would allow a reasonable trier of fact to conclude that Defendants

21

enacted the ban for a content neutral purpose.3 See Ballengee, 968 F.3d at

349.

In their forecast, the Defendants present Woody’s bare assertion that

“[i]n adopting [the First Amplification Ban] . . . the City was in no way

motivated by a desire to prevent the Plaintiff from expressing his views

regarding the [AHC] or its patients” and that the ban was adopted to “protect

medical patients from harmful noise prior to, during, and after the

performance of medical procedures.” [Doc. 26-1: Third Woody Aff. at ¶¶ 7-

8]. Some of the evidence of record supports these assertions. For instance,

the City received 62 noise complaints regarding “amplified sound in the

immediate vicinity of open and operating medical facilities” during the eight-

year period before it adopted the First Ban. [See Docs. 1: Verified Complaint

at ¶ 86; 7-1: First Woody Aff. at ¶¶ 5-6; 15: Answer at ¶ 86]. “[T]he majority

of [these] complaints . . . pertained to the use of amplified sound, not the

message of the speech being amplified, or the motivations of the speaker.”

[Doc. 7-1 at ¶ 12]. When Woody presented the First Amplification Ban to

3 In discussing whether the amplification ban is content-based, the Court focuses on the

First Ban because, as explained above, the City merely adopted the Second Ban to

address the constitutional issues that Plaintiff raised at the preliminary injunction stage of

this litigation. There is no indication in the record that Defendants’ substantive

motivations for the First and Second Bans differed.

22

the City Council, he stated that it would apply outside of medical clinics

because “[t]hose are places where services are happening and quiet is

important for those services.” [Docs. 1 at ¶ 86; 15 at ¶ 86]. Woody’s remarks

clearly relate to the sound level of the activities outside medical facilities, and

no specific reference was made to the AHC or to the content of the pro-life

protestors’ message. All of this suggests that the City enacted the First Ban

to address the complaints regarding the sound level of activities outside of

medical clinics.

However, simply presenting a forecast that the City intended to fulfill a

content-neutral purpose is insufficient to survive summary judgment. The

current (Second) Amplification Ban can only be upheld if it is narrowly

tailored to serve a significant government interest and leaves open ample

alternative channels of communication.4 See McCullen, 573 U.S. at 477;

Ward, 491 U.S. at 791.

“‘[C]ommon sense and the holdings of prior cases’ [are] sufficient to

establish the existence” of a significant government interest. Billups v. City

of Charleston, 961 F.3d 673, 685 (4th Cir. 2020) (quoting Reynolds v.

4 The Court will specifically address whether the Second Amplification Ban is narrowly

tailored because Plaintiff has moved to permanently enjoin Defendants from enforcing

this version of the ban. However, the First and Second Bans do not materially differ with

regard to their proscriptive effect on speech.

23

Middleton, 779 F.3d 222, 227 (4th Cir. 2015)). The Supreme Court has

recognized that “[n]oise control is particularly important around hospitals and

medical facilities during surgery and recovery periods[.]” See Madsen v.

Women’s Health Ctr., Inc., 512 U.S. 753, 772 (1994). Thus, a reasonable

trier of fact could reasonably conclude that Defendants have a significant

interest in controlling noise around medical facilities.

To establish that the Second Amplification Ban is narrowly tailored,

however, Defendants must show that their interest in protecting patients from

harmful noise “would be achieved less effectively absent the regulation,” and

that the ban does “not regulate expression in such a manner that a

substantial portion of the burden on speech does not serve to advance its

goals.” Ward, 491 U.S. at 799; see also McCullen, 573 U.S. at 486

(explaining that a content neutral restriction is narrowly tailored when it does

not “burden substantially more speech than is necessary to further the

government’s legitimate interests.”). It has long been recognized that the

First Amendment does not guarantee the “[o]pportunity to gain the public’s

ears by objectionably amplified sound,” or by amplified sound that is “loud

and raucous[.]” See Kovacs v. Cooper, 336 U.S. 77, 87-89 (1949) (emphasis

added). However, “restrictions on volume must be no greater than

necessary to prevent disturbance from loud and raucous noise.” See U.S.

24

Lab. Party v. Pomerleau, 557 F.2d 410, 412 (4th Cir. 1977) (emphasis

added); see also Pine v. City of W. Palm Beach, Fla., 762 F.3d 1262, 1271

(11th Cir. 2014) (upholding amplification ban only after concluding other

provisions of noise ordinance allowed ban to be construed as “targeting only

loud, raucous, or unreasonably disturbing noise”); Costello v. City of

Burlington, 632 F.3d 41, 44-47 (2d Cir. 2011) (holding that noise ordinance

banning “loud or unreasonable noise” that “disturbs, injures or endangers the

peace or health of another . . . or [the] welfare of the community” is narrowly

tailored). Moreover, the mere fact that some may abuse the privilege of

communicating via amplified sound is not a sufficient ground for proscribing

its use entirely. See Saia v. People of N.Y., 334 U.S. 558, 562 (1948) (“But

to allow the police to bar the use of loud-speakers because their use can be

abused is like barring radio receivers because they too make a noise.”).

Here, the Second Amplification Ban prevents the use of any amplified

sound within 150 feet of an open medical clinic’s property line, and it broadly

defines “amplified sound” as meaning “sound augmented by any electronic

or other means that increases the sound level or volume.” [See Doc. 25-29

(emphasis added)]. By its terms, the ban plainly applies without regard to

the volume of the sound, or to whether the sound is actually loud, disruptive,

25

or raucous.5 Indeed, as written, the Second Ban is broad enough to prohibit

citizens from playing music quietly on their telephones or by using

speakerphone to take calls within 150 feet of open clinics. In fact, this

provision is so broad as to prohibit listening to one’s car radio while passing

a medical clinic on a public street. This sort of sweeping restriction

proscribes far more speech than is necessary to accomplish Defendants’

stated goal of protecting recovering patients from harmful noises. The

Second Amplification Ban on its face is thus overbroad.6

Additionally, although “the First Amendment imposes no freestanding

‘underinclusiveness limitation,’” “a law’s underinclusivity raises a red flag[.]”

Williams-Yulee v. Fla. Bar, 575 U.S. 433, 449 (2015) (quoting R.A.V. v. St.

Paul, 505 U.S. 377, 387 (1992)). Regarding the narrow tailoring inquiry,

underinclusivity suggests “that a law does not actually advance a compelling

5 Additionally, as the City specifically defined the term amplified sound so broadly, and

because there is no language in the ordinance suggesting a narrower interpretation, the

Court cannot construe the ordinance narrowly to avoid the constitutional issues that

Plaintiff has raised.

6 Defendants argue that the Second Ban is narrowly tailored because it only applies to

amplified sound, does not prohibit the use of amplified sound around churches, and only

applies when medical clinics and schools are open. [See Docs. 7-1: First Woody Aff. at

¶ 28; 26 at 11-12]. While this may be some evidence that Defendants could have

proscribed even more speech, this does not undermine the conclusion that the Second

Ban “burden[s] substantially more speech than is necessary to further the government’s

legitimate interests.” McCullen, 573 U.S. at 486.

26

interest.” Id. at 448-49. Underinclusivity is particularly problematic “when

the State regulates one aspect of a problem while declining to regulate a

different aspect of the problem that affects its stated interest in a comparable

way.” Id. at 451 (citing Fla. Star v. B.J.F., 491 U.S. 524, 540 (1989)).

Here, the Second Amplification Ban entirely prohibits the use of any

amplified sound—regardless of how loud—within 150 feet of the property

lines of open medical clinics. [See Doc. 25-29]. However, its prohibition

expressly does not apply to amplified sound of comparable, or even greater,

volume emanating from medical clinics themselves. [See id.]. Indeed, under

the Second Ban, the employees of medical clinics may produce amplified

sound inside medical clinics, even when in close proximity to recovering

patients. Employees of the AHC are apparently aware of this distinction, as

they have used amplified sound on the clinic’s property to drown out the

sounds of protests outside. [Doc. 1 at ¶¶ 168-70; see also Docs. 25-12; 25-

28]. This suggests that at times the amplified sound emanating from within

the AHC has been even louder, and thereby more harmful to recovering

patients, than the noise generated by protests outside the clinic.

Nonetheless, the Second Amplification Ban plainly allows for this usage to

continue. This underinclusivity suggests that the ban does not substantially

27

advance Defendants’ stated interest in protecting recovering patients from

noise of a harmful volume.

Further, “[t]o prove that a content-neutral restriction on protected

speech is narrowly tailored . . . , the government must . . . present evidence

showing that—before enacting the speech-restricting law—it ‘seriously

undertook to address the problem with less intrusive tools . . . .’” Billups, 961

F.3d at 688 (quoting McCullen, 573 U.S. at 494). Here, by tailoring two

separate regulations that allow amplified sound from a clinic for the purpose

of drowning out sound from off the property, the City’s actions suggest that

there is a content-based purpose to these differing standards.7 “[T]he

government is obliged to demonstrate that it actually tried or considered less-

speech-restrictive alternatives and that such alternatives were inadequate to

serve the government’s interest.” Id. “The government’s burden in this

regard is satisfied only when it presents ‘actual evidence supporting its

assertion[s].’” Id. (citing Reynolds, 779 F.3d at 229). It cannot meet this

burden merely by having its officials testify that such alternatives would be

ineffective. Id. (“In response, the City maintains that all three alternatives

7 Such purpose can further be gleaned from the enactment of the First Ban itself, which

focused only on clinics such as the AHC, but not on hospitals or other healthcare

facilities where patients would be convalescing.

28

would fail . . . . To corroborate this contention, however, the City merely

offers testimony from its officials regarding the predicted ineffectiveness of

the suggested alternatives. Such testimony, without more, is not sufficient

to satisfy the evidentiary standards established by Reynolds and

McCullen.”).

There is no forecast of evidence before this Court from which a

reasonable trier of fact could conclude that Defendants seriously undertook

to address the issue of excessive noise around medical clinics with less

intrusive measures before resorting to a complete ban. To the contrary, the

record is uncontradicted that Defendants first became interested in

addressing the problems posed by amplified sound around medical clinics

when Councilmember Wisler met with representatives of the AHC on

February 2, 2021. [See Doc. 25-8: Email from Wisler]. Defendants’ first

proposal addressing the issue thereafter was the First Amplification Ban.

[See Doc. 25-9 at 5].

Specifically, the first indication in the record that Defendants were

contemplating acting is a May 27, 2021, email in which Harris “passed along”

to Woody the “language” of the First Amplification Ban that she had received

from Wisler earlier that week. [Id. at 4-5]. By the very next day, Woody

29

decided to recommend that the City adopt the ban.8 [Id. at 4]. There is no

indication in the record that either Wisler or Woody considered less restrictive

alternatives before this point. Moreover, when Woody presented the First

Ban to the City Council, there was no discussion of less restrictive measures.

In fact, aside from Woody stating that the ban around medical clinics was

being proposed because “[t]hose are places where services are happening

and quiet is important for those services[,]” the ban was not mentioned.

[Docs. 1 at ¶ 86; 15 at ¶ 86]. As such, there is no forecast of evidence before

this Court from which a reasonable trier of fact could conclude that

Defendants considered less-speech-restrictive alternatives before proposing

and adopting a total off-property amplification ban.

Moreover, Plaintiff has suggested that Defendants could have used at

least two less restrictive alternatives to effectively address their concerns

regarding amplified sound around medical clinics. First, the version of the

City’s noise ordinance in existence prior to adoption of the First Amplification

Ban already allowed Defendants to cite individuals for using amplified sound

8 When Woody responded to Harris on May 28, 2021, he also stated that he had

“previously checked in with our legal department” regarding the amplification ban and that

“they are supportive of the concept, with some minor wording changes.” [Doc. 25-9 at 4].

There is no evidence in the record, however, regarding when Woody spoke with the City’s

legal department, nor about the legal department’s role in formulating, enacting, and

enforcing the amplification ban.

30

around medical clinics when they created noise disturbances. Moreover, this

standard specifically allowed Defendants to consider the use of amplified

sound as a factor in determining whether an individual had created a noise

disturbance. Defendants have presented no evidence regarding their efforts

to enforce the noise disturbance standard and as such, they have not

demonstrated that this standard was insufficient to address their concerns

regarding amplified sound around medical clinics. See Casey v. City of

Newport, 308 F.3d 106, 120 (1st Cir. 2002) (holding that amplification ban

was not narrowly tailored because “the record was devoid of any explanation

of why the alternative of enforcing the City’s noise ordinance . . . would not

have achieved the City’s objective as effectively as the amplification ban,

while placing a substantially lesser burden on speech”).

To the contrary, the only evidence in the record suggests that

Defendants were already using the noise disturbance standard to address

their concerns, and that their enforcement efforts were having their desired

effect. Indeed, Woody issued Plaintiff two citations when his use of amplified

sound created noise disturbances outside of the AHC on June 26, 2021, and

July 24, 2021, and he issued Chris Smith a citation when his use of amplified

sound created a noise disturbance outside of the AHC on June 26, 2021.

[Doc. 25-3: Hebb Aff. at ¶¶ 54, 58]. Plaintiff asserts that receiving these

31

citations deterred him from using loud amplified sound outside the AHC

thereafter. [Id. at ¶ 66].

As a second alternative, Plaintiff contends that Defendants could have

regulated sound around medical clinics by using fixed decibel limits—the

same tool they use to regulate amplified sound emanating from the medical

clinics themselves. This would have allowed Defendants to limit the volume

of amplified sound outside the AHC to the level they apparently determined

was appropriate within the clinic, 65 decibels, without banning its use

entirely. Either alternative would seemingly allow Defendants to address the

issue of amplified sound around medical clinics, yet, at the time they enacted

the First Ban, Defendants offered no explanation for why they were rejected.

Indeed, as noted above, there is no forecast of evidence from which a

reasonable fact finder could conclude that they even discussed these

alternatives.

A year after Plaintiff filed this action, Woody for the first time sought to

explain why these alternatives were inadequate. These explanations,

however, came too late, as “myriad post-hoc justifications” are insufficient to

meet the City’s burden of demonstrating that it “seriously undertook” to

consider less-speech-restrictive alternatives before enacting the ban.

Billups, 961 F.3d at 689 (quoting McCullen, 573 U.S. at 494).

32

Moreover, even if this Court were to consider Woody’s explanations,

as noted above, his testimony that the City believed that these alternatives

would be ineffective, “without more, is not sufficient to satisfy the evidentiary

standards established by Reynolds and McCullen.” Id. at 688. Indeed,

Woody merely asserts that the City rejected enforcing the noise disturbance

standard because the use of amplified sound persisted around medical

clinics despite the standard’s existence, and that the City rejected fixed

decibel limits because the “transient nature of noise” creators within rights of

way makes it difficult to measure the volume of the noise they create. [Doc.

21-1: Second Woody Aff. at ¶¶ 11-12]. As discussed above, however,

Defendants have presented no evidence suggesting that they were broadly

enforcing the noise disturbance standard around medical clinics and that the

problem was persisting despite their efforts, nor have they presented any

evidence that they ever considered using fixed decibel limits to address the

issue. This Court “cannot simply accept the City’s assurances that th[e]se

[alternatives] would be too difficult to enforce or would not sufficiently

safeguard its interest in protecting” recovering patients from harmful noises.

Billups, 961 F.3d at 689. This is particularly true where the City found such

standard to be adequate and enforceable within the premises of such clinics.

33

On these forecasts of evidence, a reasonable trier of fact could find

that the Defendants have undertaken a thinly veiled and very clumsy attempt

to dress up a content-based regulation as a content-neutral regulation

designed for the protection of patients. The Defendants’ motivation,

however, is not the issue and does not create a genuine issue of fact for trial.

Rather, on the undisputed facts the ordinance in question is both

constitutionally overbroad and underinclusive. Thus, there is no genuine

issue of material fact, and the Plaintiff is entitled to summary judgment.

In sum, the Second Amplification Ban is overbroad in effect and

underinclusive in application. Additionally, Defendants have not presented

a forecast of evidence that they considered less-speech-restrictive

alternatives prior to banning the use of all amplified sound outside of medical

clinics, nor have they adequately explained why the alternatives Plaintiff

suggests would be insufficient to address the issue. Therefore, for all these

reasons, this Court concludes as a matter of law that the Second Ban is not

narrowly tailored in accord with the Constitution. Accordingly, Plaintiff’s

motion for summary judgment is granted as to his free speech claim.

2. Due Process Claim

Plaintiff alleges that the First Amplification Ban was unconstitutionally

vague insofar as Defendants applied it to prohibit him from speaking through

34

a plastic cone within 150 feet of an open medical clinic.9 [See Docs. 1 at ¶¶

81-89; 25-1 at 24]. He further argues that this vagueness chilled his speech

and therefore that he is entitled to nominal damages.10 [Doc. 25-1 at 24].

Where a plaintiff makes an as-applied challenge, the Court must

consider “whether a statute is vague as applied to the particular facts at

issue[.]” Holder v. Humanitarian Law Project, 561 U.S. 1, 18 (2010). “A

statute can be impermissibly vague for either of two independent reasons.

First, if it fails to provide people of ordinary intelligence a reasonable

9 In response to Plaintiff’s motion for summary judgment, Defendants argue that the

Second Amplification Ban satisfies the “clarity and specificity requirements” of the due

process clause because it defines “amplified sound.” [See Doc. 26 at 15-16]. This

argument, however, entirely overlooks that Plaintiff has limited his vagueness challenge

to Defendants’ application of the First Ban. Indeed, Plaintiff concedes that the Second

Amplification Ban does not violate his rights under the due process clause of the

Fourteenth Amendment. [See Docs. 25 at 1; 25-1 at 24]. As such, this Court need not—

and will not—decide whether the Second Ban satisfies the requirements of due process.

10 Plaintiff does not allege, nor has he presented a forecast of evidence from which a

reasonable trier of fact could conclude, that he ever used a plastic cone to communicate

his message. However, for purposes of standing to bring a vagueness challenge, a

plaintiff can establish that he has suffered a “sufficiently imminent injury in fact [by

demonstrating] ‘an intention to engage in a course of conduct arguably affected with a

constitutional interest, but proscribed by statute, and [that] there exists a credible threat

of prosecution thereunder.’” Kenny v. Wilson, 885 F.3d 280, 288 (4th Cir. 2018) (citing

Babbitt v. Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)). Here, Plaintiff’s speech

activities clearly implicate the First Amendment. Moreover, Plaintiff forecasts evidence

that he would have used a plastic cone to speak outside the AHC, “numerous times,” but

for the fear of receiving a citation under the First Ban, and that a City Official informed a

friend of his, who then relayed that information to him, that the City considered the use of

a plastic cone to be proscribed by the First Ban. [Doc. 25-3 at ¶¶ 74, 141]. Defendants

have not contradicted this evidence. As such, Plaintiff has standing to pursue has

vagueness challenge.

35

opportunity to understand what [speech] it prohibits. Second, if it authorizes

or even encourages arbitrary and discriminatory enforcement.” Hill, 530 U.S.

at 732; see also Manning v. Caldwell, 930 F.3d 264, 272 (4th Cir. 2019) (“To

survive a vagueness challenge, a statute must give a person of ordinary

intelligence adequate notice of what conduct is prohibited and must include

sufficient standards to prevent arbitrary and discriminatory enforcement.”).

However, “[t]he degree of vagueness tolerated in a law depends in part on

the type of statute.” Manning, 930 F.3d at 272. “Less clarity is required in

purely civil statutes because the ‘consequences of imprecision are

qualitatively less severe.’” Id. (quoting Hoffman Ests. v. Flipside, Hoffman

Ests., Inc., 455 U.S. 489, 499 (1982)). “In contrast, laws imposing ‘criminal

penalties’ or ‘threaten[ing] to inhibit the exercise of constitutionally protected

rights’ are subject to ‘a stricter standard.’” Carolina Youth Action Project;

D.S. ex rel. Ford v. Wilson, 60 F.4th 770, 781 (4th Cir. 2023) (quoting

Hoffman Ests., 455 U.S. at 499). The “test of vagueness applies with

particular force in review of laws dealing with speech.” Hynes v. Mayor &

Council of Oradell, 425 U.S. 610, 620 (1976); see also Wilson, 60 F.4th at

781; Edgar v. Haines, 2 F.4th 298, 316 (4th Cir. 2021).

Here, the First Amplification Ban prohibited the use of “amplified

sound” within 150 feet of the property line of an open medical clinic. [See

36

Doc. 3-15 at 1-4]. However, it did not define “amplified sound.” Thus,

Plaintiff contends that his speech was chilled when Defendants unexpectedly

determined that plastic cones were amplifiers and communicated that their

use outside of the AHC would violate the First Ban.11 Therefore, the

dispositive question regarding Plaintiff’s as-applied vagueness challenge is

whether a person of ordinary intelligence would understand the use of a

plastic cone to amplify sound.

As noted above, the First Ban did not define “amplified sound”; thus,

this Court must look to the ordinary meaning of that term. United States v.

George, 946 F.3d 643, 645-46 (4th Cir. 2020) (citing FCC v. AT&T Inc., 562

U.S. 397, 403 (2011)). The term “amplify” is commonly defined as to make

a sound louder or stronger. See Amplify, MERRIAM-WEBSTER (last visited Jan.

29, 2024), https://www.merriam-webster.com/dictionary/amplify (“to make

larger or greater (as in amount, importance, or intensity)” and “to increase

the strength or amount of[.] especially: to make louder”); see also Amplify,

DICTIONARY.COM (last visited Jan. 29, 2024),

https://www.dictionary.com/browse/amplify (“to make larger, greater, or

stronger; enlarge; extend.”).

11 More specifically, Plaintiff asserts that “for well over a year” he refrained from speaking

with a plastic cone at the AHC “for fear of citation or arrest.” [Doc. 25-3 at ¶¶ 141-42].

37

Based on the ordinary meaning of the term, the Court does not find

that a person of ordinary intelligence would necessarily understand the use

of a plastic cone to make a sound “louder or stronger.” As the Court

explained in its Order granting the Plaintiff a preliminary injunction:

Whether using a plastic cone amplifies sound by

making it louder or stronger or merely directs sound

in a certain direction presents a complex evidentiary

question rooted in physics, and, therefore, it is

unclear to people of ordinary intelligence whether §

10-85(2) applies to plastic cones.

[Doc. 14 at 32]. Accordingly, the Court will grant summary judgment in favor

of the Plaintiff on his due process claim and will award him nominal damages,

as requested.

C. Permanent Injunction

A plaintiff seeking permanent injunctive relief must establish the

following four factors:

(1) that it has suffered an irreparable injury; (2) that

remedies available at law, such as monetary

damages, are inadequate to compensate for that

injury; (3) that, considering the balance of hardships

between the plaintiff and defendant, a remedy in

equity is warranted; and (4) that the public interest

would not be disserved by a permanent injunction.

eBay Inc. v. MerExchange, LLC, 547 U.S. 388, 391 (2006); Wudi Indus.

(Shanghai) Co., Ltd. v. Wong, 70 F.4th 183, 190 (4th Cir. 2023). “The

38

decision to grant or deny permanent injunctive relief is an act of equitable

discretion by the district court, reviewable on appeal for abuse of discretion.”

eBay Inc., 547 U.S. at 391.

“[I]t is well established that ‘[t]he loss of First Amendment freedoms,

for even minimal periods of time, unquestionably constitutes irreparable

injury[,]’” Legend Night Club v. Miller, 637 F.3d 291, 302 (4th Cir. 2011)

(quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)), and that “monetary

damages are inadequate to compensate for the loss of First Amendment

freedoms.” Id. (quoting Joelner v. Vill. of Washington Park, 378 F.3d 613,

620 (7th Cir. 2004)). Moreover, “upholding constitutional rights[,]” such as

Plaintiff’s free speech rights, “is in the public interest.” Id. at 303 (quoting

Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 521 (4th Cir. 2002)).

Accordingly, having demonstrated that the Second Amplification Ban

violates his constitutional right to free speech, Plaintiff has established eBay

factors one, two, and four—that he has suffered an irreparable injury, for

which he cannot be adequately compensated by monetary damages, and

that the public interest would not be harmed by the entry of an injunction.

Regarding the third eBay factor, “the Court ‘must balance the

competing claims of injury and must consider the effect on each party of the

granting or withholding of the requested relief.’” Armento v. Asheville

39

Buncombe Cmty. Christian Ministry, Inc., No. 1:17-cv-00150-MR-DLH, at *1

(W.D.N.C. Sept. 1, 2017) (Reidinger, J.) (quoting Amoco Prod. Co. v. Vill. of

Gambell, 480 U.S. 531, 542 (1987)). Here, Plaintiff has demonstrated that

he has suffered irreparable harm because the Second Ban violates his free

speech rights. In contrast, the Defendants have not demonstrated that any

patients will be harmed by the issuance of a permanent injunction preventing

the Defendants from enforcing the unconstitutional ban. See Newsome v.

Albemarle Cnty. Sch. Bd., 354 F.3d 249, 261 (4th Cir. 2003) (“With respect

to the harm that would befall if an injunction were put in place, Jouett is in no

way harmed by issuance of a preliminary injunction which prevents it from

enforcing a regulation, which, on this record, is likely to be found

unconstitutional.”); see also Legend Night Club, 637 F.3d at 302-03 (“[T]he

State of Maryland is in no way harmed by issuance of an injunction that

prevents the state from enforcing unconstitutional restrictions.”). Further, as

discussed above, there are other, less-speech-restrictive, alternatives that

will allow Defendants to address the concern about harmful noise outside of

medical clinics by means that are not unconstitutional. As such, Plaintiff has

demonstrated that the balance of hardships weighs in favor of protecting the

Plaintiff’s rights, as there is no other way to vindicate those rights other than

by a permanent injunction.

40

In sum, Plaintiff has demonstrated each of the four eBay factors. Thus,

in its discretion, this Court will grant Plaintiff’s request for permanent

injunctive relief and will permanently enjoin Defendant from enforcing the

Second Amplification Ban.

ORDER

IT IS, THEREFORE, ORDERED that Defendants’ Motion to Dismiss

as Moot and Motion to Dissolve Injunction [Doc. 21] is DENIED.

IT IS FURTHER ORDERED that Plaintiff’s Motion for Summary

Judgment [Doc. 25] is GRANTED, and the Plaintiff is hereby awarded

nominal damages in the amount of One Dollar with respect to his due

process claim.

IT IS FURTHER ORDERED that the Defendants City of Asheville,

North Carolina, and Ben Woody, along with their agents, officials, servants,

employees, and all persons in active concert or participation with them or

any of them, are here permanently enjoined from enforcing the Second

Amplification Ban, which is contained in § 10-85(2) of the City’s Code of

Ordinances.

The Clerk of Court is respectfully instructed to enter a Judgment

consistent with this Order contemporaneously herewith.

41

IT IS SO ORDERED.

Signed: March 25, 2024

ee wg

Chief United States District Judge AU,

42