Respondents Brief — Andrew March, Petitioner v. Janet T. Mills, Individually and in Her Official Capacity as Attorney General of Maine, et al.

No. 17-689

================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------ANDREW MARCH,

Petitioner,

v.

JANET T. MILLS, Individually

and in Her Official Capacity as

Attorney General of Maine, et al.,

Respondents.

-----------------------------------------------------------------On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The First Circuit

-----------------------------------------------------------------BRIEF IN OPPOSITION FOR RESPONDENT

MAINE ATTORNEY GENERAL JANET T. MILLS

-----------------------------------------------------------------JANET T. MILLS

Maine Attorney General

CHRISTOPHER C. TAUB

Assistant Attorney General

Counsel of Record

LEANNE ROBBIN

Assistant Attorney General

Six State House Station

Augusta, ME 04333-0006

(207) 626-8800

Christopher.C.Taub@maine.gov

Counsel for Respondent Maine

Attorney General Janet T. Mills

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

Under the “Noise Provision” of the Maine Civil

Rights Act, a person commits a violation if, after having been warned by a law enforcement officer, the person continues making noise that can be heard within a

building with the intent to either jeopardize the health

of patients receiving health services within the building or interfere with the safe and effective delivery of

such services. The question presented is whether the

court of appeals correctly held that the Noise Provision, on its face, is a content-neutral restriction on the

time, place or manner of expression.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED .....................................

i

TABLE OF AUTHORITIES ...................................

iii

CONSTITUTIONAL AND STATUTORY

PROVISION INVOLVED ...................................

1

STATEMENT OF THE CASE ................................

2

I.

STATUTORY AND FACTUAL BACKGROUND .....................................................

2

II. PROCEDURAL HISTORY ..........................

5

REASONS FOR DENYING THE PETITION .......

15

I. THE COURT OF APPEALS CORRECTLY

HELD THAT THE NOISE PROVISION IS

CONTENT-NEUTRAL ON ITS FACE ........ 16

II. THE COURT OF APPEALS’ DECISION

DOES NOT CONFLICT WITH DECISIONS

FROM OTHER FEDERAL COURTS ......... 23

III.

THERE IS NO FINAL JUDGMENT AND

THE COURT SHOULD DECLINE TO REVIEW AN INTERLOCUTORY DECISION

VACATING AN ORDER GRANTING A PRELIMINARY INJUNCTION MOTION ......... 24

CONCLUSION .......................................................

26

iii

TABLE OF AUTHORITIES

Page

CASES

Blitch v. City of Slidell, 260 F. Supp. 3d 656 (E.D.

La. 2017) ..................................................................24

Cahaly v. Larosa, 796 F.3d 399 (4th Cir. 2015) ..........23

F.C.C. v. League of Women Voters of California,

468 U.S. 364 (1984) ........................................... 10, 20

Frisby v. Schultz, 487 U.S. 474 (1988) ........................12

Grayned v. City of Rockford, 408 U.S. 104 (1972) ....... 8, 9

Hamilton-Brown Shoe Co. v. Wolf Bros. & Co.,

240 U.S. 251 (1916) .................................................24

Hill v. Colorado, 530 U.S. 703 (2000) ................... 11, 20

Homeless Helping Homeless, Inc. v. City of

Tampa, Fla., No. 8:15-CV-1219-T-23AAS, 2016

WL 4162882 (M.D. Fla. Aug. 5, 2016) .....................24

Madsen v. Women’s Health Ctr., Inc., 512 U.S.

753 (1994) ................................................................13

McCullen v. Coakley, 134 S. Ct. 2518 (2014)........ 10, 14

R.A.V. v. St. Paul, 505 U.S. 377 (1992)........................21

Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) ..... passim

Texas v. Johnson, 491 U.S. 397 (1989) .................. 20, 21

United States v. O’Brien, 391 U.S. 367 (1968) ............20

Virginia Military Inst. v. United States, 508 U.S.

946 (1993) ................................................................24

iv

TABLE OF AUTHORITIES – Continued

Page

Ward v. Rock Against Racism, 491 U.S. 781

(1989) ................................................................. 11, 16

Wisconsin v. Mitchell, 508 U.S. 476 (1993) .................20

CONSTITUTION

U.S. Const. amend. I ................................. 1, 5, 8, 16, 20

STATUTES

42 U.S.C. § 1983 ............................................................5

Me. Rev. Stat. Ann. tit. 5, § 4681 ..................................2

Me. Rev. Stat. Ann. tit. 5, § 4682 ..................................2

Me. Rev. Stat. Ann. tit. 5, § 4684-B...............................4

1989 Me. Laws 582 .......................................................2

1995 Me. Laws 417 .......................................................4

OTHER AUTHORITIES

Committee Amendment to Legislative Document 1216, 117th Maine Legislature (1995) ............2

1

CONSTITUTIONAL AND

STATUTORY PROVISION INVOLVED

The First Amendment of the United States Constitution, applicable to the States through the Fourteenth Amendment, states, in relevant part, that

“Congress shall make no law . . . abridging the freedom

of speech. . . .”

The relevant portion of the Maine Civil Rights Act,

referred to here as the “Noise Provision,” states:

It is a violation of this section for any person,

whether or not acting under color of law, to intentionally interfere or attempt to intentionally interfere with the exercise or enjoyment

by any other person of rights secured by the

United States Constitution or the laws of the

United States or of rights secured by the Constitution of Maine or laws of the State by any

of the following conduct:

*

*

*

D. 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

2

those services within the

building.

Me. Rev. Stat. Ann. tit. 5, § 4684-B(2)(D).

------------------------------------------------------------------

STATEMENT OF THE CASE

I.

STATUTORY AND FACTUAL BACKGROUND

1. The Maine Civil Rights Act (“MCRA”) was

enacted in 1989. 1989 Me. Laws 582. Essentially, it

creates a cause of action against any person who,

“whether or not acting under color of law, intentionally

interferes or attempts to intentionally interfere” with

another person’s rights secured by the United States

or Maine Constitutions or state or federal law. Me. Rev.

Stat. Ann. tit. 5, §§ 4681, 4682. The MCRA authorizes

both aggrieved persons and the Attorney General to

bring actions against violators. Id.

In 1995, the Maine Attorney General proposed a

bill to amend the MCRA to provide certain protections

for patients and providers at reproductive health facilities. Pet. App. 4. The bill was subsequently amended

to expand protections to all buildings, not just those

providing reproductive health services. Id. As amended,

the bill made it a violation of the MCRA to interfere

or attempt to interfere with a person’s civil rights by

1) physically obstructing a building; 2) “making . . .

repeated telephone calls to a person or a building” in

order to disrupt activities; or 3) “activating a device or

exposing a substance that releases noxious and offensive odors within a building.” Committee Amendment

3

to Legislative Document 1216, 117th Maine Legislature (1995) (attached as Exhibit A to Aff. of Alice

Sproul, at 72-75). Additionally, and as is relevant here,

the bill made the following a violation of the MCRA:

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.

Id.

As the court of appeals noted, the amended bill

was supported by a “broad range of interested parties,

including both proponents and opponents of abortions

rights.” Pet. App. 5. Supporters included the Maine

Pro-Choice Coalition and the Maine Life Coalition,

which consisted of the Maine Right to Life Committee,

the Catholic Diocese of Portland, the Christian Civic

League, and Feminists for Life of Maine. Id. A representative of Feminists for Life of Maine testified to the

Maine legislature that “ ‘it is the consensus of the

Maine Life Coalition . . . and the Attorney General’s

Office that this legislation further secures protection

for both pro-life and pro-choice individuals.’ ” Id. Legal

counsel for the Christian Civic League opined that the

bill posed no constitutional issues: “[W]e believe that

the AG’s new bill will not infringe on the Constitutional rights of peaceful pro-life protestors. . . .” Exhibit A to Sproul Aff., at 30. Given this backing from

4

concerned interests across a broad political spectrum,

it is no surprise that the Legislature enacted the bill

and the Governor signed it into law. See “An Act to

Amend the Maine Civil Rights Act,” 1995 Me. Laws

417, codified at Me. Rev. Stat. Ann. tit 5, § 4684-B.

2. The Petitioner, Andrew March, expresses his

opposition to abortion while standing outside of the

Planned Parenthood Health Center (the “Health Center”) in Portland, Maine. Pet. App. 7-8. March has never

been charged with violating the Noise Provision.1 Nevertheless, on December 21, 2015, March filed a lawsuit

in the United States District Court for the District

of Maine against the Attorney General, the City of

Portland, and several City of Portland police officers.

March alleged that on various occasions, while protesting abortion outside of the Health Center, he was

warned by police officers to lower his voice or risk being in violation of the Noise Provision. Complaint,

¶¶ 55-69, 71-82, 84-93. March claims that these warnings have deterred him from exercising his First

Amendment rights outside of the Health Center, Complaint, ¶¶ 70, 83, 94, 99-106, and he sought injunctive

and declaratory relief. Pet. App. 8.

1

In the 23 years since the Noise Provision was enacted, the

Attorney General has charged only one person with a violation.

Aff. of Leanne Robbin, ¶ 4. The Attorney General brought that

charge in October 2015, id., and the matter is still pending in state

court.

5

II.

PROCEDURAL HISTORY

March brought claims pursuant to 42 U.S.C.

§ 1983 and alleged that 1) the Noise Provision, both on

its face and as applied, violates the First Amendment;

2) Respondents violated the Equal Protection Clause

by allegedly selectively enforcing the Noise Provision

against a speaker expressing a “Christian, Pro-Life

viewpoint;” and 3) the Noise Provision is unconstitutionally vague. Complaint, ¶¶ 116-178. On December

30, 2015, March filed a motion for a preliminary injunction to enjoin Respondents from enforcing the

Noise Provision. Pet. App. 8. In seeking an injunction,

March advanced only his First Amendment facial and

as-applied challenges to the Noise Provision. He did

not press his claims that the Noise Provision is unconstitutionally vague or being enforced in violation of the

Equal Protection Clause.

On May 23, 2016, following oral argument and

supplemental briefing, the district court issued an order granting March’s preliminary injunction motion.

Pet. App. 47-86. Based on affidavits from Health Center medical providers (which were not controverted by

Mr. March), the district court made several significant

factual findings regarding the impact of noise on the

safe and effective delivery of health care services:

Loud and sustained yelling that is audible

within the Health Center interferes with the

Health Center’s staff ’s ability to provide care

to their patients. This noise is problematic because:

6

• To effectively deliver health services, staff

need a calm and quiet environment for their

interactions with patients. Effective communication between Health Center staff and patients is essential because of the importance

of obtaining accurate information regarding

patients’ “medical histor[ies], allergies, and

other issues that may impact . . . medical

care.”

• It is essential that patients fully understand and retain the information provided to

them by the Health Center regarding their

medical procedure. Health Center staff need

to explain to patients “the various symptoms

they may experience after they leave [the] facility, including which symptoms are to be expected and which symptoms are abnormal.” If

a patient does not understand or retain this

information, the medical repercussions can be

significant.

• It becomes very difficult to communicate

with patients when protesters are loud enough

that they can be heard inside the building.

The loud noise distracts patients and renders

them unable to concentrate on their discussions with staff. This in turn causes staff to

spend more time repeating instructions to patients, which causes additional delays for the

entire facility.

*

*

*

• Loud noise from outside the building has

a physiological effect on patients, causing “additional stress and elevated blood pressure,

7

pulse, and respiratory rates.” Such physical

effects interfere with medical care because

patients require “additional evaluation and

treatment.” This also can lead to treatment

being delayed.

• The Health Center provides “many patients

with anti-anxiety medications prior to abortion procedures.” When patients are subjected

to noise from protesters on the sidewalk, staff

often have to “give patients multiple doses of

medication until the[ir] anxiety is under control.” Providing these additional doses can result in further delay of care.

Pet. App. 53-55 (citations omitted).

Significantly, the district court found that there is

a qualitative difference between sustained noise targeting patients inside the Health Center and other

types of noise:

• Transitory noise produced by parades, sirens, and car horns have the potential to disrupt medical care. However, those noises are

normally brief in duration and any disruption

dissipates quickly. “[U]nabated constant noise”

that is specifically directed at patients “is

uniquely disruptive” to the Health Center’s

ability to provide medical care.

Pet. App. 55-56 (citation omitted). Despite finding that

noise targeting Health Center patients and staff is

uniquely harmful, the district court concluded that “it

is likely that the Noise Provision is content-based and

will not survive strict scrutiny.” Pet. App. 83. Because

8

the district court concluded that March was likely to

succeed on his facial First Amendment challenge to the

Noise Provision, it did not address his as-applied challenge. Pet. App. 61.

On appeal, the United States Court of Appeals for

the First Circuit reversed. Pet. App. 1-44. The court began with the “threshold question” of whether the Noise

Provision “is a content-based or a content neutral

speech restriction.” Pet. App. 12. The court noted that

“[t]here are two distinct ways in which a regulation

may be deemed to be content based.” Pet. App. 13.

“First, a regulation may be deemed content based because the ‘regulation of speech on its face draws distinctions based on the message a speaker conveys.’ ” Id.

(quoting Reed v. Town of Gilbert, 135 S. Ct. 2218, 2227

(2015)). Second, regulations that are facially contentneutral nevertheless “ ‘will be considered content-based

regulations of speech . . . if they cannot be justified

without reference to the content of the regulated

speech, or . . . were adopted by the government because

of disagreement with the message [the speech] conveys.’ ” Pet. App. 14 (quoting Reed, 135 S. Ct. at 2227)

(internal quotation marks omitted).

Turning to whether the Noise Provision is contentbased on its face, the court of appeals recognized that

in light of Grayned v. City of Rockford, 408 U.S. 104

(1972), March could not dispute that a statute restricting noise that actually interferes with the safe and

effective delivery of health care services is contentneutral. Pet. App. 15. At issue in Grayned was an ordinance that prohibited “noise made outside of schools

9

that ‘disturbs or tends to disturb the peace or good

order’ of the school.” Pet. App. 15 (quoting Grayned,

408 U.S. at 107-08). The court of appeals noted that

the Grayned Court held that the ordinance was content-neutral because it targeted disruptive noise without regard to any message being conveyed. Pet. App.

15-16 (citing Grayned, 408 U.S. at 120). The court of

appeals found that the Noise Provision, “at least on its

face, would appear to apply, just like the ordinance in

Grayned, to noise on any topic or concerning any idea.”

Pet. App. 17. The court concluded that the Noise Provision is thus “no more content based, as a facial matter,

than is the restriction on disruptive noise found to be

content neutral in Grayned.” Pet. App. 19.

The court rejected March’s argument that the

Noise Provision is distinguishable from Grayned because it has a “disruptive-intent requirement” which

“necessarily ensures” that the content of a message

will be used to establish intent. Pet. App. 16-17. First,

the court recognized that the Noise Provision “says not

a word about the relevance – if any – of the content of

the noise that a person makes to the determination of

whether that person has the requisite disruptive intent.” Pet. App. 17. The court noted that “[o]ne’s manner of making noise can itself be highly probative of

one’s disruptive intent quite independent of what one

actually says.” Id. As the court recognized, the Noise

Provision applies to loud noise even when it “conveys

no message at all,” such as beating on a drum. Pet. App.

18.

10

The court rejected the notion that content of

speech will necessarily be used to determine intent; rather, determining intent is a “fact-specific inquiry that

may depend on a variety of factors, including, crucially,

whether the individual has ignored an initial order

‘by a law enforcement officer to cease such noise.’ ”

Pet. App. 19 (quoting Me. Rev. Stat. Ann. tit 5, § 4684B(2)(D)). The court of appeals acknowledged that under

this Court’s precedents, a regulation may be contentbased when enforcement authorities must necessarily

examine the content of the speech to determine whether

there is a violation. Pet. App. 24 (citing McCullen v.

Coakley, 134 S. Ct. 2518, 2531 (2014); F.C.C. v. League

of Women Voters of California, 468 U.S. 364, 383

(1984)). The court recognized, though, that there is

“nothing on the face of the Noise Provision indicat[ing]

that enforcement authorities must examine the content of the speaker’s communication in order to find a

violation.” Pet. App. 25 (emphasis in original). Intent

can be determined wholly apart from the noise’s communicative content, if any. Indeed, the court agreed

with Maine that the “most probative evidence of disruptive intent is a person’s decision to intentionally

keep making loud noise after having been warned of

its disruptive effect.” Pet. App. 28.

The court recognized “[i]t is possible that, on the

facts of a given case, the communicative content of

noise may supply helpful evidence (to one side or the

other) regarding the noisemaker’s intent.” Pet. App. 26.

The court concluded, though, that this does not make

the Noise Provision content-based on its face. Id. In

11

support, the court of appeals cited Hill v. Colorado, 530

U.S. 703, 721 (2000), in which this Court held that

a speech restriction was content-neutral despite that

the content of a speaker’s statements would sometimes

need to be examined to determine whether the restriction applied. Pet. App. 26. The court also found

support in Grayned, noting that there, the Court found

that the ordinance was content-neutral despite that

the ordinance “appeared to contemplate” that the “message shouted” would be probative of whether the person acted with the requisite intent. Pet. App. 26-27.

Finally, citing Reed, the court stated that a restriction

is content-based if it depends “entirely” on the communicative content. Pet. App. 27. A restriction is not

content-based “merely because the communicative content of noise could conceivably be relevant in ascertaining the noisemaker’s disruptive intent.” Id.

After concluding that the Noise Provision is content-neutral on its face, the court of appeals considered

whether it is “ ‘justified without reference to content’ or

was instead adopted because of the state’s disagreement with the content of any message expressed.” Pet.

App. 29 (quoting Ward v. Rock Against Racism, 491

U.S. 781, 791 (1989)). The court found that the Noise

Provision is “content neutral in purpose, just as it is on

its face” because it

aims to protect patients from the “[t]ype of

harm most likely to cause harm” to their

“right to receive safe and effective medical

care,” and (2) serves to identify the subset of

noise that is “most likely” to cause that harm

12

on the basis of characteristics that are not dependent on the content of any message that

the restricted noise may communicate.

Pet. App. 29. In reaching these conclusions, the court of

appeals relied on the district court’s factual findings,

as discussed above, regarding the uniquely harmful

nature of sustained noise targeting patients and staff

at medical facilities. Pet. App. 29-31. The court found

that the Noise Provision proscribes the “subset of

speech” that is likely to be disruptive not because of its

content, but because of the manner in which it is expressed. Pet. App. 31-32. The court cited to Frisby v.

Schultz, 487 U.S. 474 (1988), which involved an ordinance prohibiting picketing in front of a single home.

Pet. App. 34. The Court in Frisby recognized that it was

the targeted nature of the communication that was the

real harm, and not the substance of any message.

Frisby, 487 U.S. at 486. The appeals court found that

the Noise Provision proscribes noise that is uniquely

harmful not because of its communicative content but

because of the manner in which it is specifically directed at patients. Pet. App. 31.

After concluding that the Noise Provision is content-neutral both “on its face” and “in its object,” the

court applied the standard of review applicable to content-neutral restrictions on the time, place or manner

of speech – i.e., whether the restriction is “narrowly

tailored to serve a significant governmental interest

and leaves open ample alternative channels for communication of the information.” Pet. App. 35. The court

found that the Noise Provision serves Maine’s significant interest in ensuring that patients are able to

13

receive safe and effective health care. Pet. App. 35-36.

The court noted that in Madsen v. Women’s Health Ctr.,

Inc., 512 U.S. 753 (1994), this Court “found that a restriction on noise outside an abortion clinic served a

significant governmental interest” in promoting peace

and calm around medical facilities. Pet. App. 36. The

Noise Provision serves this same interest.

The court rejected March’s argument that the

Noise Provision does not further Maine’s interest in

preventing the disruption of health care because it

fails to address “noise made loudly and in a sustained

fashion but without the disruptive intent specified in

the Noise Provision.” Pet. App. 36-37. The court noted

that March “does not challenge the District Court’s

finding that ‘[u]nabated constant noise that is specifically directed at patients’ is ‘uniquely disruptive.’ ” Pet.

App. 38 (emphasis in original). The court of appeals

concluded that “because Maine has targeted a subset

of loud noise that is likely to cause the ‘unique’ harm

that Maine has a significant interest in singling out,”

the Noise Provision is not underinclusive. Id. In response to March’s allegations that the Noise Provision

was too broad because it “allows abortion providers to

claim violations where none exist,” the court noted that

allegations of inconsistent or improper enforcement do

not make the Noise Provision facially overbroad. Pet.

App. 40-42.

Finally, the court of appeals held that the Noise

Provision leaves open ample alternative channels for

communication. The court agreed with Maine that the

Noise Provision “permits speakers to ‘congregate in the

14

vicinity of clinics, hand out literature, display signs, attempt to engage in conversation with persons entering

or passing by the clinic, and orally express their view

loudly enough to be heard in the immediate vicinity.’ ”

Pet. App. 43.2 The only contention March made in response was to claim that the Noise Provision prevents

him from speaking loudly enough to be heard by passersby over the volume of other street noises. The court

noted, though, that the “face of the Noise Provision

simply does not show that it restricts speech” in such

a manner and thus there was no basis for concluding

that the Noise Provision “does not permit ample alternative channels of communication.” Pet. App. 43-44.3

The court of appeals concluded that the Noise

Provision is a “facially content-neutral measure that

2

In McCullen v. Coakley, 134 S. Ct. 2518, 2536-37 (2014) this

Court emphasized the importance of permitting abortion protesters to identify patients as they approach a clinic so that they can

engage in conversation and hand them literature before the patients enter the clinic. The Noise Provision permits this activity.

Protesters can stand as close as they like to the entrance of a

clinic, hand out literature, and attempt to speak with patients before they enter.

3

A few weeks after filing his lawsuit, March stood on a milk

crate outside of the Health Facility for at least an hour expressing

his opposition to abortion. Aff. of Meredith Healey, ¶ 27. The Attorney General submitted a video of March engaging in similar

conduct on a separate occasion. Robbin Aff., ¶ 7 and Exhibit A

thereto. The video demonstrates that March could easily be heard

by passersby without violating the Noise Provision. The fact that

March has continued to engage in protest activities outside of the

Health Facility thus not only calls into question March’s claim

that he is “chilled” by the Noise Provision, but also his claim that

no alternative channels of communication are available to him.

15

targets noise for reasons that have nothing to do with

the content of any topic discussed, idea propounded, or

message conveyed” and that it serves a “significant

state interest without burdening substantially more

speech than necessary . . . while leaving open ample alternative avenues for communication.” Pet. App. 44.

The court thus found that March was not likely to succeed on the merits of his facial challenge. Id.

------------------------------------------------------------------

REASONS FOR DENYING THE PETITION

The court of appeals correctly held that the Noise

Provision is content-neutral because it does not draw

a distinction based on the communicative content, if

any, of the noise. It applies to noise made with the intent to interfere with the delivery of medical services,

regardless of whether the noise even conveys any message. Distinctions based on the intent of the speaker do

not make a restriction content-based, and no case from

this or any other court is to the contrary. Intent can be

determined without considering the content of any

message the noise might contain, and the most dispositive factor will often be whether an individual continued making noise at the same volume after being

warned that he could be heard within the health care

facility and was interfering with the delivery of medical services. While content might sometimes be used to

determine intent, such an evidentiary inquiry does not

make the Noise Provision content-based. The Noise

Provision is justified without reference to the content

of any speech and it was not adopted because of

16

disagreement with any particular message. It was

adopted simply to prevent noise from being used to interfere with a person’s right to receive safe and effective medical care.

The court of appeals’ decision does not conflict

with decisions of this Court or lower federal courts. The

court’s decision is interlocutory, and the Court should

not depart from its usual practice of declining to review

non-final judgments. The factual record has not been

fully developed, and the lower courts have not yet addressed March’s as-applied First Amendment challenge

or his claims that the Noise Provision is unconstitutionally vague and is being discriminately enforced in

violation of the Equal Protection Clause.

I.

The Court of Appeals Correctly Held That

the Noise Provision is Content-Neutral on

its Face.

The court of appeals, applying well-established

precedent from this Court, correctly held that the

Noise Provision is not, on its face, a content-based restriction on speech. There are two categories of content-based laws: 1) laws that draw distinctions “based

on the message a speaker conveys;” and 2) “laws that

cannot be ‘justified without reference to the content of

the regulated speech,’ or that were adopted by the government ‘because of disagreement with the message

[the speech] conveys.’ ” Reed, 135 S. Ct. at 2227 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791

(1989)). The Noise Provision does not fall into either

17

category. It makes no distinction based on any message the noise might convey, and its purpose is to prevent noise from being used to interfere with medical

care, regardless of the political, social or philosophical

agenda of the noisemaker.

As this Court recently explained, whether a regulation is content-based or content-neutral depends on

whether it makes distinctions based on the message

being expressed:

Government regulation of speech is content

based if a law applies 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. Some facial distinctions based on a message are obvious, defining

regulated speech by particular subject matter,

and others are more subtle, defining regulated speech by its function or purpose. Both

are distinctions drawn based on the message

a speaker conveys, and, therefore, are subject

to strict scrutiny.

Reed, 135 S. Ct. at 2227 (citations omitted). The Noise

Provision does not make distinctions based on the message being expressed. Rather, it applies to all noise that

can be heard within a health care facility and that is

made with the intent to interfere with the delivery of

medical services. Any message the noise might contain

is irrelevant.

18

The Noise Provision applies to all manner of protesters who might attempt to use noise to disrupt

health care services, not just those opposed to abortion.

Facilities that treat potentially disfavored populations

such as immigrants or the homeless, or that provide

potentially controversial medical care such as stem cell

treatments, vaccinations, in vitro fertilization, gender

reassignment surgery, or methadone treatment, could

all become the targets of protesters seeking to disrupt

the health care the facilities are attempting to provide.

As the court of appeals noted, health care facilities

could become the subject of protests by their own employees in the event of a labor dispute. Pet. App. 17-18.

In all of these situations, the Noise Provision would

prevent noise from being intentionally used to interfere with the delivery of health care services, regardless of its content.

March claims that because the intent of the noisemaker is relevant to whether the Noise Provision applies, the court of appeals’ decision “violates” this

Court’s precedent in Reed, 135 S. Ct. at 2218. March

seems to argue that in Reed, this Court held that a restriction is content-based if it requires consideration of

a person’s subjective intent. This is simply not so. In

Reed, a town had an ordinance that regulated the display of outdoor signs. 135 S. Ct. at 2224. The ordinance

treated signs differently depending on the type of information they conveyed. Id. The Court noted that a

regulation is content-based if it “applies to particular

speech because of the topic discussed or the idea or

message expressed.” Id., at 2227. This “requires a court

19

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

draws distinctions based on the message a speaker

conveys.” Id. An “obvious” facial distinction is when

speech is regulated by “particular subject matter,”

while a “more subtle” distinction is when speech is regulated by “its function or purpose.” Id. The common

feature is that “[b]oth are distinctions drawn based on

the message a speaker conveys.” Id. The sign ordinance

in Reed was content-based on its face because its application was entirely message dependent. For example, a sign with a message regarding the time and place

of a meeting was treated differently than a sign with a

message promoting a particular candidate. Id. As the

Court recognized, the restrictions imposed on a particular sign depended “entirely on the communicative

content of the sign.” Id.

Whether the Noise Provision applies in a particular circumstance, on the other hand, does not depend

on the noise’s communicative content. Rather, it depends on whether the noise is loud enough to be heard

inside of a health facility and is being made with the

intent of disrupting the delivery of medical services. It

is not necessary to consider any communicative content of noise to determine the noisemaker’s intent. Rather, as the court of appeals noted, the most important

factor is likely to be whether the individual continued

making noise after being warned that he is interfering

with the provision of health care services. Pet. App 28.

It may well be that in some cases, communicative

content could be used as evidence of intent. This, though,

does not make the Noise Provision content-based on its

20

face. See Hill v. Colorado, 530 U.S. 703, 721 (2000) (“It

is common in the law to examine the content of a communication to determine the speaker’s purpose. . . . We

have never held, or suggested, that it is improper to

look at the content of an oral or written statement in

order to determine whether a rule of law applies to a

course of conduct.”); Wisconsin v. Mitchell, 508 U.S.

476, 489 (1993) (“The First Amendment . . . does not

prohibit the evidentiary use of speech to establish the

elements of a crime or to prove motive or intent.”). Unlike in League of Women Voters, 468 U.S. at 383, it is

not necessary for enforcement authorities to consider

the noise’s communicative content to determine whether

it violates Noise Provision.

March’s reliance on Texas v. Johnson, 491 U.S. 397

(1989) is puzzling. At issue in that case was a statute

prohibiting burning the American flag, and the statute

applied regardless of whether the flag burner intended

to express a message. Id., at 400 & n.1. Because burning the flag was expressive conduct, id., at 405-06, the

Court considered whether the statute violated the

First Amendment. The Court noted that while the government generally has “a freer hand in restricting expressive conduct than it has in restricting the written

or spoken word,” the government’s interest must be

“ ‘unrelated to the suppression of free expression.’ ” Id.,

at 406-07 (quoting United States v. O’Brien, 391 U.S.

367, 377 (1968)). The Court found that the flag-burning

statute furthered only the government’s interest in

“preserving the flag as a symbol of nationhood and national unity” and that it did not further any interest

21

unrelated to the suppression of expression. Id., at 410.

The Court did not hold, as March claims, that the statute was unconstitutional because it was a “restriction

based on the intent of the person communicating his

message.” Pet. 8. Moreover, if the Noise Provision were

analyzed under Johnson as a restriction targeting conduct, not speech, it is constitutional. 4 The Noise Provision’s purpose is unrelated to the suppression of free

expression. As the court of appeals recognized, it furthers Maine’s significant interest in ensuring that its

residents receive safe and effective health care. Pet.

App. 35.5 It prevents noise from being used to interfere

with the delivery of medical services, and it does not

suppress free expression.

March claims that the court of appeals’ decision

creates a “freakish result” because under the court’s

analysis, the Noise Provision does not prevent a boisterous labor protest that actually interferes with the

4

Below, Maine argued that the Noise Provision targets conduct, not speech, and should be reviewed “under the more lenient

standard of review that applies to restrictions on conduct that

merely impose an incidental burden on speech.” Pet. App. 12 n.4.

The court of appeals did not reach that issue because it held that

the Noise Provision is facially constitutional even when analyzed

“as a restriction on speech rather than on conduct.” Id.

5

March notes that in R.A.V. v. St. Paul, 505 U.S. 377, 385

(1992), the Court stated that “burning a flag in violation of an ordinance against outdoor fires could be punishable, whereas burning a flag in violation of an ordinance against dishonoring the flag

is not.” Pet. 8. Of course, this is because an ordinance prohibiting

outdoor fires serves an interest wholly unrelated to the suppression of free expression, while one prohibiting dishonoring the flag

furthers only the suppression of free expression. See Johnson, 491

U.S. at 410.

22

delivery of medical services but does prevent someone

like March from “calmly” attempting to persuade a

woman not to have an abortion. Pet. 10-11. March is

wrong. It is simply not true that boisterous labor protests are necessarily exempt from the Noise Provision.

If the labor protest were loud enough to be heard

within a nearby medical facility, and if the protesters

were warned that their conduct was interfering with

the facility’s ability to deliver safe and effective health

care services, the Noise Provision would apply if the

protesters did not abide by the warning. See Pet. App.

28 (court of appeals’ conclusion that the “most probative evidence of disruptive intent” is decision to keep

making noise after being warned). It is also not true

that the Noise Provision would necessarily apply to a

protester “calmly” speaking with a passerby outside of

a medical facility. Indeed, March himself has engaged

in just such an activity without running afoul of the

Noise Provision. See n.3, supra. If he is not loud enough

to be heard in the health care facility, his conduct

would come within the purview of the statute.

In sum, the Noise Provision does not make distinctions based on the communicative content, if any, of the

noise. It applies when noise is loud enough to be heard

inside of a medical facility and is being made with the

intent to interfere with the delivery of health care services. Intent will not necessarily be determined from

the communicative content. That the Noise Provision

was supported by both sides of the abortion debate

demonstrates that it was not adopted because of disagreement with any particular message. Rather, it was

23

adopted solely to prevent noise from being used to disrupt health care. The court of appeals properly held

that it is content-neutral on its face. No further review

is warranted.

II.

The Court of Appeals’ Decision Does Not

Conflict With Decisions From Other Federal

Courts.

March argues that the court of appeals’ decision

conflicts with decisions from other federal courts. Pet.

12-14. There is no conflict. In the cases March cites to,

the courts applied the well-settled rule that a restriction is content-based if its application depends entirely on the message being expressed. As discussed

above, the Noise Provision makes no references to the

“communicative content” but rather regulates the volume of the noise when it disrupts health care services.

At issue in Cahaly v. Larosa, 796 F.3d 399 (4th Cir.

2015) was a statute regulating automated telephone

calls delivering recorded messages (referred to as “robocalls”). Only robocalls relating to consumer or political messages were subject to the statute. Id., at 402.

The Fourth Circuit recognized that Reed “instructs

that ‘[g]overnment regulation of speech is content

based if a law applies to particular speech because of

the topic discussed or the idea or message expressed.’ ”

Id., at 405 (quoting Reed, 135 S. Ct. at 2227). The court

held that under this test, the “anti-robocall” statute

was content-based because it applied only to “calls

with a consumer or political message.” Id. In the cases

24

March cites to involving challenges to ordinances restricting panhandling, the courts found that the ordinances were content-based because whether they “appl[y]

to speech depends entirely on the expressed message

(i.e., a solicitation for ‘donations or payment’).” Homeless Helping Homeless, Inc. v. City of Tampa, Fla., No.

8:15-CV-1219-T-23AAS, 2016 WL 4162882, at *4 (M.D.

Fla. Aug. 5, 2016); see also Blitch v. City of Slidell, 260

F. Supp. 3d 656, 666 (E.D. La. 2017) (“So only speakers

that wish to raise a particular topic of speech on the

streets of Slidell – a request for assistance, and even

then a particular type of request for assistance – need

to obtain a police permit before speaking.”).

The robocall statute and panhandling ordinances

were content-based because they drew distinctions

based on the nature of the communicative content. The

Noise Provision, on the other hand, draws no such distinction, and there is thus no conflict with decisions

from other courts.

III. There is No Final Judgment and the Court

Should Decline to Review an Interlocutory

Decision Vacating an Order Granting a Preliminary Injunction Motion.

This Court “generally await[s] final judgment in

the lower courts before exercising [its] certiorari jurisdiction.” Virginia Military Inst. v. United States, 508

U.S. 946 (1993) (statement of Scalia, J., respecting denial of petition for a writ of certiorari before judgment);

see also Hamilton-Brown Shoe Co. v. Wolf Bros. & Co.,

25

240 U.S. 251, 258 (1916) (except in “extraordinary

cases,” a writ of certiorari is not issued until entry of a

final judgment). There are good reasons for this general practice. It enables the Court to decide cases on a

full factual record, prevents unnecessary delays in the

lower courts, and allows the Court to consider all issues raised in a case at one time, rather than addressing them piecemeal.

The present matter is particularly unsuited for interlocutory review. As is clear from the extensive discussion in March’s brief of his interactions with police

officers, Pet. 3-5, the brunt of his challenge is his argument that the Noise Provision is being applied to him

unconstitutionally. The police interactions are not relevant to his facial challenge, and facts relating to these

interactions have not yet been developed below. There

has been no discovery, and the Respondent has had no

opportunity to cross-examine March. The case should

not yet be reviewed by this Court, but instead should

return to the district court so that the parties can develop the facts necessary to resolve March’s as-applied

challenge.

Further, March presents several arguments as to

why the Noise Provision is unconstitutional, and the

court of appeals resolved only one of them. The court

held that the Noise Provision does not facially violate

the First Amendment, but it did not decide the asapplied challenge or March’s arguments that the Noise

Provision is unconstitutionally vague and is being enforced in violation of the Equal Protection Clause. If

this Court were to review the matter now and affirm

26

the court of appeals’ decision, the case would be far

from over. The matter would return to the district court

for resolution of the remaining issues. This Court

should resolve all of the constitutional challenges to

the Noise Provision at one time and should not depart

from its usual practice of declining to grant certiorari

before entry of a final judgment.

------------------------------------------------------------------

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

JANET T. MILLS

Maine Attorney General

CHRISTOPHER C. TAUB

Assistant Attorney General

Counsel of Record

LEANNE ROBBIN

Assistant Attorney General

Six State House Station

Augusta, ME 04333-0006

(207) 626-8800

Counsel for Respondent Maine

Attorney General Janet T. Mills