RICHMOND, Va. (CN) - A Fourth Circuit panel Wednesday ruled against a North Carolina man who argued the First Amendment gives him the right to be heard by people entering an abortion clinic.

Zachary Hebb told the three-judge federal appellate panel in January that under the First Amendment, he should have the right to use an amplifier in order to be heard. Hebb regularly protests outside of an Asheville Planned Parenthood and has since 2019. In 2021, the city introduced a ban on "amplified sound" for 150 feet around schools and medical clinics. The ban prevents Hebb from being able to speak to patients with a cone or amplifier, which he wants to do in order to have a conversation with patients, rather than being forced to yell at them from a distance. 

"I've never heard anyone speak conversationally with a cone," U.S. Circuit Judge A. Marvin Quattlebaum Jr., a Donald Trump appointee, said in January.

The city of Asheville argued that the noise ordinance was narrowly tailored and restricted by distance and time, as it is only in place while facilities are open. The majority of the panel agreed.  

The panel upheld the lower court's decision not to prematurely dismiss Hebb's First Amendment claim, but overturned Hebb's win before the lower court, where he secured summary judgment and prevented the city from enforcing the noise ordinance. It also directed the lower court to dismiss his 14th Amendment due process claim; Hebb had argued that the city's lack of definition of "amplified sound" was unclear, and he was unsure if a cone would be considered an amplifier. 

Brad Branham, counsel for the defendants, said that the city is pleased with the decision and is looking forward to supplying additional evidence once the case returns to the lower court.

Hebb's attorney, Nate Kellum, senior counsel at First Liberty Institute, called the decision disappointing and "flat wrong," and said they are considering all options, including requesting a full circuit rehearing.  

"The dissenter, Judge Quattlebaum, got it right," Kellum said in a statement. "As he points out, Asheville provided no evidence that it seriously considered any less restrictive measure before passing a law that flatly bans amplified pro-life speech within thousands of feet of Planned Parenthood. Also, as the judge noted, the law is unduly vague in prohibiting plastic cones." 

The ordinance is narrowly tailored for a significant governmental interest, U.S. Circuit Judge James Wynn Jr. said in the majority opinion, in which he was joined by U.S. Circuit Judge Robert Bruce King, a Bill Clinton appointee. It is also content-neutral and leaves Hebb with "ample alternative channels of communication."

"In short, (the noise ordinance) applies 'to all demonstrators whether or not the demonstration concerns abortion, and whether they oppose or support the woman who has made an abortion decision,'" the Barack Obama appointee wrote. "And, drawing justifiable inferences in favor of Asheville, the record suggests that the ordinance was adopted to protect medical patients by targeting overly loud sounds outside of medical clinics. That is a content-neutral purpose." 

Hebb failed to prove that the city's ordinance was intended to silence anti-abortion views, rather than simply address noise complaints, Wynn said. The restriction also does not substantially burden speech beyond the city's regulatory interests, he added, or prevent protesters from unamplified speech, handing out pamphlets, or having signs or placards. 

Asheville also attempted to resolve the noise issue through less intrusive methods initially, attempting to enforce the existing noise disturbance standard, Wynn wrote. 

"The ordinance does not have content-based carveouts that reveal an impermissibly viewpoint-based interest, nor does the city permit activities within the buffer zone that undermine its legitimate interest in patient well-being," he said.

"Hebb seeks to express his beliefs on sidewalks and public rights-of-way, which are traditional public fora," Wynn added. "But 'even in a public forum the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions 'are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.''"

Quattlebaum Jr. dissented in part with the majority, arguing that the noise ban violated both Hebb's First Amendment rights and 14th Amendment right to due process. The phrase "amplified sound," was unconstitutionally vague, he said.

"The ordinance Asheville ultimately adopted wasn't narrowly tailored - it banned lots of noise that did not interfere with medical facilities or schools, and it permitted noise coming from inside clinics and schools that it banned if it were coming from outside those places," the Donald Trump appointee said. 

The majority opinion found that sounds coming from schools and medical clinics are already subject to decibel restrictions, and an amplification ban applying to the facilities could prevent the use of a P.A. system within the building. 

The panel remanded the case back to the Western District of North Carolina with instructions to dismiss Hebb's due process claim.

Source: Courthouse News Service