The U.S. Supreme Court is being urged to hear a case against a Maine law that allows authorities to punish speech – if it’s pro-life.
The dispute stems from a noise provision the state adopted that limits “noise and violence near medical facilities.”
But the law is based on the “intent” of the speaker, meaning it discriminates according to the content of the message.
The Pacific Justice Institute explained the problem this way: “Imagine three drummers standing outside Planned Parenthood, pounding away at an equal volume for equal amounts of time – and loud enough to disturb the services inside. … One practices his skills to audition for a band. Another shouts ‘keep abortion legal!’ at the top of his lungs. The third drummer, hoping to deter abortion-minded women, repeats ‘overturn Roe v. Wade!’ in a normal conversational tone without amplification.”
Under the state law, “only the third drummer could be cited for violating the noise provision in the Maine Civil Rights Act.”
The lawsuit against the speech restriction was brought by Andrew March, a pastor whose church defends the lives of the unborn.
A number of pro-life organizations have encouraged the court to hear the case.
“For decades, it has been a central principle of First Amendment jurisprudence that the government can regulate speech neutrally to control effects like decibel levels regardless of who is speaking or what they are saying. The government’s attempts here to punish speech based on whether the speaker is supporting or opposing abortion is repugnant to free speech and must be struck down,” said Brad Dacus, president of Pacific Justice Institute.
Life Legal Defense Foundation and the Thomas More Society also joined in the filing.
The state law, unlike rules previously approved by courts, “punishes speakers based on two elements that are foreign to the time-place-manner analysis. Instead of concentrating on when, where, and how, the statute also asks why the speaker is speaking,” critics said.
“That inquiry inevitably turns on what is said – classic content discrimination.”
Attorneys with the Alliance Defending Freedom also argued on behalf of fair-speech rules.
“It makes no sense for the government to say that only ‘noise’ with a particular viewpoint is a problem,” said ADF Senior Counsel Kevin Theriot. “Maine’s law is unconstitutional on its face because it allows officials to censor speech based on its point of view rather than any objective criteria. The U.S. Supreme Court has found – as recently as 2015 – that laws cannot preclude speech on that basis, and we hope the court will reaffirm that principle here.”
ADF earlier fought a case called Reed v. Town of Gilbert in which the high court “unanimously found that the government cannot judge speech based on its ‘function or purpose,’ as the Maine law does,” the group said.
The ADF brief explains that, in upholding Maine’s law, the First U.S. Circuit Court of Appeals concocted “a meaningless and nonsensical distinction between the purpose of a speaker and the purpose of his message.”
The PJI brief said Maine “has impermissibly reacted ‘by punishing the speaker.'”
The noise provision, it explained, “punishes speakers who speak in a traditional public forum on matters of public concern, based on an ill-defined intent to ‘interfere’ with health services.”
“If the First Amendment protects a speaker who intentionally causes severe emotional distress, then it surely protects a speaker who intends to persuade women against abortion but must speak loud enough to be heard over the noise on a busy city street.”
ADF argues the noise provision “treats these two speakers differently solely on the basis of their message.”
“A pro-abortion demonstrator, however noisy and disruptive, could not violate the statute on the sidewalk outside of an abortion clinic, because his intent would be to promote, rather than to ‘interfere’ with, the clinic’s delivery of abortion services. But an equally noise pro-life advocate necessarily would possess the required specific intent,” ADF explained.
The brief pointed out that the circumstances would be reversed should a pro-abortion advocate appear “on the sidewalk outside of a crisis pregnancy center.”
The dispute, ADF explained, “poses a particularly serious threat to First Amendment rights because of the context from which it arose. Other states and localities will look to the Noise Provision as a blueprint for silencing disfavored speech outside of abortion clinics and elsewhere — unless this court reverses. Core First Amendment rights will be lost.”