City of Huntsville’s noise permit was not unconstitutionally applied against anti-abortion protestors.

The Hendersons’ appeal involved a civil-rights suit against the City of Huntsville and the Chief of Police alleging that the Chief and the city violated their First Amendment rights to freedom of speech and the free exercise of religion through the City’s permit ordinance and the requirement of a noise provision in their special event permit.

The Hendersons believe that abortion is the murder of an unborn child and abortion is contrary to their sincerely held religious beliefs. They act upon those beliefs by standing on the public sidewalks near two Huntsville, Alabama, abortion clinics to express their views and offer counsel to clinic employees, visitors, and patients who pass by. Under the Huntsville municipal code, their activities constitute a minor event and do not require a permit. But their protests bring out counter protesters from abortion-rights advocates and the presence of the abortion rights advocates makes it more difficult for the Hendersons to make their speech heard for two reasons. First, the Huntsville municipal code requires simultaneous sidewalk events to be held at least 10 feet apart. The Hendersons allege that the abortion-rights advocates take advantage of that policy by obtaining permits for events in front of the clinic and forcing the Hendersons to the other side of the street. Second, the abortion rights advocates drown out the Hendersons by shouting and ringing cowbells.

In response to the tactics of the abortion rights advocates, the Hendersons sometimes use amplification to make their message discernible. Using amplification arguable makes the Hendersons’ activities a “sound event” requiring a permit under the municipal code, so the Hendersons have obtained a special-event permit every six months for the last several years. Because the Henderson’ permits did not initially contain any special noise provision, their use of amplified sound was governed by the 62-decibel limit in the City’s noise ordinance.

In 2017, the Chief acting in his official capacity added a new noise provision to the Hendersons special-event permit that the amplified sound produced by a participant in the event shall not be plainly audible inside adjacent or nearby buildings. The Hendersons claim the new noise provision fails to provide any objective means by which they can assess their compliance and that the law is unconstitutionally vague and overbroad, rendering the permit requirements arbitrary and capricious.

The Hendersons sued the City and the police department and the Chief for civil rights violation under 42 U.S.C. 1983 alleging the defendants violated their right to free speech by adding the noise permit, violating their right to free exercise of religion by enforcing the permit ordinance and imposing a noise provision that prevents them from exercising their religion by speaking about what the believe and counseling people in accordance with their beliefs.

The appeals court rejected their challenges. As for the noise provision, the court found the Hendersons failed to show that the noise provision made the use of amplified sound ineffective and they could not show that the noise provision did not leave them with ample alternative channels of communication. They also failed to show that the noise provision which was content-neutral on its face was a pretext for viewpoint discrimination. The court also found the noise provision was not unconstitutionally vague because the Hendersons know what must be proved to establish a violation of the noise provision. The Hendersons do not allege that the City has barred them from proselytizing their belief in the sanctity of human life outside of abortion facilities, only that their task is more difficult in light of the noise provision and the presence of abortion-rights advocates.