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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-12457 ________________________
D.C. Docket No. 9:16-cv-80170-KAM
HARBOURSIDE PLACE, LLC, a Florida limited liability company,
Plaintiff - Appellant,
versus
TOWN OF JUPITER, FLORIDA, a Florida municipal corporation, JUPITER COMMUNITY REDEVELOPMENT AGENCY, a dependent special district of the Town of Jupiter, Florida,
Defendants - Appellees.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(May 14, 2020) Case: 18-12457 Date Filed: 05/14/2020 Page: 2 of 27
Before JORDAN and JILL PRYOR, Circuit Judges, and COOGLER, * District
Judge.
JORDAN, Circuit Judge:
Harbourside Place, LLC—whom we’ll call Harbourside—is the owner of
Harbourside Place, an 11-acre commercial development located in Jupiter, Florida,
along the Intercoastal Waterway. Harbourside Place is a mix of retail, hotel, and
office space that encompasses some open public spaces, including a riverwalk and
an outdoor amphitheater. Water’s Edge Estates, a residential development, is
located across from Harbourside Place on the Intercoastal Waterway.
Not happy with the fact that provisions of the Jupiter Code were applied to
prevent Harbourside Place from holding live musical performances, Harbourside
sued Jupiter and its Community Redevelopment Agency under 42 U.S.C. § 1983.
After Harbourside filed suit, Jupiter enacted Ordinance 1-16 to deal with, among
other things, the regulation of amplified sound. Harbourside moved for a pre-
enforcement preliminary injunction, alleging in part that certain sections of
Ordinance 1-16 are content-based regulations of speech that violate the First and
Fourteenth Amendments. Harbourside also claimed that, contrary to Jupiter’s
administrative findings, it satisfied the criteria to be considered a certified outdoor
* The Honorable L. Scott Coogler, Chief Judge of the United States District for the Northern District of Alabama, sitting by designation. 2 Case: 18-12457 Date Filed: 05/14/2020 Page: 3 of 27
venue (which, among other things, would have allowed it to hold live musical
performances under the Jupiter Code).
The district court, following an evidentiary hearing, denied injunctive relief.
The district court found, as a factual matter, that Harbourside has not met the criteria
to be an outdoor venue. It also concluded that the challenged sections of Ordinance
1-16 are content-neutral and do not violate the First Amendment. Harbourside
appealed the district court’s order.
We affirm. Conducting limited abuse of discretion review—and without
definitively addressing the merits—we conclude that the district court did not abuse
its discretion in ruling that Harbourside failed to establish a likelihood of success on
its claims that it qualifies as an outdoor venue and that the challenged sections of the
Jupiter Code are content-based.1
I
As relevant here, Ordinance 1-16 establishes a two-tiered scheme for the use
of amplified sound at non-residential properties and contains a separate section
relating to outdoor live musical performances. We summarize these provisions
below, and for ease of reference we cite to Ordinance 1-16 as it is currently codified
1 We address only the issues that Harbourside has raised on appeal and do not pass on any other matters that might be presented by Harbourside’s complaint or that were addressed by the district court. For example, Harbourside has not based its First Amendment challenges on Reeves v. McConn, 631 F.2d 377, 384–86 (5th Cir. 1980) (reviewing, and holding unconstitutional, portions of a city ordinance regulating the operation of sound amplification equipment). As to any issues not specifically discussed in this opinion, we summarily affirm. 3 Case: 18-12457 Date Filed: 05/14/2020 Page: 4 of 27
in the Jupiter Code.
The Code restricts the use of outdoor sound amplification devices—in all
circumstances—between the hours of 11:00 p.m. and 7:00 a.m. It is “unlawful to
use, operate or permit to be played . . . any outdoor sound amplification machine or
device . . . for the production or reproducing of sound between the hours of 11:00
p.m. and 7:00 a.m., except if approved as an outdoor venue[.]” Jupiter Code § 13-
107(a)(1); D.E. 173 at 4.
A venue “may be approved to operate outdoor sound amplification devices
with extended hours up to 12:00 a.m.” (i.e., for an extra hour) if it meets the criteria
for an outdoor venue and complies with applicable “[e]xterior sound standards.”
Jupiter Code § 13-107(b)(1)-(6); D.E. 173 at 4. These sound standards can be found
at § 13-144, Table 2, of the Code. Measured at a three-minute equivalent sound
level (or Leq), the current sound standards for outdoor venues that are
commercial/mixed use properties without residential components are 65 dBA
between 7:00 a.m. and 11:00 p.m.; 55 dBA between 11:00 p.m. and 12:00 a.m.; and
50 dBA between 12:00 a.m. and 7:00 a.m. The standards were lower in 2015 and
2016. 2
2 The abbreviation dBA stands for A-weighted or adjusted decibels. An adjusted decibel is a “unit used to show the relationship between the interfering effect of a noise frequency, or band of noise frequencies, and a reference noise power level of—85 dBm.” McGraw Hill Dictionary of Scientific and Technical Terms 39 (6th ed. 2003). 4 Case: 18-12457 Date Filed: 05/14/2020 Page: 5 of 27
Notwithstanding the restrictions on outdoor sound amplification devices, and
the added hour for outdoor venues, “[o]utside live musical performances associated
with a non-residential establishment shall meet the outdoor venue regulations of
subsection (b) of this section or obtain special permits pursuant to [C]hapter 27,
article IV, entitled ‘Special Permits.’” Jupiter Code § 13-107(a)(3); D.E. 173 at 4.
The Code does not appear to limit Chapter 27 special permits to any specific hours.
See Jupiter Code § 27-370(b)(1) (stating generally that special permits can include
“[l]imits to the hours of operation”). So, as the district court explained, Jupiter
requires “any person wanting to have an outdoor live musical performance on . . .
non-residential property [to] obtain a special event permit from the Town or
approval from the Town Council for an outdoor venue[.]” D.E. 173 at 6 (emphasis
added).
II
“[A] preliminary injunction in advance of trial is an extraordinary remedy.”
Bloedorn v. Grubs, 631 F.3d 1218, 1229 (11th Cir. 2011). To obtain a preliminary
injunction, a litigant like Harbourside must establish “(1) a substantial likelihood of
success on the merits; (2) that irreparable injury will be suffered unless the injunction
is issued; (3) [that] the threatened injury to the moving party outweighs whatever
damage the proposed injunction might cause the non-moving party; and (4) [that,] if
issued, the injunction would not be adverse to the public interest.” Lebron v. Sec’y,
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Fla. Dep’t of Children and Families, 710 F.3d 1202, 1206 (11th Cir. 2013) (citation
omitted).
Before we begin, a word about the standard of review is in order. As a general
matter, we review a preliminary injunction ruling for abuse of discretion. See, e.g.,
Benisek v. Lamone, 138 S. Ct. 1942, 1943 (2018); United States v. Alabama, 691
F.3d 1269, 1281 (11th Cir. 2012). Although we can sometimes decide legal issues
conclusively in preliminary injunction appeals, as in Burk v. Augusta Richmond Cty.,
365 F.3d 1247, 1250 (11th Cir. 2004), the Supreme Court has said that “limited
[abuse of discretion] review normally is appropriate.” Thornburg v. Am. Coll. of
Obstetricians and Gynecologists, 476 U.S. 747, 755 (1986), overruled on other
grounds by Planned Parenthood v. Casey, 505 U.S. 833 (1992). See, e.g., Ashcroft
v. A.C.L.U., 542 U.S. 656, 666 (2004) (concluding that the district court’s
determination as to likelihood of success “was not an abuse of discretion”); Brown
v. Chote, 411 U.S. 452, 457 (1973) (“In reviewing such interlocutory relief, this
Court may only consider whether issuance of the injunction constituted an abuse of
discretion . . . . In doing so, we intimate no view as to the ultimate merits of
appellee’s contentions.”); Callaway v. Block, 763 F.2d 1283, 1287 n.6 (11th Cir.
1985) (“[W]hen an appeal is taken from the grant or denial of a preliminary
injunction, the reviewing court will go no further into the merits than is necessary to
decide the interlocutory appeal.”); Martinez v. Matthews, 544 F.2d 1233, 1242–43
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(5th Cir. 1976) (“Appellate courts especially must not go beyond a very narrow
scope of review, for these preliminary [injunction] decisions necessarily entail very
delicate trial balancing.”).
We follow the traditional path of limited review in this appeal and ask only
whether the district court abused its discretion in concluding that Harbourside failed
to establish a substantial likelihood of success on the merits of its claims. See LSSi
Data Corp. v. Comcast Phone LLC, 696 F.3d 1114, 1120 (11th Cir. 2012) (“The first
question before us is whether the District Court abused its discretion in concluding
that LSSi had shown a ‘substantial likelihood of success’ on the merits of its claim.”)
(citation omitted). We do this for two reasons. First, the parties had not engaged in
full-blown discovery at the time of the preliminary injunction hearing, and as a result
the district court had a limited record. Second, on appeal the parties have failed to
cite or discuss a Supreme Court case that we believe is relevant to Harbourside’s
First Amendment claims. See GeorgiaCarry.Org v. U.S. Army Corps of Eng’rs, 788
F.3d 1318, 1327 (11th Cir. 2015) (declining to reach the merits of a Second
Amendment claim in a preliminary injunction appeal because, among other things,
the record was not fully developed and the parties had not briefed an important
historical issue).
III
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Harbourside argues that the district court clearly erred in finding that it did
not satisfy the necessary criteria to be an outdoor venue under § 13-107(b)(1)–(6).
See Br. for Appellant at 32–33. Given the judicial preference for avoiding
constitutional questions when possible, see, e.g., Camreta v. Greene, 563 U.S. 692,
705 (2011), we address this contention first.
According to Harbourside, the district court incorrectly concluded that it
failed to satisfy Condition 11 of Jupiter Resolution No. 2-13, which was passed by
the Jupiter Town Council in February of 2013 and approved Harbourside Place as
an outdoor venue subject to its meeting a number of conditions. Condition 11
provided that, upon the submission of the final plans and prior to the issuance of any
building permits, Harbourside had to revise its “statement of use” to note the
installation, setting, and locking of a sound limiter so that the Harbourside Place’s
sound system would meet Jupiter’s sound level regulations. As Harbourside sees
things, Condition 11 applies only upon the submission of final plans and prior to the
issuance of any building permits. Because building permits were already issued for
Harbourside Place, and because the property opened in 2014, Harbourside submits
that there was no need to again revise the statement of use to satisfy Condition 11.
We are not persuaded by Harbourside’s argument. The district court did not
base its outdoor venue finding solely on Harbourside’s failure to meet Condition 11.
Instead, it found that Harbourside Place had failed to meet “all” the conditions
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necessary to be an outdoor venue, and that Harbourside Place “repeatedly exceeded”
permitted noise levels. See D.E. 173 at 6–7. We recognize that Harbourside
presented evidence to support its position—for example, the testimony of Nick
Mastroiaonni (the Vice President of Allied Capital, the developer of Harbourside
Place)—but the district court’s findings are supported by four components of the
record and are not clearly erroneous. See generally Amadeo v. Zant, 486 U.S. 214,
226 (1988) (explaining that a finding is not clearly erroneous if there are “two
permissible views of the evidence”) (citation and internal quotation marks omitted).
First, John Sickler, Jupiter’s director of zoning, stated in his affidavit that the
approval of Harbourside’s amphitheater as an outdoor venue in February of 2013
under Resolution No. 2-13 did not permanently establish Harbourside as a certified
outdoor venue. Harbourside Place still had to satisfy all relevant code requirements
to be considered an outdoor venue. See D.E. 102-1 at ¶¶ 22–30.
Second, Roger Held, a Jupiter building official who issued the certificate of
occupancy for Harbourside Place, confirmed Mr. Sickler’s testimony. Mr. Held
stated in his affidavit that the certificate of occupancy did not certify Harbourside
Place’s compliance with any aspects of the Jupiter Code relating to uses of the
property. See D.E. 103-1 at ¶¶ 4–5.
Third, Stephanie Thoburn, Jupiter’s assistant director of zoning and planning,
explained in her affidavit that Harbourside had failed to satisfy several of the outdoor
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venue requirements. These included, but were not limited to, the failure to follow
Condition 11. For example, according to Ms. Thoburn, Harbourside also did not
satisfy the applicable exterior sound standards and its site plan did not identify all
the items required by the Jupiter Code. See D.E. 99-1 at ¶ 32(e)–(f). The later sound
studies submitted by Harbourside, moreover, were deficient. The March 2014 study
did not meet code requirements and did not include details of the speakers and
proposed outdoor stage, while the September 2015 study did not include a site plan
or measure site level compliance at the property. See id.
Fourth, affidavits submitted by Edward Dugger and Gary Siebein, architects
who work in the field of acoustical engineering and who provided consulting
services to Jupiter, indicated that Harbourside Place exceeded applicable sound
standards during a number of special-permit and non-permit events in March, May,
and October of 2015 and February and August of 2016. See D.E. 100-1 at ¶¶ 10–
18; D.E. 101-1 at ¶¶ 8–21. Mr. Dugger also stated in his affidavit that, during certain
events at Harbourside Place, the sound limiter sometimes did not work and was
being bypassed. See D.E. 100-1 at ¶ 14.
The district court credited the testimony of Mr. Sickler, Mr. Held, Ms.
Thoburn, Mr. Dugger, and Mr. Siebein. See D.E. 173 at 6–7. So, even if
Harbourside was generally correct about Condition 11, it has not successfully
challenged the other deficiencies that prevented it from achieving outdoor venue
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status under Resolution 2-13. The district court’s factual findings stand, and as a
result we must address Harbourside’s First Amendment claims.
IV
Harbourside asserts that the provisions of the Jupiter Code summarized in Part
II, on their face, constitute content-based regulations of speech that violate the First
Amendment. Harbourside also contends that the special permit requirement for live
musical performances constitutes an unconstitutional prior restraint. See Br. for
Appellant at 15–32.
A
The First Amendment prohibits laws “abridging the freedom of speech.” U.S.
Const. amend. I. And music, the Supreme Court has held, constitutes protected First
Amendment expression. See Ward v. Rock Against Racism, 491 U.S. 781, 790–91
(1989).
We acknowledge that it can be tricky (some might even say reckless) to set
out black-letter principles governing the First Amendment. But we think we are on
safe ground in saying that noise ordinances generally do not violate the First
Amendment if they are content-neutral and do not single out any specific type of
speech, subject-matter, or message. For example, the Supreme Court has explained
that “a prohibition against the use of sound trucks emitting ‘loud and raucous’ noise
in residential neighborhoods is permissible if it applies equally to music, political
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speech, and advertising.” City of Cincinnati v. Discovery Network, Inc., 507 U.S.
410, 428–29 (1993) (citing Kovacs v. Cooper, 336 U.S. 77, 87 (1949) (plurality
opinion)). See generally 6A McQuillin, The Law of Municipal Corporations §
24:106 (3d ed July 2019) (“A municipal corporation . . . may reasonably regulate . . .
the use of sound amplifiers and motor vehicles carrying such devices . . . . [but the]
ordinance should be narrowly drawn to avoid specific evils . . . and so as not to
infringe on the freedoms embodied in the First Amendment.”).
On the other hand, content-based laws which “target speech based on its
communicative content” 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, 135 S. Ct. 2218, 2226 (2015).
“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.” Id. at 2227.
See also Dana’s R.R. Supply v. Att’y Gen. of Fla., 807 F.3d 1235, 1246 (11th Cir.
2015) (quoting Reed and adopting its formulation).
In order to determine whether a regulation of speech is content based, we must
first consider whether, “on its face,” it “draws distinctions based on the message a
speaker conveys.” Reed, 135 S. Ct. at 2227 (internal quotation marks omitted). We
may also consider whether the regulation was enacted due to an impermissible
motive, i.e., the suppression of free expression. See id. at 2228. See also Ward, 491
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U.S. at 791 (1989) (“The principal inquiry in determining content neutrality . . . is
whether the government has adopted a regulation of speech because of disagreement
with the message it conveys.”). When a regulation is content based on its face, strict
scrutiny applies and there is no need for the speaker to also show an improper
purpose. See Reed, 135 S. Ct. at 2228.
B
We begin with §§ 13-107(a)(1) and 13-107(b) of the Jupiter Code. The
district court, as we explain, did not abuse its discretion concluding that Harbourside
failed to show a substantial likelihood of success on its First Amendment challenges
to these provisions.
On its face, the sound amplification restrictions set out in § 13-107(a)(1) apply
during certain hours to all outdoor amplification of sound (no matter what speech or
sound is being amplified or what message is being conveyed). Similarly, on its face
the outdoor venue requirements contained in § 13-107(b) apply to all outdoor
facilities (no matter what speech or sound is being uttered or what message is being
conveyed). We see nothing in these provisions that differentiates treatment based
on the content (i.e., subject-matter) of the speech or sound at issue or the message or
viewpoint of the speaker. Compare Thomas v. Chicago Park Dist., 534 U.S. 316,
322 (2002) (holding that a city ordinance requiring all individuals to obtain a permit
before conducting an event with more than 50 persons was a content-neutral time,
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place, and manner regulation of a public forum because officials were not authorized
to consider or pass on the content of speech and the grounds for the denial of a permit
had nothing to do with what a speaker might say), and Ward, 491 U.S. at 791–92
(New York City regulation requiring all performers at the Central Park bandshell to
use the City’s sound amplification equipment and sound technician was content
neutral), with Wollschlaeger v. Governor of Fla., 848 F.3d 1293, 1307 (11th Cir.
2017) (en banc) (“The record-keeping, inquiry, and anti-harassment provisions of
FOPA are speaker-focused and content-based restrictions. They apply only to the
speech of doctors and medical professionals, and only on the topic of firearm
ownership.”).
C
That leaves § 13-107(a)(3), which provides (emphasis ours) that “[o]utside
live musical performances associated with a non-residential establishment shall meet
the outdoor venue regulations . . . or obtain special permits[.]” As the Supreme
Court has recognized, “[d]eciding whether a particular regulation is content based
or content neutral is not always a simple task.” Turner Broad. Sys., Inc. v. F.C.C.,
512 U.S. 622, 642 (1994). See also Dana’s R.R. Supply, 807 F.3d at 1246 (“Florida’s
no-surcharge law proves difficult to categorize, skirting the line between targeting
commercial speech and restraining speech writ large.”); Note, Free Speech Doctrine
after Reed v. Town of Gilbert, 129 Harv. L. Rev. 1981, 1983 (2016) (“In practice,
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. . . the content distinction is quite messy and only roughly tracks the division
between permissible and impermissible regulation.”). As we explain, the
characterization of § 13-107(a)(3) turns out to be a very tricky matter.3
“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.”
Reed, 135 S. Ct. at 2227. See also Grayned v. City of Rockford, 408 U.S. 104, 115
(1972) (“[T]wo parades cannot march on the same street simultaneously, and
government may allow only one.”); 1 Rodney Smolla, Smolla and Nimmer on
Freedom of Speech § 3.9 (2019) (“A content-based regulation either explicitly or
implicitly presumes to regulate speech on the basis of the substance of the
message.”). Government discrimination among viewpoints is a more blatant and
egregious form of content discrimination. See Reed, 135 S. Ct at 2230. “[A]ll
viewpoint discrimination is first content discrimination, but not all content
discrimination is viewpoint discrimination.” 1 Smolla, Freedom of Speech § 3:9.
Jupiter asserts, and the district court concluded, that § 13-107(a)(3) is content-
neutral because it does not single out or discriminate against any musical genres,
3 As noted earlier, a regulation of speech can be content based if it targets content or viewpoint on its face or if it was enacted due to an impermissible motive, i.e., the suppression of free expression. See Reed, 135 S. Ct. at 2228. The district court found, as a factual matter, that Jupiter did not adopt Ordinance 1-16 “in order to target or retaliate against Harbourside, or as a means of controlling the content of musical performances at Harbourside [Place].” D.E. 173 at 7. That finding is not clearly erroneous, so the remaining question for us is whether the district court abused its discretion in ruling that § 13-107(a)(3) is, on its face, content neutral. 15 Case: 18-12457 Date Filed: 05/14/2020 Page: 16 of 27
topics, or messages. See D.E. 173 at 6–7. If the question is whether the regulation
“require[s] ‘enforcement authorities’ to ‘examine the content of the message that is
conveyed to determine whether’ a violation has occurred,” McCullen v. Coakley,
573 U.S. 464, 479 (2014) (citation omitted), the district court was likely right. After
all, § 13-107(a)(3) allows non-live (i.e., recorded) music; applies to all live musical
performances regardless of type (i.e., both vocal and instrumental); and does not
favor classical over country, gospel over grunge, hip hop over heavy metal, or rock
over rap. See Casey v. City of Newport, 308 F.3d 106, 111, 120 (1st Cir. 2002)
(plurality opinion) (concluding, pre-Reed, that municipal no-amplification
restriction as to singing, and municipal restriction prohibiting singing, were both
content neutral). Compare Reed, 135 S. Ct. at 2230 (“a law banning the use of sound
trucks for political speech—and only political speech—would be a content-based
regulation, even if it imposed no limits on the political viewpoints that could be
expressed”), with Enrique Armijo, Reed v. Town of Gilbert: Relax, Everybody, 58
B.C. L. Rev. 65, 93 (2017) (asserting that a ban on all bumper stickers is content
neutral because, “at most, it is aimed at a mode of expression, not expression itself”).
Moreover, it does not target or discriminate against any specific message or
viewpoint within any musical genre.
Yet it is undeniable that § 13-107(a)(3) applies to one medium, and one
medium only—that of live musical performances—while allowing other live events
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that produce sound (e.g., a political speech, a religious sermon, an educational
presentation, an aerobics class, or a poetry reading). Although “[e]ach medium of
expression . . . must be assessed for First Amendment purposes by standards suited
to it, for each may present its own problems,” Southeastern Promotions, Ltd. v.
Conrad, 420 U.S. 546, 557 (1975), there is language in Reed which suggests that
some “more subtle” facial distinctions might be content based if they “defin[e]
regulated speech by its function or purpose.” Reed, 135 S. Ct. at 2227. That
language is dicta, however, because the Supreme Court did not apply it. See also
Eugene Volokh, The First Amendment and Related Statutes 359–60 (6th ed. 2016)
(suggesting that content-based regulations include, but are not limited to, restrictions
based on subject-matter, viewpoint, and function or purpose).
As Harbourside points out, “[l]ive musical performance, as opposed to
commercially available recorded music, may also contain improvisation of musical
notes, lyrics, and vocalization, as well as physical and vocal expression.” Br. for
Appellant at 20. Cf. D.A. Mortg., Inc. v. City of Miami Beach, 486 F.3d 1254, 1266
(11th Cir. 2007) (concluding that a municipal noise ordinance was not content-based
because “[o]n its face” it did not “disallow certain types of recorded noise or
particular viewpoints”). There is also the potential problem, not mentioned by
Harbourside, that some performers, groups, or bands may not have recorded any of
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their performances, leaving them without a feasible alternative method of presenting
and communicating their music.
When seen from this perspective, there is an argument that § 13-107(a)(3)
should be characterized as a content-based regulation. Take, for example, the Ninth
Circuit’s decision in Berger v. City of Seattle, 569 F.3d 1029 (9th Cir. 2009) (en
banc). In that case, the en banc Ninth Circuit held, in relevant part, that a city rule
restricting street performers actively requesting donations constituted a content-
based regulation because it singled out speech based on the idea expressed (i.e., the
active request of donations). See id. at 1051–52. In his separate opinion, Judge
Smith articulated a theory which in part supports Harbourside’s position here: “[The
rule] singles out a particular group that is defined, in part, by the medium through
which they express themselves and the substantive message they convey.” Id. at
1092 (Smith, J., concurring in part and dissenting in part) (emphasis added). Judge
Smith’s view finds some (albeit limited) support in the caselaw. See Casey, 308
F.3d at 121 (McAuliffe, D.J., concurring) (suggesting that a ban on sound
amplification might be content based because it “effectively, albeit unwillingly,
banned a whole host of musical instruments and, necessarily, the unique musical
messages that can only be produced by those instruments”); Morris v. 702 East Fifth
Street HDFC, 778 N.Y.S. 2d 20, 23 (App. Div. 1st Dept. 2004) (concluding, in the
context of a commercial lease dispute, that a lower court preliminary injunction—
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which allowed the leaseholder to open a coffee house/performance space but limited
any live musical performances to string instruments during certain hours—violated
the “First Amendment rights of the instrumental music performers . . . by limiting
their performances to string instruments” without furthering a legitimate
governmental interest). Cf. Kolby Marchand, Free Speech and Signage After Reed
v. Town of Gilbert: Signs of Change from the Bayou State, 44 So. U. L. Rev. 181,
193 (2017) (“as long as the regulation d[oes] not attempt to ban concerts held in the
area altogether, but only require[s] the sound to be below a certain level at those
concerts, then there would still be an open avenue for the expression”).
On the other hand, there are countervailing considerations. A non-residential
establishment in Jupiter can play recorded music of any kind (assuming compliance
with other provisions of the Code, such as those dealing with outdoor sound
amplification), so music is not targeted generally or specifically. Viewed this way,
§ 13-107(a)(3) looks more like a content-neutral time, place, and manner regulation.
As Justice Souter put it in his separate opinion in Hill v. Colorado, 530 U.S. 703,
735–36 (2000) (Souter, J., concurring): “Concern about employing the power of the
[government] to suppress discussion of a subject or a point of view is not . . . raised
in the same way when a law addresses not the content of speech but the
circumstances of its delivery . . . . Unless regulation limited to the details of a
speaker’s delivery results in removing a subject or viewpoint from effective
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discourse (or otherwise fails to advance a significant public interest in a way
narrowly fitted to that objective), a reasonable restriction intended to affect only the
time, place, or manner of speaking is perfectly valid.” See also Metromedia, Inc. v.
City of San Diego, 453 U.S. 490, 526–27 (1981) (Brennan, J., concurring) (“The
characterization of the San Diego [billboard] regulation as a total ban of a medium
of communication . . . suggests a First Amendment analysis quite different from the
plurality’s . . . . I would apply the tests this Court has developed to analyze content-
neutral prohibitions of particular media of communication.”); Schad v. Borough of
Mt. Ephraim, 452 U.S. 61, 72–76 (1981) (striking down, under both intermediate
scrutiny and time, place, and manner standard, a municipal ordinance prohibiting
live entertainment, including nude dancing, throughout the borough’s commercial
zones).
Harbourside relies on the Supreme Court’s decision in Discovery Network,
but that case cannot bear the weight that Harbourside puts on it. In Discovery
Network the Supreme Court addressed the constitutionality of a city ordinance which
prohibited the distribution of commercial handbills on public property and required
the removal of newsracks belonging to commercial enterprises while permitting
newsracks belonging to newspapers. The Court held for a number of reasons that
the ordinance violated the First Amendment, see 507 U.S. at 417–28, and rejected
the contention that the ordinance was content neutral: “[T]he very basis for the
20 Case: 18-12457 Date Filed: 05/14/2020 Page: 21 of 27
regulation is the difference in content between ordinary newspapers and commercial
speech . . . . Under the city’s newsrack policy, whether any particular newsrack falls
within the ban is determined by the content of the publication resting inside that
newsrack. Thus, by any commonsense understanding of the term, the ban in this
case is ‘content-based.’” Id. at 429.
As this quote demonstrates, Discovery Network is a different case, one in
which the regulation was based upon the substantive content of the material placed
in newsracks. Here, in contrast, § 13-107(a)(3) is not based on the genre, content,
or viewpoint of the live musical performance. Cf. Vugo, Inc. v. City of Chicago, 273
F. Supp. 3d 910, 915–16 (N.D. Ill. 2017) (rejecting argument that city ban on
commercial advertising on the inside or outside of commercial ride-share vehicles
was content-based: “On its face, the ordinance is a broad ban on commercial
advertising that applies in a narrow medium: transportation network vehicles. The
ban does not distinguish among products or services advertised, nor does it single
out certain speakers, subject matters, or purposes for differential treatment.”). At
the very least, Discovery Network does not dictate the outcome here.
One recent case we have found involving a content-based challenge to a noise
ordinance, Hassay v. Mayor of Ocean City, 955 F. Supp. 2d 505 (D. Md. 2013), is
not very helpful. The plaintiff, a violinist who performed as a street musician,
challenged a provision of a city ordinance which prohibited radios, musical
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instruments, phonographs, or sound amplification machines as “unreasonably loud
noises” if the sound was “plainly audible” at a distance of 30 feet. See id. at 510.
Because a separate provision of the ordinance treated human sound—yelling,
shouting, hooting, whistling, or singing—as prohibited if it was “plainly audible” at
a distance of 50 feet, the violinist argued that the former provision was content-
based. See id. at 520 (“Hassay insists that Ocean City discriminates between one
form of expression—instrument or machine-generated sound—and another form of
expression—the human voice—and thus the ordinance is not content neutral.”). The
city, in response, asserted that the 30-foot audibility restriction was content-neutral
because the “secondary effects of instruments or machine-generated sound
differentiates those sounds from the human voice.” Id. Unfortunately for us, the
district court in Hassay did not resolve the content-based/content-neutral dispute
because it held that the ordinance violated the First Amendment even under
intermediate scrutiny. See id. So, aside from laying out the parties’ arguments—
which somewhat mirror those made here—Hassay does not provide us with much
guidance.
Adding to the legal uncertainty is Turner Broadcasting, which involved the
constitutionality of certain federal must-carry provisions that applied to cable
networks but not television networks. The provisions required some cable networks
(those with a certain number of active channels and/or more than a certain number
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of subscribers) to carry several local commercial and public television stations. See
Turner Broadcasting, 512 U.S. at 630–32. The cable companies that challenged the
must-carry provisions argued that they formed content-based regulations which
demanded strict scrutiny, but the Supreme Court disagreed. The must-carry
provisions’ burdens and benefits were “unrelated to content,” and “distinguish[ed]
between speakers in the television market . . . [based] upon the manner in which
speakers transmit their messages to viewers, and not upon the messages they
carr[ied].” Id. at 644–45 (emphasis added). See also id. at 652 (“In short, the must-
carry provisions are not designed to favor or disadvantage speech of any particular
content.”). As a result, intermediate scrutiny—and not strict scrutiny—applied. See
id. at 661–62.
In addressing the argument that the must-carry provisions were content-based
because they differentiated between speakers, the Supreme Court stated that
“speaker-based laws demand strict scrutiny when they reflect the [g]overnment’s
preference for what the substance of what the favored speakers have to say (or
aversion to what the disfavored speakers have to say).” Id. at 658. Turning to the
contention that the must-carry provisions warranted strict scrutiny because they
favored one set of speakers (television networks) over another (cable networks), the
Court acknowledged that “[r]egulations that discriminate against media, or among
different speakers within a single medium, often present serious First Amendment
23 Case: 18-12457 Date Filed: 05/14/2020 Page: 24 of 27
concerns.” Id. at 659. But it went on to explain that not all such regulations merit
strict scrutiny: “It would be error to conclude, however, that the First Amendment
mandates strict scrutiny for any speech regulation that applies to one medium (or a
subset thereof) but not others . . . . [H]eightened scrutiny is unwarranted when the
differential treatment is ‘justified by some special characteristic of’ the particular
medium being regulated.” Id. at 660–61 (citation omitted).
Turner Broadcasting is not directly on point, but it certainly is relevant to the
issue before us. One of the arguments made by Jupiter, based on the affidavits of
Mr. Dugger and Mr. Siebein, is that § 13-107(a)(3) is content-neutral because live
musical performances—due to their nature—have the potential for less control of
sound output, and as a result require certain measures to keep the music and vocals
within prescribed levels for amplified sound. See Br. for Appellee at 36–37. This
seems like an argument that is based on the reasoning in Turner Broadcasting, but
inexplicably neither Jupiter nor Harbourside cite or discuss Turner Broadcasting in
their briefs.4
Given the posture of the case, the lack of a fully-developed record, and the
parties’ failure to cite or discuss Turner Broadcasting, we think this is a good
opportunity for us to practice judicial minimalism, and decide no more than what is
necessary to resolve Harbourside’s preliminary injunction appeal. See generally
4 Indeed, the parties have failed to cite many of the authorities we discuss in this opinion. 24 Case: 18-12457 Date Filed: 05/14/2020 Page: 25 of 27
Cass R. Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court
1-3 (1999). We therefore do not definitively decide whether § 13-107(a)(3) is on its
face a content-based or content-neutral regulation of speech. We hold only that the
district court did not abuse its discretion in denying injunctive relief due to
Harbourside’s failure to show a substantial likelihood of success on the merits. See
Cafe 207, Inc. v. St. Johns Cty., 989 F.2d 1136, 1137 (11th Cir. 1993) (“Whether the
district court’s determination of this point [substantial likelihood of success] is right
or wrong, the record before us indicates no abuse of discretion.”).
A licensing or permitting requirement can constitute a prior restraint of
speech. See Conrad, 420 U.S. at 554–57; Barrett v. Walker Cty. Sch. Dist., 872 F.3d
1209, 1223 (11th Cir. 2017). Harbourside argues in its brief that the outdoor
venue/special permit requirements in the Jupiter Code for live musical performances
constitute a prior restraint that violates the First Amendment.
“Prior restraints are presumably unconstitutional and face strict scrutiny.”
Burk, 365 F.3d at 1251. Nevertheless, in some instances a “prior restraint may be
approved if it qualifies as a regulation of the time, place, and manner of expression
rather than a regulation of content.” Id. Our cases teach that a “[p]rior restraint[ ]
must (1) ensure that permitting decisions are made within a specified period of time
and must (2) avoid unbridled discretion in the hands of a government official.” Café
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Erotica of Fla., Inc. v. St. Johns Cty., 360 F.3d 1274, 1282 (11th Cir. 2004) (citation
and internal quotation marks omitted).
Harbourside moved for injunctive relief before Jupiter enforced Ordinance 1-
16. See Tr. of Preliminary Injunction Hearing, Vol. I, at 76. At the outset of the
preliminary injunction hearing, Harbourside told the district court it was “not here
on the other issues of vesting, of . . . prior restraints that occurred before,” i.e., under
the previous version of the Code. See id. at 21. Although Harbourside had asserted
a prior restraint theory in a paragraph of its second amended motion for injunctive
relief, see D.E. 44 at 22, it did not mention prior restraint in its opening statement or
closing argument at the preliminary injunction hearing, and did not ask the district
court at the hearing to invalidate on First Amendment grounds any of the special
permit provisions found in Chapter 27 of the Jupiter Code. Indeed, Harbourside
never explained to the district court (before, during, or after the hearing) why any of
the Chapter 27 special permit provisions failed to satisfy the First Amendment
principles set forth above. Not surprisingly, the district court did not address the
matter of prior restraint in its order denying Harbourside’s request for injunctive
relief.
As a general rule, we do not consider an argument or theory that was not
presented to the district court. See, e.g., Walker v. Jones, 10 F.3d 1569, 1572 (11th
Cir. 1994). There are exceptions for “exceptional” circumstances, as laid out in
26 Case: 18-12457 Date Filed: 05/14/2020 Page: 27 of 27
cases like Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1332 (11th
Cir. 2004), and one of those exceptions gives us discretion to rule on an issue raised
for the first time on appeal if it presents a pure question of law and failure to decide
it would result in a miscarriage of justice. See, e.g., Twiss v. Kury, 25 F.3d 1551,
1556 (11th Cir. 1994). Here our refusal to address the prior restraint argument will
not result in a miscarriage of justice because Harbourside will be free to press that
theory on remand and develop a record with respect to the Chapter 27 provisions it
thinks are unconstitutional. We therefore do not consider Harbourside’s prior
restraint argument.
V
We recognize that we have said a lot but decided relatively little. But we
believe that is the proper approach on this record, and hopefully our discussion will
lead to more sharpened and focused arguments on remand.
Because the district court did not abuse its discretion, we affirm its order
denying Harbourside’s motion for a preliminary injunction. In so holding, we
express no views on the ultimate merits of Harbourside’s claims.
AFFIRMED.