UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA NORTHEASTERN DIVISION
JAMES HENDERSON, CAROL ) HENDERSON, ) ) Plaintiffs, ) ) Civil Action Number vs. ) 5:19-cv-00436-AKK
) MARK McMURRAY AND CITY ) OF HUNTSVILLE, ALABAMA, )
) Defendants.
MEMORANDUM OPINION James and Carol Henderson bring this action against the City of Huntsville and Mark McMurray, the Chief of the City’s Police Department, asserting claims under 42 U.S.C. § 1983 for violations of their First Amendment rights to freedom of speech and freedom of religious expression. Doc. 7. In particular, the Hendersons challenge the City’s special events ordinance and a noise provision in permits the City issued to them, claiming that both restrict their ability to peacefully protest and communicate with employees, visitors, and patients in front of two abortion clinics. The court has for consideration the defendants’ motions to dismiss. Docs. 9 and 11. The defendants argue that the ordinance and noise provision are reasonable and content neutral, and that the Hendersons fail to plausibly plead that the City or the Chief apply the provision and ordinance in favor of or against a particular viewpoint, or in an otherwise unconstitutional manner.
All voices generally deserve an opportunity to be heard and debated in the public square. 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.’” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1984) (quoting
Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984)). By the Hendersons’ own admission, the City has never denied them a permit to engage in their speech. See doc. 7. And, the restrictions they challenge serve the City’s
“strong interest in ensuring the public safety and order, in promoting the free flow of traffic on public streets and sidewalks.” Madsen v. Women’s Health Center, Inc., 512 U.S. 753, 768 (1994). Critically, the defendants “‘place[] no restrictions on either a particular viewpoint or any subject matter that may be discussed.’”
Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250, 1259 (11th Cir. 2005) (quoting Hill v. Colorado, 530 U.S. 703, 723 (2000)) (alteration in original omitted). While the Hendersons would prefer that the City do away with these
restrictions, “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes
(or proscribes).’” Emp’t Div., Dept. of Human Res. of Oregon v. Smith, 494 U.S. 872, 879 (1990) (quotation omitted) (superseded by statute on other grounds). Therefore, in the absence of any pleaded facts showing that the defendants
selectively enforce the ordinance and provision at issue to target their speech or religiously motivated conduct, the court finds that the Hendersons have failed to plausibly plead that the defendants violated their First Amendment rights by applying the content-neutral ordinance and noise provision in an unconstitutional
manner. The motions to dismiss are due to be granted. I. STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” “[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully- harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Mere “‘labels and conclusions’” or “‘a formulaic recitation of the elements of a cause of action’” are insufficient. Id. (quoting Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).
Federal Rule of Civil Procedure 12(b)(6) permits dismissal when a complaint fails to state a claim upon which relief can be granted. When evaluating a motion brought under Rule 12(b)(6), the court accepts “the allegations in the
complaint as true and construe[s] them in the light most favorable to the plaintiff.” Hunt v. Aimco Props., L.P., 814 F.3d 1213, 1221 (11th Cir. 2016). However, “[t]o survive a motion to dismiss, a complaint must . . . ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).
A complaint states a facially plausible claim for relief “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. In other words, the complaint
must establish “more than a sheer possibility that a defendant has acted unlawfully.” Id. See also Twombly, 550 U.S. at 555. II. FACTUAL BACKGROUND1
The Hendersons are a married couple, pro-life advocates, and self-identified abortion counselors who have maintained a presence outside of two abortion clinics in Huntsville, Alabama for several years. Doc. 7 at 2. According to the
1 The facts recited are taken from the Amended Complaint and are presumed true for purposes of this motion. See Hunt, 814 F.3d at 1221. Hendersons, “they typically stand on the public sidewalk near the clinic[s] and audibly express their views, pray, and counsel to the employees, visitors, and
patients who pass by.” Id. The Hendersons allege that their typical activity is a “minor event” that, according to a City ordinance, does not require a special-events permit. Id.
In addition to the Hendersons, pro-choice protesters also congregate outside the clinics and seek to counter the Hendersons’ speech by shouting loudly and ringing cowbells. Id. at 4. Allegedly, the defendants “fail to protect [the Hendersons] from this thuggery” even though the pro-choice protesters’ behavior
purportedly violates a City ordinance prohibiting any person from unreasonably interfering with an organized event. Id. The Hendersons also take issue with an alleged City policy allowing “a group to obtain a permit for traditionally protected
speech on the public sidewalk and thereby exclude other groups from the same sidewalk,” contending that the pro-choice protesters employ that policy to exclude them from the sidewalk outside the clinics. Id. To counter the noise from the pro-choice protesters, the Hendersons employ
“raised voices and sometimes amplification to make their message discernible.” Id. at 5. And, because the use of “amplification arguably makes [their] activity a ‘sound event’ requiring a permit under the . . . Huntsville Code,” the Hendersons
obtained a renewable, six-month special events permit. Id. The permit allows them to use sound amplification when necessary in accordance with certain terms, and the Hendersons have renewed this permit every six months for several years.
Id. The permit initially limited the Hendersons’ use of amplified sound to 62 decibels. Id. at 6. But, in 2017, the City added a provision stating that “[t]he amplified sound produced by a participant in the event shall not be plainly audible
inside adjacent or nearby buildings.” Id. The provision defines plainly audible as “amplified sound [that] can be clearly heard inside an adjacent or nearby building by a person using his normal hearing faculties, provided that person’s hearing is not enhanced by any mechanical device, such as a microphone or hearing aid,” and
clarifies that “the particular words or phrase being produced need not be determined.” Id. at 6-7. The Hendersons allege that Chief McMurray added the new permit provisions in his capacity as police chief. Id. at 10.
The Hendersons claim that the new language conflicts with the terms of the City’s noise ordinance, contradicts the stated purpose of the events code, and lacks the specificity contemplated elsewhere in the City code. Id. at 7-9. Allegedly, the new provision fails “to provide for any objective means by which the speaker can
assess his compliance with the ordinance, but place[s] the merely subjective means only in the hands of hearers who are overtly hostile the Hendersons’ message.” Id. at 7. Consequently, they characterize the permit requirements as unconstitutionally
vague, overbroad, arbitrary, and capricious. Id. The Hendersons made multiple, unsuccessful efforts to persuade the City to remove the new provision from the permit. Id. at 9. Not satisfied with the City’s
response, when they filed a new permit application in September 2018, the Hendersons altered the application to add a caveat that they signed the application “subject to the US and Alabama Constitution and advice of counsel.” Id. In turn,
counsel for the City informed the Hendersons that the City would not grant the application with their added caveat. Id. Feeling that they had “no choice but to either accede to the new provision or face prosecution for protected expression,” the Henderson’s signed off on the new provisional language. Id. Subsequently,
the Hendersons filed this lawsuit to challenge the defendants’ alleged unconstitutional restriction of their right to free speech and to the free exercise of their religion. Id. at 10-11.
III. ANALYSIS
The City and Chief McMurray have moved to dismiss the lawsuit. They argue that the Hendersons fail to plead plausible claims for violations of the First Amendment rights to free speech and to free exercise of religion.2 The court addresses the parties’ various contentions below.
2 Chief McMurray also asserts a qualified immunity defense. Docs. 9 at 2-3; 10 at 12-15. Because the court finds that the Hendersons do not assert plausible claims against Chief McMurray, the court does not address qualified immunity. A. Whether the Hendersons Plausibly Plead that the City’s Ordinance Violates Their First Amendment Right to Free Speech
The Hendersons challenge the City’s ordinance requiring them to obtain a permit for sound events, claiming that “the requirement of a permit under the circumstances . . . restrict[s] [their] right to free speech.” Doc. 7 at 10. The Hendersons correctly note that a “public sidewalk is a quintessential public forum.” Doc. 18 at 7. 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.’” Ward, 491 U.S. at 791 (quoting Clark, 468 U.S. at 293). However, “even content-neutral time, place, and manner restrictions can be applied in such a manner as to stifle free expression.” Thomas v. Chicago Park Dist., 534 U.S. 316,
322 (2002). Accordingly, to pass constitutional muster, regulations implementing a content-neutral permitting or licensing scheme “may not delegate overly broad licensing discretion to a government official.” Forsyth Cnty., Ga. v. Nationalist Movement, 505 U.S. 123, 130 (1992) (citing Freedman v. Maryland, 380 U.S. 51
(1965)). The challenged ordinance here provides that “[e]xcept for minor events, all organized events conducted on a public area shall be required to obtain a special event permit.” Doc. 7 at 3, 54 (citing Huntsville, Ala., Mun. Code § 23-231(a)). As justification for this requirement, the City cites the need “to provide for the safe
and orderly use of public property, for both First Amendment activity and activity that is not protected by the First Amendment” and to “coordinate multiple uses of limited space . . . .” Id. at 8, 43 (citing Huntsville, Ala., Mun. Code § 23-201(a)).
On its face, the ordinance is content neutral—a fact the Hendersons concede. See doc. 18 at 7. More specifically, the ordinance is “‘justified without reference to the content of the regulated speech,’” Ward, 491 U.S. at 791 (quotation and emphasis omitted), and it “‘places no restrictions on either a particular viewpoint
or any subject matter that may be discussed,’” Solantic, LLC, 410 F.3d at 1259 (quoting Hill, 530 U.S. at 723) (alteration in original omitted). Moreover, the ordinance also serves the government’s “strong interest in ensuring the public
safety and order, in promoting the free flow of traffic on public streets and sidewalks.” Madsen, 512 U.S. at 768. And, because the ordinance provides that the City shall issue a permit for a special event unless certain specific and content- neutral conditions exist, the ordinance leaves open ample channels for
communication and does not give City officials broad discretion over permitting decisions. See doc. 7 at 66-69 (citing Huntsville, Ala. Mun. Code § 23-237(b)). At issue here is the Hendersons’ contention that the City and Chief
McMurray apply this content-neutral ordinance in an unconstitutional way. See doc. 18 at 7. In particular, the Hendersons argue in their brief that because the pro- choice protesters “always reserve the sidewalk in front of the [clinic], the
Hendersons are forced to go to the other side of a busy street and [] communicate their message over heavy traffic,” which “deprives them of ample alternative channels of communicating their message . . . .” Doc. 18 at 7. But, the
Hendersons do not plead this contention in their complaint, nor do they allege that the City has ever denied them a permit to protest in front of the clinics. See doc. 7. A court’s review on a motion to dismiss is limited to the allegations of the complaint,3 and a plaintiff cannot amend a complaint through arguments in briefs.4
Moreover, the Hendersons’ contention in their brief is belied by the permits the City issued to them, which reveal that the Hendersons obtained a permit for events on the public sidewalks in front of both clinics. Doc. 7 at 15-21.5 In short, the
Hendersons own pleading undermines their contention that they “are forced to go to the other side of a busy street and [] communicate their message . . . .” Doc. 18 at 7.
3 See Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir. 2010) (citation omitted).
4 Miccosukee Tribe of Indians of Fla. v. United States, 716 F.3d 535, 559 (11th Cir. 2013) (citation omitted).
5 The court may consider the permits because they are attached to and cited in the Amended Complaint. See Financial Sec. Assur., Inc. v. Stephens, Inc., 500 F.3d 1276, 1284 (11th Cir. 2007) (citing Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1368 (11th Cir. 1997)). The Hendersons also allege that the defendants have unconstitutionally applied the special events ordinance by adopting a policy of “allowing a group to
obtain a permit for traditionally protected speech on a public sidewalk and thereby exclude other groups from the same sidewalk.” Doc. 7 at 4. This contention is also unavailing. As stated above, the Hendersons do not allege in the Complaint
that the defendants have ever denied them a permit. To the contrary, they allege that the City has renewed their permit every six months for several years. See id. Moreover, no voice has a monopoly in the public market place, and in that respect, the City recognizes and allows competing voices. To accommodate these varying
voices and to minimize the impact on each group, the City ordinance providing that organized events on the same sidewalk “shall be conducted generally at least ten feet apart,” id. at 4 (citing Huntsville, Ala. Mun. Code § 23-203(19)), is a
reasonable restriction of limited public space.6 And, critically, the Hendersons do not plead facts showing that the defendants have applied this space restriction in a discriminatory manner based on an event organizer’s viewpoint. See doc. 7. In summary, as the Hendersons concede, the challenged ordinance requiring
a permit for organized sound events is a content-neutral reasonable restriction on the time, place, and manner of speech. Therefore, in the absence of any allegations
6 As stated previously, one of the justifications the City provides for this restriction is the the need “to provide for the safe and orderly use of public property, for both First Amendment activity and activity that is not protected by the First Amendment” and to “coordinate multiple uses of limited space . . . .” Id. at 8, 43 (citing Huntsville, Ala., Mun. Code § 23-201(a)). showing that the defendants apply the ordinance in an unconstitutional manner, the Hendersons have failed to plead a plausible claim for a violation of their right to
free speech through the requirement that they obtain a special-events permit for sound events. B. Whether the Hendersons’ Plausibly Plead that the Permit’s Noise Provision Violates Their First Amendment Right to Free Speech
The Hendersons also challenge a provision in the special events permits issued to them that states that “[t]he amplified sound produced by a participant in the event shall not be plainly audible inside adjacent or nearby buildings.” Doc. 7 at 6-10. In particular, the Hendersons claim that the provision is unconstitutionally vague and restricts their right to free speech by imposing an unreasonable, content-
based restriction and by failing to leave ample alternative channels of communication. Id. at 10. For their part, the defendants contend that the provision is a content-neutral, reasonable time, manner, and place regulation, and the
provision is sufficiently definite. See docs. 10 at 10-11; 11 at 3-4; 12 at 7-14. 1. Whether the permit’s noise provision is a content-neutral and reasonable time, manner, and place regulation on speech On its face, the permit provision restricting the use of amplified sound does not make any content-based distinctions, but rather applies to all amplified sound.7
7 In their Complaint, the Hendersons allege that “[t]he permit’s requirements are not content neutral.” Doc. 7 at 10. This conclusory allegation is not entitled to a presumption of truth. See Iqbal, 556 U.S. at 678. See doc. 7 at 6-10. Nevertheless, the Hendersons contend that the defendants apply this content-neutral provision in an unconstitutional, content-based manner
by purportedly enforcing the noise provision against them, but not against the pro- choice protesters. Doc. 18 at 6. Again, however, the Hendersons’ complaint does not bear out that contention. Indeed, the Amended Complaint is devoid of
allegations suggesting that the defendants impose or enforce the permit’s noise restriction on the basis of any particular viewpoint, or that the defendants have failed to enforce the restriction against the pro-choice protesters. See doc. 7. Rather, as to the pro-choice protestors, the Hendersons plead only that these
protestors “employ loud shouting and even the ringing of cowbells to drown out [the Hendersons’] message.” Id. at 4.8 Such a contention is not akin to a claim that the defendants allow these protesters to violate the restriction on amplified
sound because, by themselves, loud shouting and ringing cowbells are not equivalent to amplified sound. Thus, the Hendersons have failed to plausibly plead
8 To the extent that the Hendersons claim that the pro-choice protesters interfere with the exercise of their right to free speech, the Hendersons do not plausibly plead that the defendants are liable for those protesters’ actions. See doc. 7. Rather, the Hendersons allege that “[t]he defendants fail to protect the Hendersons from [the pro-choice protesters’] thuggery,” i.e., the loud shouting and ringing of cow bells, even though those actions allegedly violate the Huntsville ordinance providing that “[n]o person, including participants in another organized event, shall unreasonably hamper, obstruct, impede, or interfere with an organized event or with any person . . . participating . . . in the event.” Id. at 4 (quoting Huntsville, Ala. Mun. Code § 23- 204(a)). The defendants argue that the Eleventh Circuit has not recognized a “failure to protect” theory for First Amendment liability, see doc. 10 at 9-10, and the Hendersons do not address that argument or present any authority to support their “failure to protect” theory of liability, doc. 18. that the permit’s noise restriction is content based or that the defendants apply the restriction in a content-based manner to discriminate against their viewpoint.
Still, even when a noise restriction is content neutral, “it still must be ‘narrowly tailored to serve a significant governmental interest.’” McCullen v. Coakley, 573 U.S. 464, 486 (2014) (quoting Ward, 491 U.S. at 796). This entails
that the noise restriction “must not ‘burden substantially more speech than is necessary to further the government’s legitimate interests;’” however, it “‘need not be the least restrictive or least intrusive means of’ serving” those interests. Id. (quoting Ward, 491 U.S. at 799). Based on the Hendersons’ pleadings, the
permit’s noise provision is narrowly tailored to serve a significant government interest. To begin, the imposition of the noise provision is consistent with the
purpose of the special events ordinance by “address[ing] secondary harms,” such as “unreasonable inconvenience, interference, demand, or annoyance, to or on adjacent or nearby uses . . . .” Doc. 7 at 43, 48 (citing Huntsville, Ala. Mun. Code §§ 23-201; 23-201(a)). In that regard, the permit’s noise provision serves the
City’s “‘substantial interest in protecting its citizens from unwelcome noise,’” Ward, 491 U.S. at 796 (quotation and alteration in original omitted), and the City’s interest in “ensur[ing] the health and well-being of the patients at the clinic[s]” by
protecting them from “the cacophony of political protests,” Madsen, 512 U.S. at 772-73 (citing NLRB v. Baptist Hospital, Inc., 442 U.S. 773, 783 (1979)). And, by placing no restrictions on unamplified sound or visual means of communication,
and allowing amplified sound that is not plainly audible inside adjacent or nearby buildings, the noise provision does not burden substantially more speech than necessary to further the City’s stated interests. See Pine, 762 F.3d at 1273-74. In
fact, the provision is generally less restrictive than the noise restriction the Supreme Court approved in Madsen, which restrained “singing, chanting, whistling, shouting, yelling, use of bullhorns, auto horns, sound amplification equipment or other sounds . . . within earshot of the patients inside the clinic
during the hours of 7:30 a.m. through noon on Mondays through Saturdays.” 512 U.S. at 772 (internal quotation marks and alteration omitted). Finally, to be a constitutional time, manner, and place restriction on speech,
the noise provision also must leave open ample alternative channels of communication. See Ward, 491 U.S. at 791; Pine 762 F.3d at 1268. Here, the permit’s noise provision “in no way restricts the use or display of signs or the distribution of literature, thereby providing reasonable modes of communication.”
Pine, 762 F.3d at 1274-75. The Hendersons resist that conclusion by arguing that holding signs “is not an ample alternative channel of communication,” and contending that they need to be able to “shout or use amplification in order to be
heard” by women entering the clinics. Doc. 18 at 5. This contention overlooks that the permit’s noise provision does not prevent the Hendersons from shouting or using other forms of unamplified sound, and it does not restrict the use of
amplified sound provided it is not plainly audible inside adjacent or nearby buildings. Doc. 7 at 19-20. Consequently, the Hendersons cannot show that the provision fails to provide ample alternative channels of communication. See
Medlin v. Palmer, 874 F.2d 1085, 1090 (5th Cir. 1989) (finding that an ordinance that prohibits the use of amplified sound within 150 feet of a hospital or health clinic “falls way short of precluding alternative avenues of communication”). 2. Whether the permit’s noise provision is unconstitutionally vague Laws regulating a person’s behavior “must give fair notice of conduct that is forbidden or required,” and the Fifth Amendment’s Due Process Clause “requires
the invalidation of laws that are impermissibly vague.” Fed. Commc’ns Comm’n v. Fox TV Stations, Inc., 567 U.S. 239, 253 (2012) (citations omitted). “[T]he void for vagueness doctrine addresses at least two connected but discrete due process
concerns: first, that regulated parties should know what is required of them so they may act accordingly; second, precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discriminatory way. . . . When speech is involved, rigorous adherence to those requirements is necessary to ensure
that ambiguity does not chill protected speech.” Id. (citing Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972)). The Hendersons allege that the noise provision at issue here9 is unconstitutionally vague because it “fail[s] to provide for any objective means by
which the speaker can assess his compliance with the ordinance” and “place[s] the merely subjective means only in the hands of hearers who are overtly hostile to the Hendersons’ message.” Doc. 7 at 7. And, because they “have no way of knowing
whether they can be heard inside the clinic or not,” the Hendersons contend they cannot know whether their speech will violate the noise provision. Doc. 18 at 4-5. Laws do not have to set specific, objective standards that provide mathematical certainty, however, to withstand constitutional scrutiny. See Grayned, 408 U.S. at
110. For example, in Pine v. City of West Palm Beach, Fla., the Eleventh Circuit found that a city ordinance banning “amplified sound that is loud or raucous, or that unreasonably disturbs, injures, or endangers the comfort, repose, health, peace
or safety of others within a health care facility quiet zone, is not impermissibly vague.” 762 F.3d at 1276 (citing Reeves v. McConn, 631 F.2d 377, 386 (5th Cir. 1980)). And, in Grayned, the Supreme Court approved a municipal “antinoise” ordinance stating that “[n]o person, while on public or private grounds adjacent to
any building in which a school or any class thereof is in session, shall willfully make or assist in the making of any noise or diversion which disturbs or tends to
9 The noise provision forbids parties from producing amplified sound that is “plainly audible inside adjacent or nearby buildings,” and provides that “[t]he amplified sound is plainly audible if [it] can be clearly heard inside an adjacent or nearby building by a person using his normal hearing faculties, provided that the person’s hearing is not enhanced by any mechanical device, such as a microphone or hearing aid.” Doc. 7 at 19. disturb the peace or good order of such school session or class thereof.” 408 U.S. at 107-08 (quotation omitted). The Court found that, even though “the prohibited
quantum of disturbance is not specified in the ordinance,” the ordinance was not vague because “the prohibited disturbances are easily measured by their impact on the normal activities of the school.” Id. at 112.
Like the ordinances in Pine and Grayned, the language of the noise provision in this case is “marked by ‘flexibility and reasonable breadth, rather than meticulous specificity,’ . . . but . . . it is clear what the [provision] as a whole prohibits.” Grayned, 408 U.S. at 110 (quotation omitted). The ordinance “gives a
person of ordinary intelligence fair notice of what type of amplified sound is restricted.” Pine, 762 F.3d at 1276. Moreover, the amplified sound prohibited by the provision can easily be determined by ascertaining whether it is plainly audible
in adjacent buildings. Therefore, the noise provision is not unconstitutionally vague. In conclusion, the permit’s noise provision is a content-neutral, reasonable time, manner, and place regulation on speech, and it is not unconstitutionally
vague. And, because the Hendersons did not plead facts showing that the defendants have imposed or enforced the noise provision in an unconstitutional manner, they have failed to plausibly plead that the imposition or enforcement of
the noise provision violates their First Amendment right to free speech. C. Whether the Hendersons Plausibly Plead that the Defendants Infringe on Their First Amendment Free Exercise Rights
The court turns next to the Hendersons’ First Amendment right to the free exercise of religion claim. The Hendersons cite the City’s special events ordinance and the imposition of the noise restriction in the permits the City issued them as unreasonable restrictions to their freedom of religious expression. Doc. 7 at 11. “[T]he right of free exercise does not relieve an individual of the obligation to
comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’” Emp’t Div., Dept. of Human Res. of Oregon, 494 U.S. at 879 (quotation omitted). Thus, “[t]he threshold questions in analyzing a law challenged under the Free
Exercise Clause are (1) is the law neutral, and (2) is the law of general applicability.” Keeton v. Anderson-Wiley, 664 F.3d 865, 879 (2011) (quoting First Assembly of God of Naples, Florida, Inc. v. Collier Cnty., Fla.. 20 F.3d 419, 423
(11th Cir. 1994)). “‘A law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.’” Id. at 880 (quoting Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533 (1993)). Rather,
such a law “needs only to survive rational basis review . . . , under which it is presumed constitutional and the burden is on the plaintiff to prove that it is not rationally related to a legitimate government interest.” Id. at 880 (citing Combs v. Homer-Center School Dist., 540 F.3d 231, 242-43 (3rd Cir. 2008) and Deen v. Egleston, 597 F.3d 1223, 1230-31 (11th Cir. 2010)).
The Hendersons, however, claim that their free exercise claims are entitled to a higher level of review under the “hybrid rights” doctrine of Employment Division, Department of Human Resources of Oregon v. Smith. Docs. 7 at 12; 18
at 8. In Smith, the Supreme Court noted that “[t]he only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional
protections, such as freedom of speech,” thereby implying that such “hybrid situations” could merit a higher standard of review. 494 U.S. at 881. The Hendersons contend they present such a “hybrid situation” because their
religiously motivated conduct is protected by both the Free Exercise Clause and Free Speech Clause, and, therefore, their claims are subject to strict scrutiny review. Docs. 7 at 12; 18 at 8-9. The case law does not support this contention. To begin, the Supreme Court recognized that the free exercise claim in Smith
“does not present [] a hybrid situation . . . ,” 494 U.S. at 882, and, thus, “Smith’s ‘language relating to hybrid claims is dicta and not binding on this court,’” Leebaert v. Harrington, 332 F.3 134, 143 (2nd Cir. 2003) (quotation omitted).
Second, neither the Eleventh Circuit nor the Supreme Court have applied the “hybrid rights” doctrine to free exercise claims that implicate the Free Exercise Clause in conjunction with other constitutional rights. See Chabad of Nova, Inc.,
v. City of Cooper City, 575 F. Supp. 2d 1280, 1297 (S.D. Fla. 2008) (“The Eleventh Circuit has not recognized the existence of such a hybrid claim . . . .). In fact, in Keeton v. Anderson-Wiley, the Eleventh Circuit concluded that rational
basis review applies to a free exercise claim even though the claim also implicated the plaintiff’s right to free speech. See 664 F.3d at 879-80.10 Therefore, based on this precedent, the Hendersons’ free exercise claims are subject to rational basis review if the ordinance and noise provision are neutral laws of general
applicability. Turning now to the merits, the defendants argue that the City’s special events ordinance and the permit’s noise provision are neutral laws of general
applicability that are rationally related to a legitimate government purpose. Doc. 12 at 14-16. Indeed, as discussed above, the ordinance and noise provision are content neutral on their face, see p. 9, 12-13, supra, and nothing in the ordinance or
10 In Keeton, the plaintiff, a graduate student enrolled in a counseling program, claimed that her college violated her First Amendment free speech and free exercise rights by requiring her to, among other things, comply with the American Counseling Association’s Code of Ethics, which provide in relevant part that “[c]ounselors do not condone or engage in discrimination based on . . . gender identity [or] sexual orientation.” 664 F.3d at 867, 869. Thus, the plaintiff’s free exercise claim implicated her right to free speech. Even so, in analyzing whether the plaintiff was likely to prevail on the claim, the Eleventh Circuit did not address the “hybrid rights” doctrine. Instead, the Court found that the defendants’ requirement that students comply with the ACA’s Code of Ethics was a neutral and generally applicable policy, and, therefore, “it needs only to survive rational basis review.” Id. at 880. provision indicates that their purpose “‘is to infringe upon or restrict practices because of their religious motivation,’” Keeton, 664 F.3d at 879 (quoting Church
of the Lukumi Babalu Aye, 508 U.S. at 531). Moreover, the Hendersons do not allege any facts to suggest that a purpose of the ordinance and noise provision is to infringe upon religiously motivated actions. See doc. 7. Likewise, the Hendersons
do not plead facts suggesting that the defendants have selectively imposed or enforced the ordinance and provision to burden conduct motivated by religious beliefs. See id. Finally, the Hendersons’ allegations and the permits issued to them show that the Hendersons are free to exercise their religious beliefs by
gathering on the sidewalks in front of the clinics to peacefully pray and communicate their message to others through, among other things, unamplified sounds and amplified sounds that are not plainly audible in adjacent or nearby
buildings. Thus, the ordinance and noise provision are neutral laws of general applicability. See Keeton, 664 F.3d at 879-80 (quoting Church of the Lukumi Babalu Aye, 508 U.S. at 531). And, as discussed above, the ordinance and noise
provision are rationally related to the City’s significant interests in ensuring public safety and order, protecting citizens from unwelcome noise, and protecting the health and well-being of patients at the clinics. See pp. 9, 14, supra.
Consequently, the Hendersons fail to plausibly plead that the defendants violate their free exercise of religion rights by enforcing the ordinance and including the noise restriction in the Hendersons’ special events permits. IV. CONCLUSION To close, the Hendersons fail to plead plausible claims against the City of Huntsville and Chief McMurray for alleged violations of their First Amendment rights to free speech and to free exercise of religion. As a result, the defendants’ motions to dismiss, docs. 9 and 11, are due to be granted. A separate order will be issued. DONE the 4th day of February, 2020.
— Apap bh tee ABDUL K. KALLON UNITED STATES DISTRICT JUDGE