James Henderson v. Mark McMurray

987 F.3d 997

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 9, 2021
• Docket: 20-10879
• Status: Published

Opinion

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-10879 ________________________

D.C. Docket No. 5:19-cv-00436-AKK

JAMES HENDERSON, CAROL HENDERSON,

Plaintiffs-Appellants, versus

MARK MCMURRAY, CITY OF HUNTSVILLE, ALABAMA,

Defendants-Appellees.

________________________

Appeal from the United States District Court for the Northern District of Alabama _______________________

(February 9, 2021)

Before WILLIAM PRYOR, Chief Judge, GRANT and TJOFLAT, Circuit Judges.

WILLIAM PRYOR, Chief Judge:

This appeal involves a civil-rights suit brought by two prolife sidewalk

counselors against the City of Huntsville and Chief of Police Mark McMurray. USCA11 Case: 20-10879 Date Filed: 02/09/2021 Page: 2 of 20

James and Carol Henderson allege that McMurray and the City violated their First

Amendment rights to freedom of speech and the free exercise of religion through

their application of the City’s permit ordinance and the inclusion of a noise

provision in their special-event permit. The district court dismissed the

Hendersons’ complaint for failure to state a claim. Because the complaint failed to

allege critical facts necessary to establish a violation of the Hendersons’

constitutional rights, we affirm.

I. BACKGROUND

Like millions of Americans, James and Carol Henderson believe that

abortion is the murder of an unborn child. Abortion is contrary to their sincerely

held religious beliefs, and they act upon those beliefs by standing on the public

sidewalks near two Huntsville, Alabama, abortion clinics to express their views,

pray, and offer counsel to clinic employees, visitors, and patients who pass by. The

Hendersons’ typical activities constitute a “minor event” under the Huntsville

municipal code and do not require a permit. But the Hendersons are not the only

ones who advocate for their views about abortion outside the clinics—there are

also counter-protests from abortion-rights advocates.

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 ten feet

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apart, and the Hendersons allege that the abortion-rights advocates take advantage

of that policy by obtaining permits for events in front of the clinics and forcing the

Hendersons to the other side of the street. And second, the abortion-rights

advocates drown out the Hendersons by shouting and ringing cowbells. The

Hendersons allege that the City does nothing about this abusive conduct, even

though the Hendersons assert it violates the municipal code.

In response to the tactics of the abortion-rights advocates, the Hendersons

use raised voices and sometimes amplification to make their message discernable.

Using amplification arguably 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

Hendersons’ 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, McMurray acted in his official capacity to add a new noise

provision to the Hendersons’ special-event permit. The Hendersons do not allege

that McMurray added the new noise provision only to their permit and not to other

permits. The new noise provision provided that “[t]he amplified sound produced

by a participant in the event shall not be plainly audible inside adjacent or nearby

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buildings.” It included the following definition of “plainly audible” amplified

sound:

[A]mplified sound is plainly audible if the amplified sound 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. As long as the amplified sound is plainly audible by a person inside the building using normal hearing faculties, the particular words or phrases being produced need not be determined.

The Hendersons allege that the new noise provision—unlike the old 62-

decibel standard—fails to provide any objective means by which they can assess

their compliance, and that it places the subjective means for assessing compliance

exclusively in the hands of people in the abortion clinics who are hostile to their

message. They allege that the resulting vagueness and overbreadth are

unconstitutional and render the permit requirement arbitrary and capricious.

The Hendersons were unable to convince the City that the new noise

provision was unconstitutional. When the Hendersons signed their permit

application with a caveat that they would observe its conditions “subject to the US

and Alabama Constitution and advice of counsel,” the City informed them that the

application would not be granted with the caveat. The Hendersons then agreed to

follow the new noise provision as written.

The Hendersons sued the City of Huntsville Police Department and the City

for civil-rights violations. 42 U.S.C. § 1983. They later amended their complaint

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and named McMurray as a defendant instead of the Police Department. In Count I,

the Hendersons alleged that McMurray and the City violated their right to freedom

of speech by requiring them to get a permit and by adding the noise provision to

their special-event permit. In Count II, the Hendersons alleged that McMurray and

the City violated 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 they believe and counseling people in accordance

with their beliefs. They cited the decision in Employment Division, Department of

Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), in support of Count II

and argued that their free-exercise claim “is entitled to strict-scrutiny review under

the hybrid-rights doctrine” articulated in that opinion. The Hendersons also alleged

that the noise provision was vague and overbroad, but neither count relies on that

allegation.

McMurray and the City moved to dismiss the amended complaint for failure

to state a claim. Fed. R. Civ. P. 12(b)(6). The district court granted their motions. It

rejected the Hendersons’ as-applied challenge to the permit ordinance because the

ordinance was a reasonable content-neutral regulation of the time, place, and

manner of speech, and the Hendersons did not allege any facts establishing that

McMurray and the City apply it in a discriminatory or otherwise unconstitutional

manner. The district court rejected their challenge to the noise provision in their

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special-event permits for similar reasons. It concluded that the Hendersons did not

plead viewpoint discrimination, that the provision was narrowly tailored to a

significant government interest, and that the Hendersons did not adequately plead

that the noise provision left them without ample alternative channels of

communication. It concluded that the noise provision was at least as clear as noise

ordinances that have been upheld in other decisions. And the district court rejected

their free-exercise claim because the noise provision was a neutral, generally

applicable law rationally related to a significant government interest. It refused the

Hendersons’ invitation to apply strict scrutiny based on the hybrid-rights doctrine,

dismissing the relevant language in the Supreme Court’s Smith decision as dicta.

II. STANDARD OF REVIEW

We review de novo a dismissal of a complaint for failure to state a claim,

and we accept the allegations in the complaint as true and construe them in the

light most favorable to the plaintiff. Timson v. Sampson, 518 F.3d 870, 872 (11th

Cir. 2008).

III. DISCUSSION

We divide our discussion in three parts. First, we explain that the

Hendersons abandoned their as-applied challenge to the permit ordinance and

failed to include allegations necessary to support their challenge to the noise

provision in their special-event permits. Second, we reject the Hendersons’

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vagueness argument. And third, we conclude that the Hendersons’ free-exercise

claim is too unlike the hybrid claims previously recognized by the Supreme Court

to benefit from the hybrid-rights doctrine.

A. The Hendersons Failed to Plead Necessary Facts to Support an Inference That the Noise Provision Violates Their Right to Freedom of Speech.

The Hendersons alleged two separate violations of their right to freedom of

speech in their amended complaint. First, they alleged that the City’s permit

ordinance is unconstitutional as applied to them. And second, they alleged that the

noise provision in their special-event permits is unconstitutional. But they

abandoned their as-applied challenge on appeal, and they failed to allege facts in

the amended complaint to support their challenge to the noise provision.

1. The Hendersons Abandoned Their As-Applied Challenge to the City’s Permit Ordinance.

The Hendersons alleged in their amended complaint that the City had an

unconstitutional policy of “allowing a group to obtain a permit for traditionally

protected speech on the public sidewalk and thereby exclude other groups from the

same sidewalk” and that the “requirement of a permit under the circumstances . . .

restrict[ed] [their] right to free speech” in violation of the First Amendment. In

other words, the Hendersons alleged that the permit ordinance was unconstitutional

as applied in a situation where counter-protestors use the permit process to force

another speaker from a public place.

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The Hendersons clarified the nature of their as-applied challenge to the

permit ordinance in their response to the motions to dismiss. They explained that

“the proabortion counter[-]protestors always reserve the sidewalk in front of the

building, [so that] the Hendersons are forced to go to the other side of a busy street

and try to communicate their message over heavy traffic and noise from the

proabortion counter[-]protestors.” In that situation, the Hendersons said, the permit

requirement “puts them in an impossible situation: give up their right to free

speech (which is unconstitutional), or risk violating the permit’s noise

requirements (which is illegal).” They conceded that they did not challenge the

permit ordinance on its face. In the absence of any allegations of discriminatory

treatment on behalf of the City, the district court upheld the City’s permit

ordinance as a reasonable and content-neutral restriction on the time, place, and

manner of speech.

The Hendersons do not renew the as-applied argument they made before the

district court on appeal. Instead, they make the much broader argument that “an

individual on the public sidewalk holding a sign, calling out to a woman in

ordinary outdoor tones offering information or assistance, or even handing her a

pamphlet, cannot be required to obtain a permit before doing so,” in any

circumstance. They also argue, for the first time, that McMurray and the City

targeted them for selective enforcement of the permit ordinance by adding

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provisions to their special-event permits while allowing abortion-rights advocates

to operate without a permit at all, while declining to enforce “laws [that] would

protect [their] right to peacefully express themselves or offer information to

women.” We do not consider these arguments because they were never raised

before the district court, see Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324,

1331 (11th Cir. 2004), and because the Hendersons fail to support them with

citations to authority, Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681

(11th Cir. 2014). The Hendersons abandoned the only as-applied challenge to the

permit ordinance they made before the district court.

2. The Hendersons Failed to Plead Necessary Facts to Support their Challenge to the Noise Provision.

We review this challenge using a settled framework. For a public forum like

a sidewalk, a city may regulate the time, place, and manner of speech “so long as

the restrictions ‘[1] are justified without reference to the content of the regulated

speech, . . . [2] are narrowly tailored to serve a significant governmental interest,

and . . . [3] leave open ample alternative channels for communication of the

information.’” Pine v. City of West Palm Beach, 762 F.3d 1262, 1268 (11th Cir.

2014) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989))

(alterations and omissions in Pine). We must evaluate whether the Hendersons’

complaint alleged the necessary facts that would allow a plausible inference that

the City failed to conform to this framework.

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The Hendersons argue that they pleaded facts establishing the noise

provision fails two of the requirements from Ward. First, they maintain they

pleaded the noise provision does not “leave open ample alternative channels for

communication.” Ward, 491 U.S. at 791 (internal quotation marks omitted). And

second, they say they pleaded the noise provision was not “justified without

reference to the content of the regulated speech,” id. (emphasis omitted), because it

was motivated by viewpoint discrimination. The Hendersons do not dispute that

the noise provision is “narrowly tailored to serve a significant governmental

interest.” Id. (internal quotation marks omitted). We address their arguments in

turn.

a. The Hendersons Failed to Plead That the Noise Provision Does Not Leave Them with Ample Alternative Channels of Communication. The Hendersons’ primary argument on appeal is that the noise provision

does not “leave open ample alternative channels for communication.” Id. (internal

quotation marks omitted). But their amended complaint is short on allegations to

that effect. It includes a conclusory allegation that “[t]he permit’s requirements do

not leave ample alternative channels of accomplishing the communication.” But

“the tenet that a court must accept as true all of the allegations contained in a

complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009). And whether a set of facts amounts to the denial of ample alternative

channels of communication is a legal conclusion to be made by the reviewing

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court, see, e.g., City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 53–54

(1986), not a fact to be alleged in the complaint.

The closest thing in the complaint to a factual allegation that the noise

provision left the Hendersons without ample alternative channels of

communication is their allegation that the presence of counter-protestors forced

them to “employ raised voices and sometimes amplification to make their message

discernible.” But even if we infer that the Hendersons “sometimes [employed]

amplification to make their message discernible” because the use of unamplified

sound was sometimes ineffective in the face of counter-protests, the Hendersons

never actually alleged that the noise provision made the use of amplified sound

ineffective. Because the Hendersons did not allege that they were unable to

effectively use amplified sound within the limits set by the noise provision, their

argument that the noise provision does not leave open ample alternative channels

for communication fails.

b. The Hendersons Failed to Plead That the Noise Provision Is a Pretext for Viewpoint Discrimination. The Hendersons also argue they alleged facts establishing that the noise

provision—although content-neutral on its face—was a pretext for viewpoint

discrimination. The relaxed scrutiny for regulations of the time, place, and manner

of speech applies only to regulations that are “justified without reference to the

content of the regulated speech.” Ward, 491 U.S. at 791 (internal quotation marks

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omitted). But regulations “that were adopted by the government because of

disagreement with the message the speech conveys . . . , like those that are content

based on their face, must [instead] satisfy strict scrutiny.” Reed v. Town of Gilbert,

576 U.S. 155, 164 (2015) (alteration adopted) (internal quotation marks omitted).

The problem for the Hendersons is they never alleged that McMurray and

the City added the noise provision to their special-event permit because they

disapproved of the Hendersons’ prolife viewpoint. The closest the Hendersons

came to doing so was their allegation that “pro-choice advocates . . . employ loud

shouting and even the ringing of cowbells to drown out their message” in violation

of the Huntsville municipal code, and that McMurray and the City “fail to protect

the Hendersons from this thuggery.” But even accepting the inference that the

City’s alleged failure to enforce the law is the result of its hostility to the

Hendersons’ prolife viewpoint, the Hendersons never allege that the addition of the

noise provision to their special-event permit was motivated by the same hostility.

Nothing in the Hendersons’ complaint connects the addition of the noise

provision to viewpoint discrimination. They did not allege that the permits were

changed following a negative interaction with the City or abortion-rights

advocates, that other special-event permits do not contain the same noise provision

as theirs, that the City contemplated adding the provision as way to silence them,

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or anything else suggesting the noise provision was designed to target their prolife

viewpoint.

The Hendersons argue that viewpoint discrimination is evident from the fact

that abortion-rights advocates can make loud noise (with their voices and cowbells)

while the Hendersons are prevented from doing so (with amplification). But their

apples-to-oranges comparison fails. The Hendersons never alleged that only

abortion-rights advocates can use loud unamplified sound or that only they are

prohibited from using loud amplified sound. Even as alleged by the Hendersons,

the two sides are subject to the same rules regarding amplified and unamplified

sound. The Hendersons did not allege that the noise provision was a pretext for

viewpoint discrimination, so the district court did not err by evaluating the

regulation under the Ward framework instead of applying strict scrutiny.

B. The Noise Provision Is Not Unconstitutionally Vague. The Hendersons alleged in their amended complaint that the noise provision

was unconstitutionally vague, but they did not rely on that allegation in either of

the two substantive counts. They instead included a section on vagueness in their

response to the motions to dismiss, and the district court discussed vagueness as a

standalone claim in its memorandum opinion. The Hendersons argue that the noise

provision is unconstitutionally vague for two reasons.

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First, the Hendersons argue that the noise provision does not give fair notice

of what conduct is prohibited so that they may act accordingly. They acknowledge

that “the language in the provision is plain enough.” But they insist that the noise

provision nonetheless violates the Due Process Clause because it is difficult for

them to figure out how to comply with it without “resort[ing] to guessing.”

This argument fails because “factual circumstances that sometimes make it

difficult to determine whether an incriminating fact exists” do not make a law

vague. Jones v. Governor of Fla., 975 F.3d 1016, 1047 (11th Cir. 2020) (en banc).

“What renders a statute vague is not the possibility that it will sometimes be

difficult to determine whether the incriminating fact it establishes has been proved;

but rather the indeterminacy of precisely what that fact is.” United States v.

Williams, 553 U.S. 285, 306 (2008). The Hendersons know what must be proved to

establish a violation of the noise provision: that their amplified sound can be

“clearly heard inside . . . [a] nearby building” through the use of “normal hearing

faculties.” That they are not in a strong position to ascertain the fact of audibility

does not make the noise provision vague.

Second, the Hendersons argue that the noise provision is unconstitutionally

vague because “it risks chilling more speech than necessary.” True, vague speech

regulations are problematic in part because they have a chilling effect on speech.

See Reno v. Am. Civ. Liberties Union, 521 U.S. 844, 871–72 (1997). But a statute

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may be overbroad and have an unconstitutional chilling effect on speech even if it

is not vague. Grayned v. City of Rockford, 408 U.S. 104, 114 (1972) (“A clear and

precise enactment may nevertheless be ‘overbroad’ if in its reach it prohibits

constitutionally protected conduct.”). The Hendersons failed to make an

overbreadth argument before the district court or on appeal, and they fail to explain

why the noise provision’s alleged chilling effect on their speech renders it

unconstitutionally vague.

C. The District Court Did Not Err by Refusing to Apply Strict Scrutiny to the Hendersons’ Free-Exercise Claim. The Hendersons argue that the district court erred by refusing to apply strict

scrutiny to their claim that McMurray and the City violated their right to freely

exercise their religion. The Hendersons alleged in their amended complaint that

they “have a sincere religious belief that abortion is the wrongful killing of an

unborn child,” and that “[i]f they are unable to speak what they believe and counsel

people in accord with their beliefs, they will not be able to exercise their religion.”

They argue that their free-exercise claim “is entitled to strict-scrutiny review under

the hybrid-rights doctrine of Employment Division v. Smith.” But they do not

contest the conclusion that their free-exercise claim fails if the hybrid-rights

doctrine does not apply because “the right of free exercise does not relieve an

individual of the obligation to comply with a valid and neutral law of general

applicability.” Smith, 494 U.S. at 879 (internal quotation marks omitted).

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The “hybrid-rights doctrine” is derived from a paragraph in Smith in which

the Supreme Court explained why its decision was consistent with earlier decisions

recognizing rights to exemptions from general laws that incidentally burdened the

free exercise of religion. See, e.g., Wisconsin v. Yoder, 406 U. S. 205 (1972). The

Court explained that religious belief alone did not excuse non-compliance with the

law in any of its previous decisions:

The 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 and of the press, or the right of parents . . . to direct the education of their children.

Smith, 494 U.S. at 881 (citations omitted). This exception to the ordinary rule for

free-exercise claims articulated in Smith is often called the “hybrid-rights

exception” or “hybrid-rights doctrine.”

The Hendersons argue that their free-exercise claim is a hybrid claim that is

excepted from the normal operation of the Smith rule. “The free-exercise claim and

the free-speech claim rest on the same set of operative facts: the Hendersons are

speaking a religious message in which they believe.” So they contend their claim is

a hybrid that is not subject to Smith’s general rule and the rational-basis review that

comes with it. The Hendersons argue that all such hybrid claims are entitled to

strict scrutiny. See Sherbert v. Verner, 374 U.S. 398, 403 (1963).

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The district court refused to recognize the hybrid-rights doctrine and

dismissed the relevant portions of Smith as dicta, citing Leebaert v. Harrington.

332 F.3d 134, 143 (2d Cir. 2003) (“Given our understanding of the Smith statement

as dicta, we are not bound . . . to apply some stricter standard of review than the

rational basis test to hybrid claims.”) The district court also relied on the statement

in Smith that the claim at issue did “not present . . . a hybrid situation.” 494 U.S. at

882. It suggested that our decision in Keeton v. Anderson-Wiley, 664 F.3d 865

(11th Cir. 2011), amounted to a rejection of the doctrine. And it stated that the

Supreme Court has never recognized a hybrid claim since Smith, and that this

Court has not done so either.

The district court was wrong to disregard the hybrid-rights doctrine as dicta.

Inferior courts owe more fidelity to the opinions of the Supreme Court than the

Second Circuit showed in Leebaert. Even if the relevant language in Smith is dicta,

but see Telescope Media Grp. v. Lucero, 936 F.3d 740, 760 (8th Cir. 2019), we are

obligated to respect it, see Bryan A. Garner et al., The Law of Judicial Precedent

§ 4, at 69–72 (2016). “[T]here is dicta and then there is dicta, and then there is

Supreme Court dicta.” Schwab v. Crosby, 451 F.3d 1308, 1325 (11th Cir. 2006).

Nor does our decision in Keeton establish a rejection of the hybrid-rights

doctrine. To be sure, Keeton applied rational-basis review to an appeal that could

have been argued as a hybrid claim. 664 F.3d at 879–80. But that means only that

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Keeton’s claim was not a valid hybrid. There is plenty of room to fashion an

application of the hybrid-rights doctrine consistent with the result in Keeton, which

involved state-sponsored speech unique to the context of higher education. Id. at

881 (W. Pryor, J., concurring) (“When a student expresses her intent to violate the

rules of a state-sponsored clinical program, the university may require her to

provide reasonable assurances that she will comply with its requirements before

the university permits the student to participate in the clinical program.”). The fact

that, since Smith, neither the Supreme Court nor this Court has recognized a valid

hybrid claim is also not dispositive; it does not mean hybrid claims do not exist.

As an inferior court, we must do the best we can with the hybrid-rights

doctrine—dicta or not. The Hendersons’ free-exercise claim is subject to the

general rule of Smith not because the hybrid-rights doctrine is dicta, but because

their claim—as alleged—is not similar to the hybrid free-speech and free-exercise

claims the Supreme Court recognized in Smith.

In Smith, the Supreme Court identified three of its previous decisions as

involving speech-exercise hybrid claims. 494 U.S. at 881 (citing Cantwell v.

Connecticut, 310 U.S. 296 (1940); Murdock v. Pennsylvania, 319 U.S. 105 (1943);

and Follett v. Town of McCormick, 321 U.S. 573 (1944)). Those decisions

recognized a speech-exercise hybrid claim where a speech regulation—in each

case, the prohibition of door-to-door soliciting without a license—was akin to

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censorship, and when that censorship prevented members of a religion from

proselytizing their beliefs. See Cantwell, 310 U.S. at 301–02, 305, 307; Murdock,

319 U.S. at 106, 108, 113; Follett, 321 U.S. at 574, 577–78. In Cantwell in

particular, the Supreme Court explained that the regulation was far more intrusive

than “general and non-discriminatory legislation regulat[ing] the times, the places,

and the manner of soliciting,” because “[i]f a certificate [was] procured,

solicitation [was] permitted without restraint but, in the absence of a certificate,

solicitation [was] altogether prohibited.” 310 U.S. at 304.

The Hendersons’ claim is not like the speech-exercise hybrid claims

distinguished in Smith. It cannot fairly be said that the City has censored the

Hendersons or that they are disabled from spreading their beliefs to the same extent

as the religious believers in Cantwell, Murdock, and Follett. 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 the light of the noise provision and the presence of abortion-rights

advocates. We will not extend the hybrid-rights doctrine so far beyond the limits

described in Smith. And because the Hendersons do not argue that the district court

otherwise erred by concluding that the noise provision and permit ordinance are

neutral laws of general applicability rationally related to a legitimate governmental

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interest, see Keeton, 664 F.3d at 880, we conclude that the district court correctly

applied the general rule of Smith to dismiss their free-exercise claim.

IV. CONCLUSION

We AFFIRM the dismissal of the Hendersons’ amended complaint.