A pro-life pastor is seeking to have his case against State of Maine officials heard by the United States Supreme Court. The Thomas More Society has filed an amici curiae (“friends of the court”) brief in March v. Mills, et al. The non-profit national public interest law firm is supporting Andrew March in his quest to have the noise provision clause of the Maine Civil Rights Act ruled unconstitutional and discriminatory.
March, pastor of the Cell 53 church in Lewiston, regularly preaches outside Planned Parenthood’s abortion facility in Portland. He is asking the Court to rule on whether police can enforce noise regulations against pro-life demonstrators in Maine’s largest city. March’s petition seeks review of a 1st U.S. Circuit Court of Appeals decision stating that protesters could be cited for breaking a state noise ordinance.
Thomas More Society attorney Thomas Olp explains the case with an analogy. “Imagine three drummers standing outside a Planned Parenthood, drumming away at an equal volume for equal amounts of time—and loud enough to disturb the services inside the facility. One practices his skills to audition for a band. Another shouts, ‘Keep abortion legal!,’ at the top of his lungs. The third drummer, hoping to deter abortion-minded women, repeats, ‘Overturn Roe v. Wade,’ in a normal conversational tone without amplification. Under the noise provision clause in the Maine Civil Rights Act, only the third drummer would be cited for violating the law.”
The challenged provision bars a person from intentionally making noise that “can be heard within a building,” when such noise is made with the additional intent to either “jeopardize the health of persons receiving health services within the building” or “interfere with the safe and effective delivery of those services within the building.” “Only in the third example given above,” says Olp, would the conduct possibly violate the noise ordinance. But that comes about because of the message communicated, not the noise itself. For that reason, the noise ordinance is content based and viewpoint discriminatory. The Maine District Court recognized this in striking down the law, but the 1st Circuit Court of Appeals ignored this obvious fact and erroneously reversed the lower court. We hope the U.S. Supreme Court will correct this situation.”
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The brief contends that the Ordinance violates Constitutionally guaranteed free speech for a number of reasons, including:
- The government can only regulate the when, where and how of public speech, not what the speech says. Maine’s noise provision ultimately seeks to punish a speaker based on the speaker’s message, not on the loudness with which it is delivered, because it singles out only certain messages at a given noise level for regulation.
- Maine’s noise provision lacks adequate criteria to ensure the noise ordinance is enforced objectively, rather than based on the subjective attitude of the hearers of the speech.
- The 1st Circuit’s decision upholds an ordinance that applies a different free speech standard to abortion-related speech, than is applied in non-abortion contexts. This sets a dangerous precedent.
“Maine’s noise provision intentionally weakens First Amendment protection for speech on matters of great public concern — here abortion,” explained Olp. “Granting less protection to abortion-related speech than to other speech — such as labor speech — threatens all Americans’ freedom to speak out and reeks of ‘big brother’ style censorship.”
The lawsuit names Maine Attorney General Janet Mills and several Portland police officers. In 2016, a federal judge for Maine decided that the noise section of the Maine Civil Rights Act was unconstitutional because it regulated based on the content of the speaker’s message. This past August, a trio of 1st Circuit judges reversed that decision, declaring the clause to be “message-neutral.”
Read the Thomas More Society amici curiae brief filed December 4, 2017, with the Supreme Court of the United States in March v. Mills, et al., with the Pacific Justice Institute and Life Legal Defense Foundation, here