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                                                                                 [PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 13-15011
                              ________________________

                         D.C. Docket No. 9:13-cv-80577-DMM

MARY SUSAN PINE,
MARILYN BLACKBURN,

                                                        Plaintiffs - Appellants,

versus

CITY OF WEST PALM BEACH, FL,

                                                        Defendant - Appellee.

                              ________________________

                     Appeal from the United States District Court
                         for the Southern District of Florida
                           ________________________

                                     (August 6, 2014)

Before MARCUS and ANDERSON, Circuit Judges, and GOLDBERG, * Judge.

MARCUS, Circuit Judge:




*
  Honorable Richard W. Goldberg, United States Court of International Trade Judge, sitting by
designation.
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      Appellants Mary Susan Pine and Marilyn Blackburn advocate against

abortion. They challenge on First Amendment grounds § 34-38 of the Code of the

City of West Palm Beach (the “Sound Ordinance” or “Ordinance”), which bans

amplified sound within 100 feet of the property line of any health care facility.

The district court refused to preliminarily enjoin the City’s enforcement of the

Sound Ordinance, finding that the Appellants had not demonstrated a substantial

likelihood of success on the merits of their constitutional claim.

      On the record presented to this Court, the district court did not abuse its

considerable discretion in refusing to issue a preliminary injunction when it found

that the Sound Ordinance is a valid time, place, or manner restriction on speech

that is content-neutral, is narrowly tailored to advance the City’s substantial

interest in protecting patients, and leaves open ample alternative avenues of

communication. Nor did the district court abuse its discretion in determining that

the Appellants failed to establish a substantial likelihood of success on their claims

that the Ordinance is void for vagueness and is being applied discriminatorily

against them. Accordingly, we affirm.

                                          I.

      For a number of years, Appellants and other advocates have participated in

protests and counseling on public streets and sidewalks surrounding the

Presidential Women’s Center, a health care facility in West Palm Beach, Florida,



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where doctors perform abortions. Pine and Blackburn verbally express their

opposition to abortion, attempt to communicate with patients about abortion

alternatives, and pray for the mothers and unborn children. In the past they have

used electronic devices that produce sound, including megaphones (hand-held

loudspeakers) and walkie-talkies (hand-held two-way radios). Appellants use the

megaphones to attract the attention of visitors to the Center. The walkie-talkies

facilitate prayer: the person praying speaks into one radio while others listen on

additional devices. Appellants argue that because the property is surrounded by a

wall and most visitors arrive by car they cannot communicate their message

without sound amplification.

      This case is the latest in a string of legal skirmishes between pro-life

advocates and the City over ordinances restricting speech near the Center. In July

2005, an arson destroyed part of the Center. The City Commission held a meeting

to address the issue and to explore possible ordinances that “would protect the

safety of these patients that are going into this clinic.” Halfpap v. City of W. Palm

Beach, No. 05-80900-CIV, 2006 WL 5700261, at *4 (S.D. Fla. Apr. 12, 2006). At

a later public hearing, the Commission heard from the long-time director of the

Center, who described “[a]n escalation of an environment that becomes

increasingly more hostile, increasingly more dangerous with the stopping of traffic,

attempting to access the entrance to our facility. The tactics have been . . .



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magnified with having megaphones as well as the use of video cameras to

intimidate patients.” Id. at *6. Other witnesses testified that people outside the

clinic yelled and screamed and used megaphones to shout things that were audible

from inside the clinic. One former patient explained that the commotion she

experienced when she was being escorted into the building made her “[v]ery, very,

very anxious.”

          In response, the City Commission passed two ordinances. The 2005 Buffer

Ordinance, which is not before us, created a twenty-foot “buffer zone” around

health facility driveways in which no one could protest, leaflet, or “engage in oral

advocacy.” 1 West Palm Beach, Fla., Code § 78-425(1) (2005). The 2005 Sound

Ordinance, which is before this Court in an amended form, prohibited “amplified



1
    In its entirety, the 2005 Buffer Ordinance provided:

          Sec. 78-425. Engaging in prohibited activities near health care facilities.

          (1) No person shall engage in protesting, picketing, distributing leaflets or
          handbills, attempting to impede access, or engage in oral advocacy, education or
          counseling activities within a designated public safety buffer zone adjacent to a
          health care facility.

          (2) “Designated Public Safety Buffer Zone” shall mean an area 20 feet around a
          health care facility’s driveways and entrances from public rights-of-way or other
          public areas immediately adjacent to a health care facility.

          (3) “Health Care Facility” means any facility that is licensed, certified, or
          otherwise authorized or permitted by law to administer treatment in this state.

West Palm Beach, Fla., Code § 78-425 (2005).



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sound on any public street or sidewalk within 100 feet” of a health care facility. 2

Id. § 34-38.

         Pro-life advocates sued, claiming the two ordinances infringed their First

Amendment rights. See Halfpap, 2006 WL 5700261. The district court granted a

preliminary injunction concerning the Buffer Ordinance, finding that it restricted

speech in a quintessentially public forum and was not a narrowly tailored response

to a significant state interest. Id. at *25. However, the district court refused to

enjoin enforcement of the 2005 Sound Ordinance. Though the court expressed

concern at the breadth of the ordinance’s language, which applied to “any

unnecessary noise” as well as “amplified sound,” it interpreted the ordinance to

avoid constitutional concerns by reading it to apply only to “amplified sound, i.e.,



2
    The 2005 Sound Ordinance provided:

         No person shall produce, cause to be produced, or allow to be produced, by any
         means, any unnecessary noise or amplified sound, operate or play any radio,
         phonograph, stereo set, tape or CD player, television, sound amplifier, or other
         electronic audio device that produces or reproduces amplified sound on any
         public street or sidewalk within 100 feet of any portion of a building housing a
         health care facility or any other institution reserved for the sick or infirmed [sic],
         provided that the public streets or sidewalks adjacent to such facilities shall be
         clearly marked by conspicuous signs identifying those areas. “Health care
         facility” as used in this subsection, includes, but is not limited to, hospitals,
         physicians’ offices, walk-in medical centers, medical diagnostic centers, surgical
         centers, and facilities which are licensed, certified or otherwise authorized to
         perform medical procedures in this state and to provide health services. “Health
         care facility” shall not include residential homes, convalescent homes or other
         facilities that provide long term residency.

Id. § 34-38 (2005).


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megaphones or loudspeakers, devices that amplify the voice.” Id. at *26.3 In

2008, the City Commission passed an amendment that removed the restriction on

“any unnecessary noise” in order to make clear that the Sound Ordinance, § 34-38,

prohibited only “amplified sound.”4 In 2010, Appellant Pine was cited under the

Sound Ordinance for using a bullhorn within the quiet zone surrounding the Center

and was assessed a $250 fine.

       In 2011, the West Palm Beach City Commission again took up the issue. As

other witnesses had in the past, a physician at a public hearing testified that

stressful noise increases blood pressure and heart rate, which can cause

complications and infections for patients undergoing medical procedures. Dr. Jay

Trabin explained that “the World Health Organization and a number of other

surgical institutions around the country and the world have recognized noise

pollution, as it’s termed, as a significant risk factor in patient care.” He explained

the scientific mechanism: “noise pollution, especially stressful noise pollution,

causes the adrenal glands and other organs in the body to produce substances

called catacholamines which, for all practical purposes, are things that increase


3
  Appellant Pine also in the past challenged an earlier version of the Sound Ordinance that
prohibited amplified sound “at a level that is plainly audible at a distance of more than ten feet
from the sound source.” Code § 34-38 (1979). The district court found that the provision was
unconstitutional because it was not narrowly tailored. Pine v. Presidential Women’s Center, Inc.,
No. 04-80123-CIV-ZLOCH, slip op. at 30 (S.D. Fla. Nov. 1, 2007).
4
 The 2008 amendment also extended the prohibition on amplified sound within 100 feet of a
health care facility to include sound produced on private property.


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blood flow and increase heart rate and blood pressure . . . .” Dr. Trabin brought the

Commission dozens of articles detailing medical studies that found “such stress

hormones decrease patient healing,” “increase patient healing time,” “and increase

the need for anesthesia and for sedation.” Together, he concluded, these factors

“lead to increased complication rates, possibly increased infection and an overall

less satisfactory experience.”

      A City Commissioner stated, “[w]e are not infringing on a person’s right of

free speech. What we are doing is -- and we have substantial testimony in our

record that says that amplified noise and noise that impacts upon a person going

through any medical procedure can damage their health.” After the 2011 hearing,

the Commission amended § 34-38 to prohibit amplified sound produced within

100 feet of the property line of a health care facility, not the building itself. The

2011 amendment also banned shouting and specified that amplified sound included

loudspeakers and drums. “Amplified sound” is defined elsewhere in the Code as

“a sound augmented by any electronic or other means that increases the sound

level or volume.” Code § 34-34. “Shouting” is “[a]ny reasonably loud, boisterous

or raucous shouting in any residential area or within a quiet zone.” Id. § 34-

35(12). The 2011 version of the Sound Ordinance, which remains in force today

and is challenged by Appellants in this case, provides:

      Sec. 34-38. -- Sound limitations for health care facilities.



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      (a) Purpose. The purpose of these regulations is to create an area
      surrounding health care facilities that is quiet and free from shouting
      or other amplified sound.

      (b) Limitations. No person shall shout or, cause to be produced, or
      allow to be produced, by any means, any amplified sound, including a
      loudspeaker, drum, radio, phonograph, stereo set, tape or CD player,
      television, sound amplifier, or other electronic audio instrument or
      device that produces or reproduces amplified sound on any public
      street or sidewalk or from private property within 100 feet of the
      property line of a property housing a health care facility or any other
      institution reserved for the sick or infirmed, provided that the public
      streets or sidewalks adjacent to such facilities shall be clearly marked
      by conspicuous signs identifying those areas. “Health care facility” as
      used in this subsection, includes, but is not limited to, hospitals,
      physicians’ offices, walk-in medical centers, medical diagnostic
      centers, surgical centers, and facilities which are licensed, certified or
      otherwise authorized to perform medical procedures in this state and
      to provide health services. “Health care facility” shall not include
      residential homes, convalescent homes or other facilities that provide
      long term residency. Any health care facility that identifies the
      facility as being located in a quiet zone in accordance with subsection
      (c) below shall be subject to the same limitations on amplified sound
      described in this section within 100 feet of the property line of a
      property housing such health care facility.

      (c) Signage required. It shall be the duty of each health care facility
      or owner of such establishment to erect and maintain lampposts or
      signs in some conspicuous place on every street, avenue or alley in the
      vicinity of every health care facility, public or private, indicating that
      the same is a “Quiet Zone.” The signs which must meet and conform
      to the city’s sign code shall be placed on such streets, avenues or
      alleys upon which a health care facility is situated and shall read in a
      manner similar to, but not restricted to, the following:
      “Hospital -- Quiet Zone” or “Health Care Facility -- Quiet Zone.”

Id. § 34-38.




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       On June 6, 2013, Appellants Pine and Blackburn filed a verified complaint

in the United States District Court for the Southern District of Florida challenging

the constitutionality of the Sound Ordinance both on its face and as applied to their

activities near the Center. They sought a declaratory judgment, preliminary and

permanent injunctive relief, and compensatory damages. On October 29, 2013, the

district court denied Appellants’ motion for a preliminary injunction, finding that

they had not shown a substantial likelihood of success on the merits because the

Sound Ordinance imposes a reasonable restriction on the time, place, or manner of

protected speech in a public forum. The court concluded that the Ordinance is

content-neutral, that it is narrowly tailored to the government’s substantial interest

in protecting patients from unwelcome noise, and that the Ordinance leaves open

other effective avenues of communication. In addition, the district court held that

the City is not discriminatorily enforcing the Ordinance by failing to cite fast-food

restaurants that use intercom systems within the 100-foot perimeter or by allowing

the Center to use its own speakers, which are part of a security system that falls

within an Ordinance exemption.5 Finally, the district court held that the Ordinance

is not void for vagueness because “[m]en of common intelligence would

understand the Ordinance’s meaning and would not differ as to its application.”
5
  The City’s Code exempts a number of uses and activities from the Sound Ordinance, including:
cries for emergency assistance; sirens on emergency response vehicles; parades and events with
appropriate permits; authorized activities on school or municipal property; fire and burglar
alarms; trains, aircraft, cars, and boats; and noises resulting from emergency work. Code § 34-
40.


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      Appellants filed a timely notice of appeal. We have jurisdiction to hear this

interlocutory appeal of the district court’s order denying injunctive relief under 28

U.S.C. § 1292(a)(1). Appellants moved this Court for an injunction pending their

appeal. We denied the motion.

                                          II.

      We review the district court’s decision to deny a preliminary injunction for

abuse of discretion. Forsyth Cnty. v. U.S. Army Corps of Eng’rs, 633 F.3d 1032,

1039 (11th Cir. 2011). We review the court’s findings of fact for clear error and its

legal conclusions de novo. Id. “This scope of review will lead to reversal only if

the district court applies an incorrect legal standard, or applies improper

procedures, or relies on clearly erroneous factfinding, or if it reaches a conclusion

that is clearly unreasonable or incorrect.” Schiavo ex rel. Schindler v. Schiavo,

403 F.3d 1223, 1226 (11th Cir. 2005) (per curiam).

      A party that seeks a preliminary injunction must establish that “(1) it has a

substantial likelihood of success on the merits; (2) irreparable injury will be

suffered unless the injunction issues; (3) the threatened injury to the movant

outweighs whatever damage the proposed injunction may cause the opposing

party; and (4) if issued, the injunction would not be adverse to the public interest.”

Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc) (per curiam).

“[A] preliminary injunction is an extraordinary and drastic remedy not to be



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granted unless the movant clearly established the ‘burden of persuasion’ for each

prong of the analysis.” Am.’s Health Ins. Plans v. Hudgens, 742 F.3d 1319, 1329

(11th Cir. 2014) (quoting Siegel, 234 F.3d at 1176). In this case, we need go no

farther than the first prong of this analysis because Appellants cannot show a

substantial likelihood of success on the merits.

                                          A.

      Appellants first challenge the Sound Ordinance as unconstitutional on its

face. In a public forum -- such as the City streets and sidewalks involved in this

case -- the government may impose reasonable restrictions on the time, place, or

manner of protected 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.” Ward v. Rock Against Racism,

491 U.S. 781, 791 (1989) (quoting Clark v. Cmty. for Creative Non-Violence, 468

U.S. 288, 293 (1984)). Appellants need only establish a significant likelihood that

the Ordinance fails at one of these steps to demonstrate a substantial likelihood of

success on the merits. Because the parties do not dispute that the Sound Ordinance

is content neutral, we examine the second and third prongs.

                                           1.




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      In its Code, the City claims a “substantial interest in protecting its citizens

from unwelcome noise” and “in preserving quiet in areas surrounding health care

facilities.” Code § 34-32(c),(f). The district court found that the City indeed has

substantial interests in protecting citizens and the area surrounding health care

facilities from unwelcome noise. We agree that these interests are significant. The

government “ha[s] a substantial interest in protecting its citizens from unwelcome

noise.’” Ward, 491 U.S. at 796 (quoting City Council of L.A. v. Taxpayers for

Vincent, 466 U.S. 789, 806 (1984)). While this interest is at is greatest when it

concerns “‘the well-being, tranquility, and privacy of the home,’ . . . the

government may act to protect even such traditional public forums as city streets

and parks from excessive noise.” Id. (quoting Frisby v. Schultz, 487 U.S. 474, 484

(1988)).

      The City’s interest in regulating sound near health care facilities and

institutions for the sick or infirmed is all-the-more important because it is

concerned with protecting patients who, according to medical testimony, could

suffer serious physical damage from excess noise. “Persons who are attempting to

enter health care facilities -- for any purpose -- are often in particularly vulnerable

physical and emotional conditions.” Hill v. Colorado, 530 U.S. 703, 729 (2000).

And “[n]oise control is particularly important around hospitals and medical

facilities during surgery and recovery periods.” Madsen v. Women’s Health Ctr.,



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Inc., 512 U.S. 753, 772 (1994); see NLRB v. Baptist Hosp., Inc., 442 U.S. 773,

783-784, n.12 (1979) (“Hospitals, after all, are not factories or mines or assembly

plants. They are hospitals, where human ailments are treated, where patients and

relatives alike often are under emotional strain and worry, where pleasing and

comforting patients are principal facets of the day’s activity, and where the patient

and his family . . . need a restful, uncluttered, relaxing, and helpful atmosphere

. . . .” (citation omitted)); Medlin v. Palmer, 874 F.2d 1085, 1090 (5th Cir. 1989)

(recognizing “a legitimate governmental interest in protecting patients of hospitals

and clinics from the unwarranted intrusion of amplified sound generated by ‘pro-

life’ activists”).

       To be valid, a time, place, or manner restriction also must be narrowly

tailored to advance the government’s substantial interest. “For a content-neutral

time, place, or manner regulation to be narrowly tailored, it must not ‘burden

substantially more speech than is necessary to further the government’s legitimate

interests.’” McCullen v. Coakley, 134 S. Ct. 2518, 2535 (2014) (quoting Ward,

491 U.S. at 799). “Such a regulation, unlike a content-based restriction of speech,

‘need not be the least restrictive or least intrusive means of’ serving the

government’s interests.” Id. (quoting Ward, 491 U.S. at 798). “But the

government still ‘may not regulate expression in such a manner that a substantial




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portion of the burden on speech does not serve to advance its goals.’” Id. (quoting

Ward, 491 U.S. at 799).

      Petititoners argue that we should apply the narrow tailoring formulation

described by Justice O’Connor in Frisby: “A statute is narrowly tailored if it targets

and eliminates no more than the exact source of the ‘evil’ it seeks to remedy.” 487

U.S. at 485. Since Ward, however, the Supreme Court has applied a less strenuous

test: “So long as the means chosen are not substantially broader than necessary to

achieve the government’s interest, . . . the regulation will not be invalid simply

because a court concludes that the government’s interest could be adequately

served by some less-speech-restrictive alternative.” 491 U.S. at 800. Indeed, in

its recent decision in McCullen, the Supreme Court applied the Ward standard by

asking whether a regulation was substantially more burdensome than necessary.

See McCullen, 134 S. Ct. at 2537 (“The buffer zones burden substantially more

speech than necessary to achieve the Commonwealth’s asserted interests.”).

      To decide whether the Sound Ordinance is narrowly tailored, we are obliged

to identify what speech it restricts. The Sound Ordinance states that no person,

within 100 feet of a health care facility’s property line, “shall shout” or produce

“any amplified sound, including a loudspeaker, drum, radio, phonograph, stereo

set, tape or CD player, television, sound amplifier, or other electronic audio

instrument or device that produces or reproduces amplified sound.” Code § 34-



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38(b). From this language, Appellants argue that the Ordinance fails the narrow

tailoring test because it bans all amplified speech. We agree that grave

constitutional questions would arise were we to interpret the Sound Ordinance to

prohibit all devices that in any way electronically produce or increase the volume

of sound. Thus, for example, if a passerby carries on a subdued telephone

conversation, the sound from her cellphone has negligible or no effect on patient

health. For the same reason, a law that reaches a person listening to music through

headphones, or a nearby neighbor watching television at a normal level in his

home, stretches well beyond what is needed to safeguard the sick.

      But we do not look to statutory terms in isolation; instead, we consult

context to determine meaning. See Abramski v. United States, 134 S. Ct. 2259,

2267 n.6 (2014) (“[A] court should not interpret each word in a statute with

blinders on, refusing to look at the word’s function within the broader statutory

context.”). After all, “[a] provision that may seem ambiguous in isolation is often

clarified by the remainder of the statutory scheme -- because the same terminology

is used elsewhere in a context that makes its meaning clear . . . .” United Sav.

Ass’n of Texas v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371

(1988).

      In addition, when one interpretation of a law raises serious constitutional

problems, courts will construe the law to avoid those problems so long as the



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reading is not plainly contrary to legislative intent. Edward J. DeBartolo Corp. v.

Fla. Gulf Coast Bldg. & Const. Trades Council, 485 U.S. 568, 575 (1988); Hooper

v. California, 155 U.S. 648, 657 (1895) (“The elementary rule is that every

reasonable construction must be resorted to, in order to save a statute from

unconstitutionality.”). When faced with more than one plausible interpretation of a

law, then, we apply “the reasonable presumption that [the legislature] did not

intend the alternative which raises serious constitutional doubts.” Clark v.

Martinez, 543 U.S. 371, 381 (2005); accord Rust v. Sullivan, 500 U.S. 173, 190

(1991) (“[A]s between two possible interpretations of a statute, by one of which it

would be unconstitutional and by the other valid, our plain duty is to adopt that

which will save the Act.” (quoting Blodgett v. Holden, 275 U.S. 142, 148 (1927)

(opinion of Holmes, J.))). Florida courts also apply the canon of constitutional

avoidance when interpreting state and local laws. See Hershey v. City of

Clearwater, 834 F.2d 937, 940 n.5 (11th Cir. 1987) (“According to Florida (and

general) rules of statutory construction, ‘when reasonably possible, a statute should

be construed in such a manner as to avoid conflict with the Constitution.’” (quoting

Schultz v. State, 361 So. 2d 416, 418 (Fla. 1978))); State v. Mozo, 655 So. 2d

1115, 1117 (Fla. 1995) (“[W]e adhere to the settled principle of constitutional law

that courts should endeavor to implement the legislative intent of statutes and

avoid constitutional issues.”).



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      To avoid serious constitutional concerns, and in the light of surrounding

sections of the City’s noise control regulations, we construe the Sound Ordinance

as targeting only loud, raucous, or unreasonably disturbing noise. At least three

other Code provisions support this reading. First, the stated purpose of the

regulations explains the need for limits on noise at elevated levels. Section 34-31

states that the rules were designed to “reduc[e], control, and prevent[] . . . loud and

raucous noise, or any noise which unreasonably disturbs, injures, or endangers the

comfort, repose, health, peace, or safety of the city’s inhabitants and visitors.”

Code § 34-31. In § 34-32, the City further found that (a) “[l]oud and raucous noise

degrades the environment of the city to a degree that . . . [b]oth causes and

aggravates health problems”; (b) “[b]oth the effective control and the elimination

of loud and raucous noise are essential to the health and welfare of the city’s

inhabitants and visitors”; (d) “sound amplification equipment creates loud and

raucous noise that may, in a particular manner and at a particular time and place,

substantially and unreasonably invade the privacy, peace, and freedom of

inhabitants of, and visitors to, the city”; and (f) “the city has a substantial interest

in preserving quiet in areas surrounding health care facilities.” Id. § 34-32

(emphases added). In other words, the City concluded that health problems are

linked to loud and raucous noise and that certain types of amplified sound are

unreasonably disturbing in certain settings. The City’s stated purpose strongly



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signals that the Sound Ordinance applies only to loud, raucous, or otherwise

unreasonably disturbing noise.

      In addition, § 34-34 defines “[a]mplified sound” for purposes of the noise

control regulations as “a sound augmented by any electronic or other means that

increases the sound level or volume.” Id. § 34-34. The fact that the Sound

Ordinance targeted amplified sound at an augmented or increased noise level, and

did not refer to all electronically transmitted noise, strongly suggests that volume

was at the heart of the City’s concerns.

      Finally, a parallel code restriction that also bans amplified sound and

shouting applies only to “unreasonably loud, excessive, unnecessary or unusual

noise.” Id. § 34-35. Section 34-35 enumerates a dozen non-exclusive examples of

offending noise, including the use of “any radio receiving set, television set,

musical instrument, phonograph, or other machine or device for the producing or

reproducing of sound in such manner as to disturb the peace, quiet and comfort of

the neighboring inhabitants.” Id. Section 34-35 also addresses loudspeakers,

proscribing vehicles with an attached “sound amplifier or radio or any other

instrument of any kind or character which emits therefrom loud and raucous

noises” in public or within a § 34-38 quiet zone. Id. Section 34-35 further bans

“[a]ny unreasonably loud, boisterous or raucous shouting in any residential area or

within a quiet zone established pursuant to section 34-38.” Id.



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       Thus, § 34-35 explained that shouting and amplified sound were prohibited

insofar as they were unreasonably loud, raucous, or disturbing. In turn, the Sound

Ordinance, § 34-38, addressed the use of “shouting or other amplified sound” near

health care facilities. Id. § 34-38. Read in context, and through the prism of our

canon of constitutional avoidance, the City’s noise control regulations indicate that

the Sound Ordinance restriction on amplified sound applies only to “loud and

raucous noise, or any noise which unreasonably disturbs, injures, or endangers the

comfort, repose, health, peace, or safety” of others within a health care facility

quiet zone. Id. § 34-31.6

       Interpreting the Sound Ordinance to limit only excessive amplified noise

also avoids an odd or absurd outcome. “Where the literal reading of a statutory


6
  Reading the Sound Ordinance to extend only to loud, raucous, or otherwise unreasonably
disturbing noise does not make § 34-38 unnecessary or redundant in the light of the general § 34-
35 noise restrictions. Section 34-38 calls the attention of government officials and the
community to the City’s particular interest in regulating sound in quiet zones where patients may
be affected. Moreover, § 34-38 highlights the importance of context: noise that may be
innocuous in a busy commercial area might be unreasonably disturbing when produced near a
health care facility.

        Moreover, Appellants’ invocation of the “specific governs the general” canon of
construction is misplaced. That interpretive tool is helpful when “a general permission or
prohibition is contradicted by a specific prohibition or permission.” RadLAX Gateway Hotel,
LLC v. Amalgamated Bank, 132 S. Ct. 2065, 2071 (2012). Here, the issue is not whether a
specific or a general rule applies; instead, the relevant question is the meaning of “amplified
sound” in § 34-38. As explained, we interpret the meaning of that term by looking to context
provided by the Code.

        Appellants also argue that we cannot adopt a limited interpretation of the Sound
Ordinance because the City has been broadly interpreting it when putting it into practice. As we
have explained, however, the language and context of the City’s noise control regulations and the
principle of constitutional avoidance dictate our narrower reading.


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term would ‘compel an odd result,’ we must search for other evidence of

[legislative] intent to lend the term its proper scope.” Pub. Citizen v. U.S. Dep’t of

Justice, 491 U.S. 440, 454 (1989) (quoting Green v. Bock Laundry Machine Co.,

490 U.S. 504, 509 (1989)); see Church of the Holy Trinity v. United States, 143

U.S. 457, 459 (1892) (“[F]requently words of general meaning are used in a

statute, words broad enough to include an act in question, and yet a consideration

of the whole legislation, or of the circumstances surrounding its enactment, or of

the absurd results which follow from giving such broad meaning to the words,

makes it unreasonable to believe that the legislator intended to include the

particular act.”). If we interpret the Sound Ordinance to the broadest degree

allowed by the text, it would bar anyone within 100 feet of health facility property

from using any electronic audio instrument, whether with headphones or an

external speaker, regardless of the amount of sound produced or its potential effect

on others. This expansive ban apparently would prohibit health care facilities from

using any electronic equipment that uses or produces amplified sound, from paging

systems to administrators’ telephones to patient monitoring devices. Even an

ultrasound scan amplifies sound, as does a stethoscope. Confining the Sound

Ordinance to loud, raucous, or unreasonably disturbing noise -- terms used

specifically in the Code -- avoids a profoundly far-reaching restriction no legislator

could have intended.



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      Read this way, we have little doubt that the Sound Ordinance is narrowly

tailored to advance the City’s interest in protecting patient health in areas near

health care facilities and institutions for the sick or infirmed. Because the

offending sound itself is the potential cause of harm, the Sound Ordinance is “not

substantially broader than necessary to achieve the government’s interest.” Ward,

491 U.S. at 800. Indeed, the Sound Ordinance closely resembles noise limits long

ago upheld by the Supreme Court:

      City streets are recognized as a normal place for the exchange of ideas
      by speech or paper. But this does not mean the freedom is beyond all
      control. We think it is a permissible exercise of legislative discretion
      to bar sound trucks with broadcasts of public interest, amplified to a
      loud and raucous volume, from the public ways of municipalities. On
      the business streets of cities . . . , such distractions would be
      dangerous to traffic at all hours useful for the dissemination of
      information, and in the residential thoroughfares the quiet and
      tranquility so desirable for city dwellers would likewise be at the
      mercy of advocates of particular religious, social or political
      persuasions. We cannot believe that rights of free speech compel a
      municipality to allow such mechanical voice amplification on any of
      its streets.

Kovacs v. Cooper, 336 U.S. 77, 87 (1949). Moreover, not every instance of loud,

raucous, or unreasonably disturbing sound in a quiet zone must harm patient health

for the Ordinance to be narrowly tailored. Instead, the Sound Ordinance does not

burden substantially more speech than necessary because the prohibited types of

noise heighten the risk that patients will suffer deleterious health effects. Cf. Hill,

530 U.S. at 707-08 (upholding against a First Amendment challenge a Colorado



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statute that “forbids all unwelcome demonstrators to come closer than eight feet”

because, although it “will sometimes inhibit a demonstrator whose approach in fact

would have proved harmless,” the “bright-line prophylactic rule may be the best

way to provide protection, and, at the same time, by offering clear guidance and

avoiding subjectivity, to protect speech itself”).

      This case raises issues sharply different from those addressed recently by the

Supreme Court in McCullen. There, the Supreme Court struck down a

Massachusetts law that prohibited activists from standing within thirty-five feet of

the driveway or entrance of a reproductive health care facility. McCullen, 132 S.

Ct. at 2525, 2541. For a number of reasons, the Court held that the restriction was

not narrowly tailored to the government’s interest in preventing obstructions and

congestion outside of abortion clinics. Id. at 2537-41. The Court explained that

the Massachusetts law “unnecessarily swe[pt] in innocent individuals and their

speech” by “categorically exclud[ing] non-exempt individuals from the buffer

zones.” Id. at 2538. Notably, Massachusetts had failed to pursue a variety of

available, less-restrictive solutions for congestion problems. Finally, the law

barred access to public sidewalks and ways, “areas historically open for speech and

debate.” Id. at 2539. Massachusetts had taken “the extreme step of closing a

substantial portion of a traditional public forum to all speakers.” Id. at 2541.




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       These considerations cut the other way in this case. Instead of casting a

wide net that captures innocent speech, the Sound Ordinance targets only actions

near health care facilities that produce types of noise that can endanger patients.

In addition, here there are no less restrictive means: because the heart of the

problem is loud, raucous, or disturbing noise, a restriction on that sound is

narrowly tailored. Unlike in McCullen, the record here contains no evidence of

feasible alternatives that protect patient health from such sound. Finally, the

Sound Ordinance in no way prevents Petitioners from accessing public ways and

sidewalks near the Center. They simply cannot create loud, raucous, or

unreasonably disturbing noise while there.

       Petitioners also argue that we are bound to enjoin the Sound Ordinance by

the former Fifth Circuit’s decision in Reeves v. McConn, 631 F.2d 377 (5th Cir.

1980). 7 We remain unpersuaded. Reeves invalidated as unconstitutionally

overbroad a Houston ordinance prohibiting all sound amplification within 100

yards of residences, schools, courthouses, hospitals, and churches. Id. at 388.

Reeves explained that “there can be no valid state interest in prohibiting all sound

amplification within 100 yards of schools, courthouses, and churches outside the

normal hours of use.” Id. at 385. Reeves further found “no valid state interest in

prohibiting amplified sound that does not actually cause, or imminently threaten to

7
 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as
binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981.


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cause, material disruption at” a residence or hotel. Id. Notably, Reeves said

nothing about the state’s interest in restricting sound near hospitals. Ultimately,

then, Reeves does not control the outcome of this case because its overbreadth

analysis did not specifically address whether the restriction on amplified sound

near hospitals was problematic. Instead, Reeves made clear that a “city may

reasonably prohibit kinds or degrees of sound amplification that are clearly

incompatible with the normal activity of certain locations at certain times.” Id. at

388. The City of West Palm Beach has done just that.

                                           2.

      “While the First Amendment does not guarantee the right to employ every

conceivable method of communication at all times and in all places, a restriction

on expressive activity may be invalid if the remaining modes of communication

are inadequate.” Taxpayers for Vincent, 466 U.S. at 812 (citation omitted). Here,

the district court found that the Sound Ordinance left open meaningful alternative

means of communication. The court followed the approach employed by the Fifth

Circuit in Medlin, in which a local ordinance targeted “the use of amplified sound

in close proximity to certain institutions such as hospitals.” 874 F.2d at 1090. The

Fifth Circuit held that the restriction left open sufficient alternative channels

because “[i]t does not prohibit unamplified speech. It does not prohibit the




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distribution of written material. It does not prohibit the display of signs and

placards nor does it prohibit any symbolic speech.” Id.

      For many of the same reasons cited by the Fifth Circuit in Medlin, we

conclude that the Sound Ordinance leaves open robust alternative channels of

communication. As the district court found, Appellants “are still free to talk, sing,

hold up signs, and distribute literature to patients within the quiet zone.” They

“may still use amplified sound anywhere outside the quiet zone” because the

Sound Ordinance applies only to sound produced within a quiet zone, not noise

that can be heard there. Importantly, the ordinance in no way restricts the use or

display of signs or the distribution of literature, thereby providing reasonable

alternative modes of communication. See Hill, 530 U.S. at 726 (upholding a

restriction on approaching others near health facilities because “[t]he 8-foot

separation between the speaker and the audience should not have any adverse

impact on the readers’ ability to read signs displayed by demonstrators. . . .

Furthermore, the statute places no limitations on the number, size, text, or images

of the placards. And . . . the 8-foot zone does not affect demonstrators with signs

who remain in place”).

      Appellants argue, nevertheless, that they must gain the attention of patients

to let them know literature and counseling is available. But they offer no

persuasive account of why signs, the distribution of literature, or other means -- not



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involving loud, raucous, or otherwise unreasonably disturbing noise -- cannot

accomplish that goal. As the district court observed, “[t]hat patients entering the

Clinic chose to ignore them does not mean that Plaintiffs’ right to communicate

effectively is infringed or that the instant Ordinance is unconstitutional.” The long

and the short of it is that Appellants retain substantial alternative avenues to

express their views.

      Construed narrowly to avoid constitutional concerns, the Sound Ordinance

prohibition on loud, raucous, or other unreasonably disturbing amplified noise is a

valid time, place, or manner restriction because it is content neutral, is narrowly

tailored to advance a substantial government interest, and leaves open alternative

channels of communication. The district court did not abuse its discretion in

determining that Appellants have failed to establish a substantial likelihood of

success on the merits of their facial challenge.

                                          III.

      Appellants also argue that the Sound Ordinance is unconstitutionally vague.

“It is a basic principle of due process that an enactment is void for vagueness if its

prohibitions are not clearly defined.” Grayned v. City of Rockford, 408 U.S. 104,

108 (1972). The Supreme Court has identified three values driving the vagueness

doctrine. First, “[v]ague laws may trap the innocent by not providing fair

warning.” Id. Moreover, vague laws impermissibly delegate policy decisions to



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police, judges, and juries, which risks “arbitrary and discriminatory application.”

Id. at 109. Finally, vague prohibitions that implicate First Amendment freedoms

risk chilling more speech than necessary. Id. As a result, “we insist that laws give

the person of ordinary intelligence a reasonable opportunity to know what is

prohibited, so that he may act accordingly.” Id. at 108. Still, “we can never expect

mathematical certainty from our language.” Id. at 110.

      The Sound Ordinance is not unconstitutionally vague because it squarely

gives fair notice to those who may be affected. As we’ve explained, its context

indicates that it prohibits only shouting and loud, raucous, or unreasonably

disturbing amplified noise near health care facilities or institutions for the sick. Cf.

id. at 112 (“Although the prohibited quantum of disturbance is not specified in the

ordinance, it is apparent from the statute’s announced purpose that the measure is

whether normal school activity has been or is about to be disrupted. We do not

have here a vague, general ‘breach of the peace’ ordinance, but a statute written

specifically for the school context, where the prohibited disturbances are easily

measured by their impact on the normal activities of the school.”).

      Indeed, in 1949 the Supreme Court upheld a prohibition on “loud and

raucous” sound as sufficiently definite and clear. Kovacs, 336 U.S. at 79.

According to the Court, “[w]hile these are abstract words, they have through daily

use acquired a content that conveys to any interested person a sufficiently accurate



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concept of what is forbidden.” Id. Those words remain sufficiently clear sixty-

five years later. Read in a limited way to avoid constitutional concerns, the

Ordinance here, banning only 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.

See, e.g., Reeves, 631 F.2d at 386 (finding no vagueness problem with an

ordinance restricting amplified sound that is “unreasonably loud, raucous, jarring,

disturbing, or a nuisance to persons within the area of audibility”). Appellants also

argue that the statute is vague because property lines are invisible. But the

required health facility signs warn speakers about the existence of a quiet zone and

its rough boundaries. All told, the City’s noise control regulations give a person of

ordinary intelligence fair notice of what type of amplified sound is restricted.

                                         IV.

      Finally, Appellants argue that the City has applied the Sound Ordinance in a

discriminatory manner based on their viewpoint. Appellants complain that the

City has not applied the Sound Ordinance to limit the use of drive-through

loudspeakers within the quiet zone by quick-service restaurants Wendy’s and Pollo

Tropical. But these intercoms are not covered by the Ordinance so long as they do

not produce loud and raucous noise or unreasonably disturbing sound. Similarly,

the Center’s own security system, which includes loudspeakers that warn would-be



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trespassers, is expressly exempted from the Sound Ordinance as an alarm under

§ 34-40. The district court acted within its considerable discretion by concluding

that “[t]he City is not selectively enforcing the Ordinance against pro-life

advocates” when, to the City’s knowledge, “[n]o other individuals are using

bullhorns and other prohibit[ed] amplifiers in established quiet zones.” We

reiterate, however, that this matter is before the Court only on the question of the

“extraordinary and drastic remedy” of a preliminary injunction. Hudgens, 742

F.3d at 1329. On remand, Appellants remain free on a full record to pursue a

permanent injunction and other relief.

      AFFIRMED.




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