More Cowbells for Abortion Protesters

Henderson v. McMurray, 2021 WL 438884 (11th Cir. 2021)

James and Carol Henderson believe abortion is the murder of an unborn child and they demonstrate that belief to persons approaching abortion clinics in their community. Because they use loudspeakers to share their message, they are required to obtain an event permit (valid for six months) from the city police department. Abortion rights activists also protest in front of the abortion clinics, and they use cowbells and shouting to drown out the Hendersons’ message. The event permits require different groups to maintain 10 feet of separation. The Hendersons allege the abortion rights protesters position themselves to prevent the Hendersons from approaching the front of the clinics.

The Hendersons claimed the chief was interfering with their free speech rights and that the noise provision was a pretext for discrimination against their anti-abortion views.

The police chief added a requirement to the Hendersons’ permit that “[t]he amplified sound produced by a participant in the event shall not be plainly audible inside adjacent or nearby buildings.” The Hendersons responded by suing the police chief for civil-rights violations, claiming the chief was interfering with their free speech rights and that the noise provision was a pretext for discrimination against their anti-abortion views.

The appellate court affirmed the trial court’s dismissal of the complaint, concluding the Hendersons didn’t allege facts supporting their claim that the noise-level provision violates their right to freedom of speech. The court also held that the trial court applied the proper legal analysis to the very complicated question of the First Amendment impact.

In any situation where a police official is charged with regulating sound volume, distance from the focus of the protest, time of day or other restrictions, the chief or other official should proceed carefully and work closely with the agency’s legal advisor or city attorney to avoid the perilous shoals of First Amendment lawsuits.

This blog was featured in our Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys.

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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