In a case brought by a church pastor, a federal judge is weighing whether Portland police are infringing on the free speech rights of loud anti-abortion protesters by using a noise law to quiet them.

Andrew March, who is pastor of Cell 53 church in Lewiston, claims in the lawsuit filed in U.S. District Court in Portland that police who warned him to quiet down outside Planned Parenthood’s office on Congress Street last November targeted him because of his anti-abortion message and let other people making noise in Monument Square carry on without the same treatment.

Initial arguments in the case were heard Monday.

March’s attorney, Kate Oliveri, argued that Judge Nancy Torresen should grant a motion for an injunctive order to stop police from enforcing the state noise law, which was intended to protect the rights of women to receive health care in a facility free of excessive noise from outside.

Torresen made no immediate ruling after the hearing. She asked March’s attorney and lawyers from the Maine Attorney General’s Office to answer follow-up questions by April 18.

March filed his lawsuit in federal court last December as a counterclaim after Attorney General Janet Mills brought an unprecedented lawsuit in state court against another member of Cell 53 church, Brian Ingalls of Lisbon. Mills’ case against Ingalls seeks to stop him from coming within 50 feet of the Planned Parenthood facility in downtown Portland because he yelled so loudly outside that his voice could be heard inside the building, and that he continued yelling after being told by police to quiet down.

In the case against Ingalls, a state judge last month denied Ingalls’ motion to dismiss the case without hearing evidence on grounds that his free speech right outweighs the rights of women under state law to safe and effective health care. That case is pending.

In March’s case, his attorney argued that police let parades, sirens and other loud noise outside Planned Parenthood to go unchecked, but used the statute against anti-abortion protesters solely because of their anti-abortion message.

“Even if court rules that the statute is not constitutionally flawed, then the application is,” said Oliveri, of the Thomas More Law Center in Michigan. “He is being silenced specifically for what he is saying.”

Torresen questioned Oliveri on whether police telling March to quiet down because he was being too loud was a speech restriction.

“Silenced is not really accurate. It’s softening, not silencing,” Torresen said.

“There is really no distinction between burdening and banning speech,” Oliveri replied.

Assistant Attorney General Christopher Taub said the state statute is specific, making it a civil rights violation to intentionally disrupt another person’s health care.

Taub used Ingalls as an example in March’s case: He could be seen in a video specifically yelling at people in the second-floor window of Planned Parenthood’s facility, telling them not to have an abortion and come down to talk to him.

“It’s not the words he’s using, it’s that he’s targeting people with words that are trying to get health care,” Taub said.

Torresen asked the lawyers to address in submitted written arguments the impact that a ruling by the U.S. Supreme Court in a First Amendment case last year could have on March’s case.

In the Supreme Court case, Reed v. Town of Gilbert, No. 13-502, the justices ruled unanimously that an ordinance imposed by an Arizona town had violated the Constitution by placing specific limits on sign sizes announcing church services as opposed to restrictions on all signs.

Oliveri argued that the Supreme Court case was relevant because the Maine law restricts speech in a specific setting, outside a health care facility. Taub said he doesn’t believe it’s related.

“Whether it does or doesn’t, we’ll find out,” the judge said.

 

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