PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ TOBY HARMON; SHANE DODSON; TAMMI DODSON, Plaintiffs - Appellants,

v. CITY OF NORMAN, OKLAHOMA; JEFF ROBERTSON, in his individual capacity acting as a police officer for the City of Norman , Oklahoma; DOES 1-5, Defendants - Appellees. No. 22-6019

________________ _________________ Appeal from the United States District Court for the Western Dist rict of Oklahoma (D.C. No. 5:18 -CV-00688-HE)

________________ _________________ Submitted on the briefs * : David J. Markese and Frederick H. Nelson of the American Liberties Institute, Orlando, Florida, and Brently C. Ol sson of the Cheek Law Firm, PLLC, Oklahoma City, Oklahoma, for Plaintiffs – Appellants. Kathryn Walker, City Attorn ey; Rickey J. Knighton II, Assistant City Attorney; and Jeanne M. Snider, Assistant City Attorney, of Norm an, Oklahoma, for Defendants – Appellees.

* After examining the briefs and appellate record, this panel has determined unanimou sly to honor the parties’ re quest for a decision on the briefs without oral argument. See Fed. R. App. P. 34 (f); 10th Cir. R. 34.1(G). The case is therefore submitte d without oral argument. FILED United States Court of Appeals Tenth Circuit 

### March 1, 2023 Christopher M. Wolpert Clerk of Court Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 12 ________________ _________________ Before BACHARACH , PHILLIPS , and MORITZ , Circuit Judges.

________________ _________________ PHILLIPS , Circuit Judge.

________________ _________________ In this appeal, we affirm the di strict court’s ruling upholding the constitutionality of the disturbing -the-peace ordinance from Norman, Oklahoma. Longtime demonstrators outside the Abortion Surgery Center in the City of Norman, Appellants contend that the ordinance is un constitutional both facially and as applied to their demonstr ations. But as the district court ruled, Appellants failed to furnish evidence th at the ordinance is content-based, infected with religious animus, or en forced unconstitutiona lly. In fact, the record reveals the opposite: Norman police offi cers enforced the ordinance only when the demonstrators’ sp eech became so loud or unu sual that it breached the peace. We affirm the district court.
BACKGROUND I. Factual Background In the early 1970 s, the City of Norman enacted a disturbing-the-peace ordinance, § 15-503. The ordinance has five subsections, which have remained intact over the years: No person shall disturb the peace of another by: (1) Violent, obstreperous, or impr oper conduct or carriage which in its common acceptance is calcula ted, or where the natural Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 23 consequence is to cause an assau lt, battery or other breach of the peace; (2) Unseemly, ob scene, offensive, insu lting or abusive language which in its common acceptance is cal culated, or where the natural consequence is, to cause an assault, battery, or other breach of the peace; (3) Playing or creating l oud or unusual sounds; (4) Circulating literature which cas ts ridicule upon any deity or religion, which in its common acce ptance is calculated to cause an assault, battery, or ot her breach of the peace; (5) Displaying any sign, emblem, ba dge, flag or other device, which in its common acceptance is cal culated, or where the natural consequence is, to cause an assault, battery, or other breach of the peace. App. vol. 1, at 178. The ordinance do es not define the terms used in these subsections, including what qualifies as “offensive” or as “loud or unusual sound[].” Id. Toby Harmon, Shane Dodson, and Tammi Dodson (the demonstrators) are members of a sidewalk mi nistry. As part of that ministry, they “attempt[] to share a message with signs, tracts and speaking to the general public.” Id. at 21. In their words, they enga ge in unsolicited “preaching ” to visitors at abortion clinics by “talk[ing] w ith them about God’s lov e” and “persuading” them against abortion. App. vol. 4, at 688. The demonstrators also display signs that depict a “Bible verse” and others that de pict “a baby inside a mother’s womb.” Id. at 693. They distribute literature that includes “s cripture from the Bible.” Id. Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 34 For years, the demonstrators have pros elytized on a side walk about thirty feet from the Abortion Surg ery Center in Norman. The district court found that Shane demonstrated outside the clinic more than 100 times, and Shane testified that he preached “[o]n av erage, four times a mo nth” from 2015 to 2019. Id. at 691. Tammi testified that the ministry has been preaching ou tside the clinic since 2014 or 2015. Videos exchanged between the parties in discovery rev eal that Shane’s preaching often invoked re ligious themes, includin g messages about Jesus’ teachings, biblical judgment , God’s blessings, and repentance. Th e videos also reveal that Shane had amplified his preach ing to visitors of the abortion clinic with a blue plastic cone. In one video, a ministry demonstrat or stated that the visitors “can hear us” insi de the clinic. In another, a ministry demonstrator stated that an off-du ty Norman police offi cer was inside the c linic. Later in that same video, Shane began to preach, unabated, by shout ing through his curled hand. Some clinic visitors responded to the ministry’s preaching with hand gestures and foul language. In one video, a ministry demonstrator claimed that a visitor gestured her hand in the sh ape of a gun toward him. Officer Jeff Robertson also testified that “many patr ons and staff members” of the clinic “constantly complain[ed] about how offensive” and “obscene” the demonstrators’ preaching was. App. vol. 2, at 231-32. But th e record reveals no Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 45 violent encounters between ministry demo nstrators and the clin ic’s visitors or staff. Still, Norman police officers were no strangers at the sidewalk ministry. In materials submitted to the district court at summary judgment, the demonstrators claimed that officers repeated ly threatened to c ite them under the ordinance. Their verified complaint alleges, for ex ample, that “[f]or many years” the ministry had “been orde red to stop expressing their message pursuant to the Code’s regula tions.” App. vol. 1, at 21. 1 Shane swore in response to interrogatories that officers twice told him to stop using a plastic cone to amplify his preaching into the clinic. Tammi also claimed in interrogatory responses th at Norman police officers enforced th e ordinance against her, but she coul d not recall specifics. But see App. vol. 3, at 553 (testifying that she did not “recall an in stance where someone was told to stop expressing their message”). The record reveals that since 2014, Norman police officers have issued at least three citations under th e ordinance. Just one rela tes to the demonstrators’ preaching outside the clinic . On March 4, 2016, officers cited Harmon for violating the ordinance, which (among other restrictions) prohibits creating loud or unusual sounds that disturb the peace of anothe r. The citation notes that

1 Appellant Toby Harmon verified the complaint. Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 56 Harmon was using a “PA [public-address ] system” to “disru pt[] the business.” App. vol. 1, at 172. Ultimately, Norm an prosecutors dism issed the citation. Apart from that citation, officers have cited non-party Katherine Robinson under the ordinan ce, for “screaming” and “ye lling” outside the clinic. Id. at 175. But Norman did not approve that citation for prosecution. And officers have cited Harmon for violating the ordinance for an incident near a dentist’s office and an ice-cream parlor on July 18, 2018. According to the citation, Harmon pursued a woman to her car while “yell[ing] at her about an abortion.” Id. at 176. 2
II. Procedural Background The demonstrators filed a three-count complaint, seeking relief from the City and Officer Jeff Robertson 3 under 42 U.S.C. § 1983. The complaint asserted as-applied and facial challe nges to the ordinance under the Free Speech Clause, Free Exercise Clause, and the Due Pro cess Clause of the U.S. Constitution, and further alleged that No rman failed to train its police officers.

2 No citation specifies which su bsection of the ordinance the demonstrators were cited under. Harmon’s March 4, 2016 citation, for example, notes that he violated “S ection 15-503” and “10-307(3).” App. vol. 1, at 172. Section 10-307 of the Norman Municipa l Code (available online) prohibits citizens from making certa in noises, including oper ating a loudspeaker on public sidewalks. The citation was late r amended to drop the noise violation under § 10-307. Because th e citations all refer to the demonstrators’ loud speech, we assume that officers issued these cita tions under § 15-503(3).

3 Except as noted, we will refer to Ap pellees as “the City.” We refer to the City of No rman individual ly as Norman. Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 67 The complaint also re quested preliminary and perman ent injunctions to stop the City from enforcing the ordinance. The district court denied the demons trators’ request for a preliminary injunction, and we affirmed. Harmon v. City of Norman , 981 F.3d 1141 (10th Cir. 2020). We saw no subs tantial likelihood of succe ss on the merits for their as-applied First Amendment challenges. Id. at 1150. We re asoned that the ordinance was content-neutral and was narrowly tailored to serve Norman’s legitimate and substantial interest in “protecting its citizens from unwelcome noise.” Id. at 1148-49. We also rejected the demonstrators’ request for a preliminary injunction based on their fa cial challenges, concluding that the district court did not abuse its disc retion because the demonstrators were unlikely to show that the ordi nance was vague or overbroad. Id. at 1150-54. With the preliminary-in junction issue resolved and after discovery, Norman and Robertson separately move d for summary judgment. The district court granted in part and de nied in part. It began by noting that the “motions leave much to be desired insofar as a properly s upported summary judgment motion is concerned.” App. vol. 3, at 590. It remarked that the motions’ “articulation of the pertinent material facts” was “extraordinarily spare.” Id. at 591. And it noted that the demonstrators’ opposition briefs wrongly “assum[ed] that allegations in the comp laint must be viewed as admissible proof, due to the complaint being verified.” Id. (citing Lantec, Inc. v. Novell, Inc. , 306 F.3d 1003, 1019 (10th Cir. 2002)). Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 78 Despite the deficiencies in the briefi ng, the district court summed up the first material factual dispute as “wheth er the defendants vi olated plaintiffs’ rights by applying the ‘loud noise’ porti on of the ordinance, or threatening to apply it, to conduct involvi ng artificially amplified or focused speech or loud yelling and screaming by plaintiffs.” Id. at 591-92. The district court answered that the City had constitutio nally applied the noise su bsection, § 15-503(3), to the demonstrators under either the Fr ee Speech Clause or the Free Exercise Clause. As to the demonstrators’ Free Speech Clause claim, it concluded that “[t]he undisputed evidence establishes that the City’s focus was the level of noise—the loudness of plainti ffs’ comments—not the content.” Id. at 592-93. And it concluded that the undisputed evid ence showed that “plaintiffs were free to continue their demonstr ations and preaching outside so long as they did not get so loud as to be audible inside the facility.” Id. at 593. Thus, the district court dismissed the demonstrators’ Free Speech Clause claim. Id. at 594. As to the demonstrators’ Free Exercise Clause claim, the district court similarly reasoned that the undisput ed evidence revealed th at § 15-503(3) was both neutral and generally applicable. Id. at 594-95. It therefore concluded that the subsection survived ratio nal-basis deference. Id. at 595. 4

4 In a footnote, the district court also dismissed the demonstrators’ failure-to-train claim, remark ing that “the verified comp laint does not appear to Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 89 Turning next to the demonstrators’ facial challenges to each subsection of the ordinance, the district court deni ed summary judgment. It noted that the City’s and Robertson’s “motio ns make little effort to address the facial claims.” Id. at 596. Even still, the district cour t commented that it had “considerable doubt whether plaintiffs can establish fa cial invalidity of the ordinance given the exacting standards which apply to such claims.” Id. But to be safe, the district court allowed the demonstrators’ facial claims to proceed to a bench trial. Id. at 596-97. 5
So the demonstrators went to trial sole ly on their facial challenges. At a half-day bench trial, the demonstrators called Shane as their sole witness. Our review of the trial transcript reveals that Shane largely reiterated his prior deposition testimony and the prior sworn st atements in the ve rified complaint. But Shane also testified th at Norman police o fficers had not thr eatened to cite either him or his wife, aside from when the pair used th e plastic cone to amplify their voices. The district court issued a ruling soon after the bench trial on the demonstrators’ facial challenges. Harmon v. City of Norman , No. CIV-18-0688, 2022 WL 329235 (W.D. Okla. Jan. 7, 2022). For thes e, it distinguished between

even assert such a claim, at least as a separate or freestanding claim.” App. vol. 3, at 588 n.2.

5 The court ordered a bench trial because it dismissed “all claims which might support a damages recovery,” leaving “only clai ms potentially warranting declarative or injunctive relief.” App. vol. 3, at 597. Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 910 the four subsections in § 15-503(1), (2), (4), and (5) and the noise subsection, § 15-503(3). Id. at *3. The district court ruled that the demonstrators lacked Article III standing to bring facial cl aims under § 15-503(1 ), (2), (4), and (5). Id. at *2. That was because the demonstrators have never been cited for those s ubsections of the ordinance, have expressed no desire to engage in conduct that would violate those subsections, and have not presente d evidence that they are being prevented from engaging in such conduct due to the threat of enforcement of those subsec tions of the ordinance. Id. Next, the district court rejected the re maining facial challenge to § 15-503(3). Relying on an Oklahoma ca se upholding a similarly worded Tulsa ordinance, the district court conclu ded that “Norman’s ordinance is not overbroad or vague, nor does it prevent plaintiffs from conducting their sidewalk ministry.” Id. at *3 (citing Howard v. City of Tulsa , 712 P.2d 797 (Okla. Crim. App. 1986)). The district court likened Norman ’s ordinance to Tulsa’s. Id. In Howard , an Oklahoma appellate court approved the Tulsa ordinance because “s ounds with volume su fficient to disturb the peace inside a residence was ‘sufficientl y a matter of common knowled ge so that an average citizen can determine with reasonable certainty what conduct is proscribed.’” Id. (quoting 712 P.2d at 798). The demonstrators timely appealed. 6

6 The City does not cro ss-appeal the district co urt’s denial of summary judgment. Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 1011 JURISDICTION We have jurisdiction to consider th is appeal under 28 U.S.C. § 1291. See Weise v. Casper , 593 F.3d 1163, 1165 (10th Cir. 2010).
STANDARD OF REVIEW The demonstrators appeal the district court’s grant of summary judgment and its rulings after the bench trial. “W e review a grant of summary judgment de novo, drawing all reasonab le inferences and resolvin g all factual disputes in favor of the non-moving party.” Birch v. Polaris Indus., Inc. , 812 F.3d 1238, 1251 (10th Cir. 2015) (citati on omitted). And “[i]n an appeal fro m a bench trial, we review the district court’s fact ual findings for clear error and its legal conclusions de novo .” Lippoldt v. Cole , 468 F.3d 1204, 1211 (10th Cir. 2006) (citations omitted).
DISCUSSION The demonstrators charge the distri ct court with several errors. We proceed as follows. We first consider the district court’s grant of summary judgment for the City, respectively a ddressing the demonstrators’ as-applied challenges to § 15-503(3) and the failure-to -train claim. We then consider the district court’s bench-trial rulings on the demonstrators’ facial challenges to each subsection of the ordinance. Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 1112 I. The district court did not err in granting summary judgment for the City on the demonstrators’ as-app lied challenges an d failure-to-train claim. We begin our analysis by reviewing th e district court’s grant of summary judgment for the City. The demonstrators assert that the district court wrongly granted summary judgment despite ge nuine issues of material fact. Before turning to the merits of the demonstrators’ position, we note that we share the district court’s misgivings about the deficiencies in the parties’ factual presentations below. That pr oblem persists on appeal because, “although our review is de novo, we conduct that revi ew from the perspective of the district court at the time it made its [summary-j udgment] ruling, ordinarily limiting ou r review to the materials adequately brought to the attention of the district court by the parties.” Adler v. Wal-Mart Stores, Inc. , 144 F.3d 664, 671 (10th Cir. 1998). To that end, to show a genuine issue of material fact, the demonstrators must point us to admissible evidence enablin g the court to rule in their favor on at least one of their claims. See Fed. R. Civ. P. 56(c); Bacchus Indus ., Inc. v. Arvin Indus., Inc. , 939 F.2d 887, 891 (10th Cir. 1991) (“Th e party opposing the motion must present sufficien t evidence in specific, f actual form fo r a jury to return a verdict in that party’s favor.” (citatio n omitted)). Providi ng proof of genuine disputes is especi ally important on appeal because the demonstrators must ultimately conv ince us that they have a viable § 1983 claim that the district court prematurely dismissed. Matsushita Elec. Indus. Co. v. Zenith Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 1213 Radio Corp. , 475 U.S. 574, 587 (1986) (“Wh ere the record taken as a whole could not lead a rational trier of fact to find for the [par ty claiming injury], there is no genuine issue for trial.” (internal quot ation marks and citation omitted)). In arguing that the district court di sregarded genuine issues of material fact, the demonstrators point to some of their complaint allegations as well as the City’s supposed failure to support its merits defenses. Neither helps much in defeating summary judgment on ap peal. For one, complaint allegations— even if verified 7 —are often unadorned conclusions. Anderson v. Liberty Lobby,
Inc. , 477 U.S. 242, 248 (1986) (noting that the nonmoving part y “may not rest upon the mere allegations or denials of his pleading[s]” to avoid summary judgment). Indeed, we already considered those complaint a llegations in ruling that the demonstrators were unlikely to succeed on the merits of their asapplied claims. Harmon , 981 F.3d at 1150. Nor do the demonstrators get far by focusing on the quantum of the other si de’s evidence—it is the demonstrators who bear the ultimate burden of proof on th eir § 1983 claims.

7 The demonstrators urge that the ve rified complaint is admissible proof based on their personal know ledge. But this so rt of evidence is not worth much in opposing su mmary judgment. See Adler , 144 F.3d at 671-72 (“The conclusory allegations in Plaintiff’s complaint, alth ough verified, are of as little help in carrying her burden under Rule 56(e) as ar e the conclusory arguments in her brief.” (citations omitted)). Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 1314 A. As applied, § 15-503 (3) does not violate the First Amendment. The demonstrators argue that § 15- 503(3) is unconstitu tional under the Free Speech Clause and the Free Exercise Clause as applied to them. Distinguishing between facial and as-app lied challenges, we have noted that “[a] facial challenge considers the rest riction’s application to all conceivable parties, while an as-applied challenge test s the application of that restriction to the facts of a plaintiff’s concrete case.” iMatter Utah v. Njord , 774 F.3d 1258, 1264 (10th Cir. 2014) (citation omitted). Though the same substantive standard applies to both facial and as-applied challenges, the latter demands “a developed factual record and the applica tion of a statute to a specific person.” Richmond Med. Ctr. for Women v. Herring , 570 F.3d 165, 172 (4th Cir. 2009) (en banc). To succeed on First Amendment as-applie d challenges premised on viewpoint discrimination, plaintiffs “must show that [they were] prevented from speaking while someone espousing another vi ewpoint was permitted to do
so.” McCullen v. Coakley , 573 U.S. 464, 485 n.4 (2014).
1. As-Applied Free Sp eech Clause Claim We begin with the demonstrators’ as-applied claim und er the Free Speech Clause of the First Amendment. Unde r the First Amendmen t, the government may not “abridg[e] the freedom of spee ch.” U.S. Const. amend. I. The First Amendment applies to th e States through the Four teenth Amen dment’s Due Process Clause. Taylor v. Roswell Indep. Sch. Dist. , 713 F.3d 25, 35 (10th Cir. 2013) (citations omitted ). That includes municipal legislative enactments like Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 1415 the ordinance here. Hawkins v. City & County of Denver , 170 F.3d 1281, 1286 (10th Cir. 1999). The issue is whether the demonstrator s have a First Amendment right to preach loudly on a sidewalk outside an abortion clinic. We answer this question by asking three of our own: Does the First Amendm ent protect the demonstrators’ speech? If so, what is th e nature of the fo rum where the speech occurs? And, depending on the forum, wh at are the City’s justifications for restricting the speech? See Summum v. City of Ogden , 297 F.3d 995, 1001-03 (10th Cir. 2002). The parties do not disp ute that the demonstrators engaged in protected speech or that the demonstrator s’ sidewalk ministry operated in a public forum. 8 We thus focus on whether the government was justified in restricting the demonstrators’ loud speech unde r § 15-503(3). In public fora, “the gov ernment may impose reason able restrictions on the time, place, or manner of protected speech.” Ward v. Rock Against Racism , 491 U.S. 781, 791 ( 1989). Those restrictions are reasonable if they (1) “are justified without reference to the cont ent of the regulated speech,” (2) “are narrowly tailored to serve a significant governmental interest,” and (3) “leave open ample alternative ch annels for communication of the information.” Id.

8 Indeed, sidewalks are “‘public places’ historically asso ciated with the free exercise of expressive activities.” United States v. Grace , 461 U.S. 171, 177 (1983) (citing Perry Educ. Ass’n v. Perry Loc. Educator’s Ass’n , 460 U.S. 37, 45 (1983)). Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 1516 (quoting Clark v. Cmty. for Creative Non-Violence , 468 U.S. 288, 293 (1984)). We consider each in turn.

a. Content Neutrality We first assess whether the undisput ed evidence shows that § 15-503(3) is content-neutral. The subsection prohibits “loud or unusual sounds.” App. vol. 1, at 178. It is thus content-neutra l on its face because it does not draw distinctions based on the content of the speech. See Reed v. To wn of Gilbert , 576 U.S. 155, 164-67 (2015) (concluding that a city ordinance that restricted political signs was facially content-base d). On its face, § 15-503(3) addresses all loud or unusual speech, whatever the content. Harmon , 981 F.3d at 1148 (“Section 15-503(3)’s lan guage is clearly conten t-neutral, prohibiting disturbing another’s peace by making ‘loud or unu sual sounds,’ without reference to the content of th e noise.” (citations omitted)). But our inquiry cont inues even though an ordinance is facially contentneutral. A facially content-neutral re gulation is unconstitutional if “the government has adopted a re gulation of speech because of disagreement with the message [the speech] conveys.” Ward , 491 U.S. at 791 (citing Clark , 468 U.S. at 295). “The government’s purpos e is the controlling consideration.” Evans v. Sandy City , 944 F.3d 847, 854 (10th Cir. 2019) (emphases omitted) (quoting Ward , 491 U.S. at 791). In assessing that dispositive consideration, we look to evidence in the re cord for an explanati on of why the government adopted the regulation. For instance, we ’ve relied on statem ents by legislators Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 1617 and concerned citizen s about the passage of the regulation. See id. at 854-55. If that evidence bears out that the government’s purpo se is “unrelated to the content of the expression deemed neutral, ” we conclude that the government’s regulation is content-neutral “even if it has an incidental effect on some speakers or messages but not others.” Id. (quoting Ward , 491 U.S. at 791). Nothing in the record suggests that Norman passed § 15-503(3) to regulate the content of the demonstrators’ message, much less any message. As the district court concluded, “[t]he u ndisputed evidence es tablishes that the City’s focus was the level of noise—the loudness of plaintiffs’ comments—not the content.” App. vol. 3, at 592-93. Ou r own review of the record confirms the district court’s finding. Fr om the few deposition snippe ts that we have in the appellate record (includi ng from Norman’s lawyer), we deduce no improper purpose. We acknowledge that th e evidence establis hing Norman’s proper purpose is lacking. And we recognize that Norman may have passed § 15-503(3) due to expectations of encounters between rival groups with strongly held views on abortion : the Supreme Court handed down Roe v. Wade , 410 U.S. 113 (1973), in Janua ry 1973, and Norm an adopted its ordinance in its 1972–1973 legislative term. Bu t we will not speculat e about whether Norman passed § 15-503(3) to regulate specific messages. We agree with the district court that the demonstrators raised no genuine issue of material fact over Norman’s content-neutral purpose. See Adler , 144 F.3d at 678 n.5 (“Genuine Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 1718 issues of material fact must be supp orted by more than a mere scintilla of evidence.” (citations omitted)). As evidence, the demonstr ators point to the City’s enforcement record of § 15-503(3). That’s releva nt, according to the demonstrators, because the Supreme Court warned that a government regulation “would not be content neutral if it were concerned with undesira ble effects that arise from ‘the direct impact of speech on its audience’ or ‘[l]isteners’ reactions to speech.’” McCullen , 573 U.S. at 481 (altera tion in original) (quoting Boos v. Barry , 485 U.S. 312, 321 (1988)). Bu t as stated, the “ controlling consideration ” is Norman’s legislative purpose for § 15-503 (3), not the future enforcement of it.
Evans , 944 F.3d at 854-56 & n.3 (noting that the appellant pointed to “no authority to su pport” the view that we should consid er post-enactment legislative comments). In ot her words, the demonstrator s can’t rely on evidence that Norman police officers may have enforced § 15-503(3) in a content-based way. That’s simply proof of “inciden tal effect[s] on some speakers ormessages,” which effects we have stressed “do[] not make a regulation contentbased.” Evans , 944 F.3d at 855 (collecting cases). 9

9 The demonstrators also mi sread the significance of McCullen . It’s true that a government regulation would be co ntent-based if “it were concerned with undesirable effects that arise from the direct impact of speech on its audience or listeners’ reaction to speech.” McCullen , 573 U.S. at 481 (cleaned up). But the point is that the demonstrators must show that the ordinance was concerned with the speech, not just th at some listeners were o ffended by th e speech. In other words, we would likely treat § 15 -503(3) as content-based if Norman Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 1819 We also note that the enforcement record of § 15-503(3) doesn’t raise a genuine issue of material fact. That’s because the undispute d evidence does not show that Norman police officers enfo rced § 15-503(3) in a content-based manner as applied to the demonstrator s. Instead, the ev idence shows that Norman police officers cited the demonstrators base d on the auditory volume of the demonstrators’ speech, not their mess age. The first citation against Harmon notes, for example, that he “was usin g a [public-address] system and disrupting the business.” App. vol. 1, at 172. The next—occurri ng on privat e property unrelated to the abortion clinic—recite d that Harmon “c ontinued yelling things” and that he followed a woman to her car and “yell[ed].” Id. at 176. And officers issued another citation ag ainst a non-party demonstrator for “loud . . . screaming” and “yelling.” Id. at 175. Even more to the point, one of the videos reveals that Sh ane preached as an off-duty police o fficer stood watch at the clinic; Shane was not cited under § 15-503(3). Thus, the actual enforcement reco rd against the demonstrators doe s not create a genuine dispute of material fact. The record does no t support a finding that Norman police officers enforced § 15-503(3) to re gulate content. b. Narrowly Tailored to Signif icant Government Interests We next turn to the qu estion of whether the undi sputed evid ence supports the district court’s conclusion that § 15-503(3) is narrowly tailored to serve

desired to prevent its citi zens from hearing pro- or anti-abortion views. But we have no evidence in the record to support that finding. Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 1920 significant government interests. Norman has a significant government interest in “protecting its citizen s from unwelcome noise.” Harmon , 981 F.3d at 1149. The Supreme Court tells us that “[n]oi se control is particularly important around hospitals and medical facilities du ring surgery and r ecovery periods.” Madsen v. Women’s Health Ctr., Inc. , 512 U.S. 753, 77 2 (1994). And more broadly, the Court ha s upheld a government interest in protecting citizens from “excessive noise” in traditional pub lic fora, such as sidewalks. Ward , 491 U.S. at 796 (collecting cases). We thus focus on § 15-503(3)’s fit. “To meet the requir ement of narrow tailoring, the government must demonstr ate that alternative measures that burden substantially le ss speech would fail to ac hieve the government’s interests.” McCullen , 573 U.S. at 495. Put differe ntly, the “[g]overnment may not regulate expression in such a mann er that a substantial portion of the burden on speech doe s not serve to advance its goals.” Ward , 491 U.S. at 799. Here, “[w]e look ‘to the amount of sp eech covered by the ordinance and whether there is an appropriate balan ce between the affect ed speech and the governmental interests that the or dinance purports to serve.’” Evans , 944 F.3d at 856 (quoting Watchtower Bible & Tract Soc’y of N.Y., Inc. v. Village of
Stratton , 536 U.S. 150, 165 (2002)). We conclude that § 15-503(3) strike s the appropriate ba lance. The City reports that it has a “legitimate and substa ntial interest in protecting its citizens from unwelcome noise.” Resp. Br. 16. So , in this as-app lied challenge, the Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 2021 demonstrators must show that § 15- 503(3) has substan tially chilled their protected speech, however loud. Edwards v. District of Columbia , 755 F.3d 996, 1001 (D.C. Cir. 2014) (citing Members of City Coun cil v. Taxpayers for
Vincent , 466 U.S. 789, 802-03 (1984)). The demonstrators cannot meet that burden. The record does not rev eal any heavy-handed enforcement of § 15-503(3) by Norm an police officers as applied to the demonstrators. The opposite is true: for years, the demons trators were able to preach—even at amplified volumes—undeterred by § 15 -503(3). The videos in the record confirm, for instance, that officers did not cite the demonstrators for preaching outside the clinic when ampl ifying their voices throu gh a plastic cone or their rounded hands. Nor did anything st op the demonstrators from preaching at nonamplified volumes. See Hill v. Colorado , 530 U.S. 703, 726 (2000) (“[W]hen a content-neutral regulation does no t entirely foreclose any means of communication, it may satisfy the tailorin g requirement even though it is not the least restrictive or least intrusive means of serving the statutory goal.”). The demonstrators try to raise a genuine disput e by arguing that § 15-503(3) is not narrowly tailored be cause it prohibits “any sound, no matter how faint” and because it prohibits “sound heard by anyone inside, not just patients.” Opening Br. 28-29. But the de monstrators confuse their as-applied challenge for a facial one. In a facial challenge, we might consider hypothetical applications of the statute. But see Wash. State Grange v. Wash. State Repub. Party , 552 U.S. 442, 450 (2008) (n oting that facial challenges are “disfavored” Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 2122 because they “often rest on speculation” and risk “p remature interpretation of statutes on the basis of factually bare bones records” (citatio n omitted)). On this record, however, the officers never cited the demonstrators fo r whispering into an abortion clinic or murmuring their bi blical views to non-patients. To the contrary, officers cited Harmon for usin g a public-address system and yelling at a woman sitting in her car. The demonstrat ors’ argument is simply conjecture that we need not indulge in an as-applied challenge. See Ward , 491 U.S. at 800 (concluding that the Fourth Circuit erred by “hypothesiz [ing]” regulatory alternatives that “reflect nothing more than a disagreement with the city over how much control of volume is appropriate or how that level of control is to be achieved” (cita tion omitted)).

c. Alternative Channels for Communication We also reject that the demonstrator s have identified a genuine issue of material fact by arguing that § 15-503(3) shuttered their sidewalk ministry. “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 (citations omitted). To determine whether alternative channels are adequate, we assess the speaker’s ability to reach his or her target audience. Ward , 491 U.S.
at 802. Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 2223 As mentioned, the undis puted evidence re veals that § 15-503(3) did not deter the demonstrators’ speech and that it would not apply to their nonamplified speech. The demonstrators dan ce around the record by contending that they “would” violate the subsection “if anyone in any building could hear the speech.” Opening Br. 33 . But we don’t look to if something would happen in an as-applied challenge. As we concluded before, “that the City’s ‘limitations on volume may reduce to some degree th e potential audience for [Plaintiffs’] speech is of no consequence, for there has been no showing that the remaining avenues of comm unication are inadequate.’” Harmon , 981 F.3d at 1149 (alteration in original) (quoting Ward , 491 U.S. at 802)). What has happened already is that officers did not reflexively cite the demonstrators whenever they s poke; officers cited them only when they spoke to o loudly. The demonstrators—one of whom preached outside the clinic more than 100 times—cannot now plausibly cl aim that the noise subsec tion left them with no alternatives for communication.
* * * The demonstrators lack ev idence to show genuine disputes of material fact to prevail on their Free Speech Clau se claim. We hold that § 15-503(3) is constitutional under the Fr ee Speech Clause as applie d to the demonstrators. The demonstrators have not shown that the subsection was content-based, insufficiently tailored, or fa tal to their sidewalk mini stry. We therefore affirm Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 2324 the district court’s dismissal of the demonstrators’ as-applied Free Speech Clause claim.
2. As-Applied Free Exerci se Clause Claim The demonstrators next assert that the district court erred in granting summary judgment on thei r Free Exercise Clause claim. The demonstrators devote two paragraphs in total to this argument an d cite no supporting law. Those deficiencies alone ar e reason enough to affirm. Bronson v. Swensen , 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e routinely have declined to consider arguments that are not raised , or are inadequately pres ented, in an appellant’s opening brief.” (citations omitted)). In any event, we conclu de that the district court correctly granted summary judgment for the City on the demonstrator s’ Free Exercise Clause claim. “While the First Amendment provides absolute protection to religious thoughts and beliefs, the free exercise clause does not proh ibit Congress and local governments from validly regulating religious conduct.” Grace United Methodist Church v. City of Cheyenne , 451 F.3d 643, 649 (10th Cir. 2006) (citing Reynolds v. United States , 98 U.S. 145, 164 (1878 )). The inquiry turns on which level of constitutional scrutiny ap plies to government regulations that burden religious conduct. We apply ratio nal-basis deference if a regulation is both neutral and generally applicable, even if that regu lation incidentally burdens religious exercise. Id. (quoting Emp. Div. v. Smith , 494 U.S. 872, 879 Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 2425 (1990)). Otherwise, we apply strict scrutiny. Corder v. Lewis Palmer Sch. Dist.
No. 38 , 566 F.3d 1219, 1232-33 (10t h Cir. 2009) (citation omitted). The district court determined that rational-basis deference applied because the demonstrators presente d no evidence that § 15-503(3) was religiously motivated. We agree. An ordi nance is neutral “so long as its object is something other than th e infringement or restrictio n of religious practices.” Id. (citation omitted). And an ordinance is generally applicable unless “it prohibits religious conduc t while permitting secular conduct that undermines the government’s asserted in terests in a similar way.” Fulton v. City of Philadelphia , 141 S. Ct. 1868, 1877 (2021 ) (citation omitted). The demonstrators identify no thing in the record show ing that City council members passed § 15-503(3) to infringe on religious views. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah , 508 U.S. 520, 534-40 (1993) (concluding that a city ordinance wa s not neutral based on evidence that Hialeah legislators passed the ordinance to target the Santería religion). Nor do they identify evid ence that Norman po lice officers allowed secular speakers to scream their messages while citing the mi nistry demonstrators for that same conduct. So rational-basis deference applie s. We assess whether § 15-503(3) “rationally relate[s] to a leg itimate government interest.” Ashaheed v. Currington , 7 F.4th 1236, 1243 (1 0th Cir. 2021) (citation omitted). It does. As mentioned, Norman has a legitimate interest in pr otecting its citizens from Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 2526 unwelcome noise. And § 15 -503(3) rationally relate s to that end because it prohibits loud or unusu al sounds that distur b the peace of another. See Henderson v. McMurray , 987 F.3d 997, 1005-07 (11th Cir. 2021) (affirming a district court’s dismissal of the plai ntiffs’ Free Exercise Clause claim on rational-basis deference because the plain tiffs “do not allege that the City has barred them from pros elytizing their belief in the sa nctity 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 abortio n-rights advocates”). We affirm the district court’s grant of summary judgme nt dismissing the demonstrators’ Free Exercise Clause claim.
B. The demonstrators’ fa ilure-to-train claim against Norman fails. Our precedent disposes of the demo nstrators’ failure-to-train claim. 10 “A municipality may not be held lia ble where there was no underlying constitutional violation by any of its officers.” Hinton v. City of Elwood , 997 F.2d 774, 782 (10th Cir. 1 993). As Robertson comm itted no constitutional violation, Norman cannot be liable for a purported failure to train.

10 The demonstrators’ complaint does not squarely allege a failure-totrain claim. The demonstrators cite some complaint allegations (under the header “General Allegations”) to support this claim. Those allegations assert that Norman failed to im plement policies to trai n its police officers on complying with the First Am endment. We don’t rule to day on the sufficiency of these allegations and instead assume that the demonstrators’ complaint pleads a failure-to-train claim against Norman. Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 2627 And even if the demonstrators co uld clear that hurdle, they’d immediately run into another one: noth ing in the record establishes that Norman was deliberately indifferent. At best, the demonstrators point to inadequate First Amendment training for Norman police officers. That is not enough to show “a pattern of tortious conduct” or an “obvious potential for constitutional violations.” Barney v. Pulsipher , 143 F.3d 1299, 1308 (10th Cir. 1998) (citations omitted). Indeed, as the Supreme Court has remarked, [t]hat a particular officer may be unsatisfactorily trained will not alone suffice to fasten liability on the city, fo r the officer’s shortcomings may have resulted fr om factors other than a faulty training program. It may be, for example, that an otherwise sound program has occasionally been ne gligently administered. Neither will it suffice to prove that an in jury or accident could have been avoided if an officer had had better or more training, sufficient to equip him to avoid the particular injury-causing conduct. City of Canton v. Harris , 489 U.S. 378, 390-91 ( 1989) (internal citations omitted). Particularly on th is enforcement re cord of § 15-503(3 ), we agree with the district court that the demonstrat ors’ failure-to-train claim must fail.
II. The district court did not err in it s post-trial judgment rejecting the demonstrators’ facial claims. The demonstrators next appeal the dist rict court’s bench- trial rulings that the ordinance is not facially vague or overbroad. A facial challenge requires more proof than an as-app lied challenge. That’s because “[f]acial challenges seek to vindicate not only individual pl aintiffs’ rights but also those of all others who wish to engage in the speech being prohibited.” Faustin v. City & County of Denver , 423 F.3d 1192, 1196 (10th Cir. 2005) (citation omitted). Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 2728 Indeed, it’s generally “harder to preva il on a facial cha llenge” because any constitutional application of the st atute proves its constitutionality. United
States v. Cox , 906 F.3d 1170, 1178 n.8 (10th Cir. 2018) (cit ation omitted). To win in the First Amendment context, a pl aintiff must “establis h that no set of circumstances exists under which [the or dinance] would be valid”; “that [the ordinance] lacks any plai nly legitimate sweep”; or that it is “overbroad” because “a substantial number of its app lications are unconstitu tional, judged in relation to [its] plainly legitimate sweep.” Missourians for Fiscal Accountability v. Klahr , 892 F.3d 944, 948 (8th Cir. 2018) (citation omitted). And because facial challe nges “push the judiciary to wards the edge of its traditional purview and expertise,” we have warned they are “strong medicine.” Ward v. Utah , 398 F.3d 1239, 1246-47 (10th Cir. 2005) (citing Broadrick v. Oklahoma , 413 U.S. 601, 611-12 (1973)). We thus proceed cautiously, mindful that facial challenges demand “a most exacting analysis.” Id. at 1247. Like the district court, we first address whether the demonstrators have Article III standing to assert facial claims under § 15-503(1), (2 ), (4), and (5) of the ordinan ce. We wrap up with the demonstrators’ facial challenge to § 15-503(3).
A. The demonstrators lack standing to facia lly challenge § 15-503(1), (2), (4), and (5). The demonstrators contend that they have Article III standing to challenge § 15-503(1), (2 ), (4), and (5). To r ecap those subsections: Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 2829 No person shall disturb the peace of another by: (1) Violent, obstreperous, or impr oper conduct or carriage which in its common acceptance is calcula ted, or where the natural consequence is to cause an assau lt, battery or other breach of the peace; (2) Unseemly, ob scene, offensive, insu lting or abusive language which in its common acceptance is cal culated, or where the natural consequence is, to cause an assault, battery, or other breach of the peace;
. . . ; (4) Circulating literature which cas ts ridicule upon any deity or religion, which in its common acce ptance is calculated to cause an assault, battery, or ot her breach of the peace; (5) Displaying any sign, emblem, ba dge, flag or other device, which in its common acceptance is cal culated, or where the natural consequence is, to cause an assault, battery, or other breach of the peace. App. vol. 1, at 178. The demonstrat ors acknowledge that these subsections “have not yet been directly applied agai nst them.” Opening Br. 40-41. But they assert that they may faci ally challenge these subsec tions to avoid any chilling of their preaching. The district court re jected this argument, reasoning that “[the demonstrators] have never been cited for those subsections of the ordinance, ha ve expressed no desire to engage in conduct that woul d violate those subsections, and have not pres ented evidence that they are being prevented from engaging in such conduct due to the threat of enforcement of those subsections.” Harmon , 2022 WL 329 235, at *2. We agree with the district court that the demonstr ators lack standing to facially challenge § 15-5 03(1), (2), (4), and (5). St art with the basics of Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 2930 standing for claims alleging facial in validity based on chilled speech. The demonstrators bear the bu rden for “[t]he constitu tional requirements for standing, [which are] (1) an injury in fact, (2) a causal conn ection between the injury and the cha llenged act, and (3) a likelih ood that the in jury will be redressed by a favorable decision.” Rio Grande Found. v. City of Santa Fe , 7 F.4th 956, 959 (10th Cir. 2 021). Though standing is not an onerou s burden for plaintiffs, standing for chilled-speech cl aims is “particularly delicate” because “the injury is inchoate.” Initiative & Referend um Inst. v. Walker , 450 F.3d 1082, 1088 (10th Cir. 2006) (e n banc). We thus develope d a test for plaintiffs bringing chilled-speech claims: [P]laintiffs in a suit fo r prospective relief base d on a “chilling effect” on speech can satisfy the requirement that their claim of injury be “concrete and particularized” by (1 ) evidence that in the past they have engaged in the type of sp eech affected by the challenged government action; (2) affidavits or testimony stating a present desire, though no specific plans, to engage in such speech; and (3) a plausible claim that they presently ha ve no intention to do so because of a credible threat that the statute will be enforced. Id. at 1089 (emphasis omitted). In conduc ting this assessment, we have stressed that “evidence of past ac tivities . . . lends concre teness and specificity to plaintiffs’ claims, and a voids the danger that Ar ticle III requirements be reduced to the formality of mouthing the right words.” Id. But we need not dwell on the specifics of th is test, because the undisputed evidence shows that the demonstrators’ speech was not chilled by these four subsections. For one, the reco rd does not bear out that Norman Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 3031 police officers ever threat ened the demonstrators w ith citations under these subsections. At her deposition, Tammi co uld not recall a single instance when police officers told her to stop pr eaching under the four subsections: Q: . . . Were [ministry demonstrators] told to stop expressing their message, or were they told to reduce the volume, to turn the volume down? A: Volume. I believe it was more volume. Q: Okay. Do you ever recall an instance wh ere someone was told to stop expressing their message? A: When I was out there or at all? Q: What you have personal know ledge of, something that you witnessed. A: No. App. vol. 3, at 553. Likewise, Shane te stified that he was never contacted by law enforcement when preaching at the Univer sity of Oklahoma: Q: When you’ve been street-pre aching on Campus Corner, have you been contacted by any law enforcement o fficers from the City? A: No. Id. at 562-63. The record al so reveals that the demons trators were not deterred from preaching after filing their complain t. Here’s one exam ple from Shane’s deposition: Q: . . . Since you file d the lawsuit on July 17th of 2018, have you been back to the Abortion Surg ery Center to preach, protest, counsel? A: Yes. Q: Okay. How often? Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 3132 A: . . . It’s been less than I us ed to because of my work. Maybe once every—on aver age, once every two weeks—two or three weeks. That ’s on average. Id. at 562. The demonstrators respond by pointing to Shane’s tria l testimony that “he has not preached regula rly at the clinic since 2019 and has not preached there at all since 2021” a nd that “he modified his preaching practice.” Opening Br. 46. But we do not read the tria l testimony as capaciously as the demonstrators do. As stated, Shane’s deposition testimony shows that Shane slowed his preaching outsid e the clinic because of hi s job, not any threat of enforcement. And the tria l testimony supports that Shane changed his preaching practices when officers threat ened to cite him for amp lifying his vo ice with the plastic cone—that is, for violating § 15-503(3) , not the other four subsections. No dispute exists that the demonstrators have stan ding to challenge § 15-503(3). Further, Shane’s trial tes timony buttresses our conclu sion that no Norman official threatened to c ite the demonstrators under § 15-503(1), (2), (4), and (5): Q: . . . During any of those occasions, other than what we’ve previously mentioned with regard to the plastic cone, has any police officer ever accused you or threatened you with a citation for violating any of the provisions in Section 15-503?

. . . . A: No. Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 3233 Q: . . . Do you know of any occas ions when your wife has been with you—has she been threatened with an alleged violation of Section 15-503? A: No. App. vol. 4, at 713. We thus agree with the district court and hold that the demonstrators lack standing to bring facial-i nvalidity claims for § 15- 503(1), (2), (4), and (5) of the ordinance. To have standing, the demonstrators must show at a minimum that the threat of enforcem ent of these subsections ha s plausibly deterred their abortion-related speech. Because th e record shows the opposite, the demonstrators lack standing.
B. The demonstrators’ facial challenges to § 15-503(3) fail. 1. Vagueness We have noted two inst ances when ordinances are unconstitutionally vague. “First, if it fails to provide pe ople of ordinary inte lligence a reasonable opportunity to understand what conduct it prohibits. Second, if it authorizes or even encourages arbitrary and discriminatory enforcement.” Jordan v. Pugh , 425 F.3d 820, 824-25 ( 10th Cir. 2005) (quoting Hill , 530 U.S. at 732). In analyzing an ordinance, we look to “the enactment’s purpose, the harm it attempts to prevent, wh ether there is a scienter requirement, and the interpretations of individual s charged with enforcement.” Id. at 825 (citing Grayned v. City of Rockford , 408 U.S. 104, 110-14 (1972)). And in reviewing an ordinance’s language, we must be caut ious of the “limita tions of the English Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 3334 language” and ensure that the ordinance is “set out in terms that the ordinary person exercising ordinary common se nse can sufficiently understand and comply with, without sacrifice to the public interest.” Broadrick , 413 U.S. at 608 (quoting U.S. Civ. Serv. Comm’n v. Na t’l Ass’n of Letter Carriers , 413 U.S. 548, 578-79 (1973)). Under these principles, § 15-503(3 ) is not unconstitutionally vague. Though the words “loud or unusual” are abstract, they have acquired sufficient meaning to put citizens of or dinary intelligence on notice. See Kovacs v. Cooper , 336 U.S. 77, 79 (1949 ) (concluding that a city ordinance that prohibited “loud and raucous” noises was not impermissibly vague because, “[w]hile these are abstract words, th ey have through da ily use acquired a content that conveys to any interested person a sufficiently accurate concept of what is forbidden”). The Supreme Court has never required “perfect clarity and precise guidance” for “regulations th at restrict expressive activity.” Ward , 491 U.S. at 794. Nor does a regulation flunk the vagueness test simply by “the possibility that it will sometimes be difficult to dete rmine whether the incriminating fact it estab lishes has been proved.” United States v. Williams , 553 U.S. 285, 306 (2008). I ndeed, several courts have reasoned similarly when Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 3435 faced with void-for-vagu eness challenges agains t disturbing-the-peace

enactments. 11 Nor does § 15-503(3) “encourage [] arbitrary and discriminatory enforcement.” Jordan , 425 F.3d at 825. Here, we consider “the interpretations the court below has given to analogous stat utes, and, perhaps to some degree, to the interpretation of the statute given by those charged with enforcing it.” Grayned , 408 U.S. at 110. And we see th at Oklahoma state courts have concluded as we do in analyzing similar ordinances. For instance, in Howard , an Oklahoma appellate court analyzed a Tulsa ordinance that prohibited “disturb[ing] the pub lic peace or quietu de” by the “playing of any radio, phonograph or any musical in strument in any manner or in such volume . . . so as to annoy or disturb the quiet, comf ort or repose of any person in any dwelling.” 712 P.2d at 798 . The court ruled that wh ether the volume was too

11 E.g. , State v. Johnson , 542 P.2d 808, 810 (A riz. 1975) (rejecting a facial challenge to Arizon a statute that criminalized “loud or unusual noise,” noting that the statute requ ired evidence of “whether the noise would disturb a person of ordinary sensitivities”); State v. Fitzgerald , 573 P.2d 100, 103 (Colo. 1978) (rejecting vagueness challenge to Colorado criminal statute outlawing “unreasonable noise” because “[t]he vo id for vagueness do ctrine does not require a statute to be so specific that it is under inclusive” (citation omitted)); State v. Poe , 88 P.3d 704, 722 (Idaho 2004) (reje cting vagueness challenge to criminal statute that outlawed “loud or unusual noise” even though “it fail[ed] to precisely quantif y the level of such conduct necessary to disturb someone else’s peace”; “[t]hat [level of conduc t] will depend upon the circumstances”); City of Seattle v. Eze , 759 P.2d 366, 369 (Wash. 1988) (ruling that Seattle ordinance outlawing “loud or raucous be havior” was not “inherently vague”). Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 3536 loud was “sufficiently a matter of co mmon knowledge so that an average citizen can determine with reasonable certainty what conduct is proscribed.” Id. And, as mentioned, the City’s en forcement efforts have allowed the demonstrators to preach unabated when they were not us ing amplifiers. The videos show this. There, we see sidewa lk ministers routinel y yelling toward the clinic—often through their hands and sometimes through a plastic cone—with no police efforts to quell them. In fact, in one video, a police officer drives away after learning that ministry members were amp lifying their voices with a plastic cone and not a “bullhorn.” The demo nstrators’ sole citation at the clinic stemmed from Harmon’s use of a pub lic-address system. On these facts, common sense dictates—and indeed, ha s dictated—what constitutes loud or unusual sounds.
2. Overbreadth Similarly, we reject the demonstrat ors’ overbreadth challenge. “Facial overbreadth has not been invoked when a limiting construction has been or could be placed on the challenged statute.” Broadrick , 413 U.S. at 613 (collecting cases); see also City of Houston v. Hill , 482 U.S. 451, 458 (1987) (“Only a statute that is substantially overbroad may be invalidated on its face.”). Thus, our first task is to a ssess “whether the enactment reaches a substantial amount of constitu tionally protected conduct.” Hoffman Ests. v. Flipside, Hoffman Ests., Inc. , 455 U.S. 489, 494 (19 82). The demonstrators have the “burden to show, ‘from the text of [the ordinance] and from actual Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 3637 fact,’ that substantial overbreadth exists.” United States v. Bruce , 767 F.3d 1009, 1020 (10th Ci r. 2014) (quoting Virginia v. Hicks , 539 U.S. 113, 122 (2003)). The demonstrators identify no constituti onally protected speech that a restriction on loud or unusual sounds substantially destroys. That’s especially so on the actual facts here when Norman police officers allowed the demonstrators substantial leeway to ex press high-value abortion-related speech outside the clinic. Again, only wh en the speech becam e disruptive and amplified did officers intercede. The reco rd thus does not c onvince us that the City must swallow th e strong medicine of facial invalidity.
CONCLUSION The demonstrators fail to show that any error pervaded the proceedings below. We thus affirm the district co urt’s grant of summary judgment on the demonstrators’ as-applied claims and its bench-trial rulings on the facial claims. Appellate Case: 22-6019 Document: 010110819602 Date Filed: 03/01/2023 Page: 37