Cutting v. Portland, ME , 802 F.3d 79 ( 2015 )

United States Court of Appeals
For the First Circuit
No. 14-1421
MICHAEL W. CUTTING; WELLS STALEY-MAYS; and ALISON E. PRIOR,
Plaintiffs, Appellees,
v.
CITY OF PORTLAND, MAINE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, Senior U.S. District Judge]
Before
Howard, Chief Judge,
Stahl and Barron, Circuit Judges.
Jennifer L. Thompson for appellant.
Kevin P. Martin, with whom Zachary Heiden, Joshua M. Daniels,
Timothy Bazzle, Brian T. Burgess, ACLU of Maine Foundation, and
Goodwin Procter LLP were on brief, for appellees.
September 11, 2015
BARRON, Circuit Judge. This case requires us to decide
whether an ordinance in the City of Portland, Maine that prohibits
standing, sitting, staying, driving, or parking on median strips
violates the constitutional guarantee of "the freedom of speech."
U.S. Const. Amend. I.1 We conclude that the ordinance does, because
it indiscriminately bans virtually all expressive activity in all
of the City's median strips and thus is not narrowly tailored to
serve the City's interest in protecting public safety.
Accordingly, we affirm the District Court's permanent injunction
barring the ordinance's enforcement.
I.
In 2012, Portland’s chief of police, Michael Sauschuck,
identified an increase in panhandling on traffic medians in the
City. Calling this increase a "public safety emergency," he
recommended to the Public Safety, Health, and Human Services
Committee of the Portland City Council that it adopt an ordinance
barring virtually all activity in all of the City's median strips
(other than just passing through).
The proposed ordinance failed to pass. Nonetheless,
concern about panhandling in the City's median strips did not
abate. And, in July of 2013, the Council held a public hearing to
1
The First Amendment is incorporated into the Fourteenth
Amendment and thus applies to the action at issue here. Gitlow v.
New York, 268 U.S. 652, 666 (1925).
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reconsider the proposed ordinance. This time the City Council
unanimously voted to adopt the median ordinance.
Portland City Code § 25-17(b) became effective on August
15, 2013. The ordinance provides that:
No person shall stand, sit, stay, drive or
park on a median strip . . . except that
pedestrians may use median strips only in the
course of crossing from one side of the street
to the other.
The ordinance defines a median strip as "a paved or
planted area of [a] public right-of-way, dividing a street or
highway into lanes according to the direction of travel." Portland
City Code § 25-118. The ordinance does not specify any other
features of a median strip -- such as its size or its location
relative to heavy or fast traffic. Nor does the ordinance restrict
presence in the streets themselves.
The City has enforced the ordinance against just five
people, in each case for panhandling. The City voluntarily stopped
enforcing the ordinance when, on September 24, 2013, three
individuals, now appellees -- Michael W. Cutting, Wells Staley-
Mays, and Alison E. Prior -- brought the present action claiming
the ordinance restricted their speech in various ways.2
2 At oral argument in January, the parties agreed that the
Supreme Court's ultimate disposition of the petition for
certiorari that had been pending since October of 2014 in Thayer
v. City of Worcester, 755 F.3d 60 (1st Cir. 2014) -- a case that
involved a First Amendment challenge to a median ordinance similar
to the one at issue here -- might bear on this case. Accordingly,
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The suit contends that Portland's median strip ordinance
violates the First Amendment, both as applied and on its face.3
The complaint seeks relief in the form of a declaratory judgment
concerning the ordinance's facial unconstitutionality. The
complaint also seeks a preliminary and permanent injunction
prohibiting the City from enforcing the ordinance.
The District Court combined a hearing on plaintiffs'
motion for a preliminary injunction with a trial on the merits.
After receiving testimony and exhibits from the parties, the
District Court issued a decision in plaintiffs' favor. See Cutting
v. City of Portland, No. 13-cv-359-GZS, 2014 WL 580155 (D. Me.
Feb. 12, 2014).
The District Court held that the median strips that the
ordinance covered were traditional public fora, like sidewalks or
parks. Id. at *7. The District Court then held that the City had
adopted an "official interpretation" of the ordinance that
excludes campaign signs from the ordinance's reach, thereby
we held this case in abeyance until June 2015, when the Supreme
Court vacated our decision in Thayer and remanded for further
consideration in light of Reed v. Town of Gilbert, 135 S. Ct. 2218
(2015), see Thayer v. City of Worcester, ___ S. Ct. ___, 2015 WL
2473458 (June 29, 2015), and that panel, in turn, remanded the
entirety of Thayer to the district court. Thus, we now decide
this case without regard to Thayer.
3 The plaintiffs also brought suit under 42 U.S.C. § 1983,
the Maine Civil Rights Act, and Article I of the Maine
Constitution.
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allowing signs bearing campaign messages to be posted in median
strips but not signs communicating other messages. Id. at *6. On
that basis, the District Court found that the ordinance
discriminated on the basis of the content of the speech that occurs
in the median strips, and so the District Court went on to ask
whether the ordinance used the least speech restrictive means to
serve a compelling governmental interest. Id. at *9-10. The
District Court concluded that the ordinance could not survive such
strict constitutional scrutiny. Id. at *10. The District Court
therefore ruled that the ordinance was facially unconstitutional
and permanently enjoined the City from enforcing the ordinance in
any respect. Id. at *11.
The City now appeals. We review the District Court's
grant of a permanent injunction for abuse of discretion, its
underlying conclusions of law de novo, and any factual findings
for clear error. Asociación de Educación Privada de P.R., Inc. v.
García-Padilla, 490 F.3d 1, 8 (1st Cir. 2007).
II.
We need to address two issues at the outset. The first
concerns how to characterize, for First Amendment purposes, the
type of places -- median strips in Portland -- that the ordinance
targets. The second concerns whether the ordinance favors the
content of certain messages or whether the ordinance instead
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restricts expression only because of where it occurs and thus
without regard to its content.4
A.
The parties appear to agree that the City's median strips
are what are known for First Amendment purposes as "traditional
public fora." Those are places "held in trust for the use of the
public . . . for purposes of assembly, communicating thoughts
between citizens, and discussing public questions." See Hague v.
Comm. for Indus. Org., 307 U.S. 496, 515 (1939). Given the role
such places historically have played in fostering public
discussion and debate, the government's authority to regulate
speech within such places is especially limited. Id. at 515-16.
The classic traditional public fora are parks and
sidewalks. Id. The City disputed below whether Portland's median
strips qualify as traditional public fora. But the District Court
resolved that dispute in favor of the appellees. Cutting, 2014 WL
580155, at *7. The District Court based its decision on the
4
Though styled as a restriction only on conduct (presence
within a median strip), see United States v. O'Brien, 391 U.S.
367, 377-78 (1968), the parties agree that the ordinance implicates
the First Amendment. Indeed, the ordinance is similar to other
laws that, though also aimed at restricting physical presence
within a specified place, have been treated as restrictions on
speech rather than merely conduct precisely because the laws
necessarily prohibit persons from engaging in expressive activity
in such places. See, e.g., McCullen v. Coakley, 134 S. Ct. 2518
(2014) (statute prohibited standing within 35 feet of any
reproductive health care facility).
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medians' "past uses," explaining that "the City's medians have
routinely been the site of protected speech, including political
protests, election campaigns by politicians, and solicitations by
individuals for charity." Id.
The two circuits that have addressed whether median
strips are traditional public fora held similarly, see Warren v.
Fairfax Cnty., 196 F.3d 186, 196-97 (4th Cir. 1999) (en banc);
Satawa v. Macomb Cnty. Road Comm'n, 689 F.3d 506, 520-22 (6th Cir.
2012), and the City makes no argument to us that its median strips
are not traditional public fora. We thus decide this case on the
understanding that, as the District Court found, the people of
Portland have used median strips for expressive purposes in much
the same way that they have used parks and sidewalks, as any
argument to the contrary has been waived.
B.
The City's concession bears on the second threshold
issue that we must address: whether this ordinance favors certain
types of messages on the basis of their content. A restriction on
speech that targets the content of the message conveyed is known
as a "content-based" law. And when such a content-based law
restricts speech in a traditional public forum, it raises a very
serious concern that the government is using its power to tilt
public debate in a direction of its choosing, a particularly
worrisome form of governmental regulation of free expression. As
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a result, such a law may be upheld only if that law uses the least
speech restrictive means to serve what must be a compelling
governmental interest. Globe Newspaper Co. v. Beacon Hill
Architectural Comm'n, 100 F.3d 175, 182 (1st Cir. 1996).
We thus need to decide whether this ordinance is content-
based. For if the ordinance is not content-based, and the
ordinance restricts speech without regard to the type of message
communicated and only regulates the time, place, or manner of
speech, then the ordinance is what is called "content-neutral."
See id. at 183. Even though such a law might restrict a greater
amount of expression in absolute terms than one that favors certain
types of messages over others, it has the virtue of not singling
out any idea or topic for favored or un-favored treatment. Thus,
the government must show only that a restriction that is content-
neutral is "narrowly tailored to serve a significant governmental
interest, and that [it] leave[s] open ample alternative channels
for communication of the information." Ward v. Rock Against
Racism, 491 U.S. 781, 791 (1989) (citations omitted).5
5 We follow the Supreme Court's lead in McCullen in
determining whether the ordinance is content-neutral or content-
based, and therefore what level of scrutiny applies, even though
we ultimately conclude that the ordinance fails under even the
less rigorous level of scrutiny that applies to content-neutral
laws. We take this approach because, as in McCullen, "there is no
. . . reason to forgo the ordinary order of operations in this
case." 134 S. Ct. at 2530.
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Here, the District Court found from the evidence at trial
that the City "favors one category of speech, campaign signs, over
all others" because the City had adopted an "official
interpretation" of the ordinance that exempts the posting of
campaign signs from the ordinance's reach. Cutting, 2014 WL
580155, at *6 n.5, 8-9.6 On that basis, the District Court
determined that the ordinance was content-based, applied strict
scrutiny, and struck the ordinance down facially. Id. at *9-11.
But the District Court erred in following this course.
To the extent that the District Court believed that the
City's content-based "official interpretation" represented a
construction of the ordinance's actual reach, the District Court
erred in treating that construction as binding. For while we may
read a law in light of the limits set forth in a government's
"authoritative[] constru[ction]" of that law if doing so would
"render [that law] constitutional," City of Lakewood v. Plain
Dealer Publ’g Co., 486 U.S. 750, 770 n.11 (1988), consistent with
the principle of constitutional avoidance, we may not do so to
make that law more vulnerable to constitutional challenge, see
McCullen v. Coakley, 571 F.3d 167, 178 (1st Cir. 2009) (McCullen
I) ("[A] state official’s interpretation of a statute, even if
6The City disputes this finding, but we need not resolve the
question whether the City has in fact adopted such an "official
interpretation."
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generally authoritative, cannot render an otherwise constitutional
statute vulnerable to a facial challenge."), overruled on other
grounds, 134 S. Ct. 2518.7 Yet the District Court did just that
by treating as binding what it claimed to be an "official
interpretation" that was content-based. By doing so, the District
Court made an ordinance that on its face appears to be
content-neutral subject to the strictest form of constitutional
review.8
7
There is also a question whether the ordinance is even
susceptible to a construction that permits the posting of signs
only if they carry a campaign message. Even if, as the City
contends, the words "stand" or "stay" in the ordinance could be
construed narrowly to allow for the brief time needed for someone
to post any sign on a median strip, it obviously takes no more
time to post a sign with a campaign message than it does to post
a sign that carries a different message. And the text of the
ordinance does not mention signs at all, let alone only campaign
signs. For the reasons set forth above, however, we have no need
to decide whether the ordinance is susceptible to a construction
that creates a campaign-sign-only carve-out. Cf. Virginia v. Am.
Booksellers Ass'n, 484 U.S. 383, 396-97 (1988) (holding that in
order for the Attorney General's savings construction of the
statute to be binding the statute must be "readily susceptible" to
that construction).
8
To justify the decision to invalidate the ordinance on the
basis of the City's supposedly content-based construction, the
District Court relied on Forsyth Cnty. v. Nationalist Movement,
505 U.S. 123 (1992). Cutting, 2014 WL 580155, at *5. But Forsyth
considered the county’s view of the law only with the aim of
identifying "narrowly drawn, reasonable and definite standards"
that would constitutionally save the ordinance by rendering it
less vague. Forsyth Cnty., 505 U.S. at 132-33 (quoting Niemotko
v. Maryland, 340 U.S. 268, 271 (1951)). And so the Court did not
rely on the county's view of the ordinance, as appellees contend,
to invalidate the ordinance. Forsyth simply concluded that those
standards were not sufficiently narrow, reasonable, or definite to
save it. Id.; see also United States v. Grace, 461 U.S. 171, 176
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To the extent that the District Court meant only that
the City had adopted an unwritten policy regarding how the City
would implement or enforce the ordinance with respect to campaign
signs, the District Court still erred in striking the ordinance
down facially as content-based. The principle of constitutional
avoidance would counsel against that approach, too. See id. And
if the City does have an official policy of enforcing the ordinance
that permits the posting of campaign signs but no others in median
strips, the proper remedy must target that policy or the
enforcement of the ordinance pursuant to the policy. See Hoye v.
City of Oakland, 653 F.3d 835, 848-49 (9th Cir. 2011) ("[I]t would
make little sense to invalidate a statute that is constitutional
as written when only its implementation is defective. Doing so
would only require legislative bodies to undertake the pointless
exercise of re-enacting laws that were perfectly valid as enacted
on the first go around.").
Thus, we set to one side any content-based "official
interpretation" that may exist. And, having done so, we conclude
that the ordinance restricts speech only on the basis of where
such speech takes place. The ordinance does not take aim at -- or
give special favor to -- any type of messages conveyed in such a
(1983) (adopting the government’s interpretation of the law in
question in an attempt to avoid constitutional difficulties, not
to create them).
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place because of what the message says. See Reed v. Town of
Gilbert, 135 S. Ct. 2218, 2227 (2015) (discussing what is meant by
the term "content-based"). As a result, we must decide the
constitutionality of the ordinance on the understanding that it is
content-neutral.
III.
Because the District Court deemed the law content-based,
the District Court applied strict scrutiny. It thus did not decide
whether the ordinance is narrowly tailored to serve a significant
governmental interest. But no party asks us to remand the case
for the District Court to rule on narrow tailoring in the first
instance.
The City does note that we may do so, but the City makes
no argument that the record is insufficient for us to decide the
question, or that the City would be prejudiced were it not
permitted to develop the record further. The parties were in
agreement before trial that the ordinance is content-neutral and
that the crucial question was whether the ordinance survives narrow
tailoring, and the parties prepared their cases accordingly. We
thus address the question of narrow tailoring despite the fact
that the District Court has not passed on it.
The City asserts that the ordinance is narrowly tailored
to serve the City's interest in protecting public safety. And we
recognize that such an interest is a legitimate and significant
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one, as the Court most recently recognized in McCullen. 134 S.
Ct. at 2535. But before examining whether the ordinance is
narrowly tailored to that interest, we need to say a little more
about the doctrine of narrow tailoring.
Outside the First Amendment context, the Court has
stated that a litigant who brings a facial challenge to a statute
must establish "that [there is] no set of circumstances . . . under
which [the regulation] would be valid." United States v. Salerno,
481 U.S. 739, 745 (1987). But a content-neutral restriction on
speech in a traditional public forum is facially unconstitutional
if it does not survive the narrow tailoring inquiry, even though
that ordinance might seem to have a number of legitimate
applications. See McCullen, 134 S. Ct. 2518 (striking down
content-neutral, sidewalk buffer-zone law facially on narrow
tailoring grounds).
The reason is that the First Amendment interest in
promoting free speech is so great that the government may not pass
unnecessarily sweeping restrictions on speech and then force those
burdened by them to challenge each problematic application. Thus,
the seemingly tailored aspects of an untailored restriction on
speech in a traditional public forum do not automatically save
such a restriction from facial challenge. Id. at 2534 ("Where
certain speech is associated with particular problems, silencing
the speech is sometimes the path of least resistance. But by
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demanding a close fit between ends and means, the tailoring
requirement prevents the government from too readily sacrificing
speech for efficiency." (internal quotation marks and brackets
omitted)); see Richard H. Fallon, Jr., As-Applied and Facial
Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321, 1354
(2000) (making a similar argument).
That said, the narrow tailoring doctrine does not
require perfect tailoring. The doctrine requires only that a
challenged speech restriction not burden "substantially" more
speech than is necessary to further the government's interest.
See McGuire v. Reilly, 260 F.3d 36, 48 (1st Cir. 2001) (citing
Ward, 491 U.S. at 799).
We thus start our analysis by describing just how
burdensome this ordinance is. We then consider whether the City's
interest in protecting public safety justifies a restriction that
is so burdensome. Finally, we consider whether there were less
speech restrictive measures that the City bypassed in opting for
this ban. In the end, we conclude that this ordinance cannot
survive the narrow tailoring inquiry and must be invalidated on
its face.
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IV.
There is no doubt that the ordinance imposes "serious
burdens" on speech. See McCullen, 134 S. Ct. at 2535.9 As was
the case with the law at issue in McCullen, this ordinance is
"truly exceptional," as the City has failed to identify another
median ordinance that is so encompassing. Id. at 2537.10 That is
9 Appellees also challenged the ordinance under the
overbreadth doctrine, which permits plaintiffs to challenge a
speech restriction facially even if the restriction does not
restrict their speech or if the restriction is constitutional as
applied to their own speech activities. See Virginia v. Hicks,
539 U.S. 113, 119 (2003) (explaining that the overbreadth remedy
is provided to a litigant whose own speech rights are not affected
"out of concern that the threat of enforcement of an overbroad law
may deter or 'chill' constitutionally protected speech" because
"[m]any persons, rather than undertake the considerable burden
(and sometimes risk) of vindicating their rights through
case-by-case litigation, will choose simply to abstain from
protected speech -- harming not only themselves but society as a
whole"). But the City does not contend that we must consider the
appellees' overbreadth challenge, and instead contends only that
the ordinance should be upheld under the narrow tailoring doctrine.
We therefore do not address whatever different analysis, if any,
may be required under the overbreadth doctrine. See Marc E.
Isserles, Overcoming Overbreadth: Facial Challenges and the Valid
Rule Requirement, 48 Am. U. L. Rev. 359, 416-20 (1998); Richard H.
Fallon, Jr., Making Sense of Overbreadth, 100 Yale L.J. 853, 893-98
(1991).
10 In defending the broad reach of the median ordinance, the
City argues that the weight of precedent in similar cases shows
that its ordinance is not "beyond the pale with respect to
time/place/manner restrictions." But the ordinances at issue in
those cases were much less sweeping, either because the ordinances
were less geographically encompassing, more targeted in the types
of speech activity covered (often focusing solely on
solicitation), or both. See Del Gallo v. Parent, 557 F.3d 58 (1st
Cir. 2009) (rejecting a facial challenge to a U.S. Postal Service
regulation restricting campaigning activity on post office
sidewalks on the ground that the restriction was reasonable in
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true in consequence of both the expressive activity that the
ordinance covers and the broad definition of "median strip" that
the ordinance employs.
The ordinance prohibits virtually all activity on median
strips and thus all speech on median strips, with a narrow
exception only for speech that pedestrians may engage in while
light of the history and purposes of the postal sidewalk); Gresham
v. Peterson, 225 F.3d 899 (7th Cir. 2000) (holding that an
Indianapolis ordinance that prohibited nighttime panhandling, all
panhandling in specified areas, and all "aggressive panhandling"
was narrowly tailored to serve the city's interests in promoting
the safety and convenience of its citizens on public streets);
ACORN v. St. Louis Cnty., 930 F.2d 591 (8th Cir. 1991) (upholding
an ordinance banning solicitation in all roadways -- but not on
medians -- as narrowly tailored to the county's safety concern);
Davidovich v. City of San Diego, No. 11cv2675 WQH-NLS, 2011 WL
6013010 (S.D. Cal. Dec. 1, 2011) (concluding that a municipal
provision that prohibited the placing of objects on public grounds
was narrowly tailored to the purpose of protecting public safety,
maintaining public property, and ensuring that public space is
free of obstructions); Johnson v. City & Cnty. Of Phila., No. 08-
cv-01748, 2010 WL 3768737 (E.D. Pa. Sept. 28, 2010), aff'd, 665
F.3d 486 (3d Cir. 2011) (deeming an ordinance requiring a permit
to post a temporary sign on a utility pole, streetlight, traffic
sign, historical marker, or tree in the public right-of-way
narrowly tailored to public safety and anti-blight goals). One of
the cases that the City relies on, Reynolds v. Middleton, No. 12-
cv-00779-JAG, 2013 WL 5652493 (E.D. Va. Oct. 15, 2013), was
recently overturned. See 779 F.3d 222 (4th Cir. 2014). There,
the Fourth Circuit held that a county ordinance that prohibited
soliciting in roadways and from medians was not narrowly tailored
to the county’s interest in public safety. In so holding, the
court found problematic the fact that the ordinance "applies to
all County roads, regardless of location or traffic volume, and
includes all medians, even wide medians and those beside traffic
lights and stop signs." Id. at 231. The court also criticized
the county for "prohibit[ing] all roadside leafleting and
solicitation, even where those activities would not be dangerous."
Id.
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crossing the median strip in the course of crossing the street
(and, perhaps, another one for pedestrians posting signs or engaged
in activity that is similarly fleeting).11 In fact, it is hard to
imagine a median strip ordinance that could ban more speech. See
Watchtower Bible & Tract Soc. of N.Y., Inc. v. Village of Stratton,
536 U.S. 150, 165 (2002) ("We must . . . look, . . . to the amount
of speech covered by the ordinance and whether there is an
appropriate balance between the affected speech and the
governmental interests that the ordinance purports to serve.").
It is also hard to imagine a median strip ordinance that
could encompass more spaces within its definition. The ordinance
restricts speech in all median strips in the entire City of
Portland. And the actual "strips" range widely in terms of their
size and character. In this way, the ordinance applies without
regard to whether the term "strip" really is a plausible descriptor
when applied to the median in question.
To be sure, the ordinance applies to some very narrow
strips of raised concrete between two lanes of traffic. These
strips include the "eight-inch" strips that the City’s police chief
raised concerns about before the City Council. But we know, from
11
We need not decide whether to read the ordinance in light
of the City's proposed limiting instruction that "standing" and
"staying" do not encompass the short time it takes to hammer a
sign into the ground because such a construction would not affect
our conclusion that the ordinance is not narrowly tailored.
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the trial record, that not all of the median strips in Portland
are eight inches wide. In fact, Chief Sauschuck acknowledged that
most of the City's medians did not meet that description.
The record also shows the ordinance encompasses -- by
virtue of the definition used -- some considerably larger medians.
The ordinance applies, for example, to medians that are roughly
eight feet wide, and even to the grassy expanse on Franklin Street,
which runs for several blocks and is as wide as fifty feet in
various places. The ordinance also applies to Boothby Square, a
wide, raised grassy median that contains a park bench, and possibly
other medians that are sufficiently wide to permit pedestrians to
stay far away from traffic, as appellees argued below.12
What is more, the ordinance's broad definition of the
term "median strip" does not purport to consider other important
factors, such as pedestrian and vehicle traffic patterns on the
surrounding sidewalks and roadways. And so it is expansive in
that way, too.
To be sure, Plaintiffs may be able to engage in their
speech in places other than medians -- such as parks and sidewalks.
12 Chief Sauschuck initially disagreed at trial that the
ordinance would apply to Boothby Square. He reasoned that Boothby
Square constitutes a "city square," not a median. But he
ultimately conceded that the square does in fact "match the
[ordinance’s] definition of a median strip," and that the ordinance
contains no language exempting city squares or other such areas.
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But the fact that there are other places were plaintiffs may engage
in their expressive activity "misses the point." McCullen, 134 S.
Ct. at 2536. A flat ban on speech in a particular forum -- like
the median ordinance at issue here -- can fail narrow tailoring
even if it leaves open other channels for plaintiffs to engage in
their expressive activity. And, in addition, plaintiffs "believe
they can accomplish [their] objective" best if they are permitted
to speak from traffic medians. Id. (considering the fact that
plaintiffs' objectives were best served by speaking in buffer zones
in concluding that the ordinance banning speech in those zones was
not narrowly tailored).
A protestor standing on a median with a double-sided
sign may -- as appellee Wells Staley-Mays asserts, based on his
own experience -- reach more people than he can standing on a
sidewalk. And appellee Michael Cutting testified that there are
"more interactions [with people] and acknowledgements on the
median than from the sidewalk." According to Cutting, sidewalks
also present obstacles to expression that medians do not: cars
parked along sidewalks block drivers' views of him; storefronts
and signs distract passersby from his message; and shop owners who
line the sidewalks sometimes become agitated with his protest
activities. In fact, appellee Alison Prior, who uses medians to
panhandle, finds sidewalks so useless for her purposes that she
now takes a bus to a different town in order to panhandle from
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medians. Similarly, parks may not enable protesters like Cutting
and Staley-Mays, and panhandlers like Prior, to be seen by people
constantly moving past them in both directions.
V.
Notwithstanding the serious burdens on speech the
ordinance imposes, we still need to decide whether the City's
interest in public safety justifies such an all-encompassing ban.
In the City’s view, the dangers -- to passersby as well as to those
in the median strips -- are sufficiently present, no matter the
activity (expressive or not) taking place on the median strip, and
no matter the nature of the median strip on which such activity
occurs. "[T]here simply is no way to abate the City's significant
safety concern," the City says, "except for an outright ban." For
that reason, the City contends, the ordinance does not ban
substantially more speech than necessary, even though it bans
nearly every activity on every median in the City. But neither
the City's interest in protecting people in the streets nor its
interest in protecting people on medians holds up as a
justification for the ordinance.
A.
We start with the City's interest in eliminating the
danger to drivers and other users of the streets, which was the
City's focus when it enacted the bar to persons lingering in median
strips. As described by Chief Sauschuck, who spearheaded the
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effort to pass the ordinance, that danger does not apply to all
median strips in Portland. Instead, the record shows that the
danger the City identified applies to only a limited number of
median strips.
At trial, Chief Sauschuck agreed that "most of th[e]
incidents" that citizens had called in "occurred at a handful of
intersections" across the City. A map of the incidents, created
by Chief Sauschuck and submitted as an exhibit at trial by
plaintiffs, confirmed that they were indeed clustered around a few
medians. And while Chief Sauschuck briefed the City Council on
the dangers posed by individuals standing on "eight inch medians
in the City of Portland," he conceded at trial that he did not
know "exact measurements for any medians," that the eight-inch
number he had used was "a pure guesstimate on [his] part," and
that -- at least based on the exhibits shown to him at trial --
"probably most of the medians in town [are] wider than eight
inches."
Absent evidence about whether the City's other median
strips present the same or a similar danger, we have no basis for
concluding that a substantial number of them do. The ordinance is
thus geographically over-inclusive with respect to the City's
concern that people lingering in all of the City's median strips
-- no matter which ones -- pose a danger to those passing by. Cf.
McCullen, 134 S. Ct. at 2539 ("For a [congestion] problem shown to
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arise only once a week in one city at one clinic, creating 35-foot
buffer zones at every clinic across the Commonwealth is hardly a
narrowly tailored solution."); Reynolds v. Middleton, 779 F.3d
222, 231 (4th Cir. 2014) (striking down an ordinance that
prohibited leafleting on all county roadways and medians where the
evidence established "at most, a problem with roadway solicitation
at busy intersections in the west end of the county"); Comite de
Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d
936, 949 (9th Cir. 2011) (en banc) (invalidating a regulation
prohibiting solicitation on "all streets and sidewalks in the City"
in the absence of evidence supporting the existence of a threat to
public safety and traffic flow posed by solicitation on all streets
and sidewalks in the city).
Moreover, the danger to drivers and other users of the
streets that the City identified when it passed the ordinance was
tied to concerns about disruptive and inattentive individuals on
median strips. The record shows that the City was worried such
median strip users were intentionally leaving the median strips to
enter the roadway to accost passersby or stumbling -- often under
the influence of alcohol or drugs -- into the roadway. Yet the
trial record shows that plenty of people engage in expressive
activities on median strips that the ordinance would ban but that
do not pose the same threat to public safety that the City had
identified.
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For example, Chief Sauschuck conceded that he could not
"recount any public safety problem with" either "individuals
holding political campaign signs on the median strip" or "political
activists holding issue related signs on median strips."13 The
trial record also shows that Chief Sauschuck was unaware of a
single call to the police regarding a non-belligerent, non-
intoxicated individual simply "stand[ing]" or "stay[ing]" in a
median strip. He further admitted at trial that only "a pretty
small number" of the hundreds of citizen complaints that the police
department combed through before briefing the City Council in 2013
did not concern either "drunk individuals stumbling off the median,
persons standing in the middle of the roadway obstructing
traffic[,] or individuals being belligerent or physically violent
toward motorists or other pedestrians."
For these reasons, the risk to passersby posed by
allowing people to linger in median strips does not justify banning
as much speech, in as many places, as the City chose to ban. Given
this record, that risk is simply not posed in many of the medians
or by much of the expressive activity to which the ordinance
applies.
13In light of this testimony, there is no basis for concluding
that the general concern that presence in median strips is
distracting justifies the broad reach of the ordinance.
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B.
Still, the City argues that the ordinance promotes
public safety in another way, by ensuring that people are not on
median strips and thus are not positioned to be hit by passing
cars. With respect to this goal, the City says, quoting News &
Sun-Sentinel Co. v. Cox, 702 F. Supp. 891, 900 (S.D. Fla. 1988),
there is no need for either "towering intellect []or an expensive
'expert' study to conclude that mixing pedestrians and temporarily
stopped motor vehicles in the same space at the same time is
dangerous." Id. (internal quotation marks omitted). The City
thus argues that, as a matter of common sense, there is a
sufficient public safety need to impose this broad ban because, as
a City official argued at trial, "motor vehicles are deadly
weapons" and if a vehicle travels from a lane of traffic onto a
median, "a pedestrian doesn't stand a chance."
To bolster this assertion, the City does offer two pieces
of evidence. The City points to fourteen requests by the public
that the City replace damaged signs in medians. And the City
references three reports, over a four-year period, of cars veering
off roads and into median strips, which the City found only after
"really cull[ing] through the system looking for median related
accident reports."
But the City's evidence is of limited value. It is not
clear that the fourteen damaged signs reported by the public were
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in fact damaged by vehicles. The three reports of cars entering
medians do prove the obvious proposition that cars sometimes veer
off roads and hit medians. But one accident occurred at 1:10 a.m.
Another occurred in treacherous winter conditions. And none
actually involved pedestrians. The City even conceded at trial
that, since 2008, there has been only one incident in which a
driver hit a person on a median strip. In that incident, however,
the driver hit a cyclist who was using the median strip to cross
the road -- an activity not prohibited by the ordinance.
Moreover, the City does not contest that Portland's
median strips, as a group, are traditional public fora -- that is,
that they are places that "time out of mind" have been "held in
trust" for the public's use for assembly, communicating ideas, and
discussing public questions. Hague, 307 U.S. at 515. As such,
Portland's medians would seem to be -- as a class -- presumptively
fit for the very activities that the City now contends are
obviously dangerous. In fact, at trial, Michael Bobinsky, Director
of Portland's Public Services Department, conceded that "there are
medians in the city that are safe," and that there were at least
"a few" that were "basically . . . island refuge[s]."
In sum, we must consider the City's claim that it is
obvious that all medians are unsafe in light of the limited number
of median strips with which the City expressed concern when it
passed the ordinance, and the wide array of median strips that are
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subject to the ban. And, under that calculus, the ordinance is so
sweeping that it does ban substantially more speech than necessary
to serve the City’s interest in preventing people on medians from
being hit by drivers. Or, at the least, we cannot conclude
otherwise given that the City has not shown that the "island
refuges" that it concedes do exist are so few or so unattractive
that only an insubstantial amount of expressive activity would
occur there.
C.
There remains the question whether there are any less
restrictive means of accomplishing the City's concededly
legitimate purpose of protecting public safety than the complete
ban that the City chose to impose. But the City did not try -- or
adequately explain why it did not try -- other, less speech
restrictive means of addressing the safety concerns it identified.
See McCullen, 134 S. Ct. at 2540 ("To meet the requirement of
narrow tailoring, the government must demonstrate that alternative
measures that burden substantially less speech would fail to
achieve the government’s interests . . . .").
The City says that existing state and local laws that
prohibit disruptive activity in roadways, such as prohibitions on
obstruction of traffic, disorderly conduct, and abusive
solicitation, "simply do not provide an adequate tool" because
they are "reactive, rather than proactive, and require a police
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officer to directly observe the illegal behavior . . . before
taking action." For example, the City explains, "obstruction of
traffic laws require a warning to issue first."
But the limitations in such laws do not suffice to show
the need for the sweeping ban that the City chose. Such a ban is
obviously more efficient, but efficiency is not always a sufficient
justification for the most restrictive option. See id. at 2534-35.
A more modest potential solution not addressed by the City, for
example, would have been to strike the warning requirements that
those laws contain, so that those laws would not be so reactive in
their operation.
The City might also have considered an ordinance that
focused more directly on the dangerous activities that were the
source of initial concern, such as ordinances directed at public
intoxication or belligerent behavior. Or it might have considered
limiting activity on medians only at night, when the dark makes it
more difficult for drivers to see, or during hazardous weather
conditions, when slick roads increase the chances that a car will
skid into a median. Nor did the City show that it contemplated
and rejected as ineffective an ordinance limited to the few medians
in Portland where the City had identified safety hazards in the
past, an ordinance limited to the smallest or most dangerous
medians, or even an ordinance with an exception for certain large
park-like spaces -- like Boothby Square and the wide median on
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Franklin Street -- where the City had not observed safety hazards
but which are especially attractive sites for expressive activity.
The City points out that it declined to extend the
ordinance to "some intersection sidewalks," despite requests to do
so from the public, "because the evidence did not indicate that
the public safety danger was great in those locations." But the
City's willingness to make that sensible, evidence-based
limitation only underscores the point that tailoring is possible
but was not fully considered, as Councilor Suslovic himself
conceded at trial with respect to a number of these alternatives.14
"In short, the [City] has not shown that it seriously
undertook to address the problem with less intrusive tools readily
available to it." Id. at 2539. Instead, it "sacrific[ed] speech
for efficiency," and, in doing so, failed to observe the "close
fit between ends and means" that narrow tailoring demands. Id. at
2534 (internal quotation marks omitted).15
14
Like the Court in McCullen, we do not "give our approval"
to any of the alternatives we discuss. 134 S. Ct. at 2538 n.8.
We merely suggest that such laws "could in principal constitute a
permissible alternative." Id. Whether they would, in fact, be
constitutionally valid would depend on a number of factors.
15Because the ordinance restricts substantially more speech
than is necessary, and because there were less restrictive means
of serving the City's significant interest in protecting the
public, we do not need to address whether the ordinance leaves
open ample alternative channels for communication. Nor do we
address appellees' as-applied challenge, which has not been
briefed on appeal. See McCullen, 134 S. Ct. at 2540 n.9. And
while it is not evident that the median ordinance's restriction on
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VI.
The City may have been motivated by a perfectly
understandable desire to protect the public from the dangers posed
by people lingering in median strips. But the City chose too
sweeping a means of doing so, given the First Amendment interest
in protecting the public's right to freedom of speech. Thus, the
judgment of the District Court is affirmed.
"park[ing]" and "driv[ing]" in a median strip is an
unconstitutional restriction on speech, no party has asked us to
sever the statute so as to save this restriction.
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