Thayer v. City of Worcester , 755 F.3d 60 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 13-2355
ROBERT THAYER, SHARON BROWNSON AND TRACY NOVICK,
Plaintiffs, Appellants,
v.
CITY OF WORCESTER,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Timothy S. Hillman, U.S. District Judge]
Before
Torruella, Circuit Judge,
Souter,* Associate Justice,
Selya, Circuit Judge.
Kevin P. Martin, with whom Yvonne W. Chan, Todd J. Marabella,
Goodwin Procter LLP, Matthew R. Segal, Sarah R. Wunsch, and
American Civil Liberties Union Foundation of Massachusetts were on
brief, for appellants.
David M. Moore, City Solicitor, with whom Wendy L. Quinn,
Assistant City Solicitor, and City of Worcester Law Department,
were on brief, for appellee.
June 19, 2014
*
Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
SOUTER, Associate Justice. This appeal is from the
district court's denial of a preliminary injunction against
enforcing two city ordinances prohibiting coercive or risky
behavior by panhandlers, other solicitors, and demonstrators
seeking the attention of motor vehicle drivers. We affirm.
I.
A.
For a decade, the public policy of the City of Worcester
has been pushed and pulled by concerns about panhandling on its
streets. In 2005, the City adopted a plan to reduce its prevalence
that included public education about charitable organizations and
increased efforts by social service agencies. The City posted
signs reading "Panhandling is not the Solution!" and encouraged
residents to redirect their contributions to charities serving the
poor. Criticism of the signs led the City to take them down by
August of 2006.
The issue became prominent again in the summer of 2012,
when the City Manager sent a memorandum to the City Council
describing a number of "[c]ommon concerns" about panhandling,
including the perception that the City gave too little help to the
needy, as well as the "fear/intimidation" of residents and "public
safety" hazards arising from roadside solicitation. The memo
reported that in the course of one year, Worcester police had been
dispatched to 181 incidents of aggressive behavior by individuals
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suspected of panhandling, resulting in five arrests. The Manager
observed that there was no "current mechanism for tracking or
compiling statistics on panhandling or its impact on the
community," and proposed a "multi-faceted, community-wide response
that incorporates direct service providers, non-profit agencies,
area businesses, policymakers, and public services."
The following October, the City Manager reported again,
this time with data collected by a team of case workers and an
outreach worker who had spent months educating 38 panhandlers about
the resources and services available to them from the City. The
report concluded that the "outcomes of the outreach worker's
engagement efforts [were] encouraging," with a majority of the
consulted panhandlers affirming "a desire to work with the outreach
worker to obtain assistance." At the same time, the Manager noted
that outreach efforts failed to address "another side of the
issue": the "issue of public safety--when individuals are walking
in and out of traffic to collect money in intersections, traffic
islands, and roadways."
In light of that problem and the earlier police reports,
the Manager advised the City Council to adopt two ordinances
addressing the safety risks. The first was "An Ordinance
Prohibiting Aggressive Begging, Soliciting and Panhandling in
Public Places" (Aggressive Panhandling Ordinance), which would make
it "unlawful for any person to beg, panhandle or solicit any other
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person in an aggressive manner." It would apply to "soliciting"
in the form of "using the spoken, written, or printed word, bodily
gestures, signs, or other means of communication with the purpose
of obtaining an immediate donation of money or other thing of
value," and it defined "aggressive" conduct at two levels. The
definition included obviously threatening behavior, as by
soliciting someone "in a manner . . . likely to cause a reasonable
person to fear immediate bodily harm," using "violent or
threatening language," or blocking a person's right of way. It
further covered a range of potentially coercive though not
conventionally aggressive behaviors, including soliciting from
someone waiting in line to buy tickets or enter a building;
soliciting after dark, calculated as "the time from one-half hour
before sunset to one-half hour after sunrise"; continuing to
solicit from a person after the receipt of a negative response; and
soliciting anyone within 20 feet of an entrance or parking area of
a bank, automated teller machine, public transportation stop, pay
phone, theater, or any outdoor commercial seating area like a
sidewalk café. The text of the ordinance was preceded by a
proposed "Declaration of Findings and Policy," which detailed the
City's concerns about how the behaviors to be banned threatened the
safety of Worcester residents. In particular, the declaration
stated that "[p]ersons approached by individuals asking for money,
objects or other things of any value are particularly vulnerable to
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real, apparent or perceived coercion when such request is
accompanied by . . . [certain forms of] aggressive behavior."
The second proposal, "An Ordinance Relative to Pedestrian
Safety" (Pedestrian Safety Ordinance), targeted distractions on
public roads:
No person shall, after having been given due
notice warning by a police officer, persist in
walking or standing on any traffic island or
upon the roadway of any street or highway,
except for the purpose of crossing the roadway
at an intersection or designated crosswalk or
for the purpose of entering or exiting a
vehicle at the curb or for some other lawful
purpose. Any police officer observing any
person violating this provision may request or
order such person the [sic] remove themselves
from such roadway or traffic island and may
arrest such person if they fail to comply with
such request or order.
The ensuing City Council debates were a mix of reactions.
Some councilmembers objected that existing laws already regulated
intimidating behaviors and several protested that the primary
purpose of the ordinances was less to enhance public safety than to
eliminate unsightly panhandling, despite the mayor's espousal of
the proposals as aimed at resolving "purely a public safety issue."
The most prominent reservations were about the effect the ordinance
would have on Worcester's traditional "tag days": fundraisers and
publicity campaigns for local charities, civic organizations, and
political groups, whose participants commonly used traffic islands
and medians. While several councilmembers denounced the tradition
as an "accident waiting to happen," especially when children
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participated, others worried that prohibiting tag days would unduly
harm local civic groups. Some of these qualms were addressed at a
meeting of the Worcester Joint Public Health & Human Services and
Municipal Operations Committee, where the City Solicitor said that
the text of the Pedestrian Safety Ordinance allowed the police "an
element of discretion" in identifying which roadside activity posed
a threat to public safety and had to be stopped. The vote
approving the proposals nonetheless included an express repeal of
the City's existing provision for tag day permits.
That vote came in January of 2013, when the City Council
adopted the Aggressive Panhandling Ordinance and the Pedestrian
Safety Ordinance, codifying them at ch. 9, § 16(d) and ch. 13,
§ 77(a) of the Worcester Revised Ordinances, respectively. After
a "grace period" during which the police distributed flyers telling
panhandlers and other Worcester residents about the new ordinances,
but made no arrests, the police began enforcement. Between March
1 and March 20, 2013, they arrested four individuals for violating
the Aggressive Panhandling Ordinance, including one man arrested
twice; all four were given multiple warnings about the new rules
prior to arrest. The record shows no arrests for violation of the
Pedestrian Safety Ordinance. When protestors staged a small
demonstration against the ordinances in February of 2013, featuring
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individuals soliciting donations from traffic islands, the police
did not disturb the protest.1
B.
Appellants Robert Thayer and Sharon Brownson are homeless
people who regularly solicit donations on the sidewalks of
Worcester, commonly stepping into the roads to receive
contributions. Both have been warned by police that they faced
arrest unless they stopped panhandling this way. Appellant Tracy
Novick is an elected member of the Worcester School Committee who
has customarily displayed political signs on median strips and
traffic circles during the campaign season.
In May of 2013, Thayer, Brownson, and Novick brought this
suit challenging the new ordinances as violating their rights under
the First Amendment and the Due Process and Equal Protection
Clauses of the Fourteenth. They sought declaratory and injunctive
relief and monetary damages. The First Amendment claim has been
presented as a facial challenge based on substantial overbreadth,
and we continue to regard it as such here. The vagueness claim is
necessarily of the as-applied variety. See Holder v. Humanitarian
Law Project, 561 U.S. 1, 18-19 (2010) ("We consider whether a
statute is vague as applied to the particular facts at issue, for
'[a] plaintiff who engages in some conduct that is clearly
1
The record does not indicate that this protest occurred
during the City's "grace period," but neither does it foreclose the
possibility.
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proscribed cannot complain of the vagueness of the law as applied
to the conduct of others.'" (alteration in original) (quoting
Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489,
495 (1982))). The equal protection challenge seems to include both
varieties, as we will mention again later.
The following October, the District Court for the
District of Massachusetts denied a preliminary injunction.
Although none of the appellants had been arrested under the new
laws, the court found that all three had standing to sue, because
all engage in activities that reasonably lead them to expect the
ordinances to be enforced against them. But the court found that
they had failed to meet their burden of demonstrating a likelihood
of success on the merits of any of their constitutional claims. As
to the First Amendment challenge, the court did not describe the
claim as a facial overbreadth challenge. After noting that the
ordinances prohibited all aggressive solicitations and roadside
demonstrations, regardless of the speaker's message or ideology, it
concluded that the regulations were content-neutral time, place, or
manner restrictions subject only to intermediate scrutiny. Because
the ordinances furthered a substantial interest in public safety
and freedom from coercion, were narrowly tailored to prohibit only
aggressive or distracting activity, and left open ample alternate
spaces for solicitation, the court held that the appellants had
shown no probability of demonstrating a violation. With regard to
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the appellants' due process claim that the ordinances were
unconstitutionally vague, the district court dismissed the argument
as "strained" and "disingenuous," finding that both ordinances
provided sufficient detail to constrain the police's discretion in
enforcing the new rules. Finally, the district court saw no
probability of success in the appellants' equal protection
challenge that the two ordinances discriminated against the poor
and homeless. Having already noted the lack of evidence of uneven
enforcement, the court found that the provisions applied facially
to all groups and that the appellants had failed to rebut the
record evidence suggesting that the City Council was motivated by
legitimate concerns about coercion and safety.
II.
In assessing whether to grant or to deny a preliminary
injunction, a district court must address four considerations: "(1)
the plaintiff's likelihood of success on the merits; (2) the
potential for irreparable harm in the absence of an injunction; (3)
whether issuing an injunction will burden the defendants less than
denying an injunction would burden the plaintiffs; and (4) the
effect, if any, on the public interest." Gonzalez-Droz v.
Gonzalez-Colon, 573 F.3d 75, 79 (1st Cir. 2009) (internal quotation
marks omitted). We review the district court's decision for abuse
of discretion, id., and will not reverse unless the district court
made a mistake of law, clearly erred in its factual assessments, or
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otherwise abused its discretion. Id.; see United States v. Lewis,
517 F.3d 20, 24 & n.4 (1st Cir. 2008) ("In practice, [the abuse of
discretion] standard contemplates de novo review of abstract
questions of law" because "a mistake of law is always an abuse of
discretion.").
A.
i.
There is no dispute here that the combined speech and
physical activity performed to deliver the messages occur in public
forums. See United States v. Grace, 461 U.S. 171, 177 (1983)
("[P]ublic places historically associated with the free exercise of
expressive activities, such as streets, sidewalks, and parks, are
considered, without more, to be public forums." (quotation marks
omitted)). Thus, the first issue we address is whether the
regulations are based on the content of the speech. If yes, the
standard of scrutiny is strict: the regulation "must be narrowly
tailored to promote a compelling Government interest," such that no
"less restrictive alternative would serve the Government's
purpose." United States v. Playboy Entm't Grp., 529 U.S. 803, 813
(2000). If no, the standard is less demanding: the government "may
impose reasonable restrictions on the time, place, or manner of
protected speech," so long as "they are narrowly tailored to serve
a significant governmental interest" and "leave open ample
alternative channels for communication of the information." Ward
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v. Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark v.
Community for Creative Non-Violence, 468 U.S. 288, 293 (1984)).
Under this more lenient "intermediate" scrutiny, a law need not be
the "least restrictive" means of achieving the government's
interest, so long as the interest "would be achieved less
effectively absent the regulation" and the law does not "burden
substantially more speech than is necessary to further the
government's legitimate interests." Id. at 798-99.
In determining whether a particular regulation is
content-neutral, the principal enquiry is "whether the government
has adopted a regulation of speech because of disagreement with the
message it conveys." Ward, 491 U.S. at 791. A regulation that has
"an incidental effect on some speakers or messages but not others"
may still qualify as content-neutral so long as the regulation "is
justified without reference to the content of the regulated
speech." Id. (emphasis omitted). After examining the texts and
independent evidence of intent behind the ordinances, we think
there is no serious question that the district court was correct in
finding that the restrictions were not based on the content of the
speech within the terms of First Amendment doctrine.
To begin with, the text of the ordinances does not
identify or affect speech except by reference to the behavior, time
or location of its delivery, identifying circumstances that raise
a risk to safety or that compromise the volition of a person
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addressed to avoid solicitation: it is aggressive, particularly
obtrusive or alarming or risky solicitation that is forbidden,
along with distracting activity on traveled roadways and traffic
islands.
This is not to deny that certain subjects of speech and
even certain messages are associated with the targeted behavior.
Panhandling and solicitation of immediate donations convey messages
of need, and waving placards at traffic islands may often be
political expression. But if the mere association of certain
behavior with certain subjects were to amount, in itself, to a
content basis for First Amendment scrutiny, the point behind
content discrimination would be lost. That point is to bar the
government from suppressing speech because it disapproves the
message, see Playboy Entm't Grp., 529 U.S. at 812 ("Laws designed
or intended to suppress or restrict the expression of specific
speakers contradict basic First Amendment principles."), not to
give every message maximum protection no matter how or where or
when it is delivered, cf. Ward, 491 U.S. at 802 ("That [a
regulation] may reduce to some degree the potential audience for
respondent's speech is of no consequence, for there has been no
showing that the remaining avenues of communication are
inadequate."). Even a statute that restricts only some expressive
messages and not others may be considered content-neutral when the
distinctions it draws are justified by a legitimate, non-censorial
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motive. See Hill v. Colorado, 530 U.S. 703, 724 (2000) (finding
statute that distinguishes "speech activities likely to have
[certain undesirable] consequences from speech activities . . .
that are most unlikely to have those consequences" to be content-
neutral); Clatterbuck v. City of Charlottesville, 708 F.3d 549,
556 (4th Cir. 2013) ("[N]ot every content distinction merits strict
scrutiny; instead, a distinction is only content-based if it
distinguishes content with a censorial intent to value some forms
of speech over others . . . .") (internal quotation mark omitted).
To be sure, there is evidence in the record that over the
course of several years some public officials have been of a mind
to suppress panhandling, though not other forms of solicitation,
regardless of deportment, location, or circumstances, owing to the
impression it gives about the social responsibility of the City
government. But when there is further evidence to look to, the
motives of discrete officials are not necessarily to be taken as
the predominant intent of the local government. See Rhode Island
v. Narragansett Indian Tribe, 19 F.3d 685, 699 (1st Cir. 1994)
("[T]he overarching rule is that 'statements by individual
legislators should not be given controlling effect'; rather, such
statements are to be respected only to the extent that they 'are
consistent with the statutory language.'" (quoting Brock v. Pierce
Cnty., 476 U.S. 253, 263 (1986))).
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The ordinances adopted here come with a preamble and
accompanying evidence that provide good reason to accept the
ostensible objects of the ordinances as the true ones, that is, not
suppressing certain kinds of messages but regulating their
delivery. The first of these reasons is the fairness of the City's
working premise that there are particular, commonly acknowledged
circumstances, unrelated to the expression of particular views and
messages, in which solicitation can cause serious apprehensiveness,
real or apparent coercion, physical offense, or even danger to the
person addressed or to all parties. We are not dealing here, in
other words, with a mere attempt to suppress a message that some
people find distasteful for its content. Cf. Forsyth Cnty., Ga. v.
Nationalist Movement, 505 U.S. 123, 134-35 (1992) ("Speech cannot
be . . . punished or banned . . . simply because it might offend a
hostile mob."). A person can reasonably feel intimidated or
coerced by persistent solicitation after a refusal, and can
reasonably feel trapped when sitting in a sidewalk café or standing
in line waiting for some service or admittance. And even the
stout-hearted can reasonably fear assault when requests for money
are made near an ATM where cash may have been obtained and so
provide temptation to snatch a wallet or purse. These are not
imaginary concerns that smell of pretext. As for the restrictions
on using traveled roadways or traffic islands for solicitation or
demonstration, it would be hard to gainsay the City Manager's
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conclusion that the previously unrestricted practice was "an
accident waiting to happen" even though it had not happened yet.
The whole point of soliciting or demonstrating at such places,
after all, is to distract the attention of drivers to some degree.
The City Council debates featured recurrent concerns, voiced both
by drivers and by former participants in roadside demonstrations,
that tag days and other expressive assemblies on medians were
dangerous for participants and drivers alike. In sum, common
experience confirms that the City has identified behavior and
circumstances that it may fairly be concerned about, however much
the behavior is associated with certain sorts of messages.
Not only are there thus affirmative indications of a
behavioral objective behind the ordinances, but a dearth of the
classic indicators of content basis. The most obvious
manifestation of content basis, discrimination turning on a
speaker's viewpoint, is of course absent here. While there are no
restrictions on messages discouraging solicitation, as opposed to
encouraging it, that is insignificant simply because there is no
evidence or common experience of any such speakers operating on the
sidewalks to dissuade potential donors.
Nor does its limitation to solicitations for "immediate"
donations of money render the Aggressive Panhandling Ordinance
content-based as First Amendment doctrine employs the term. Even
assuming that the ban on immediate donations is a content
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distinction, an assumption which finds scant support in the case
law, see Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505
U.S. 672, 704-05 (1992) (Kennedy, J., concurring) (finding that a
ban on direct donations simply "limit[ed] the manner of that
expression to forms other than the immediate receipt of money");
ISKCON of Potomac, Inc. v. Kennedy, 61 F.3d 949, 954-55 (D.C. Cir.
1995) (holding that a ban on immediate donations "does not . . .
totally prohibit a type of expression or a specific message;
rather, it merely regulates the manner in which the message may be
conveyed"), that distinction alone does not render the ordinance
content-based so long as it reflects a legitimate, non-censorial
government interest. See Hill, 530 U.S. at 724 (statute content-
neutral, despite its express restrictions on "oral protest,
education, or counseling," where content distinction furthers non-
censorial government interest). In this case, the limitation of
the restrictions in the Aggressive Panhandling Ordinance to
solicitations for immediate donations of money reflects the
relationship between aggressive street behaviors and certain
categories of messages. "In-person solicitation of funds, when
combined with immediate receipt of that money, creates a risk of
fraud and duress that is well recognized, and that is different in
kind from other forms of expression or conduct." Lee, 505 U.S. at
705 (Kennedy, J., concurring in the judgments).
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As for the more general category of subject matter
discrimination (based on the subject of a solicitation, say, or of
a political placard), this form of selectivity is not only missing
here; its very absence is one of the grounds for the appellants'
claim of overbreadth. Girl Scout cookie sellers and Salvation Army
bell-ringers are as much subject to the Aggressive Panhandling
Ordinance as the homeless panhandler. Nor do we discount the
inclusion of the charitable solicitors within the scope of the
regulation as merely cosmetic overlay. While it is apparently true
that those who sold cookies or held out the tambourine were free to
solicit ad lib before panhandling became common, that fact shows
nothing more than the need for a public practice to reach some
critical dimension before it is worth the effort to regulate,
coupled with the City's sense that any regulating it does do must
be evenhanded.
The same conclusion of no apparent intent to suppress a
particular viewpoint or subject is true as to the Pedestrian Safety
Ordinance. While it will unquestionably limit political
campaigning, it draws no line by party or position or cause, and it
covers solicitation for money as well as for votes.2 Cf. ACORN v.
2
While the record contains claims that the ordinance is
disproportionally enforced against panhandlers, a court would need
a developed argument based on particular instances of enforcement
versus complaisance before considering a possible inference of
content discrimination behind the regulations. This is also one
answer to the appeal based on the claimed violation of equal
protection, mentioned later.
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City of New Orleans, 606 F. Supp. 16, 22-23 (E.D. La. 1984)
(applying content-neutral intermediate scrutiny to ordinance
prohibiting solely "solicitation for funds").
These considerations support acceptance of the preface to
the Aggressive Panhandling Ordinance, with its statements of
findings and policy pointing to behavioral, not censorial,
objectives. That prefatory text recognizes the pertinence of the
First Amendment to all of the regulated behavior, panhandling
included, and it details the circumstances likely to give rise to
actual or perceived coercion and fear. The preface and the
operative provisions thus jibe in supporting a finding of the
City's good faith, for which there is further confirmation in the
City Manager's report proposing adoption of the ordinances. Cf.
Clatterbuck, 708 F.3d at 559 (4th Cir. 2013) (recognizing that an
ordinance regulating monetary solicitations may be content-neutral
where justified by non-censorial interests like public safety and
where "the government's justification for the regulation [is]
established in the record").
The appellants seek to turn this report into evidence of
the City's discriminatory intent, emphasizing solely a statement at
the beginning of the document. That sentence refers to the
Manager's prior presentation to the City Council of "strategies
aimed at reducing the incidence of panhandling in our community,"
a recollection that could be consistent with animus against the
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communicative content of panhandling (albeit not unequivocal
evidence of it). But the report goes on in some detail to describe
the City's investigations into the social conditions that led to
the evident homelessness and begging and the City's efforts to
connect the destitute with providers of food, shelter, and work, as
well as its ongoing concerns about safety hazards resulting from
panhandling. It gives an account of a municipal government trying
to relieve the dangerous effects of poverty, not muzzle the poor.
Taken as a whole, there is no basis for discounting the report's
conclusion that public safety was the driving force of the proposal
to draw the lines set out in the challenged ordinances.
In fine, the district court had a sufficient basis in
text, common experience, and evidence of the City's intent to
conclude that the ordinances were not designed to suppress messages
expressed by panhandlers, Girl Scouts, the Salvation Army,
campaigning politicians, or anyone else subject to restriction.
The ordinances are therefore subject to scrutiny as content-neutral
time, place, and manner regulations.
ii.
The First Amendment scrutiny applicable to content-
neutral time, place, or manner regulations like the City's
ordinances is the intermediate standard: they must be narrowly
tailored to serve a significant governmental purpose while leaving
open adequate alternative channels of communication. Ward, 491
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U.S. at 791. The standard of narrow tailoring, in turn, requires
that a regulation promote the governmental objective more
effectively than the law would do in its absence, without burdening
substantially more speech than necessary in serving the chosen
interest. Id. at 799.
The appellants here have assumed that, regardless of
whether they prevail on their claim that the ordinances are
content-based restrictions, the burden rests on the City from the
start to demonstrate that the applicable standard of scrutiny is
satisfied. But that is not the law. The appellants have chosen to
challenge these ordinances for facial overbreadth, a standard under
which "a law may be invalidated as overbroad" only if "a
substantial number of its applications are unconstitutional . . .
." United States v. Stevens, 559 U.S. 460, 473 (2010) (quoting
Washington State Grange v. Washington State Republican Party, 552
U.S. 442, 449 n.6 (2008)).3 In a facial overbreadth challenge, the
claimant has the initial burden to make at least a prima facie
showing of such "substantial" overbreadth before any burden of
justification, be it strict or intermediate, passes to the
3
A First Amendment facial overbreadth challenge is thus
distinguished from facial challenges in other, non-speech-related
contexts, which hold challengers to the higher standard of
establishing that "no set of circumstances exists under which the
[law] would be valid." United States v. Salerno, 481 U.S. 739, 745
(1987).
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government.4 Virginia v. Hicks, 539 U.S. 113, 122 (2003) ("The
overbreadth claimant bears the burden of demonstrating, 'from the
text of [the law] and from actual fact,' that substantial
overbreadth exists." (quoting New York State Club Ass'n. v. City of
New York, 487 U.S. 1, 14 (1988))). And because the burden of
persuasion when a preliminary injunction is sought follows the
burden at the final merits stage, see Gonzales v. O Centro Espirita
Beneficente Uniao do Vegetal, 546 U.S. 418, 429-30 (2006), the
appellants must show a probability of their ultimate success in
demonstrating substantial overbreadth at least to the prima facie
degree, see Gonzales-Droz, 573 F.3d at 79 (plaintiff seeking a
preliminary injunction bears the burden of showing a "likelihood of
4
The cases that place the threshold burden of showing
overbreadth on the plaintiff do not describe that burden as one at
the prima facie level. See, e.g., Hicks, 539 U.S. at 122; New York
State Club, 487 U.S. at 14. Requiring simply a prima facie showing
does, however, make sense if it is correct, as has been assumed but
not held by the Supreme Court, that even in a time, place or manner
case the burden is on the government to justify the restriction,
once a plaintiff has made some overbreadth demonstration. See,
e.g., Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664-65 (1994)
(controlling opinion of Kennedy, J.). It would be strange to
require the plaintiff to demonstrate overbreadth beyond the prima
facie level when the plaintiff's showing shifts the burden to the
government to demonstrate, among other things, that the restriction
is not substantially overbroad. The current posture of this case,
however, makes it unnecessary to resolve this question about the
level of a plaintiff's required demonstration. This is an appeal
from a denial of a preliminary injunction, for which the appellants
must show only a probability of success, see Gonzalez-Droz, 573
F.3d at 79, including a probability of making this threshold
overbreadth showing. Since a burden of demonstration to a probable
prima facie degree is more metaphysical than practical, we will
speak of the appellants' burden simply as making a prima facie
showing of substantial overbreadth.
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success on the merits"). We do not think the appellants have made
such a showing.
The point of weakness in the appellants' case for a
preliminary injunction is their failure seriously to address their
burden of persuasion that the ordinances' overbreadth is
substantial. When dealing with a content-neutral speech
restriction, we recognize a regulation as substantially overbroad
if, but only if, it is susceptible to a substantial number of
applications that are not necessary to further the government's
legitimate interest. See Stevens, 559 U.S. at 473. In this way,
the substantial overbreadth standard anticipates the narrow
tailoring component of the intermediate standard of scrutiny, if
the challenge proceeds to a final merits determination. See Ward,
491 U.S. at 799. The number of impermissible applications, in
turn, is considered both in isolation and as compared against
instances of plainly permissible restriction. Compare, e.g.,
Stevens, 559 U.S. at 474-76 (finding ban on "depiction[s] of animal
cruelty" substantially overbroad, absent any comparison of other
likely applications, where the statute by its terms extended to
footage of hunting or humane slaughter)5; City of Houston, Tex. v.
Hill, 482 U.S. 451, 462, 466 (1987) (finding ban on speech that "in
5
Elsewhere in the Stevens opinion, however, the Court speaks
in terms of "substantial number of [unconstitutional] applications
. . . judged in relation to the statute's plainly legitimate
sweep." 559 U.S. at 473 (quoting Washington State Grange v.
Washington State Republican Party, 552 U.S. 442, 449 n.6 (2008)).
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any manner . . . interrupt[s]" a police officer substantially
overbroad, absent comparisons, where the statute was "not limited
to fighting words" or "obscene or opprobrious language," but
additionally "criminalize[d] a substantial amount of
constitutionally protected speech"), with Hicks, 539 U.S. at 123-24
(finding no substantial overbreadth where trespass policy applied
to "strollers, loiterers, drug dealers, roller skaters, bird
watchers, soccer players, and others not engaged in
constitutionally protected conduct--a group that would seemingly
far outnumber First Amendment speakers"); New York v. Ferber, 458
U.S. 747, 773 (1982) (finding no substantial overbreadth in an
anti-child pornography statute because "we seriously doubt . . .
that [educational, medical, or artistic works featuring nude
children] amount to more than a tiny fraction of the materials
within the statute's reach"). After all, there is no good reason
to allow facial challenges when the likelihood of unjustifiable
applications is limited to a trivial number or dwarfed by perfectly
constitutional impositions. The consequence is that when the
infirmity raised by a facial challenge does not by its nature
infect every possible application (as in a patent attempt to
suppress unwanted political speech, say) the test looks both to
absolute and comparative volume, and each informs a court's
judgment about the seriousness of any burden.
-23-
And it is judgment that is necessarily involved. Despite
the case law's vocabulary of size and "relative" likely
applications, neatly mathematical estimates are not to be expected,
if only because the required quantification is a predictive
exercise based on common experience and such evidence as there may
be about a regulation's likely applications. What is substantial
and what is trivial, what is substantial in relation to another
number, these are enquiries too various to be captured by simple
arithmetic.
In this case, the district court did not address the
appellants' burden of demonstrating prima facie substantial
overbreadth. The court proceeded directly to hold the ordinances
up to intermediate scrutiny, and denied a preliminary injunction on
the grounds that the appellants failed to show a likelihood of
ultimate success on the merits.6 We do not need to follow the
district court's reasoning that far, however, because we find that
the appellants have failed to make the prima facie showing
necessary to trigger the government's burden of proving that the
ordinances survive intermediate scrutiny. Based on their
presentation of evidence, we find that (subject to one
qualification) the appellants have not made a prima facie
demonstration that the ordinances are susceptible to a substantial
6
It is unclear whether the district court skipped the
appellants' prima facie burden of demonstrating substantial
overbreadth or implicitly found that they had met their burden.
-24-
number of illegitimate applications, either in isolation or judged
relative to their legitimate sweep.7
Appellants would have us see overbreadth, for instance,
in the Aggressive Panhandling Ordinance's bans on soliciting within
20 feet of a bus stop even by a hand-held sign, or less than 20
feet away from people waiting in line to get into a restroom or
theater, or even by a polite request for reconsideration after
rejection. We agree that some of these prohibitions are at the far
side of the reasonable reach of the City's objectives. But it is
also true that people can feel intimidated or unduly coerced when
7
The qualification is this. When the appeal was first filed,
this court's duty panel enjoined enforcement of § 16(e)(11), the
nighttime solicitation prohibition, pending appeal. That provision
has the effect of forbidding evening solicitations by defining
unlawfully "aggressive" character to include "soliciting any person
in public after dark, which shall mean the time from one-half hour
before sunset to one-half hour after sunrise." The City's response
to this injunction has been limited to general references to the
nighttime ban as one of the series of prohibitions. Under the
circumstances we would have discretion to treat the City's
objection as waived under the rule holding unfocused, glancing
references to an issue insufficient to litigate it. See DiMarco-
Zappa v. Cabanillas, 238 F.3d 25, 34 (1st Cir. 2001) ("Simply
noting an argument in passing without explanation is insufficient
to avoid waiver."). But we will go further and say that, in the
absence of an evidentiary record on the substantiality of
overbreadth on this point, the implicit finding of the duty panel
seems sound, if only because the prohibition extending to the time
before sunset and after sunrise will probably prevent a substantial
amount of unexceptionable solicitation, and we have no sense of the
amount of after-dark activity that might be affected on the
legitimate ground that unwanted contact with strangers in the
darkness can reasonably raise apprehensions. Our decision to leave
intact this temporary injunction leaves the City free to contest
the matter following remand to the district court to consider the
requests for permanent relief.
-25-
they do not want to give to the solicitor standing close to a line
they must wait in for a bus or a movie. Similarly, the meek repeat
solicitor may justify no concern at all, but the one who shouts or
even raises her voice is quite different.
Even the most intuitively appealing of all the
appellants' claims, going to the ban on requests by using a sign
within 20 feet of the listed lines and locations, does not prompt
adequate support to meet their burden. Twenty feet is not very
far, being within the range of audible conversation, and a sign
request that close would reasonably give rise to discomfort to
someone stuck at a bus stop, and could definitely produce
apprehensiveness in someone obviously possessing fresh cash. The
degree of each would probably vary depending on whether the sign-
holder was just moving along or standing still, intent on one
person. As to the moving solicitor, the 20 foot restriction at the
bus stop is probably too broad, but the contrary is probably true
in the case of a stationary sign-holder staring at a lone
individual waiting for a bus. And as to the ATM patron, there is
no apparent overbreadth, however we consider variables.
We could go on, but these examples point out the fairly
debatable character of even the restrictions that are easiest to
challenge, and the appellants make no attempt to show the relative
likely frequencies of the ordinances' controversial versus
obviously acceptable applications in the circumstances specified.
-26-
The best we can conclude is that there is probably some
overbreadth, but not apparently to a substantial degree. The
upshot is that the appellants have shown neither absolutely nor
comparatively that the provisions cited are susceptible to
substantially overbroad application.
The same point is true with respect to the challenge to
the Pedestrian Safety Ordinance, limiting traffic islands and
roadways to intended travel as commonly understood. The appellants
introduced a photo of a traffic island with hardly any nearby
traffic and a sole pedestrian lingering there with his hands in his
pockets, along with another photo of people holding three signs in
a traffic circle. If the first were representative of all city
traffic islands during all parts of the day when there are both
traffic and people desiring to use the islands for some purpose
other than crossing the street, there would probably be few if any
applications of the ordinance that would serve to reduce highway
hazard. Nor for that matter would there appear to be any
communicative activity to be protected. But everyone knows that
traffic islands do not look this way all day, and this fact is
enough to suggest the probable insignificance of this piece of
evidence. People who hold signs to get attention, for example, do
not stand on a traffic island at times when cars are sparse; in the
real world it is thus unlikely that there will be any occasion for
the ordinance even to be applied under the highway conditions
-27-
shown. See Hicks, 539 U.S. at 122 (requiring a challenger to
demonstrate substantial overbreadth "from the text of [the law] and
from actual fact" (quoting New York State Club, 487 U.S. at 14)).
The same thing is true of the second photo, which shows sign
carriers but no cars. Incidentally, however, the second photo does
suffice to show how distracting the behavior of those sign carriers
would be, and how dangerous, if they were displaying their signs
during busy hours with many drivers who could be distracted.
Again, the appellants' evidence indicates no substantial
overbreadth in either positive or comparative terms, and the
appellants have not directed us to record evidence indicating
otherwise, or to evidence that the police are failing to
differentiate between hazardous and benign conditions when ordering
demonstrators to leave or be charged with a violation.8
8
The appellants cite three cases outside this Circuit that
have found bans on roadside solicitations to be substantially
overbroad. None of these cases expressly addressed the
challenger's prima facie burden to demonstrate substantial
overbreadth. Even assuming that those courts implicitly found a
prima facie showing of substantial overbreadth, however, two of the
bans considered were broader on their face than the Pedestrian
Safety Ordinance in that those bans extended to all public streets
and sidewalks. See Comite de Jornaleros de Redondo Beach v. City
of Redondo Beach, 657 F.3d 936, 941, 945-47 (9th Cir. 2011)
(finding anti-solicitation ordinance barring individuals from
"stand[ing] on a street or highway" overbroad where "street" was
defined to "include, but not be limited to, roadways, parkways,
medians, alleys, sidewalks, curbs, and public ways"); News &
Sun-Sentinel Co. v. Cox, 702 F. Supp. 891 (S.D. Fla. 1988)
(finding overbroad a ban on "any commercial use of . . . any
state-maintained road," defined to include "streets, sidewalks,
alleys, highways, and other ways open to travel by the public").
The third case, ACORN v. City of New Orleans, 606 F. Supp. 16 (E.D.
-28-
The same frailty infects the appellants' concerns about
overbroad applications of the ban against in-street solicitation in
quiet, residential neighborhoods with few cars going back and
forth; it is sensible to assume that in these streets there will be
little or no solicitation. The application of the First Amendment
is not to turn on implausible speculation. Cf. Hicks, 539 U.S. at
122.
Based on this record as the appellants have directed our
attention to it, they have failed to carry their burden of
demonstrating likelihood of success in proving that the City's
ordinances are substantially overbroad. While they certainly point
to some instances in which applying the ordinances may raise
constitutional concerns, they have provided no grounds to conclude
even at the level of prima facie showing that the scope of any
unjustifiable applications is or will be "substantial" in relation
to the ordinances' plainly legitimate sweep.
La. 1984), involved an ordinance prohibiting persons from
soliciting funds "in a roadway or on a neutral ground," defined as
"the median area in a divided street which separates traffic
flowing in opposite directions." Id. at 19 & n. 6. The court
emphasized that some of the "neutral grounds" covered by the
ordinance were "one hundred feet or more across"; that the
ordinance applied during the city's frequent street fairs, when
many streets are closed to vehicular traffic; and that the
ordinance flatly forbade all solicitation regardless of its
disruptive conditions. Id. at 19 n. 6, 22. This ban thus reached
far wider than the Pedestrian Safety Ordinance, which requires
individuals to disperse from a traffic island only after having
been given due notice by police.
-29-
B.
Beyond the overbreadth speech challenge under the First
Amendment, the appellants have stated independent equal protection
and due process claims under the Fourteenth. With regard to equal
protection, the appellants gesture at both a facial and an as-
applied challenge. They claim that the ordinances are facially
invalid because they were motivated by the City's distaste for its
poor and homeless. See Crawford v. Bd. of Educ., 458 U.S. 527, 544
(1982) ("[A] law neutral on its face still may be unconstitutional
[under the Equal Protection Clause of the Fourteenth Amendment] if
motivated by a discriminatory purpose."). Their as-applied equal
protection challenge rests on their contention that the City is
selectively enforcing the ordinances against that group. See
Martin v. Walton, 368 U.S. 25, 28 (1961) ("A law, fair on its face,
may be applied in a way that violates the Equal Protection Clause
of the Fourteenth Amendment.").
We have already spoken to the facial element in the
course of the First Amendment discussion, which explains that the
record indicates an effort aimed at certain dangerous behaviors,
not a municipal intent to target a particular message or the class
expressing it. With respect to the as-applied challenge, the
appellants have provided no evidence suggesting a discriminatory
pattern in the City's enforcement of either ordinance. The
appellants focus on the fact that the City made no attempts to
-30-
disperse a political protest in February of 2013 under the
Pedestrian Safety Ordinance, while arresting four homeless people
in March under the Aggressive Panhandling Ordinance. Putting aside
whether the February protest took place during the "grace period"
immediately after the ordinances' enactment, an issue unresolved by
the record in its current state, different rates of arrest under
two distinct ordinances do not provide evidence of selective
enforcement of either one. The fact that the Aggressive
Panhandling Ordinance may thus far have been enforced only against
the poor, with no further details about the circumstances of those
arrests or the police's greater leniency toward other groups, is
not in itself probative of discrimination. If the full facts of
the City's enforcement patterns since the filing of this suit point
more strongly to intentional discrimination on any basis, the
appellants may come forward with the evidence, and injured persons
may file as-applied complaints on the basis of evidence. We only
note that, because neither wealth nor homelessness is a suspect
class under the Equal Protection Clause, see United States v.
Myers, 294 F.3d 203, 209 (1st Cir. 2002), any effort to show
discriminatory enforcement will be subject to the deferential
standard of rational basis scrutiny, Kadrmas v. Dickinson Pub.
Sch., 487 U.S. 450, 458, 461-62 (1988).
As for due process, the appellants zero in on the
imprecision of certain language, implicating (in addition to
-31-
potential overbreadth) constitutional concerns about fair notice.
Under the Due Process Clause, a regulation may be void for
vagueness if it "fails to provide a person of ordinary intelligence
fair notice of what is prohibited, or is so standardless that it
authorizes or encourages seriously discriminatory enforcement."
United States v. Williams, 553 U.S. 285, 304 (2008). The
appellants correctly note that, when a statute "interferes with the
right of free speech or of association, a more stringent vagueness
test should apply." Hoffman Estates, 455 U.S. at 499. But
"perfect clarity and precise guidance have never been required even
of regulations that restrict expressive activity." Williams, 553
U.S. at 304. That a statute's language may "pos[e] difficult
questions of exactly" what kinds of conduct is proscribed is not
sufficient to sustain a vagueness challenge unless the "plaintiffs
. . . provid[e] [a] specific articulation of the degree to which
they seek to" engage in the conduct at issue. Humanitarian Law
Project, 561 U.S. at 24-25.
In this case, the fair notice requirement is said to be
flouted, for example, by the provision of the Pedestrian Safety
Ordinance that defines traffic islands as areas set aside by paint
or construction and "not constructed or intended for use" by
vehicles or pedestrians. Appellants ask how they are supposed to
know the intent. But taking the definition whole, it is hard to
imagine difficulty in understanding that a space identified by
-32-
paint or structure and set in the midst of traffic lanes was itself
not intended for vehicular or pedestrian use, save as a crosswalk.
Appellants also contest the ordinance's exception for individuals
using traffic islands and roadways for "some . . . lawful purpose,"
other than getting out of motor vehicles or crossing the street.
They posit that it could be reasonable to claim engaging in
political speech and solicitation as "lawful purposes." But
considering that the ordinance expressly exemplifies a "lawful
purpose" as getting out of a car or crossing on a crosswalk, the
appellants' suggestions cannot be taken as serious possibilities.
This "lawful purpose" language is thus distinguishable from, say,
a prohibition against any conduct that would unlawfully "interrupt
any policeman in the execution of his duty" in an ordinance that
could not have been meant to impose the etiquette of the drawing
room on all police-pedestrian street encounters. See Hill, 482
U.S. 451 (striking down as void for vagueness a statute making it
"unlawful for any person to assault, strike or in any manner
oppose, molest, abuse or interrupt any policeman in the execution
of his duty" (emphasis omitted)).
Neither can the district court be faulted for failing to
face reality in seeing no serious vagueness problem in the
Aggressive Panhandling Ordinance's prohibition on "continuing to
solicit" after receiving a negative response, even as applied to
one holding a sign. In the expectable course, the person
-33-
specifically solicited by means of a sign will move on and the
solicitor will be in no danger of transgressing the ordinance; if
the solicitor follows and gestures with the sign, he or she will
have committed a violation. Thus, save for odd situations that can
arise under almost any statute or regulation, the risk of
perplexity is not serious.
Nor do we find any error in the district court's failing
to see a probability of a due process violation in the discretion
created by the Pedestrian Safety Ordinance's provision that a
police officer "may" order a violator to stop and "may" arrest for
non-compliance with the order. "As always, enforcement requires
the exercise of some degree of police judgment," and the conferral
of enforcement discretion does not render a law impermissibly vague
as long as that judgment is appropriately "confined." Grayned v.
City of Rockford, 408 U.S. 104, 114 (1972) (upholding anti-noise
ordinance applying outside schools against void-for-vagueness due
process challenge because the ordinance required "demonstrated
interference with school activities"). The ordinances in question
here simply state explicitly what the law provides in any case:
discretion in enforcing and prosecuting under a regulation intended
to prevent hazardous action in the streets. If it should turn out
in practice that the police exercise their discretion to enforce
the ordinance arbitrarily, or in a discernibly discriminatory way,
-34-
a further challenge may raise a due process or equal protection
claim based on evidence to that effect.
Finally, the improbability of success on the appellants'
vagueness claim is apparent from their failure to identify any
specific instance of uncertainty on their part about the status of
a traffic island, or the lawfulness of continuing to hold a
solicitation sign, or the likelihood of police action, or any other
detriment that might be attributable to a failure of textual
concreteness. A vagueness claim must be specific and as applied to
a given plaintiff, not facial. "A plaintiff who engages in some
conduct that is clearly proscribed cannot complain of the vagueness
of the law as applied to the conduct of others." Hoffman Estates,
455 U.S. at 495. The appellants' due process claim comes down
primarily to arguing that the "outer bounds of [the ordinances] are
entirely unclear." Appellants' Reply Br. 21. Yet "even if the
outermost boundaries of [a law] may be imprecise, any such
uncertainty has little relevance . . . where appellants' conduct
falls squarely within the 'hard core' of the statute's
proscriptions." Broadrick v. Oklahoma, 413 U.S. 601, 608 (1973).
III.
This case has proven to be time-consuming, owing to the
plenary challenge to the ordinances, to the unsettled fit of
various elements of governing law with each other, and to the
apparent velocity with which the request for preliminary relief was
-35-
prepared for hearing. The trial judge treated the prayer for an
initial injunction with great care, and we have spent more time on
it than we expected to do.
But at the end of this particular day, nothing has been
reached except the issue of entitlement to a preliminary
injunction. There is a lesson in this, both for counsel with the
obligation to present the case and for the courts that must manage
the litigation. Except for instances of facial challenge where a
right to at least some preliminary relief is not reasonably
debatable, there is great merit in combining litigation for both
preliminary and permanent orders and expediting the evidentiary
hearing as much as a fair opportunity for trial preparation will
allow. Such procedural self-discipline will tend to soften the
siren call of the repeatedly discouraged resort to the opportunity
for facial challenges.
IV.
For the foregoing reasons, we AFFIRM the district court's
denial of a preliminary injunction as to all provisions of the
challenged ordinances save for the Aggressive Panhandling
Ordinance's proscription on nighttime solicitation, see Worcester
Revised Ordinances, ch. 9, § 16(e)(11), and REMAND to the district
court for proceedings consistent with this opinion. The mandate
will issue immediately, but without prejudice to any petition for
rehearing.
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